Free Motion for Hearing - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona LARRY WSZALEK State of Wisconsin Bar No. 1003722 MA RK T . ODU LIO District of Maryland Bar No. 26348 Trial Attorneys U.S. Department of Justice Tax Division Two R enaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7661

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

11 12 13 14 15 16 17 18 19 20 21 22 Mark T. Odulio, Trial Attorneys, Department of Justice, Tax Division, files its Memorandum of Law 23 24 25 26 27 28 concerning alleged false testimony by witnesses Erik Melling, Cynthia Porter, and Patrick Porter. Defendants motion for mistrial should be denied because no showing of false testimony has been made. /// /// v. 1. Dennis O. Poseley; 2. Patricia Ann Ensign; 5. David W. Trepas aka David Morningstar; 6. Rachel McElhinney; 8. Keith D. Priest; Defendants. Plaintiff, United States of America, by and through its counsel of record, Larry J. Wszalek and Government's Opposition to Defendants' Motion for Mistrial for Providing False Testimony United States of America, Plaintiff, CR03-344-PHX-MHM

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1.

INTRODUCTION On July 27, 2005, the Court found that IRS audit information, which had not been previously

disclosed to the defendants, constituted impeachment evidence favorable to the accused and that the 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 testimony reveals no false evidence. 21 22 23 24 25 26 presents false evidence, a defendant is entitled to a new trial "if there is a reasonable probability that 27 28 2 II. LEGAL PRINCIPLES A conviction based in part on false evidence, even false evidence presented in good faith, does not comport with fundamental fairness. United States v. Bagley, 473 U.S. 677, 678 (1985); United States v. Young, 17 F.3d 1201, 1203-04 (9th Cir. 1994). Therefore, even if the government unwittingly Government's presentation of false testimony at trial. That is, the defendants allege that witnesses Erik Melling, Cynthia Porter, and Patrick Porter testified falsely about their respective IRS audits. A review of the record reveals the defendants allegations to be unsupported as it pertains to witness Erik Melling, and patently frivolous as it relates to Cynthia and Patrick Porter. Also, a review of Samuel Pak's Melling, Cynthia Porter, and Patrick Porter, were subject to previous cross examination at a time when defense counsel did not have the benefit of IRS audit information. A fourth witness, Samual Pak, remained present in Court, and was recalled for further cross examination about his audit with the IRS. All five defendants declined recalling witnesses Erik Melling, Cynthia Porter, and Patrick Porter for further cross examination. Instead, they now allege a new basis for mistrial - - one involving the Government inadvertently failed to disclose said evidence. The Court further found that the Brady violation that had occurred did not mandate a new trial because of an insufficient showing of prejudice by the defendants. To remedy any potential Brady violations, the Court directed the Government make available, upon defendants' request, three witnesses who had previously testified. These witnesses, Erik

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without the evidence the result of the proceeding would have been different". Young at 1204 (citing United States v. Endicott, 869 F.2d 452, 455 (9th Cir. 1989). The same standard of fundamental fairness applies even if the false testimony goes only to the credibility of the witness. Napue v. People of the

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Q. A. Q. A. On June 16, 2005, Erik Melling testified on behalf of the Government in this case. During cross examination by Richard Juarez, the following colloquey took place: Q. BY MR. JUAREZ: Now, before getting involved with IFC, with their trusts, had you ever had any problems with IRS? No. You didn't have any particular antagonism toward IRS? No. I mean I read, you know, a lot of Internet sites that say one thing and Internet sites that say another, so it was an intriguing thing for me to look into. Okay. Up to the time that you were visited by IRS agents on July 2, 2002, had anybody from IRS contacted you about your trusts? In this case, defendants fail to satisfy the first requirement. That is, there has been no showing of false testimony by Erik Melling, Cynthia Porter, Patrick Porter, or Samuel Pak. As such, the defendant's motion for a mistrial based on false testimony should be denied. III. DISCUSSION Erik Melling State of Illinois, 360 U.S. 264, 269 (1959). To prevail on a claim based on Napue, the petitioner must show that (1) the testimony was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) the false testimony was material. Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. (2005).

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A.

I don't recall anyone contacting me. I think I may have gotten a letter regarding the transfer of the title or the house or something like that. I can't - - I think there was a letter of that nature. I don't remember. Had you ever received anything such as a Cease and Desist letter from the IRS telling you don't be using this product? No. Had you ever been audited by the IRS with respect to your use of that trust? No So, you were - - one day you were visited by IRS agents, correct? Yes. I think Ms. Glitsos talked to you about that a little bit and that would have been July 2nd, 2002? That's right And that was two agents came to your door; is that correct? Yes. Just out of the blue? They didn't call you up and say can we meet or anything? No. They were there to serve a subpoena on you? I think it was a subpoena, yeah. But they also took the opportunity then to interview you, correct? Yes. (Melling Transcript, pgs. 101-102)

Q. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q. A. Q. A. A. Q. A. Q. A. Q. A. Q. A. Q. A.

There has been no showing that Erik Melling provided false testimony at trial. The questions posed to Erik Melling on cross examination deal exclusively with the time period before July 2, 2002.

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Mr. Juarez prefaced the line of questioning with the phrase, "Up to the time that you were visited by IRS agents on July 2, 2002, had anybody from IRS contacted you about your trusts?" (Melling at pg. 101, line 16) That question was followed by two similar inquires: "Had you ever received anything such as

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Cynthia & Patrick Porter 21 22 23 24 25 26 27 28 unsupported by the record. Allegations that the Porters provided false testimony about an IRS audit is 5 There has been no showing that either Cynthia or Patrick Porter provided false testimony at trial regarding an IRS audit. In fact, the defendants showing is so weak that the genuineness of their claims must be questioned. Although defense counsel have a duty to zealously represent their clients, they are also officers of the Court. To that end, they are under a duty not to make frivolous motions that are subsequently led to the civil audits of Melling, Porters, and Pak. As of July 2, 2002, Erik Melling had no knowledge of an audit against him because there was none. The civil audit was months, if not years, away. Accordingly, the defendants have failed to make the proper showing of false testimony of Erik Melling in this case. pages of the transcript (pages 102 - 106) are prefaced with phrases such as "And you told the agents that ...". There is no evidence that Erik Melling was audited prior to July 2, 2002. The fact is he was not. Undersigned counsel can represent to the Court that the Civil Division of the IRS obtained the client information related to the Pure Trust Organizations in the Summer of 2003. This information a Cease and Desist letter from the IRS telling you don't be using this product? (Melling at pg. 101, line 23); and "Had you ever been audited by the IRS with respect to your use of that trust? (Melling at pg. 102, line 1). After Erik Melling answered "No" to the audit question, Mr. Juarez then moved forward. He focused on what Melling told the agents on July 2, 2002. Indeed, the questioning on the next four

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just that: frivolous. Patently frivolous. Any fair reading of the record will bear that out. To that end, the motion for mistrial due to false testimony of Cynthia and Patrick Porter should be denied. Defendants rely on two passages contained in Cynthia Porter's cross examination in alleging

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 provides the following: 24 25 26 A. 27 28 6 At that point we were concerned about our business and we were afraid of losing our business. Q. BY MS. GLITSOS: (line 2) And you sought the services of a lawyer because you were very concerned about criminal prosecution, correct? Harry Jernigan, they had many concerns, including the possibility of being criminally investigated. In addition, there has been no showing that the Porters were even being audited at the time they first met with Attorney Jernigan in 1999. In fact, they were not. The second passage relied on by defendants for their baseless claims is at pages 156-158 which Q. A. Legal concerns, IRS concerns, jail concerns, prison concerns, things like that? We were concerned at that time, yes. (Cynthia Porter transcript at pgs. 136-137) No good faith argument can be made that the answers provided to this line of questioning were false concerning an IRS audit. Ms. Porter clearly admits that at the time they met with their attorney, Q. A. A. false testimony. The first is at pages136-137 of Ms. Porter's testimony which is set forth below: Q. BY MR. GONZALEZ: Well, I'm curious. At some point in time you got some sort of opinion from Mr. Jernigan concerning the trust; isn't that right? Well, at some point yeah. He showed us enough evidence that what we were doing was not what we thought that it was and, you know, led us to the decision that we needed to withdraw from the trusts and file our taxes. At that point in time you have multiple concerns, the least of which is how much you owe. Well, we - - yes, we had multiple concerns, if that was the question - -

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1 2 3 A. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Q. 21 22 23 24 25 26 27 28 7 A. Q. Yeah. We were worried, yes. All right. As so you made the decision to go talk to the government about your very dear friend Patty Poseley and her husband, right. Just please answer yes or no ma'am. Well, of course. Of course. But isn't that sort of like closing the barn door after the horse got out? I mean, does that really obviate any guilt that may have occurred before that? I mean, weren't you concerned - - I guess I should rephrase that. Weren't you still worried that they could do something to you? A. A. Well, at that point, by the time that happened, we felt we had moved out of that criminal woods, because we had filed and paid our taxes. Oh. So you didn't think you could be criminally prosecuted because you made everything right by paying your taxes; is that correct? You weren't - We knew we made a step definitely in the right direction. A. Q. I don't understand that it said that exactly, but - If you went in and talked to them and told them what you knew, then they might go easy on you. Is that a fair summary? A. Q. A proffer, yeah And that if the government liked what you had to say, then you might not be in the position of sitting at the defense table, right? A. Q. Q. And that's when you and your lawyer went to the government and set up a discussion with them, correct? Didn't your lawyer negotiate with them so that you wouldn't have to be prosecuted for anything if you came in here and talked? He - - well, we had a document called a proffer. A proffer? Yes. There was a point where we reached that realization, yes. Q. But at some point you knew that you were in a possible situation where you could be criminally prosecuted, or at least you were afraid that that could happen, correct?

Q.

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A. Q.

Yes. And the reason that you did that is because you didn't want to be in her position that she's in right now, isn't that correct? Please answer yes or no. That is not the only reason. But that's one of them, isn't it? That was one of them, but it was not the only reason. Basically, you are doing what you're doing here today to save yourself; isn't that correct? That is not correct. You have no other motive? You have other motives, excuse me, but that is not all part of your motivation? My motivation at the time was I thought they needed to be stopped. Ma'am - If you're asking me the question, I will give you the answer. Let me ask you the question differently. Okay. I thought they needed to be stopped because they were hurting people. That was your opinion, right? That was not my opinion. I saw it. The Court subsequently ordered stricken, Ms. Porters testimony that "they were hurting

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21 22 23 24 25 26 27 28 8 people." However, no where in this passage can it even be remotely argued that Cynthia Porter provided false testimony about an IRS audit. Cross examination focused on the time period of the Porters' proffer with the Government. That proffer took place on December 18, 2000. Any audit activity concerning their pure trusts was years away. In addition, Ms. Porter again clearly admits her concerns about

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criminal exposure - - the thrust of Ms. Glitsos cross examination. Any allegation of false testimony about IRS audits is baseless. Patrick Porter So too, with respect to Patrick Porter's testimony. Defendants rely on those passages of cross examination set forth at pages 39-42. Even upon a cursory review, there is nothing within this record that can support a claim of false testimony. Q. BY MR. KUNKLE: (Page 39, line 24.) So you did an amendment then. And your first goal with Mr. Jernigan was to get yourself back in the system, right? Well, we needed - - in order for our business to stay in compliant and stay open, because we were told that padlocks were on their way, we had to comply with every agency and pay all of our fees and our fines and get all up to date and be a legitimate business. So you were threatened with closure by what, the City of Virginia Beach? Well, they were standing in line, so. Behind who? The State of Virginia? The city, the state. We didn't here (sic) from the federal government, but. You didn't hear from the federal government? We never heard from the federal government. But at some point though your attorney contacted the federal government, right? I'm not sure exactly how that happened, but we never had direct contact with anyone with the federal government until Mr. Jernigan set up a meeting. And he set up that meeting by doing what's called a proffer. He would tell the government what you were going to say, right? Yes. And that's what you understood that to mean?

A.

Q. A. Q. A. Q. A. Q. A.

Q.

A. Q.

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A. Q. A.

Uh-huh. And in that - - nothing you said in that meeting could be used against you, right? Well, I guess as long as we told the truth, yes. (Patrick Porter transcript at pgs. 39-41)

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q. 27 28 10 Did you file a return? Q. A. Q. A. Well, let me ask you this, Dr. Porter. You wanted your lawyer to protect you, yes? That's his job, yes. And you wouldn't hire Mr. Jernigan so you would get charged, would you? I didn't evade taxes at that time, so you're talking about something that didn't happen. Q. A. Right. You had already cleared everything up before you talked to the IRS? Right. The proffer was done by my lawyer who was there to protect me. If - - I probably would have just talked to them, because my belief is that we need to stop this. Q. A. Never at one point in time was the word "tax evasion" mentioned to you? We didn't evade taxes. By the time we had talked with the IRS, we had already cleared everything up, so. Q. BY MR. KUNKLE: (Page 41, line 11) In any event, you knew that you were facing possible charges; isn't that right? No. We didn't believe that at the time. Once again, cross examination focused on the time period surrounding the events of 1999, when the City of Virginia Beach and the State of Virginia were auditing the Porters. It also focused on the time period leading up to the proffer by the Porters on December 18, 2000. In continued questioning, Mr. Porter makes clear that he amended his 1997 tax returns, filed his 1998 taxes, and paid late fees, penalties and interest before their proffer with the IRS.

A.

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A. Q. A.

Yes. You said you had to go back and reamend your taxes, right? You had to restate your income? For `97. And then we filed the taxes for `99 - - or `98 we paid the late fees and penalties and the same thing with the next year. In 1998, when you never filed a return - Right. We just never filed a return. And at that time you thought what you were doing was absolutely one hundred percent correct, right? We believed we didn't make any income, yes. And later, after you go through the prism of what Mr. Jernigan discusses with you, you go back and now refile, right? That's right. Pay penalities? Yes. Pay interest? Yes. And there was never any discussion about being charged with a crime called Willful Failure to File An Income Tax Return? There was never any discussion about it. There was never any discussion about being charged with a crime? No. Nothing at all? No.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 A. 21 22 23 24 25 26 27 28 Q. A. Q. A. Q. A. Q. A. Q. A. A. Q. A. Q. Q.

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Q.

But yet, before you talked to the IRS, you wanted to make sure you had a free talk arrangement in place with the Government, right? That's what Jernigan set up. So that you wouldn't have your words used against you, right? So you would be protected. That's what Jernigan set up. So that you wouldn't have your words used against you, right? So you would be protected? You would have to ask Mr. Jernigan that. I'm asking you. I didn't do it for that reason, no. (Patrick Porter transcript at pgs. 41-43)

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There is nothing in Patrick Porter's testimony that could honestly be characterized as providing false testimony about an IRS audit. The record stands for itself. Defendant's baseless allegations of false testimony provided by Patrick Porter should be summarily rejected by this Court. Samuel Pak At the Court's direction, the Government also addresses the testimony of Samuel Pak in light of defendants' allegations of false testimony by witnesses Erik Melling, Cynthia Porter and Patrick Porter. Having secured the transcript of Mr. Pak's testimony, a review of the record establishes that Mr.

21 22 23 24 25 26 27 28 Q. BY MR. JUAREZ: (Page 60, line1) Okay. Now, the fact - - who told you that IFC was raided? 12 Pak responded with confusion to an ambiguously posed question by Attorney Richard Juarez. Follow-up cross examination of Mr. Pak bears out the earlier confusion. On July 26, 2005, witness Samuel Pak testified on behalf of the Government in this case. His testimony at page 60 of the transcript provides the following:

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A. Q. A.

Frank Williams. So you learned that from Mr. Williams? Yes. So nothing the Internal Revenue Service administrative branch did such as give you an audit or go through your trust, you never had a decision by the IRS actually telling you that this particular trust was not a legitimate trust; is that correct? What - Is that correct or not? Have you - - have you obtained - - were you audited by IRS with respect to the trusts you used, the IFC trusts? With respect to the IFC trusts? Right. I guess - - I don't know how to answer that. In terms of - Well, I think you testified - Whether it's because of - You testified that you have since filed taxes, correct? Okay, I had filed. You filed income tax returns on this income that you had put into trust. I am referring to the LLC. (Samuel Pak transcript at pg. 60)

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IFC trusts. In fact, Mr. Pak attempted to clarify the basis for the audit by stating, "Whether it's because 27 28 13 The initial question of Samuel Pak was confusing regarding the basis for his audit. Mr. Juarez clearly asked Mr. Pak if he had been audited by the IRS over use of his IFC trusts. Mr. Pak expressed uncertainty because, as he would later explain, the audit was triggered by his offshore entity and not the Q. A. A. Q. A. Q. A. A. Q. A. Q. Q.

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of - - " (Page 60, line 20) before being asked another question. Thereafter, the questioning turned to a different topic. When recalled to the witness stand, Mr. Pak was given a full opportunity to explain his

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Based on the foregoing, the record is clear that Samuel Pak did not provide false testimony regarding his audit with the IRS. To the contrary, he attempted to first clarify with Mr. Juarez the basis Q. A. Q. BY MR. KUNKLE: (Page 141, line16) Mr. Pak, you mentioned before about the offshore investments that there was a suspicion. How are you aware of that? I - - my understanding just from the information I received from the agent, because they send you letters and things like that, that it was because of my purchase of the offshore - - IFC's offshore package that I think might have raised some flags concerning anything I might have done with them. And to the extent, I guess the Service followed through just with an inquiry as to what happened, to what extent you might have used it, things like that. That's my understanding. That letter was sent to you? You know, there is - - there are a few articles of correspondence. It's hard for me to kind of detail exactly which one. But the general gist of it, my understanding was that the whole rationale for my audit in particular was because of the offshore package that I had purchased. That's my understanding. (Samuel Pak transcript at pgs. 141-142) A. Q. A. understanding for the audit: Q. BY MR. KUNKLE: (Page 138, line 24) are they auditing you for? Specifically? Yeah. My understanding is because I purchased the offshore package, the suspicion was that I was involved myself in offshore transactions using those offshore trusts. Later, Samuel Pak explained a second time. And what specifically are they - - the IRS - - what

A.

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for the audit - - whether it was over the use of IFC trusts or use of his offshore entity - - and subsequently explained in full detail that it was the offshore entity that triggered the audit. IV. CONCLUSION Having foregone an opportunity to recall witnesses to cure an Brady violations arising from the Government's failure to disclose audit information, the defendants attempt to manufacture an entirely different basis for mistrial - - one that is wholly unsupported by the record. Defense counsel attempt to morph a discovery violation into more serious allegations of false testimony by Government witnesses. Except for the testimony of Erik Melling, the allegations are baseless, disingenuous, and frivolous. Even then, a closer review of Erik Melling's testimony indicates he was not falsely answering questions about his audit. All questions directed to him centered around the time period preceding his proffer on July 2, 2002, well before the audit process had begun. As to the Porters, no where in the record can it be honestly argued that Cynthia or Patrick Porter presented false testimony. Defense counsel should take the honorable step of withdrawing their motion for a mistrial based on alleged false testimony of Cynthia and Patrick Porter. Lastly, there is no showing that Samuel Pak provided false testimony at trial regarding his audit situation. Mr. Pak was initially questioned about whether he was audited for using IFC trusts. Pak hesitated because it was the offshore entities that triggered the audit - - and not IFC's Pure Trust

21 22 23 24 25 26 /// 27 28 15 Organizations. His subsequent explanation bears out the consistency in his earlier equivocation. For the foregoing reasons, the defendants motion for mistrial should be summarily rejected by this Court. The defendants have failed to make a showing that any of the witnesses in question: Erik ///

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Melling, Cynthia Porter, Patrick Porter, or Samuel Pak, provided false testimony at trial regarding an IRS audit. Respectfully submitted this 5th day of August, 2005.

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 Respectfully submitted, PAUL K. CHARLTON United States Attorney By:___/S/________________________ LARRY J. WSZALEK MARK T. ODULIO Trial Attorneys

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I hereby certify that on August 5, 200 5, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM /ECF registrants: Stephen K unkle 111 W. Monroe, Suite 1212 Phoenix, AZ 85003 [email protected] Counsel for Dennis Poseley Alex Gonzalez 1811 S. Alma School Road, Suite 230 Mesa, AZ 85210 [email protected] Counsel for Patricia Ensign Rena P. Glitsos 45 W . Jefferson Luhrs Tower - Suite 512 Phoenix, AZ 85003 [email protected] Counsel for David W. Trepas Richard L. Juarez 331 N orth 1 st Avenue, Suite 107 Phoenix, AZ 85003-4528 [email protected] Counsel for Rachel McElhinney Gregory T. Parzych 1811 South Alma School, Suite 200 Mesa, AZ 85210-3005 [email protected] Counsel for Keith D . Priest S/ LARRY J. WSZALEK MA RK T . ODU LIO Trial Attorneys

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