IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

Transcription

1 S. Lane Tucker, Bar No STOEL RIVES LLP 510 L Street, Suite 500 Anchorage, AK Telephone (907) Facsimile (907) Thomas H. Bienert, Jr., Cal. Bar No (admitted pro hac vice) tbienert@bmkattorneys.com Ariana Seldman Hawbecker, Cal. Bar No (admitted pro hac vice) ahawbecker@bmkattorneys.com John L. Littrell, Cal. Bar No (admitted pro hac vice) jlittrell@bmkattorneys.com BIENERT, MILLER & KATZMAN, PLC 903 Calle Amanecer, Suite 350 San Clemente, California Telephone (949) Facsimile (949) Attorneys for Defendant Lawrence J. Lawson, Jr. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA UNITED STATES OF AMERICA Plaintiff, v. LAWRENCE J. LAWSON, JR. Defendant. Case No. 3:16-cr TMB-DMS NOTICE OF MOTION AND MOTION RE JUNE 20, 2018 EVIDENTIARY HEARING AND REQUEST FOR ADDITIONAL REMEDIES; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with the Declarations of Ariana Seldman Hawbecker, Tonya Barber, and Amber Kimmel] DEFENDANT S NOTICE OF Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 1 of 30

2 TO THE GOVERNMENT AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Defendant Lawrence J. Lawson, Jr. ( Dr. Lawson ) files this brief in support of an evidentiary hearing set for June 20, Further, Dr. Lawson moves the Court for additional remedies, including an order dismissing the Indictment against Dr. Lawson based on egregious government misconduct or, in the alternative, an order imposing sanctions pursuant to the Court s inherent authority. This motion is made on the grounds that (1) the government s case against Dr. Lawson has been marred by bias and conflicts of interest since its inception; (2) an IRS manager burglarized Dr. Lawson s property in 2012, and several officers involved in this investigation concealed that fact from the prosecutors, or, alternatively, IRS agents involved in Dr. Lawson s prosecution revealed the burglary to the prosecutors and the prosecutors concealed it from the defense; and (3) the government failed to discharge its Brady obligations in this case, causing grave concern that additional material is being wrongfully withheld from the defense. This Motion is based on the attached Memorandum of Points and Authorities, the concurrently-filed Declarations of Ariana Seldman Hawbecker, Amber Kimmel, and Tonya Barber, and all files and records in this case. Dated: May 30, 2018 By: Ariana Seldman Hawbecker John L. Littrell BIENERT, MILLER & KATZMAN, PLC 903 Calle Amanecer, Suite 350 San Clemente, CA T: (949) /F: (949) Counsel to Lawrence J. Lawson, Jr 1 DEFENDANT S NOTICE OF Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 2 of 30

3 TABLE OF CONTENTS I. INTRODUCTION... 1 II. STATEMENT OF FACTS... 3 A. Timeline of Relevant Events Dr. Lawson s Successful Medical Practice The IRS Office in Anchorage IRS General Manager John Williamson s Aggressive Pursuit of Dr. Lawson s Former Patient, Tonya Naquin Williamson Supervised the Collection of Lawson s Taxes until August Williamson Burglarized Lawson s Hangar in April The IRS Internal Investigation into the Williamson Burglary RA Zeznock s Biased and Incomplete Investigation in RA Zeznock Briefly Suspended his Investigation Due to a related issue B. Government Misconduct SA Rhame and RA Zeznock Concealed the Williamson Burglary Alternatively, the Prosecutors Concealed Williamson s Burglary from the Defense and Affirmatively Misled the Defense and the Court About it III. ARGUMENT A. The Indictment Should Be Dismissed Based on Outrageous Government Misconduct, Including Both the Burglary of Dr. Lawson s Property and the Conspiracy to Cover It Up i TABLE OF CONTENTS Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 3 of 30

4 B. The Indictment Should Be Dismissed Pursuant to the Court s Inherent Power to Punish Egregious Brady Violations C. At a Minimum, the Court Should Hold an Evidentiary Hearing and Impose Severe Evidentiary Sanctions IV. CONCLUSION ii TABLE OF CONTENTS Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 4 of 30

5 TABLE OF AUTHORITIES Case(s) Page(s) Brady v. Maryland 373 U.S. 83, 87 (1963)...18 Davis v. Alaska 415 U.S. 308 (1974) 18 Hampton v. United States 425 U.S. 484 (1976) 15 Kinsella v. United States 361 U.S. 234 (1960) 15 Kyles v. Whitley 514 U.S. 419, 437 (1995)...19 United States v. Abel 469 U.S. 45 (1984)..17 United States v. Barrera-Moreno 951 F.2d 1089 (9th Cir. 1991) 15, 16 United States v. Chapman 54 F.3d 1073 (9th Cir. 2008)...20, 21 United States v. Hasting 461 U.S. 499 (1983).17 United States v. Kojayan 8 F.3d 1315 (9th Cir. 1993)..16, 22 United States v. Leung 351 F. Supp. 2d 992 (C.D. Cal. 2005)..16, 18 United States v. Ross 372 F.3d 1097 (9th Cir. 2004)..16 United States v. Russell 411 U.S. 423 (1973)..15 iii TABLE OF AUTHORITIES Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 5 of 30

6 United States v. Samango 607 F.2d 877 (9th Cir. 1979)...16 United States v. Simpson 813 F.2d 1462 (9th Cir. 1987) 15 United States v. Simpson 927 F.2d 1088, 1090 (9th Cir. 1991)..16 United States v. Williams 547 F.3d 1187 (9th Cir. 2008) 15 iv TABLE OF AUTHORITIES Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 6 of 30

7 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The government s role is to do justice, act with fairness and impartiality, and uphold the Constitution. Here, those aims were tossed aside to ensure that the government s version of the facts was the only one the jury would see. Recently uncovered facts reveal that the jealousy of an IRS manager, followed on by the failure of an IRS agent to seek to ascertain fault, resulted in Dr. Lawson s unfair treatment by the Anchorage office of the IRS, and ultimately this criminal prosecution. The IRS investigation into Dr. Lawson s tax practices was mired from the outset by an IRS manager who believed that his girlfriend was romantically involved with Dr. Lawson, but left him to move onto Dr. Lawson s property in It then continued when his colleague, an IRS agent, ignored explicit directions aimed at determining who was responsible for the treatment of items on Dr. Lawson s tax returns. However, the most troubling fact is that he and the other special agent assigned to investigate Dr. Lawson, either with or without the prosecutors knowledge, sought to cover-up the fact that their coworker broke into Dr. Lawson s airplane hangar at the very same time the IRS was investigating Dr. Lawson in The government s failure to fully inquire and disclose this exculpatory information establishes that it cannot be trusted to determine whether and what information in its possession or control could be potentially helpful to the defense. The government has been repeatedly asked and, indeed, was ordered to produce information regarding the conduct of the IRS Anchorage office, and not only refused to produce any source materials, but presented affirmatively misleading facts inconsistent with its own records. For example, the government told the defense that the reason the IRS manager was taken off Dr. Lawson s case was because he went 1 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 7 of 30

8 on a ride-along to Dr. Lawson s property when he had a personal relationship with a person who lived there. Yet, the conflicted IRS manager was removed from Dr. Lawson s case before his ex-girlfriend moved into an apartment inside Dr. Lawson s airplane hangar. In fact, the so-called ride along occurred in April 2012, well after the IRS manager was removed from Dr. Lawson s case in August And, it wasn t a ride-along at all. The IRS manager had no business purpose for going to Dr. Lawson s property in April 2012, and, it was not a routine visit. Instead, the IRS manager went to the hangar, confirmed no one was there, and entered unlawfully and without permission around the very same time-period that the IRS was developing a criminal fraud referral against Dr. Lawson. While the break-in itself is enough to bring into question the charges against Dr. Lawson, even more disturbing are the government s efforts to hide it from Dr. Lawson, beginning with not telling him (or the person who lived in the hangar) about the break-in when it happened. It continued post-indictment with the government not seeking and turning over any information about the break-in, not disclosing facts regarding the break-in even when compelled by the court, and later giving only various misleading versions of the facts, including when pressed in open court. While the government may disagree with Dr. Lawson s assertion that the IRS Anchorage office was biased against him, they are not the ultimate arbiters of the truth and cannot conceal evidence to ensure only their version of the facts become known to the jury. Our adversary system requires that Dr. Lawson be given a right to access exculpatory information in order to ensure his right to a fair trial. Due to the government s brazen concealment of exculpatory information and apparent unwillingness or inability to seek out and disclose such information, the Court should dismiss the Indictment pursuant to either the Due Process Clause or its inherent authority to punish government misconduct. Alternatively, and at a 2 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 8 of 30

9 minimum, the Court should impose remedies sufficient to ensure that other Brady information is not improperly withheld from the defense, and to punish the government for its misconduct. II. STATEMENT OF FACTS A. Timeline of Relevant Events. 1. Dr. Lawson s Successful Medical Practice Dr. Lawson moved to Alaska in 2005 at the invitation of physicians who were expanding the hospital in Palmer and felt a need for an oncologist to serve patients in the area. At that time, there were no oncologists between Fairbanks and Anchorage. Not surprisingly, due to a pent-up demand for oncology services in the Mat- Su Valley, Dr. Lawson s practice quickly became successful. As word of his practice spread, Dr. Lawson saw as many as 25 patients a day. In late 2008, he also opened a satellite practice in Homer to serve cancer patients there. Dr. Lawson s income grew exponentially and, along with it, his tax liability. Unprepared for both the additional income and the tax liability, Dr. Lawson fell behind on his taxes. In 2011, he owed about $1.7 million in taxes for tax year 2009, and the Collections division of the IRS began calling on him. 2. The IRS Office in Anchorage Housed on the second floor of 949 E. 36 th Avenue, the IRS office in Anchorage is relatively small. See Amber Kimmel Decl., 2. The Collections department included General Manager ( GM ) John Williamson. Id., 5. Revenue Officer ( RO ) Amber Martinez 1 reported to him. Id., 5. As described below, Martinez was the collections officer assigned to collect Dr. Lawson s back taxes from Id.,, 6. 1 Amber Martinez has subsequently married and changed her name to Amber Kimmel. 3 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 9 of 30

10 The IRS Examination department in Anchorage was supervised by General Manager ( GM ) Sonia Oen. Id., 3. She supervised Revenue Agent ( RA ), Michael Zeznock. Zeznock is the Revenue Agent in this case. The IRS Criminal Investigation Division ( CID ) in Anchorage included Special Agent ( SA ) Terry Zeznock, Michael Zeznock s father. He supervised one or two Special Agents, one of whom was SA Tonya Rhame, the case agent in this case. Id., 3. There were also other employees in the Anchorage IRS office performing additional official functions. Although each department had its own responsibilities, they interacted on a daily basis and often collaborated with one another. Id., 2. In this case, representatives from all three of the primary departments of the IRS Anchorage office (Collections, Examinations, and CID) played a role in the investigation of Dr. Lawson. Due to Dr. Lawson s financial success, eclectic spending habits, and assets (as well as the criminal conduct of IRS employee John Williams described here), it is believed that Dr. Lawson was likely a topic of conversation among employees. 3. IRS General Manager John Williamson s Aggressive Pursuit of Dr. Lawson s Former Patient, Tonya Naquin In 2010 and 2011, IRS General Manager John Williamson dated Tonya Naquin. See Barber Decl., 4, 5. Before meeting Williamson, Naquin was a patient of Dr. Lawson s. Id., 3. She met Williamson in 2010, and they began a romantic relationship. Id., 4. The 2010 relationship was short-lived and they did not cohabitate. Id. In or around the spring of 2011, they rekindled their relationship. Id., 5. At the time, Naquin was looking for a new place to live and contacted Lawson regarding an apartment he had in one of his airplane hangars in Wasilla. Id., 6. When she told 4 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 10 of 30

11 Williamson this, he told her not to move into the hangar. Id., 7. He informed Naquin that although he wasn t supposed to tell her, Dr. Lawson was under investigation by the IRS, and that it was really bad. Id., 7. When Naquin asked whether Williamson was involved, he told her that he worked at the IRS office and was aware of everything that went on at the Anchorage office. Id., 7. Williamson invited Naquin to come live with him, and Ms. Naquin accepted Id., 8. However, after a few months Naquin broke up with Williamson, and moved into the apartment inside the airplane hangar owned by Dr. Lawson in Wasilla (the Hangar ) Id., 9, 10. While Dr. Lawson and Ms. Naquin were not in a romantic relationship, Williamson believed that they were. Id., 11. Williamson repeatedly asked Naquin if she was dating Dr. Lawson and asked whether he ever bought her anything expensive Id., 8. Williamson also told people in the IRS office that Dr. Lawson was dating Naquin and that Lawson had purchased Naquin expensive gifts, including a car painted Naquin s favorite lipstick color. Kimmel Decl., Id., 13. Naquin accessed her apartment in the Hangar by either using a pin-pad on the entrance door, or by using a garage door opener. Barber Decl., 12. There were several items stored in the hangar that were not hers, including airplanes and airplane parts. Id., 13. Those items were visible upon entry into the hangar. Id., 13. Dr. Lawson supplied both the pin-pad code and the garage door opener to her. Id., 12. Once inside the hangar, Naquin used an internal stairway to enter her apartment. Id., 13. Naquin never gave Williamson permission to enter the hangar without her there and she did not provide Williamson with the pin-pad code or the garage door opener. Id., 14. Williamson contacted Naquin repeatedly after she moved into Dr. Lawson s Hangar apartment. Id., 15. On or around Christmas Day 2011, Williamson showed up at the Hangar 5 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 11 of 30

12 unannounced in the middle of the night. Id., 16. Williamson previously told Naquin that he was not supposed to be there. Id., 16. Williamson again showed up at the Hangar uninvited very early in the morning on February 13, Id., 17. Williamson showed up uninvited to the Hangar at least two more times between February and April Id., 18, 20. On one occasion, Williamson was able to get a Hangar door open and left a package inside, containing some of Naquin s personal belongings. Id., 18. Williamson had also left an Easter basket on her porch in April Id., Williamson Supervised the Collection of Lawson s Taxes until August 2011 In or around March 2011, Williamson assigned Martinez to collect Dr. Lawson s taxes. Kimmel Decl., 6. At some point, Williamson was removed from Dr. Lawson s case and Martinez was reassigned to Doug Hartford, another Collections GM, for that case only. Id., 13. Martinez continued to work on Dr. Lawson s case under Mr. Hartford. During that time, Williamson mentioned to Martinez that Dr. Lawson was taking Naquin on trips and purchasing expensive gifts for her. Id., 13. Williamson mentioned Naquin and Dr. Lawson to Martinez more than once, and in front of other people in the IRS. Id., 13. In September 2011, Martinez referred Dr. Lawson s case to the Examination division. Kimmel Decl Williamson Burglarized Lawson s Hangar in April 2012 Although Williamson had previously been removed from the Lawson investigation, he continued to supervise Martinez on her other cases. Kimmel Decl., Id., 13. On April 4, 2012, Martinez was scheduled to go to the Mat-Su Valley area to do field calls unrelated to Dr. Lawson. Id., 16. As she was preparing to leave, Williamson told her that he would be going with her, and directed her to follow him 6 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 12 of 30

13 in an IRS vehicle to Eagle River. Id., 16. Williamson dropped off his vehicle at a gas station in Eagle River. Id. From there, Williamson directed her to drive him to his home in Eagle River where he showed her around his house. Id. After that, he drove for the remainder of the day. Id. After stopping at Williamson s house, they made a field call to a taxpayer as Martinez had planned. Id., 17. Williamson then stopped to buy lunch and drove to the Mat-Su Regional Medical center, where Naquin worked. Id., 17. Williamson brought Naquin lunch and mail that he had apparently retrieved from his house. Id. After visiting Naquin at the hospital, Williamson and Martinez went on another field call in for a taxpayer in Sutton, but no one was there. Id., 18. As they were heading back to the office from Sutton, Williamson said that he needed to do something and veered off the route back to Anchorage. Id., 19. Martinez realized that they were driving towards Dr. Lawson s hangars. Williamson asked Martinez, do you know where we are going? and told her that he needed to check something out, and that he thought that Tonya is still seeing Larry. Id., 19. Williamson said that there was no way that she can afford living there, which Martinez understood to mean that he thought Dr. Lawson was letting Naquin stay in the Hangar because they were dating. Id., 19. When they arrived at Dr. Lawson s hangars, Williamson drove around back and said he needed to check something. Id., 20. He got out and looked in the windows of the Hangar, then got back in the vehicle. Id. He was visibly upset and angry. Id. Williamson then drove to the front of the Hangar and parked. Id. He turned to Martinez and said "what you are about to see, you never saw. Id. Martinez told him don't get out of the car John! But Williamson parked the vehicle and proceeded to make entry into the building using a pin-pad code on the front door. Id. Williamson was inside Dr. Lawson s Hangar for several minutes. Id., Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 13 of 30

14 After Martinez and Williamson left Dr. Lawson s property, Williamson drove to another residence, then back to the office. During the drive back, he was angry, talking about Naquin and another woman who he had dated, and expressing his dislike for Dr. Lawson. Id., 22. The burglary was never reported to the police. 6. The IRS Internal Investigation into the Williamson Burglary Upon her return to the IRS office in Anchorage, Martinez sought advice about what to do. Id., 23. Martinez also consulted the IRS manual on ethics titled Plain Talk About Ethics and Conduct. Page 3 of the manual ( What are My Obligations? ) required that she Report to the Treasury Inspector General for Tax Administration ( TIGTA ) any information indicating that an employee... engaged in criminal conduct or... violated OGE Standards, Treasury Supplement Standards or Treasury Employee Rules of Conduct. See 31 C.F.R Id., 23. Consistent with the manual, Martinez immediately reported the incident to TIGTA Id., 24. Neither Dr. Lawson nor Naquin were informed about the burglary until it was discovered by the defense in May RA Zeznock s Biased and Incomplete Investigation in 2012 On or around April 5, 2012 (the day after the Williamson burglary), Examination GM Oen discussed reassigning the investigation of Dr. Lawson to another RA, because the assigned RA was moving. See Hawbecker Decl., Exh. A. Sometime thereafter, RA Zeznock took over and began auditing Little Wing, Inc., the business entity that held Dr. Lawson s airplanes, stored at the hangar where Naquin lived. Id. Zeznock also audited Midnight Sun Oncology, Inc. and Dr. 2 Despite several requests, the prosecution has produced no information about the TIGTA investigation to the defense. However, the Court recently ordered the government to provide documents related to that investigation in camera. See Dkt. No As far as the defense is aware, Williamson still works as a supervisor for the IRS. 8 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 14 of 30

15 Lawson individually. Id., Exhs. B, C. Zeznock learned that Williamson burglarized Dr. Lawson s hangar because Martinez told him about it. Kimmel Decl., From at least May 2012, Zeznock focused on building a criminal fraud referral, with Dr. Lawson as the target. Zeznock spoke to an IRS Fraud Technical Advisor ( FTA ), whose job was to act as a resource in developing evidence of fraud. Hawbecker Decl., Exh. G at 122:5-15. FTA Kris Kalanges gave Zeznock detailed advice on how to gather evidence to support a fraud case against Dr. Lawson. Id., Exhs. D F. This advice occurred between May and October 31, 2012, which is the time-period directly following the April 2012 break-in by Williamson. Id. Central to Kalanges directives was that Zeznock determine whether Dr. Lawson, or his tax preparer, was responsible for classifying assets and taking deductions on the tax return. Id. For example, in his August 23, 2012 Case Discussion Memo, Kalanges told Zeznock that an interview of Dr. Lawson was critical for fraud development for determining who the responsible party is because when the tax preparer (power of attorney or POA Bolvin) is present she continually interrupts and answers for [Dr. Lawson] Id., Exh. E. In his accompanying the August memo, Kalanges wrote: We need to know the TP s and POA s explanation of the charitable status of these contributions: what is it based upon, who made the determination, what is the true status of the TP s claimed private foundation and who is making the decisions. There may be some legal technicality the POA is basing this all on. I don t now as yet. That s where your interview becomes critical. We need to know what their explanation is for treating these purchases as contributions- along with the other issues you are finding. Hawbecker Decl., Exh. I. 3 Zeznock is currently married to Grace Zeznock, a close friend of Amber Martinez who was employed by the IRS, but not yet married to Zeznock in Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 15 of 30

16 In late October 2012, Kalanges told Zeznock to summons Dr. Lawson and other records if Bolvin continued answering for Dr. Lawson without giving enough information. Id., Exh. F ( If the POA shields the TP and does not cooperate then you will need to summons the TP in for the interview ). He did not do that. Instead, Zeznock referred the case to CID. Hawbecker Decl., Exh. C at RA Zeznock Briefly Suspended his Investigation Due to a related issue On August 31, 2012, Kalanges told Zeznock to suspend his investigation due to a related issue. Id. IRS records produced to the defense do not reveal what that related issue is, but it has since become clear that it is Williamson s April 4, 2012 burglary of Lawson s hangar. Kalanges discussing the related issue came approximately one week after Zeznock called and spoke to Naquin about her living situation in the Hangar (but failed to inform her that it had been burglarized by his colleague a few months before). Id., Exh. A at p. 3. In a series of s dated August 31, 2012, Kalanges and Zeznock refer to the related issue in coded terms without specifying what it is. Id., Exh. J. Kalanges 4 advised Zeznock to tell his boss GM Oen, and to prepare a memo for the case file documenting when you became aware of the related collection issue. That way you have documentation that the evidence you developed to date was done so prior to you becoming aware of the collections issue and that fact should protect your case evidence (emphasis added). Id. Zeznock did not prepare such a 4 Kalanges testified on May 18, 2018 that he could not remember what the related issue was but his s from August 31, 2012 show that he discussed it with his boss, that he had not encountered this situation before, and the he (Kalanges) was going to ask around. Given the uniqueness of this situation, e.g., the break-in of the property of a taxpayer under investigation for fraud, Kalanges failure to remember the event at all is not credible. See Hawbecker Decl., Exh. G at , However, the memory loss by both Kalanges and Zeznock caused by the advance of time may have been prevented had the government timely discharged its Brady obligations. 10 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 16 of 30

17 memorandum or, if he did, it was not produced to the defense. Id., Exh. H at B. Government Misconduct 1. SA Rhame and RA Zeznock Concealed 5 the Williamson Burglary After CID took the referral of Dr. Lawson s case in early 2013, Rhame was assigned to criminally investigate Dr. Lawson and RA Zeznock worked with her. Both were or became aware of the Williamson burglary of Dr. Lawson s hangar early on. See Kimmel Decl. 25. But none of the material produced to Dr. Lawson by the government disclosed the incident, and it would have gone unnoticed by the defense but for the fact that Martinez disclosed it to the defense. Hawbecker Decl., 16. Rhame approached Martinez to ask her some questions about Dr. Lawson early in her investigation. Kimmel Decl., 25. At that time, Martinez told Rhame about Williamson s burglary of Dr. Lawson s hangar. Id. In September 2013, Rhame and Zeznock called Naquin and told her that she had to meet them for an interview. Barber Decl., 23. She complied. Id. During the interview, Naquin told Rhame and Zeznock about her relationship with Williamson and inquired as to whether their investigation was related. Id. Naquin did not know that Williamson had broken into her apartment, and neither Rhame nor Zeznock told her. Id. 21, 23. Rhame s interview memorandum excludes references to Williamson s name, despite the fact that Naquin mentioned it. Id., 23; see also Hawbecker Decl., Exh. L. It also excludes reference to the fact that the bad relationship and her interactions with Williamson continued after Naquin moved into the Hangar. Id. The memorandum simply states: Naquin stated prior to moving into Dr. Lawson s hangar, she stated she was in a bad relationship with a guy who 5 Alternatively, Rhame and Zeznock told the prosecutors about it, and the prosecutors concealed it from the defense. See Section B.2., below. 11 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 17 of 30

18 was an IRS employee. Id. 2. Alternatively, the Prosecutors Concealed Williamson s Burglary from the Defense and Affirmatively Misled the Defense and the Court About it On October 6, 2017, Dr. Lawson s counsel sent a letter to the government asking for documents, memoranda, and other materials about ROGM 41 being removed from the investigation due to a conflict of interest. The prosecution team refused to provide information. On November 10, 2017, Dr. Lawson filed a motion for discovery asking for this information. See Dkt On December 11, 2017, the court ordered the government to discover all Brady, Giglio and Rule 16 documents to the defense pertaining to the reasons for ROGM 41 s removal from the investigation (emphasis added). Dkt. 157 at 14. The government produced nothing in response to that Order. When counsel inquired as to why nothing was produced pertinent to the ROGM conflict issue, Department of Justice Trial Attorney Lori Hendrickson responded in a letter dated February 26, 2018 as follows: [T]here are no documents regarding that issue that are discoverable pursuant to Rule 16(a)(1)(A)-(D), (F), and (G), Brady, Giglio or Jencks. To give you more clarity concerning the conflict issue, we can provide the following details: The IRS initially assigned Revenue Officer Amber (Martinez) Grey to collect Dr. Lawson s taxes in As part of her collection efforts, she served a levy for Dr. Lawson s wages on Midnight Sun Oncology at the office. She also visited other locations to determine what, if any, assets Dr. Lawson possessed for purposes of collection. As is common practice, her manager John Williamson accompanied her on those visits. When it was subsequently learned that Mr. Williamson had previously had a personal relationship with tenant Tonya Naquin, who was living at Dr. Lawson s hangar, the IRS reassigned future collection of Dr. Lawson s taxes to Revenue Officer Doris Marshal and Group Manager Doug Hartford. 12 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 18 of 30

19 Hawbecker Decl., Exh. K. On March 30, 2018, Dr. Lawson filed a Motion for Compliance with the court s discovery order concerning Mr. Williamson s removal from the investigation. Dkt The government s opposition states, in relevant part: After the Court issued its Orders on December 11, 2017, the government did its best to determine whether such evidence existed and timely produced the few additional records that were located. Id., at 8. Any suggestion that bias against defendant would have impacted the IRS s tax collection efforts, the subsequent audit or the criminal investigation is completely unsupported. Id., at 13. In April of 2018, Rhame called Martinez to tell her that she had a subpoena for her to testify at trial in August. Kimmel Decl., 27. Martinez later met with Rhame and asked her about how they planned to address the break-in of Dr. Lawson s hangar by Williamson. Rhame told Martinez that hopefully that doesn t come out. Id. 27. In preparation for a hearing on Dr. Lawson s Motion to Suppress, the defense discovered the August 31, 2012 reference in RA Zeznock s Examining Officer s Activity Report stating that Zeznock was advised to suspend further case action until a related issue has been settled, discussed above. On May 13, 2018, the defense sent the government a request for all material related to the suspension of further case action as referenced in the August 31, 2012 entry. On May 15, 2018, 6 On May 29, 2018, the court ruled on Dr. Lawson s motion. See Dkt On the issue of production of Williamson-related files, the court noted that the government s position radically changed and that it now believes ROGM 41 was a jilted, jealous boyfriend of Lawson s tenant and that [he] entered Lawson s hangar using a passcode Id., pp The government did not specify the timing of this trespass. 13 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 19 of 30

20 Department of Justice Trial Attorney Tim Russo responded as follows: The related issue concerns the conflict of interest regarding ROGM 41. Pursuant to the Court s order at Doc. 157, there are no documents subject to discovery concerning ROGM 41. However, we will produce other documents, including a handful of s from Kris Kalanges, this evening or tomorrow morning at the latest. Hawbecker Decl., Exh. M. On May 16, 2018, the government produced a series of s dated August 31, 2012 between Zeznock and Kalanges. The s refer to a situation and a related issue that could create issues for the civil exam, discussed above. Id., Exh J. Those s do not specify the situation to which they refer. Id. At a hearing on May 17, 2018, Dr. Lawson s counsel informed the Court that they had just learned about Williamson s hangar break-in and intended to ask witnesses about it. The government claimed that they had just recently learned that the audit was suspended in August 2012 because an IRS agent had trespassed onto Dr. Lawson s property. Id., Exh. G at 72:20-73:10; 79:12-16; 80:8-83:16. The government gave no explanation as to why it did not disclose the so-called April 4, 2012 trespass to the defense prior to the hearing, or why its from two days prior stated that the suspension was related to the earlier August 25, 2011 reassignment of the collection action. Only when the Court pressed the government did it disclose the event in vague terms. Id. The government then again claimed that it didn t have responsive documents, it did not know whether such documents existed, and that they may have been destroyed due to the passage of time. Id. at 93:18-95:24. The government gave no explanation for failing to meet its burden to request and collect exculpatory information concerning the Williamson conflict in 14 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 20 of 30

21 October 2017 when Dr. Lawson specifically asked. 7 The Court subsequently ordered that the government submit an order requiring that all files relating to the break-in by Williamson and related investigation materials be submitted for in camera review and potential discovery by the defense. III. ARGUMENT This Court has both the authority and discretion to dismiss the Indictment or to order sanctions for the serious government misconduct in this case. First, outrageous government misconduct in the investigation of an offense justifies the dismissal of an indictment if it violates the defendant s right to due process. United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991) (citing United States v. Simpson, 813 F.2d 1462, (9th Cir. 1987). To constitute a due process violation, the government conduct at issue must be fundamentally unfair and shocking to the universal sense of justice. United States v. Russell, 411 U.S. 423, 432 (1973) (quoting Kinsella v. United States, 361 U.S. 234, 246 (1960)). Outrageous government conduct is not a defense, but rather a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed. United States v. Williams, 547 F.3d 1187, 1199 (9th Cir. 2008) (internal quotations omitted). Whether government misconduct in a particular case constitutes a due process violation turns on the totality of the circumstances, and each case must be decided on its unique facts. Hampton v. United States, 425 U.S. 484, 493 (1976). Second, even when the government s misconduct does not rise to the level of 7 See Dkt. 227 ( The government s failure to obtain and review materials related to ROGM 41 s removal is troubling in light of the recent revelation that ROGM 41 may have entered Lawson s property without permission while supervising Officer Martinez s investigation into Lawson s assets. ) 15 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 21 of 30

22 a due process violation, the Court has inherent authority pursuant to its supervisory power to dismiss the indictment or order sanctions. See Barrera-Moreno, 951 F.2d at 1091 (citing United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991) ( Simpson II )); United States v. Ross, 372 F.3d 1097, 1107 (9th Cir. 2004). [S]upervisory powers are intended to deter governmental misconduct and protect the integrity of the judicial process, while constitutional analysis preserves fairness for the individual defendant. Simpson II, 927 F.2d at 1091 (Nelson, J., concurring). Dismissal is used as a prophylactic tool for discouraging future deliberate governmental impropriety of a similar nature. United States v. Samango, 607 F.2d 877, 884 (9th Cir. 1979) (affirming the district court's dismissal as a proper exercise of its supervisory power); see also United States v. Kojayan, 8 F.3d 1315, (9th Cir. 1993) (reversing a conviction based on prosecutorial misconduct); United States v. Leung, 351 F. Supp. 2d 992, 997 (C.D. Cal. 2005) (dismissing case based on the government s misconduct). A. The Indictment Should Be Dismissed Based on Outrageous Government Misconduct, Including Both the Burglary of Dr. Lawson s Property and the Conspiracy to Cover It Up. Although the government has yet to reveal the extent to which its agents and individual prosecutors knew about it, it is undisputed that Williamson, while an IRS supervisor, burglarized Dr. Lawson s property in 2012 during the midst of an IRS examination of Dr. Lawson s tax practices. The date of the offense (April 4, 2012) is reasonably certain, and the fact that it was a burglary (rather than a consensual entry) is uncontested. The fact that Williamson may have been motivated to spy on an ex-girlfriend (as opposed to gathering evidence) is immaterial from the perspective of Dr. Lawson, whose property interests were violated. Viewed from the perspective of Naquin, the offense is worse. 8 8 See Alaska Rev. Stat Stalking in the Second Degree 16 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 22 of 30

23 This Court has discretion to dismiss the indictment as a remedy designed to deter illegal conduct. United States v. Hasting, 461 U.S. 499, 505 (1983). This is particularly so where the illegal conduct would otherwise go unpunished. This is such a case. Based on the facts as they are known to the defense, Williamson committed burglary and stalking offenses against a person who the IRS was investigating and an occupant on his property, during the course of his employment, on government time, and facilitated by the use of a government vehicle. Dismissal of the indictment is an appropriate sanction given the crime in and of itself to vindicate Dr. Lawson s property rights, Ms. Naquin s privacy rights, and to deter future violations. Williamson continued to work for the IRS after the break-in was revealed and faced no lasting sanction for his crime. Rather, he continued to collect an IRS salary and stayed eligible for lucrative retirement benefits commensurate with his position. Dismissing this indictment, which (for the reasons set forth above should never have been brought as a criminal action because efforts to determine responsibility were skipped) will deter future misconduct by IRS employees. Because TIGTA and the IRS failed to deliver a meaningful sanction or deterrent, this Court should fill the gap. Arguably worse than Williamson s burglary of Dr. Lawson s Hangar (and Naquin s home) was the conspiracy by IRS agents (or the prosecutors in this case, or both) to cover it up. Whether driven by tribal loyalty, fear of retribution, or some other reason, concealing Williamsons crime from the defense was wrong and illegal. If, following an evidentiary hearing in this case, any witness is found to have knowingly concealed the Williamson burglary from the prosecution team, at minimum the jury should be instructed about that fact, and the jury should be permitted to consider it. See United States v. Abel, 469 U.S. 45, 50 (1984) ( A 17 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 23 of 30

24 successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony. ); Davis v. Alaska, 415 U.S. 308 (1974) (confrontation clause requires courts to allow cross to reveal bias). If it turns out that IRS agents disclosed the facts surrounding the Williamson burglary to the prosecution team and they hid it, then dismissal of the indictment is the only appropriate remedy for their cover-up of a crime. B. The Indictment Should Be Dismissed Pursuant to the Court s Inherent Power to Punish Egregious Brady Violations The court also has authority to dismiss the indictment where government attorneys have willfully deceived the court, thereby interfering with the orderly administration of justice. United States v. Leung, 351 F.Supp. 2d 992, 998 (C.D. Cal 2005). Here, either the IRS agents themselves, or the prosecutors, or both, have conspired to conceal the Williamson burglary from the defense. As set forth above, the government not only failed to produce any documents or information in response to Brady requests, it violated this court s order compelling it to produce the same documents and information. See Brady v. Maryland, 373 U.S. 83, 87 (1963) ( Suppression by the prosecution of evidence favorable to an accused upon request violated due process ). Worse still, it has affirmatively misrepresented the incident referred to in IRS documents as a mere ride-along routine, and affirmatively represented that it has complied with its discovery obligations when it hadn t even sought out key information. In February 2018, the government affirmatively represented that the conflict of interest consisted only of Williamson engaging in the common practice of accompanying Martinez her on site visits, and then being reassigned when it was subsequently learned that Mr. Williamson had a personal relationship with tenant Tonya Naquin, who was living at Dr. Lawson s hangar. See Hawbecker Decl., Exh 18 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 24 of 30

25 K. This statement was affirmatively misleading given the fact that the reassignment happened in 2011 and the routine site visit was neither part of Williamson s job nor routine; it was an unscheduled visit to Dr. Lawson s hangar with no IRS purpose in 2012, that included Williamson breaking into Naquin s apartment. Further, the matter was reported to TIGTA for a formal investigation. Both Zeznock and Rhame, the case agents assigned to the criminal investigation, knew about Williamson s conduct early on. Either they concealed Williamson s conduct from the prosecutors, or they revealed the true facts to the prosecutors and the prosecutors distorted the truth. A serious sanction is warranted in either case to deter future misconduct by agents or prosecutors. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) ( prosecutors have a duty to learn of any favorable evidence known to others acting on the government s behalf in the case ). Further, on April 13, 2018 the government affirmatively represented that it had already produced the few... records that were located related to the Williamson incident. Dkt. No. 209 at p. 8. Meanwhile, it discounted as completely unsupported the defense suggestion that bias against Dr. Lawson would have impacted the IRS s tax collection efforts, the subsequent audit or the criminal investigation. Id., p. 13. Those statements have likewise proven to be false and misleading, as the referral of Dr. Lawson to the IRS examination unit occurred at the same time as Williamsons souring relationship with Naquin was revealed. Moreover, the timeline suggests that Zeznock was building a criminal referral around the same time that Williamson s jealousy boiled over and caused him to commit the burglary. At minimum there is some support for the notion that Williamson s personal vendetta against Dr. Lawson impacted the IRS tax collection efforts, audit, and criminal investigation, and it was wrong for the government to brush those concerns aside without inquiring as to the full scope of Williamson s 19 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 25 of 30

26 actions. The obfuscation continued on May 15, 2018, when the government misled the defense about the related issue referred to in RA Zeznock s EOAR dated August 31, Contrary to the evidence, the government represented that there were no documents subject to discovery concerning ROGM 41. See Hawbecker Decl., Exh. M. The government maintained this position even as it produced s from FTA Kris Kalanges making obscure references to the related issue. Id., Exh. J. But when defense counsel attempted, on May 17 and 18, 2018, to question witnesses about the related issue, the government panicked and objected. Id., Exh. H at 73:19-75:23. The only explanation for the government s vigorous efforts to block questioning about the related issue is that the government knew about the Williamson burglary but wanted to keep it from the defense, so that it could continue to package its one-sided view of the facts and keep the defense from information that had the potential to harm the government s case and credibility. The government should not try to win at any costs, and its attempts to keep facts that might harm its case from the defense cannot be condoned. Nor is a sanction short of dismissal likely to achieve any ends given that the government has continued to eschew its duty to identify, search for, and disclose exculpatory information. The Ninth Circuit has repeatedly condemned such tactics, and dismissed indictments as a sanction where the government engaged in them. For example, in United States v. Chapman, the government repeatedly represented to the court that he had fully complied with Brady and Giglio in response to defense requests for impeachment material about government witnesses. 54 F.3d 1073, 1078 (9th Cir. 2008). In fact, the prosecutor had withheld 650 pages of impeachment material, including rap sheets, plea agreements, cooperation agreements, and other information related to the government s witnesses. The district court declared a 20 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 26 of 30

27 mistrial and later dismissed the indictment, finding that the prosecutor s conduct was flagrant. The Ninth Circuit affirmed, noting that flagrant misbehavior encompassed only deliberate withholding of Brady material, but also reckless disregard for the prosecution s constitutional obligations. Id. at The court also noted that the prosecutor s affirmative misrepresentations to the court of full compliance supported a finding of flagrant prosecutorial misconduct even if the documents themselves were not intentionally withheld from the defense. Id. ( We note as particularly relevant the fact that the government received several indications, both before and during trial, that there were problems with its discovery production and yet it did nothing to ensure it had provided full disclosure until the trial court insisted it produce verification of such after numerous complaints from the defense. ). Likewise here, the government has repeatedly represented both that (1) it had complied with its Brady obligations, and (2) that no documents exist related to the conflict of interest referred to in the discovery to which Dr. Lawson is entitled. But unlike the prosecutors in Chapman, who merely withheld material from the defense, the prosecutors in this case have affirmatively misrepresented the facts in response to discovery requests and in response to an order from this Court to produce discovery. There are only two explanations for this. Either (1) the IRS agents (including Zeznock, Rhame, and others who were aware of the Williamson burglary) failed to inquire further, and concealed facts or the likely existence of exculpatory information from the prosecutors, or (2) one or more of those IRS agents revealed facts to the prosecutors, and the prosecutors distorted facts or failed to inquire further and instead affirmatively misled the defense by making false and misleading disclosures. In either case, there was serious government misconduct. This Court should punish and deter future violations by dismissing the case and sending a 21 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 27 of 30

28 message that cover-ups and willful blindness aimed at preventing a defendant from accessing information he may use in his defense at trial cannot be condoned. See Kojayan, 8 F.3d at 1323 (reversing and remanding where prosecutor withheld evidence of cooperation agreement by key witness and misled the jury by suggesting that the witness was not available to the government). The Court has already recognized that the government did not seem to take its Brady obligations seriously when it denied Dr. Lawson bias information even when he spelled out the potential materiality of such information: It is nonetheless troubling that the government had previously concludedapparently without reviewing ROGM 41 s personnel file or the investigationthat the files contained no discoverable material. See Dkt. 227 at 6. Because the government either does not understand its Brady obligations or is unwilling to discharge them, Dr. Lawson s Due Process rights cannot be protected and dismissal is warranted. C. At a Minimum, the Court Should Hold an Evidentiary Hearing and Impose Severe Evidentiary Sanctions This Court has already remarked about the prosecution s troubling efforts to conceal and minimize the Williamson burglary. Id.; see also Hawbecker Decl., Exh. H at 75:1-13. Significant questions remain regarding whether IRS agents withheld the facts of the burglary from the prosecution; or knew about some facts but failed to inquire further; or whether IRS agents revealed facts to the prosecution, and the prosecution withheld them and failed to inquire further in the hopes of keeping the information from Dr. Lawson. These questions can and should be answered in an evidentiary hearing. Only after a full hearing can the Court determine the appropriate remedy in this case short of dismissal. However, based on the facts stated above, the government s duty to protect Dr. Lawson s right to exculpatory information can no 22 Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 28 of 30

29 longer be trusted. Due the government s abuse of its unchecked power, the Court should dismiss this case. IV. CONCLUSION For the foregoing reasons, Dr. Lawson respectfully requests that the Court dismiss the case, or at a minimum, hold an evidentiary hearing to determine the nature and scope of the government s misconduct. If the allegations prove true, the Court should dismiss the Indictment, or order severe evidentiary sanctions in order to punish the government and deter future violations. Dated: May 30, 2018 By: Thomas H. Bienert Ariana Seldman Hawbecker John L. Littrell BIENERT, MILLER & KATZMAN, PLC 903 Calle Amanecer, Suite 350 San Clemente, CA T: (949) /F: (949) Counsel to Lawrence J. Lawson, Jr Case 3:16-cr TMB-DMS Document 231 Filed 05/30/18 Page 29 of 30