Prosecutorial Misconduct in the Grand Jury But No Dismissal of Charges, Says Ninth Circuit

Under-the-table transactions...By: Sara Kropf

Prosecutors who engage in misconduct are rarely subjected to ethics charges. In a recent case out of the Ninth Circuit, the prosecutor engaged in wrongdoing, the court suggests that he should be referred to the bar, yet there is no indication in the opinion that the judges themselves do so. Why not?

In United States v. Harmon, decided August 18, 2016, by the Ninth Circuit, the defendant was a lawyer. Her client ran a business that sold stolen computer equipment. During the representation, she apparently helped him obtain money that should have been maintained in frozen bank accounts.

According to the Ninth Circuit’s opinion, her client delivered two checks to Ms. Harmon for $127,550. She deposited them into her client trust account. She then wrote several checks back to her client and his wife that totaled about $100,000. She wrote those checks within six months of receiving two checks from her client.

Not smart, right?

She was indicted for money laundering. To prove it was money-laundering, the government had to show that Ms. Harmon knew that those funds were from the proceeds of illegal activity. Although the parties agreed that they were the proceeds of illegal activity, Ms. Harmon contested that she knew them to be so.

The Grand Jury Testimony

The interesting part of the case was not what happened at trial but what happened during the grand jury. The prosecutor offered a witness named Jan Ebyam. Mr. Ebyam had conspired with Ms. Harmon’s client on this computer scheme. He had a plea agreement with the government and the plea agreement explicitly obligated him to testify before the grand jury. He was also a paid informant for the government on unrelated cases.

Mr. Ebyam appears to have been the only witness to testify that Ms. Harmon knew that the money she received from her client with was the proceeds of illegal activity. So he was a key witness.

During the first grand jury session, the grand jurors were interested in Mr. Ebyam’s relationship with the government. The prosecutor asked Mr. Ebyam if he received any promises or benefits in exchange for his testimony. Mr. Ebyam said he had no obligation to testify.

During the second session of the grand jury, the prosecutor again asked Mr. Ebyam if he was testifying freely. Mr. Ebyam said again that he was under no obligation to testify. At no time did he mention the plea agreement.

During the third session of the grand jury, a grand juror asked Mr. Ebyam asked him “what are you doing now?” According to the Ninth Circuit’s opinion here’s what happened next:

The prosecutor stepped in before Ebyam could answer and pose a different question: “are you receiving any benefit from your cooperation with the government, either for your testimony today or any other type of testimony on this particular case?” Ebyam answered: “I’m not under indictment I’m not getting any paychecks ..,there’s no secret benefit down the line.”

That’s right, Mr. Ebyam was being paid by the government and yet he testified before the grand jury, “I’m not getting any paychecks” and denied received any “secret benefits.”

The prosecutor elicited this testimony yet did not correct any of it, even though it was plainly false.

Not surprisingly, the grand jury returned an indictment against Ms. Harmon for money-laundering.

The Trial Testimony

The government listed Mr. Ebyam as an impeachment witness on the trial list. The government also filed an ex parte application for in camera review of the additional impeachment information about him. Specifically, the government wanted the court to rule on whether or not Mr. Ebyam’s work as a paid informant needed to be disclosed to the defense.

For some reason, the court never ruled on the government application. The government thus never disclosed it. The defense never learned about Mr. Ebyman’s work as a paid informant for the government.

The defense did cross-examine Ebyam on several impeachment issues, including his own criminal conduct, his cooperation agreement, his false testimony before the grand jury about his obligations under that plea agreement and so forth. The jury nonetheless returned a guilty verdict on five counts of money laundering.

Post-Trial Motions

Ms. Harmon made two post-trial motions.

First she argued that the prosecutor’s misconduct before the grand jury required dismissal of the indictment. She contended that because the prosecutor did not correct Mr. Ebyam’s false testimony, a structural error had occurred.

Structural error matters because if there is structural error, then the court need not engage in harmless error review.

Anyone who handles criminal appeals knows harmless error is the death knell for a great argument. You can be absolutely right on the law and still lose on appeal because the government had other evidence against your client.

Second, she argued that the government had violated its Brady obligations by not turning over the the information that Mr. Ebyam was a paid informant for the government.

The Ninth Circuit’s Decision

The Ninth Circuit first looked at the prosecutor’s misconduct before the grand jury in not correcting Mr. Ebyam’s false testimony. The problem for Ms. Harmon that the case law is settled that “errors concerning evidence presented to the grand jury cannot trigger dismissal of charges or a new trial when a subsequent petit jury returned a verdict of guilty. ”

Ms. Harmon tried to argue that the prosecutors misconduct lead to a structural error. The key holding by the Ninth Circuit was this paragraph

Under Mechanik, presenting false information to the grand jury affecting the witness’ credibility and withholding impeachment information – even if done intentionally, which we assume but do not decide – are harmless as a matter of law.

The court went on to say that “we share concerns that are holding could encourage prosecutorial misconduct, “but went on to say “Mechanik makes clear that something other than dismissal – such as a State Bar inquiry or investigation by the office of professional responsibility – is the proper recourse under these facts. ”

The court next considered and rejected Ms. Harmon’s Brady argument. The court first noted that the prosecutor had followed the right process by submitting the issue for ex parte review. There was also no error by the trial court by failing to decide this motion.

Ultimately the Ninth Circuit concluded that Ms. Harmon was not prejudiced by the prosecution’s failure to reveal this information. The court ruled made this ruling for two reasons. First it said that Mr. Ebyam’s was impeached by other evidence so “this impeachment evidence [of being a paid informant] was overkill.”

Second the Ninth Circuit agreed with the trial court judge that the evidence against Ms. Harmon was extremely strong. He concluded that “the witness’ testimony was not the linchpin of the government’s case.”

The Ruling was Right—and Wrong

The court may have been right that the prosecutor’s misconduct is not a structural error.

But this ruling strikes me as wrong on other grounds.

First, as the Ninth Circuit explained the facts here, Mr. Ebyam’s testimony in fact was the linchpin to the government’s case. The key disputed fact was whether or not Ms. Harmon knew that the money was the result of illegal activity. Mr. Ebyam was apparently the only person who could offer any testimony that she did know. If that’s not the linchpin of the government case, then what is?

Second, the impeachment of Mr. Ebyam with the fact that he was a paid informant was key impeachment. To deny the defense that opportunity truly prejudiced the defense. It defies reality to think that a jury would not be substantially swayed by the fact that a government witness is not only collaborating in return for reduced charges, but is actually being paid money by the government. It would not have been mere “overkill” to impeach him with this information.

The Ninth Circuit Should Refer the Prosecutor for Disciplinary Investigation

What I would like to know, though, is whether or not the judges on the Ninth Circuit, and the trial court judge here, referred this prosecutor to the state bar for disciplinary action. If they know of a violation of the ethics rules, they they should report it. They said that “a State Bar inquiry or investigation by the office of professional responsibility” may be the proper recourse here.

If we want prosecutors to take these obligations seriously, then the courts and all of the parties have to work to enforce them. There are very, very few bad prosecutors out there. But these prosecutors wield such immense power over people’s lives, so they should be held to the highest standards.

Courts–along with all members of the bar–should report prosecutorial misconduct when they see it. Certainly, a referral from the Ninth Circuit would get the state bar’s attention.


  1. Interesting – I have not studied the case, but based on your post I have a few reactions:
    1) Disclosure of the information to the trial judge is inconsistent with intentional misconduct – if prosecutors were trying to hide the information, they would not tell the judge.
    2) There is no logical reason to withhold such info from the GJ – the standard is merely probable cause found by 12 of 16 grand jurors. There is no way they would refuse to indict based on this information, particularly if the rest of the evidence was strong enough that a trial jury unanimously found guilt beyond a reasonable doubt.
    3) #1 and #2 together make me suspect that this was some kind of screw-up or misunderstanding rather than deliberate misconduct.
    I agree that true prosecutorial misconduct is rare, and that when it occurs it needs to be dealt with swiftly and severely. But the problem with the term “prosecutorial misconduct” is that it is used to describe not only deliberate misconduct but also prosecutorial mistakes that are not willful. The latter may still harm a defendant and may need to be remedied, but often will not call for bar sanctions or other discipline.
    This distinction between true prosecutorial misconduct and prosecutorial error is on my list of future blog topics. 🙂

    • I look forward to your blog on it! You keep me honest.

      To your point #1, the prosecutor disclosed the possible Brady material to the judge, not the false testimony to the grand jury about the plea deal. So, I don’t think the prosecutor was trying to hide the informant’s paid status from the judge but it seems very clear to me that the prosecutor was just fine not having that information before the grand jury if he could avoid it. That strikes me as strong evidence of deliberate misconduct. Plus, the fact that the witness did not accurately describe the plea agreement REPEATEDLY (by saying that he did not have to testify, when, in fact, he did) is another part of the prosecutor’s error. Once is perhaps an error but when a key witness twice falsely describes a plea deal? Imagine if your witness said during the grand jury that he was a paid informant when he wasn’t. sI’m sure you would correct that misstatement immediately. But this prosecutor let it slide.

      And it’s not just me saying this was something beyond an error or mistake. The Ninth Circuit assumed without deciding that this was deliberate. “Under Mechanik, presenting false information to the grand jury affecting a witness’s credibility and withholding impeachment information – even if done intentionally, which we assume but do not decide – are harmless as a matter of law after a petit jury returns a guilty verdict.” Courts don’t do that if they think the conduct was ok. It also went so far as to drop a footnote exonerating the other members of the trial team – footnote 6: “The now former Assistant United States Attorney who appeared before the grand jury also was part of the trial team. Our concerns are limited to him – we do not have concerns about his fellow trial counsel.”

      To your point #3, I totally agree there was no reason to withhold this evidence from the GJ. It looks like a strong case–EXCEPT on the fact of whether the defendant knew the money was from illegal activity. And it appears that this witness was the only one who could offer that testimony. The prosecutor very much needed this witness in the GJ and very much needed the grand jurors to believe him. I think there’s a very good chance that the GJ believes the witness (in light of all of the other evidence) even if the complete facts about the plea deal were known. But to pick this key witness to withhold this key fact about the plea deal? That doesn’t sit well with me.

      • I don’t know, I think you might be reading too much into the “we assume but do not decide” – I think the court would likely do that in almost any circumstances so it can say “even if we assume the worst case scenario, the conviction would not be overturned.” That’s a logical thing to do for the sake of argument, but I don’t know that it says much about the underlying merits of the misconduct allegation.

        Not presenting the info to the GJ doesn’t sit well with me, either, but again the question is deliberate misconduct vs some kind of mistake or misunderstanding. And recall that the GJ transcripts would be turned over as Brady material, so presumably that all got disclosed to the defense, right? So the defense at trial did have the information about allegedly false testimony in the GJ and the potential misconduct. (Important to say “allegedly,” right?) 🙂

        And I do think it’s fair not to name the prosecutor. If others later concluded that no disciplinary proceeding was appropriate because it was not deliberate misconduct, then the prosecutor’s name would be in a court opinion, linked to potential misconduct, with no opportunity ever to clear his name. That doesn’t seem appropriate.

  2. “Prosecutors who engage in misconduct are rarely subjected to ethics charges.”

    Truer words, indeed. On the untimely death of John Thompson today, I couldn’t help but dwell on the miscarriages of justice he suffered not the least being the final indignity of Connick v. Thompson 563 U.S. 51 (2011).

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