By JOSEPH G. LARIOSA
(© 2017 Journal GlobaLinks)
CHICAGO (JGL) – Filipino American Cook County Judge Jessica Arong O’Brien, who was indicted on two counts of loan mortgage and mail frauds
involving $1.4-M and forfeiture, had asked the United States Northern District Court of Illinois in Chicago to dismiss the indictment against her if government prosecutors could not provide her the “grand jury material, the (Federal Bureau of Investigation) agent rough notes and any all favorable evidence not previously produced and mortgage or loan document and financial statements for Government trial witnesses, including any federal agents.”
In invoking the Brady V. Maryland (373 U.S. 83 (1963) ruling, Ms. O’Brien’s Combined Reply in Support of Motions to Produce Grand Jury Material, Agent Notes and Favorable Evidence is seeking productions of two transcripts – the March 21, 2017 transcript of Maria Bartko and the April 11, 2017 transcript of Special Agent Robert Batz.
The Combined Reply made these pre-trial requests in order to determine whether a basis exists that may support the filing of a motion to dismiss. In addition, Ms. O’Brien seeks copies of the grand jury subpoenas issued in this case in order to determine whether proper procedures were followed.
Judge Thomas M. Durkin will rule on Thursday (July 6) during oral arguments of her case whether to grant or deny her requests ahead of her Aug. 7, 2017 trial.
If the Court denies production of Batz’ grand jury testimony, Ms. O’Brien wants the court to review in camera (in private) in order to determine whether during Agent Batz’ grand jury appearance, he:
* described the alleged scheme as one involving Ms. O’Brien and Bartko being at its center as opposed to how the scheme is described in the
Government’s Response to Ms. O’Brien’s motion to dismiss on duplicity grounds, wherein Ms. O’Brien and her properties are at its center
(as opposed to Ms. O’Brien and Bartko) (or in some other manner);
* made reference to any “concealment activity” relating to the funds Ms. O’Brien provided to Bartko, and if so, how he characterized the funds
or alleged concealment activity (e.g., as a kick back payment);
* made any reference to the condition of the properties Ms. O’Brien sold and in particular whether he testified that the funds Bartko received
from Ms. O’Brien were not related to the condition of either of the two properties Ms. O’Brien sold;
* corrected any testimony Bartko provided to the grand jury, which he knew or should have known was false based upon the Government’s
March 28, 2017 receipt of the Acknowledgement, and if so, how Special Agent Batz corrected any testimony;
* was asked any question by the grand jury regarding the Indictment scheme, what it meant, why it was alleged to have started in 2004 and,
what, if anything, Special Agent Batz stated in response to these questions, which would reveal grand jury confusion; and
* whether Special Agent Batz testified to anything, which was false, incorrect or inconsistent with allegations set forth in the indictment
presented to the grand jury, or including but not limited to Citibank, N.A.’s funding or non-funding of the $73,000 mortgage loan and with
regard to the 2007 sale of 625 West 46th St. property.
INTENTIONALLY OR UNINTENTIONALLY MISLED GRAND JURY
If the transcript testimony may reveal that Special Agent Batz intentionally or unintentionally misled the grand jury and would further reveal whether or not he corrected Bartko’s earlier and likely false testimony, she will move for the dismissal of the case, which prompted Circuit Court Cook County Executive Committee headed by Chief Judge Timothy Evans to remove Judge O’Brien from duties as judge pending resolution of her case.
The Cebu, Philippine native Cook County judge pointed out that based on the government information provided to her, Bartko’s grand jury testimony reveals that Bartko informed the Government (before testifying before the grand jury) that payments she received from Ms. O’Brien were “not related” to condition of the property Ms. O’Brien sold.
This very specific information was subsequently incorporated into a written statement the Government prepared for Bartko, which she then initialed and read to the federal grand jury.
The money Bartko received from Ms. O’Brien, as well as its basis or purpose, is a critical fact to the alleged concealment issue in this case and the Government knows it. That is why the Government asked Bartko about this information multiple times and why the Government included reference to it in her prepared statement.
Since Bartko is the Government’s key witness against Ms. O’Brien, everything she told the grand jury, and in particular what she said about the funds she received and the purpose or reason she was given or received those funds, was critical to the grand jury’s decision to indict or not indict Ms. O’Brien.
The production of Bartko’s testimony is not only potentially exculpatory because it will reveal no concealment of Bartko as a buyer was made, this will allow Ms. O’Brien to demonstrate prejudice she is required to establish prior to filing any motion or claim that the grand jury’s decision to indict was substantially influenced, or that there is “grave doubt” that their decision to indict was substantially influenced by false testimony.
While the government had told the court that it has taken and will “continue to take a liberal approach to discovery,” it continues to oppose Ms. O’Brien’s requests and to keep information a secret. ... When a person’s liberty is at stake, the government should not be permitted to engage in this conduct,” according to the Combined Reply in Support of Motions.
Invoking Brady and Giglio v. U.S., 405 U.S. 150 (1972) rules, the Combined Reply is also demanding the production of the full immigration records of a “cooperating source (CS)” and Bartko, who were engaged in a sham marriage, in violation of federal criminal laws, as neither of them have been criminally charged with any federal crime related to their sham marriage.
In a motion to dismiss of her indictments on grounds of duplicity, Ms. O’Brien said, the Government failed to allege a “single or ongoing scheme.” Instead Counts I and II of the Indictments both allege four distinct and isolated substantive offenses, each of which occurred at different times, and each of which involves different people, different false statements, different methods and means, and different objectives.
The Indictment is constitutionally and statutorily defective, making it impossible for her to defend herself, O’Brien argues.
The Combined Reply, quoting U.S. v. Orzechowski, 547 F.2d 978, 986 (7th Cir. 1976), said, “Duplicity is the joining of two or more offenses in a single count. When a defendant argues that a charge against him is duplicitous, the issue is whether the indictment alleges in one count the commission of multiple acts in violation of the same statutory provision, or alleges in one count the commission of multiple acts in violation of the same statutory provision, or alleges separate and distinct offenses in the same count.”
“The overall vice of duplicity is that the jury cannot in a general verdict render its finding on each offense, making it difficult to determine whether a conviction rests on only one of the offenses or both,” according to U.S. v. Buchmeier, 255 F.3d 415 (7th Cir. 2001).