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TRUST, ET AL. ET TRUST, REVOCABLEHATCH 1987 OFTHE ASHATCH,TRUSTEE ANNMcKEEVER COMPANY; HARVESTING FOREST ASHOWELL’S BUSINESS AND DOING HOWELL, E. INDIVIDUALLY EUNICE INC., ASSOCIATES, ANDBEATY W.M. INDUSTRIES, PACIFICSIERRA OF AMERICA, STATES UNITED ( 262246No. Bar D.C. W.BECKLER RICHARD LLP &GIULIANI BRACEWELL [email protected] [email protected] [email protected] [email protected] 444-2100 Facsimile:(916) 444-1000 (916) Telephone: CA95814-4731 Sacramento, Floor Capitol Mall, 18th 621 243765) (SBN BAKER MEGHAN M. AMARAL 238189) S. ANNIE(SBN 172326) THOMAS(SBN J. MICHAEL 141280) (SBN WARNE WILLIAMR. LLP DOWNEYBRAND
[email protected] [email protected] [email protected] 404-3970 (800) Facsimile: 828-5874 (202) Telephone: 20006-1809DC Washington, NW, Suite500 K Street 2000 ViceProHac (Admitted 85608 No. VirginiaBar LIAS T. JENNIFER Admitted Pro Hac ViceProHac Admitted DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING v.
Plaintiff, ) ) )
Defendants. Defendants. EASTERN DISTRICT OFCALIFORNIA DISTRICT EASTERN UNITED STATES DISTRICT COURT DISTRICT STATES UNITED
HOWELL’S FOREST HARVESTING FOREST HOWELL’S and INDIVIDUALLY d/b/a HOWELL, E. EUNICE Defendant, for Attorneys 565-0590 (916) Telephone: CA 95825 Sacramento, 410 HurleyWay, Suite 1010 227902) (SBN VANDEVIVER DEREK 109257) (SBN BONOTTO R. PHILLIP LLP &BONOTTO, RUSHFORD al.et RevocableTrust, 1987 Hatch of the asTrustee HATCH, AND ANN INC. MCKEEVER ASSOCIATES, &BEATYW.M. Defendants AttorneysFor 978-3430 Facsimile:(916) 978-3434 (916) Telephone: CA 95864 Sacramento, American River Drive 3638 241198) (SBN REEVES JULIAM. 88756) (SBN LINKERT RICHARDS. LINKERSEARS MATHENY
Judge: Hon. William B. Shubb WilliamShubb B. Hon. Judge: Courtroom 5 Dept: p.m. Time: 2:00 April 2015 Date: 6, COURT COURT THE FRAUDON PROSECUTORS’ MOONLIGHT THEREGARDING BRIEFING SUPPLEMENTAL REVISED DEFENDANTS’ 2:09-CV-02445-WBS-AC CaseNo. FRAUDCOURT ONTHE T & JAIME, LLP &JAIME, T
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III. EACH INSTANCE OF THE MOONLIGHT PROSECUTORS’ MI PROSECUTORS’ MOONLIGHT OFTHE EACH INSTANCE III. II. WHAT DEFENDANTS MUST PROVE TO PROVESEEKTO UNDER MUST RELIEF WHATDEFENDANTS ...... INTRODUCTION II. I.
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING B. Selected Instances of Prosecutorial Misconduct, InstancesMisconduct, ofProsecutorial Selected B. A. Background Facts Relevant to All ofth to Relevant FactsInstances Background A. COURT A FRAUDTHE SEPARATE ON CONSTITUTES ...... C. A Motion or Action For Fraud on the Court is Fraud Not Court on Action For the or A Motion C. D. The Integrity of the Judicial Process is Most Se is Judicial Most the Process TheIntegrity of D. B. Examples of Litigation Misconduct Which Bee Have Misconduct Examples ofLitigation OnWithinFraudfor Meani Court the the TheTest B. A. 60(D)(3). 60(D)(3)...... 9. Filing With The Office of Professional Responsib With FilingofTheProfessional Office Attorney Overby EricUnited States Assistant ... 9. 8. 7. Wright and His Experiences Relating to the Moonl the andto HisRelating Wright Experiences Action Court State of the Resolution ...... 7. FederalAction of the TheResolution ...... 6. FederalAction of the The Initiation ...... 5. Actions State of the The Initiation ...... 4. Throug asTold Fire TheMoonlight Investigation, 3. Fire...... Moonlight of the A BriefOverview 2. 1. Constitutes Fraud on the Court...... on Fraud the Constitutes Misconduct. Misconduct...... 2. Recklessness by a Government Attorney isAttorney Suffici byGovernment Recklessness a 2. 1. Because They Represent the Sovereign,Government the TheyRepresent Because 1. 6. Fraud Upon the Court May ofCourse Court Arisea the From Upon Fraud Pennsylvania Allegheny, Countyv. Derzackof ... 6. 5. Government Actors Defraud Court Actors the Government ...... Settlement Timeor ...... 4. In re Levander Inre ...... Company ToolThompson K.W. v. Pumphrey ...... 4. Company Shafferv.Equipment UnitedStates ..... 3. Com Hartford-Empirev. Glass Hazel-AtlasCompany 2. 1. Court the on Fraud ...... Other Wildfire Cases in the Year He FiledinHe Moonl Wildfire Year the Cases the Other a Fraud Upon the Court Court Upon Fraud the a ...... Highera Standard Heldto ...... TABLE OF CONTENTS CONTENTS OF TABLE ......
i
...... verely Damaged Whenverely Damaged ...... 19 ...... EachWhichSeparately of e Moonlight Prosecutors’ Moonlight e ...... 30 ...... 24 ...... Precluded By Passage of PrecludedBy Passage ...... 31 ...... 19 ...... ng of Rule 60(d)(3) ...... ng60(d)(3) ofRule 5 ...... 37 ...... 33 ...... n Held to Constitute to nHeld FRAUDCOURT ONTHE ...... 26 ...... 41 ...... 14 ...... 9 ...... ility...... 42 ility...... h the Joint Report Report Joint h the ...... 28 ent to Constitute ent to ight Fire andight ...... 25 ...... 11 ...... Conduct ...... 15 Conduct ...... SCONDUCT SCONDUCT AttorneysAre ight Action ...... Action ight 39 ...... pany ...... 7 pany ...... 5 ...... RULE ...... 2 ...... 26 ...... 7 ...... 16 ...... 13 Page ...... 42
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DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING 8. The Moonlight Prosecutors ActivelyMi Up Covered Prosecutors TheMoonlight 8. MisrepresentedEvidenc Prosecutors TheMoonlight 7. Failed Discloseand to Prosecutors TheMoonlight 6. aCreated False Diagra Prosecutors TheMoonlight 5. 3. The Moonlight Prosecutors FalseProffered Prosecutors Testim TheMoonlight 3. 4. The Moonlight Prosecutors Failed to Take RemediaFailed Take to Prosecutors TheMoonlight 4. 2. The Moonlight Prosecutors Misrepresented to Misrepresented the to Prosecutors TheMoonlight 2. 1. The Moonlight Prosecutors Advanced Fraudulent Prosecutors a TheMoonlight 1. c. The lead Moonlight Prosecutor Taylor joinedin Taylor t Prosecutor lead The Moonlight c. b. The Cover-Up: What the Investigators and Moo the WhatInvestigators the TheCover-Up: Lookout inT Rock Redactually What the happened b. a. Court Upon Fraud the ACommitting ...... Cou Evidence State the of the the to Misrepresented in Respon Lookout Discovery Tower Verified Rock Red Fraud Upon the Court the Upon Fraud ...... inTherebyFavorableRuling,a SucceededProcuring Summaryfor JudgmeDefendants’ Motion Opposition to Committing a Fraud Upon the Court Court Upon Fraud the a Committing...... SummaryAnotherFavorable Judgmen on Ruling Procure OtherWildl Howell WrongfullyStarted to that Claim Cou Upon Fraud the a Thereby Their Committing Case, Court Upon Fraud the a Thereby Evidence, Committing Related Produce Failedto and Conclusions and Cause UnderminedGovernment the Evidencethat Learning of Upon the Court...... Upon the TherebyReports Committing Expert FalseAdmittedly Judgment Ruling, Thereby Committing a Fraud Upon Upon FraudRuling,th a Thereby Judgment Committing inFavorab a Procuring Which Upon They ReliedFire, StrikeRock M aCaused the “Admission” That Alleged Affirmatively Assisted Prosecutors The Moonlight c. b. The Moonlight Investigators AreinConfronted De Investigators TheMoonlight 4-5 SeptemberHillside on Transpired the What on b. a. Court Upon Fraud the a Thereby Work, Committing ... Very about Foundat the RepeatedlyOath to under Lie Allowedt in Litigationand the Cause Investigation Tower ...... Loo actuallyRock Redatwhat the up cover occurred Lookout Tower Lookout ...... Red happened the saidwhat Roc at Prosecutors about Encouraged the Moonlight Investigators’ FalseInvestigators’ Testi Moonlight the Encouraged Origin Secret withEvidenceofTheir ...... TABLE OF CONTENTS CONTENTS OF TABLE (continued) (continued) ii
...... 65 ...... 98 ...... FRAUDCOURT ONTHE ...... 94 ...... 82 ...... 90 ...... Correct Correct Court Bush’s Court m to Further mto ony inony he Investigators lActionAfter Originand rt, Therebyrt, e to the Court Court to the e sconduct at the sconduct and Fires to Firesto and Committing a Committing ...... 52 ...... ionofTheir Exculpatory ...... 43 ...... leSummary a Frauda oonlight oonlight ...... 71 ...... ’sOrigin rt ...... rt 76 ...... e Court ...... Court 60 e ...... ses and ses he effort to he effort to nt and nt t, Therebyt, , 2007 ...... 44 2007 , ...... and position nlight ower 92 ...... mony mony 56 ...... kout k k Page 78 78
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IV. THE MOONLIGHT PROSECUTORS’ MULTIPLE INSTANCES O INSTANCES PROSECUTORS’MULTIPLE MOONLIGHT THE IV. V. CONCLUSION CONCLUSION ...... V.
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING MISCONDUCT COLLECTIVELY CONSTITUTE FRAUD ON THE COU FRAUD CONSTITUTE THE ON COLLECTIVELY MISCONDUCT 10. The Moonlight Prosecutors Concealedfrom Co the Prosecutors TheMoonlight 10. 9. The Moonlight Prosecutors MadeReckless Misrepre Prosecutors TheMoonlight 9. a Fraud on the Court Court on Fraud the a ...... MaterialThera Issue, on FavorablePretrial Ruling Obt MillionWhichBribe,to EnabledThem Two Dollar R FalseWitness Bauer’sPercipient EdwinDefendants c. The Existence of WiFITER Constitutes a Fraud UpoFrauda Constitutes ofWiFITER TheExistence c. b. Concealment of the Motivational Bias Created by Created Motivational Bias of the Concealment b. a. The Moonlight Prosecutors’ Misrepresentationsto Prosecutors’ TheMoonlight a. Court Upon Fraud the a ...... MaterialThera Issue, on FavorablePretrial Ruling RecoveryPro ProgramCalto CivilAbout Fire’sCost Court Court ...... UponFrauda Court the Constituted ...... Concerning WiFITER Constituted a Fraud UponFraudthea Cou WiFITERConstituted Concerning TABLE OF CONTENTS CONTENTS OF TABLE (continued) (continued) ...... iii
...... 122 ...... 107 ...... 120 ...... FRAUDCOURT ONTHE ebyCommitting ebyCommitting urt andurt sentations cure Another cure ...... 118 ...... F eport eport ofa aina WiFITER WiFITER the Court Court the ...... 135 ...... n the RT RT 131 ...... rt ...... rt ...... 117 Page
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Derzack v. Cnty. of Allegheny Children &ofAlleghenyChildrenServ YouthCnty. v. Derzack Circuit, Petrovsky,Sixth a v. Demjanjuk Inc.,NASCO, v. Chambers States, United v. Campbell WhiteDustin Fire v. Cal Craftmaster F v. Furniture IndustriesInc. Broyhill Maryland, v. Brady Corporation, Motor v.Suzuki Black v.Lambert, Benn Corp., Oil v.Mobil Aoude Robertson, v. Alexander States, United Herringv. Cooper, v. Hennon Co., v. Hartford-Empire GlassCo. Hazel-Atlas &F.E.R.C., Oil v. Co. GasFreeport-McMoRan v.Doyle, England Inc.,Constructors, v.Los Alamos EEOC C.I.R., v. Dixon Pa.,ofAllegheny, Cnty. v. Derzack ......
118 F.3d 15751997)Cir.(3dF.3d 118 1993)Cir. 1080 (Fed. F.3d 12 10 F.3d 338 (6th Cir. 1993)338Cir.(6thF.3d 10 (1991)U.S. 32 501 (1961)U.S. 85 365 (1947)U.S. 83 373 Tenn.WL(E.D.May 2:04-CV-180,2008 2278663 3 No. 2002)1040Cir.(9th F.3d 283 Cir.1115 (1st 1989)F.2d 892 1989)421Cir.(9thF.2d 882 424 F.3d 3842005)Cir.(3dF.3d 424 1997)330Cir.(7thF.3d 109 (1944)U.S. 238 322 Cir.45 (D.C. F.2d1992) 962 1960)304Cir.(9thF.2d 281 13731974)(D.N.M.Supp. F. 382 2003)1041Cir.(9th F.3d 316 1996)Pa. 400 F.R.D.(W.D. 173 DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING ...... (Lassen County Superior Court Case No. 4365 CaseNo. Court (Lassen Superior County ...... 18,17,16,11, 9,8, 7, 6, ...... 5, ...... TABLE OF AUTHORITIES AUTHORITIES OF TABLE ...... CASES CASES iv
urniture Corporation, urnitureCorporation, s., s., ...... 5 ...... 131 119,52,24, 22, 21, 20, ...... 0, 2008) 0, 19, 22, 58, 63, 64, 69, 70, 74, 77,74, 69, 64, 63, 58, 22, 19, 70, ...... 135131,117, 100, 25, 24, 20, ...... 17 ...... 6 ...... 23 22, ...... 6 ...... 19 ...... 17 ...... 14 ...... 18 ...... 3 ...... 135105,104, 89,60, 22, 6, FRAUDCOURT ONTHE ...... 135132,131, 104, ...... 120106,105, 77, 14, ...... 18 ...... 21 ...... 47 ...... , 11, 13011, , 21 ...... Page
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...... Southerland v. Oakland County, Oakland v. Southerland Irons, v. Southerland Co., Tool Thompson K.W. Pumphrey v. v. Bowie,Mariana Islands N. Ylst, Morrisv. v. Arizona, Miranda Whitley, Kylesv. Cal.v.S.F.B.I., of Council Shura Islamic reLevander, In Inc., Am., reIntermagnetics In Pachtman, v. Imbler v. Blanco, States United v. Bernal-Obeso, States United v. Agurs, States United Softbelly’s, Inc.,v. Inc. Ty Pastore, Comm’rs Licensev. of Bd. Tiverton SanFrancisco, of and CountyCity v. Tennison States, United v. Stirone States,Cal. v.United of Oil Standard F.T.C., &v. Co. SperryHutchinson 77 F.R.D. 727 Mich.727 F.R.D.1978)(E.D. 77 1980)978Cir.(6thF.2d 628 1995)1128Cir.(9th F.3d 62 2001)1109Cir.(9th F.3d 243 2006)735Cir.(9thF.3d 447 n.54 U.S.483 (1966)436, 384 (1995)U.S. 419 514 2dCal. 2011)1114 Supp. (C.D. F. 779 1999)1114Cir.(9th F.3d 180 1991)912Cir.(9thF.2d 926 (1976)U.S. 409 424 392 F.3d 382 (9th Cir. 2004)382Cir.(9thF.3d 392 1993)331Cir.(9thF.2d 989 (1976)U.S. 97 427 2008)494Cir.(7thF.3d 517 (1985)U.S. 238 469 2008)1078Cir.(9th F.3d 570 (1960)U.S. 212 361 (1976)U.S. 17 429 1361966)(S.D.N.Y.Supp. F. 256 DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING ...... TABLE OF AUTHORITIES AUTHORITIES OF TABLE ...... 15 13,12,11, 6, 5, ...... 10 105, ...... (continued) (continued) ...... v
...... 21 ...... 120104, 89,15, 13, 6, ...... 22, 119 22, ...... 3 ...... 107 ...... 18 ...... 13115,14,13, 5, ...... 11922, 21, ...... 21 ...... 3 ...... FRAUDCOURT ONTHE ...... 18 ...... , 17, 19, 22, 64, 65, 75, 81,75,65, 64, 22, 19, 17, , ...... 21 ...... 6, 118, 120, 130, 131, 132131,130, 120, 118, 6, ...... 23 ...... 5 ...... 21 ...... 22, 119 22, ...... 88 ...... 22 ...... 22 Page
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...... 18 U.S.C. §§1503 U.S.C. 18 §1001 U.S.C. 18 section U.S.C. 18 1519, Baker, v. KeslerVon McGue, Harev. in,West Virginia, v. Youngblood Young, v. States United Company, Shaffer Equipment v. States United v. Maloney, States United of Stonehill, v. Estate States United Chu, v. States United Evid.403 R. Fed. 60(d)(3)Civ.P. R. Fed. 60(c)(1)Civ.P. R. Fed. 60(c)Civ.P. R. Fed. 60(b)Civ.P. R. Fed. 26(g)(1)(A)Civ.P. R. Fed. 26(e)(1)(A)Civ.P. R. Fed. 26(e)Civ.P. R. Fed. § Cal.PenalCode 424 13009 § &Cal.Code SafetyHealth 8002 § § 938.8 §1512(c) U.S.C. 18 131 Cal. App. 654 (1933)Cal. 654 App. 131 Cal. (1918)178 740 (2006)U.S. 867 547 (1985)U.S. 1 470 1993)450Cir.(4thF.3d 11 2014)1044Cir.(9th F.3d 755 2011)415Cir.(9thF.3d 660 1993)1244Cir.(9th F.3d 5 DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING ...... 25,24,18, 17, 16, 11, 5,4, 1, ...... FEDERAL STATUTORY AUTHORITIES AUTHORITIES STATUTORY FEDERAL FEDERAL RULES AND REGULATIONS REGULATIONS AND RULESFEDERAL ...... STATE STATUTORY AUTHORITIES AUTHORITIES STATESTATUTORY ...... 24,23,11, 10, 9, ...... TABLE OF AUTHORITIES AUTHORITIES OF TABLE ...... 6 60,58,42, 23, 16, 15, 6, 5, ...... STATE COURT CASES CASES STATECOURT ...... 8 ...... (continued) (continued) vi ...... 12 126, 15, ......
...... 12 ...... 20 ...... 26, 42, 58, 63, 64, 69, 74, 76, 78,76,74, 69, 64, 63, 58, 42, 26, ...... 134 ...... 109 ...... FRAUDCOURT ONTHE 1, 88, 89, 104, 106, 130, 131130,106, 104, 89, 88, 1, 42, 69, 88, 89, 105, 117, 135117,105, 89,88, 69, 42, ...... 109, 110 ...... 109, ...... 37 34, ...... 4, 69, 78, 130, 132, 135132,130, 78,69, 4, ...... 128 ...... 91 ...... 52, 107 52, ...... 13 5, ...... 16 ...... 81 63, ...... 7, 130, 131130,7, ..... 23 19, ...... 115 ...... 16 ...... 91 .. 67, 22, 119 22, ...... 121 Page ...... 63 ...... 80 1 1
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7 7 5-120(C)Conduct Cal.Prof. Rule 5-120(A)Conduct Cal.Prof. Rule 7-107(C) Conduct Prof. Cal. R.
James Wm. Moore &FederalMoore’sPractic Lucas, Moore James Wm. J. DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING STATE RULES AND REGULATIONS REGULATIONS ANDSTATE RULES ...... TABLE OF AUTHORITIES AUTHORITIES OF TABLE ...... TREATISES TREATISES (continued) (continued) vii
e (2d ed. 1978) ed. (2d ...... 121120, 118, ...... 35 ...... 36 ...... FRAUDCOURT ONTHE ...... 120 6, ...... Page
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the meaning of Rule 60(d)(3); and, meaning60(d)(3); ofRule the collec misconductseparatelyof or allegedeach act must prove to seek relief under that subsection; seekthat relief prove to under must case.dismissal of the learnedalle ofeach Defendants identifying whether III, IndividuallyIII, As TrusteeAnd OfClayton The Bro Greene,L. AsTrustee OfHatch The Irrevocable Trus RevocableAndTrust The DellaWalker VanLoben Sel and Ann McKeever Hatch, as Trustee asTrustee ofTheHatch Hatch, 198 Ann McKeever and asindividuallyHowell’s business Howell,doing and Pacific Industries (“Sierra Pacific”), W.M. BeatyW.M. Pacific”), a PacificIndustries(“Sierra 60(d)(3), submit briefingfocusedt addressingthis 60(d)(3), 2 1 “Defendants”), all of whom seek relief fromCo reliefallthis whom seek “Defendants”), of MargaretCharlotteBurlock Trust,And The Benjamin Henderson,As TrusteeOfMark W.The Henderson Revo Defendants”). KeenanHudson AndTrust The MadisonFlanders Keenan KirbyAndWalker; Lindsey Walker,A.K.A. Lindsey Wa WellingtonSmith Henderson, Jr., AsTrustee Of The TrusteeOfBrooks The Thomas Walker Trust,The Susi Walker,Individually As TrusteeAnd OfEmma The Wal Henderson,As TrusteeOfCharles The AndC. Kirsten Della OfWalkerThe VanLoben Sels ForTrust The Is In In addition toMs. Hatch, the namedLandownerDefe Allfurther referencesto“Rule” or“Rules” to are DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING (3) Explaining how and when Defendants discovered andDefendants Explaining whenhow (3) (2) Assuming at this stage the truth of the Defendof the truth the Assuming this (2) at stage (1) Identifying the test for “fraud on the court” court” “fraud the for Identifying on test (1) the
Pursuant to the Court’s November 24, 2014, Order (D Order2014, Court’s November24, the Pursuant to Federalthe Rules of Procedure Civil unlessotherw oks Danielsen Trust,Myles The DanielsenWalker Tru HendersonRevocable D.ElenaHenderson;Trust; Mark t; Brookst; Walker,Jr., As TrusteeOfBrooks The Wal sueJohn Of Walker;C. James A.Henderson; Charles WalkerBurlock LeslieTrust; Walker, Individually A HendersonRevocable JoanH. Henderson; Trust; Jenn ndants seeking ndants reliefRuleunder 60(d)(3) alsoincl eKate WalkerAnd Trust, DellaGraceThe Walker Tru s Trust ForTrustsIssue The Of Brooks Walker,BrooksJr.; ker Silverman AndTrust The MaxWalker Silverman Tr lker-Silverman,Individually AsAnd TrusteeOf The cable Trust;cable John Walker,C. IndividuallyAs TrAnd 1 Trust (collectively, “Landowners” or“Landowner
he following issues as specified by the Court: byissuesCourt: followingas the specifiedhe nd Associates, Inc. (“W.M. Beaty”), Eunice (“W.M.Inc. Beaty”), E. Associates, nd tively constitutes “fraud on the court” within“fraud court” on the tivelyconstitutes ged act before or after the settlement andafterbeforesettlement the or act ged urt underurtFederal ofCivilRuleProcedure Forest Harvesting (“Howell”); Company Forest under Rule 60(d)(3) andDefendants underRule what 60(d)(3) 7 Revocable Trust, et al.et RevocableTrust, 7 ants’ allegations, assessing whether assessingwhether ants’ allegations, ocket No. 618), Defendants 618), No.Sierra ocket the alleged misconduct, specifically misconduct, alleged the FRAUDCOURT ONTHE 1 1 (collectively isestated. udeRichard ker, Jr.ker, nd As nd st, The Walker Walker C. W. ifer ustee Reilly st; 2 2 ust;
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Department of Revenue.” Department ofRevenue.” “It’scalleddoor: ashe the walked out hiscohorts misdirected th than wasso summary ofcase whythis leavingt prosecution whyhejust the explained was seek compan the Fireto team, Moonlight prosecution and hi senior Attorneya Overby, EricUnited States fromfederalpr what wouldforeignexpect one so to ultimately pond every aspect tainted in a touching theseDef underlying against of the case very heart Thenumerousdece legal ofthisprocesses. Court’s carrymore were andthan pla to willing prosecutors marchedmisconduct As this Defendants. frame these ofuseajustice the through administration the of ita wassystematic, pervasive, Instead, judgment. comprised of mistakes on the periphery. It wasnot periphery. the It mistakes on comprised of rights, but have ‘threatened the integrityj the buthave the of ‘threatenedrights, andviolationsof the egregious “the repeated that ismucho foradministration the conduct Fire’stoo NichoJudge Inthissystemjustice. regard, our of t to wasnot only unfair that grosslyconduct their infectedvirtuallyof everyaspect obfuscation that Departmfor federalour working lawyers action with foundalsoCal a that FireThe court andtainted.” Cal underlying Fire’s that evidenceand convincing” legalo review yet hasthe to record onlyjudge who
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Overby was not alone in his disgust. On 4 February alone innot his Overbydisgust. was The prosecutorial misconduct associated with the Mowith the associated misconduct Theprosecutorial I. INTRODUCTION I. dca rcs.” process.’” udicial 2 thoroughly corrupt investigation to designed thoroughlycorrupt hese Defendants, but an attack on the court andhese butancourt on attack the Defendants, the Department of Justice. It’s not called the not It’s ofJustice. the Department discovery in this case.” Judge Nichols foundNicholsJudge in discoverycase.” this
nd its counsel – who co-prosecuted this federal co-prosecuted this its nd counsel who – discovery laws not only impaired not laws onlyDefendants’ discovery ls specifically held, “[t]he cost ofPlaintiffCallscost “[t]heheld, specifically nd purposeful, with each act aimed at affecting aimedat with act eachnd purposeful, of this case. In fact, the gross misconduct wasmisconduct Infact,gross the ofthis case. endants and moved outward fromripples there, movedoutward andendants f justice to bear,” andbear,”furtherheld his honor to fjustice the consequence of episodic errors oferrors consequence ofepisodic the f the Moonlight Fire action, found byfoundFire“clear f Moonlight action, the ptions were not minor. Theybegan not the at ptions were ghly respected federal prosecutor on the the federal on prosecutor ghlyrespected machinerywithin the deepdeceptionstheir ce eam. In fact, there is perhaps no better better is eam.no there Infact, perhaps osecutors that it ultimately caused Assistant Assistant it ultimately that osecutors caused origin and cause investigation was “corrupt “corrupt investigationwascause and origin ent of Justice – engaged inengaged“aof – stratagem ofJustice ent e line Overby revealed that he delivered to he deliveredlineto that Overbyerevealed y of one of Defendants’ counsel while he while counsel yofDefendants’ ofone towards its payoff, both investigators andinvestigators both its payoff, towards , 2014, Judge LeslieJudge2014, Nichols, the , C. onlight Fire matter wasnot matter Fire onlight FRAUDCOURT ONTHE
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3 1993)). v States (quoting2002)1062Cir. (9th United 1040, safeguard systemaga the measuresto all reasonable (1952)). Similarly, 177-82NinthCircuit the 175, Civil LawEnforcemen and Liberties (quotingHoover, tradition, maintains the highest inmakand ethics, maintainshighest tradition, the lawbutunless – enforcement the by reviewscourts “wet Supreme haveConstitution, can the Court, our itc was sworn ofcourse obligation, Investigators’ continually – and without end be violated.” Mirandend be violated.” without continuallyand – awarded Defendants more than $30 million inmillionmore discove thanDefendants $30 awarded NicholsJudge more, terminate thesereasonsandFor
separate order, Judge NicholsJudge found: order, separate and, itrepresents, from highstandard the departed andinjudge,c as a the which anyears advocate as itre palpable,because is so Court by conveyed the “ Fire,stating, CalAttorneys General representing massive forest fire. forest massive discover an duty-bound to publicservants officers, wasjointl andfederal. one It state one agencies, These investigators are referredto throughoutthi DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING In pointedly addressing the prosecution of the matt of the prosecution the Inpointedlyaddressing The Moonlight Fire investigation, however, wasnot however, investigation,Fire TheMoonlight perceives itself immune from the court’s oversight oversight from itselfcourt’s immune the perceives byin publi brought aactions themselvesdefendants those especiallyinfor it,public’s confidence the judic integrity grave the damageof the to would do Fi protect integrity court. the of the in to order bethey p andofall counsel, theirconduct parties maintains Court ability the matters, the to Inall 3 Conducting an honest investigation was not not onlyinvestigationConductingwas t honest an s briefs the as “MoonlightInvestigators.” 3 y conducted by their own law enforcement lawby enforcement own theirconducted y
es its work a career of honor, civilcareer a its libertieswill ofwork honor, es ritical to the furtherance of justice. As noted by noted Asjustice. furtherance ritical the of to expects “prosecutors and investigators to andtake investigators to “prosecutors expects in every other instance, has exemplified.” Ina instance, exemplified.”has ineveryother [t]he sense of disappointment and distress sense[t]he ofdisappointment onduct of the Attorney General so Attorney thoroughlyso of the General onduct fortyseven over instancein no callsexperience d report the truth regarding what causedthis regardingreporttruth what d the . Bernal-Obeso, 989 F.2d 331, 334331,Cir.989(9th F.2d Bernal-Obeso, . a v. Arizona, 384 U.S. 436, 483(1966) 436,n.54 U.S. 384 Arizona,v. a profession is steeped inisprofessiondemocratic the steeped inst treachery.” Benn v. Lambert, 283F.3d Lambert, v.Benninst treachery.” he best laws in the land, and the most honest most land,inlaws heand the best the d Cal recoveryd actionand cost Fire’s ry abuse sanctions. ryabusesanctions. t: The Role of the FBI, 37 Iowa L.Rev. Iowa 37 TheRoleFBI, of the t: er, Judge NicholsJudgeDeputy the er, rebuked just carried out by two publicby carriedjust two out ndingotherwise adjudicate the whofind ublic or private, or ublic and control. and control. ialand process c agency that that agency c FRAUDCOURT ONTHE he Moonlight Moonlight he
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their “gatekeeper” function in favor inofassistingfunctionfavor t “gatekeeper”their 4 m justice,all inobstruct investigatorsa to these didinsteadviol Prosecutors Moonlight justice, the heart casoftheir the to issues falsekeygoing on submitti recklesslybyoforigin,andknowingly and whatfret over need that theynot investigators the t by breaching Court, repeatedlyandDefendants the interrogatoryfalsebyre sham creating conclusion, byinaffirmativel schemeunconscionableengagedan “payaforUnited Stat the day”sought them asthey everyat full regardless,takingadvantage forward fra byproductto reprehensible the effort ofa were that itbecame When abundantlyclear hands. their lied“repeatedly”investigatorwitnesses star their hardworkinganddedicated public servants whop are prosecutorswho workedon thiscase, on not entthe Defendants innoted their initialRule 60(d)(3)bri Worse, federal Worse, prosecutors, federaljustice, t a crime justice,they obstructed theyit,concealedsimpl or Investigators Moonlight itsystematic.wasIndeed,“corrupt nor scientific systematic theyscientificallyanddid what asthey provideit existsto critical.Properlycompleted, investigareportThewritten of their responsible. findingsgenerall and becausespoiled, their easily be scene, the to accessexclusivehave because they The prosecutorsof federalthe action are referred DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING All of these duties and promises were shattered her shattered were promises Alland theseduties of integritywildlandfires, the ofth With to respect
charged with the solemn responsibility of protectin chargedsolemnwith the responsibilityof ef,theirfocus regardingprosecutorial misconduct tothroughout thisbrief as“Moonlightthe Prosecu ireoffice.Defendants believe that mostprosecuto roperlyfocusedprotecting on the truth andadvanci isguided effort to obtain “a win” through “athrough to isguidedobtainwin” effort hat carries a penalty of up to twenty years. twenty hatto carries penalty aof up a window into what the investigators foundinvestigators what and the into window a 4 e. Ignoring their solemn obligation to seek to Ignoringsolemn their obligation e. he investigators withinvestigators treachery.their he tion – the origin and cause report –is origin – cause equally report the and tion under oath, the Moonlight Prosecutors sat Prosecutors on Moonlight the oath, under and tainted.” Instead of seeking the truth, Insteadtruth, and the the ofseeking tainted.”
Defendants discovered about their secret point secret their about discovered Defendants y have a profound impact on whoever isimpactwhoeverheld haveon profound y a me these Defendants, they pushed the case the theymepushed theseDefendants, turn of the natural trust this Court placed in thisCourt naturaltrust of the turn ally worked toward their conclusions. conclusions. toward their allyworked ence to their essential charter by permitting to enceessentialtheir charter sponses, by hiding informationfrombythesehiding sponses, y manufactured it.Instead ofadvancing ymanufactured cause the area of origin isoforiginand areaperishable cause the the Moonlight Investigators’ core “findings” core Investigators’ Moonlight the es. Consumed by their desire to win, Consumedes.they to bydesiretheir ng information to this Court that wasblatantly Court informationthat this to ng heir duty of candor to the Court, byCourt, to the heir candor telling dutyof y advancing the Moonlight Investigators’ Moonlight the yadvancing e investigators isinvestigators especiallyessential e e. The investigationneither The wase. FRAUDCOURT ONTHE g the truth, ignored truth, the g is oncertain is tors.” As tors.” rs are rs 4 When ng justice. ng
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court occurred.court Of course, beyond is itdispute th toseeking Ruleunderrelief 60(d)(3) is thatc the proceedRule under 60(d)(3),athreshold showin nor andintegrity the of this to Court to already done begin the inrepairtremendo to withto order dealt isjustic advance very to individuals whose purpose a Uncomfortable influencingCourt. improperlythis (9th 1130 Cir. 1995)(proceedings initiatedcofrom discoversconductconstituting afraud uponthe cou underrelief” Rule 60(d)(3). Because is there c no DefendantsHowever, acknowledge Courtthe that requ 5 grounds other by on overruled fromruleo aby procuredfraud originates judgment foundAs Supreme Cir.by(9th 1999)). 1118-19 the U.S. 501 32, Inc., (citing NASCO, v.Chambers 2011) binding and final. Hazel-Atlas Glass Co. v. Hartfov. GlassHazel-Atlasfinal.Co. andbinding from demanddeparture t adherence” arigid to gross in injusticescorrecting for needwhich, recognized A. assessingwhethera fraud oncourtthe occurred has for fraud at the other. Fed. R. Civ. P. 60. 60.R.Fed.Civ. P. other. fraud the for at miniswhetherfor aside appropriate, beingwhenset whilejudgments,provides a ordinarilythat Order,” judgments obtained by fraud.” United States v. Est v. Unitedfraud.”States obtained by judgments h have federalalways courts principle:fundamental cour fraud the judgmentfor asideseton .. . to a Moreover and whatsoever. no has timecourt bar the the handRule – the limitation. other on of60(d), In In thisportion of focused their briefing, Defenda II. WHAT DEFENDANTS MUST PROVE TO SEEK RELIEFSEEK PROVETO UNDEDEFENDANTS WHAT MUST II.
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Rule 60 of the Federal Rules of Civil Procedure, en CivilProcedure, FederalRules of Ruleof the 60 The Test for Fraud On the Court Within the Meaning Meaning the Within Courtthe On forTestFraud The Rule 60(b), which is focused on fraudparti whichbetweenfocused is on Rule 60(b),
Standard Oil of Cal. v. United States, 429 U.S. 17 429 United v.States, Oil Cal. Standard of omplainant haveapartybeen actiontothe inwhich at the at itselfCourtalso may proceedingsinitiate s aseestablishing athreshold burden thatDefendants nts outline nts the applicabletest andcontrolling aut urt ofurt learning conductconstituting fraud onthe c rt. See rt. , i.e.,,what Defendants must proveorder toobta in gsetforth in the itself,rule it appearsthatthe ested theywhatexplain theyprove ordermust t “in t,” Fed. R. Civ. P. 60(d), asitsimply 60(d), aCiv. P. codifies R. Fed.t,” 5
our judicial our system. basis on this motion – is focusedfraudis on basis on motion this – on Pumphrey K.W. v.Thompson Tool Co.,62 F.3d 1128,
us damage these particular prosecutors have prosecutors particular damage us these certain circumstances, are deemed are sufficientlycertain circumstances, rd-Empire Co., 322 U.S. 238, 244238,(1944), 322 U.S. rd-EmpireCo., ccorded a degree of finality, are subject to degreea finality, to subject of are ccorded e, it mustpublicallyherebeitand recognized e, ate of Stonehill, 660 F.3d 415, 443Cir.(9th 415, ate F.3d ofStonehill, 660 terial reasons at one end of the spectrum or endspectrumor one of the at terialreasons ad the “inherent equity power to vacate to equitypower “inherent the ad f equity that “fulfill[s]f universallya equity that o the rule that a final judgment isfinala typically judgment rule the that o s it is to recognize such conduct in itisrecognizeconduct s such to , Rule 60(d) “does not limit a court’s power power limit Rulecourt’s “doesnot a , 60(d) Court, a federal court’s power to vacate avacate a federalpower to Court, court’s 44 (1991); In re Levander, 180 F.3d 1114, F.3d Levander, 180 Inre 44 (1991); titled “Relief from a Judgment or fromJudgment “Reliefa titled es, is governed by a one year statute yearstatute byis governedone a es, of Rule 60(d)(3). ofRule60(d)(3). FRAUDCOURT ONTHE R RULE 60(d)(3). RULE R (1976). (1976). only prerequisite uasponte ifit hority for the fraudthe onthe ourt). mustsatisfy to in relief. oseek 5
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adjudication.” In re Intermagnetics Am., Inc., 926 IntermagneticsAm.,Inc., Inre adjudication.” impartialitsofa intask manner usualperform the byisitself, ofofficerscourt the perpetrated or focuses not so much in terms of whether the alleged muchso the in ofwhether terms focuses not integrity of the judicial process . . . .” Stonehi .” .. judicial. the integrity process of the opposi that evidence,” andby “clear convincing f ofspecies particular NinththisCircuit confirms Intermagnetics, 926 F.2d at 917.cour on Fraud at the F.2d 926 Intermagnetics, Dixon, 316 F.3d at 1046 (quoting England, 281 F.2d 1046 281 (quotingat England, F.3d 316 Dixon, a fraudcourt, on the a beenhas decisions,’” there isscheme to designed or which plan unconscionable judicial. . integrity“the. of the harms process FederalMoore’sPractic & Lucas, J. Moore JamesWm. spembrace[s] . . court only. on that the “[F]raud harm));forv. Dixon(standard 1989) Cir. (9th 424 (evidentiary 1960) 310 304,Cir.(9thstan F.2d 281 6 an the hearing,evidentiary be through showncould Intermagnetics judicial the integrity process.” of atq 1132. Instead, the inquiry. Id. relevant the foropposi the havebut party“wouldprevailed” one 32 (quoting1995)1133Cir. (9th Hazel-Atlas, 1128, Pump ofsociety.”order good consistently the with ininstitutionspublic,w the and safeguard protect Intermagnetics,926F.2d 916.at relevant todetermining whether“the judicial machi prejudicial onlyprejudicial defendantstothe are irrelevant.” This doesrule not mean, as governmentthe states DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING “[T]he inquiry as to whether a judgmentshoulds whethera be inquiry“[T]heasto While courts have “struggled to define the conduct define conduct have the “struggledto While courts (Docket No. 612 18.)atPrejudice toDefendants nery[could not]performin usualthe manner ... inthe JointStatus Report, that“[a]ccusations of ll, 660 F.3d at 443-44 (quoting443-44Doyle,v. at F.3d England ll, 660 the court so that the judicial machinery cannot judicial machineryso the that cannot court the and the fraud rises to the level ‘anfraudandthe to risesof the uestion is “whether the alleged fraudallegedharmsis the uestion the “whether 6 , 926 F.2d at 917. As discussed herein,917.asAs at and F.2d discussed 926 , ecies of fraud which does[,] or attempts to, defile attempts to, or fraud ecieswhichofdoes[,] raud exists when the moving party demonstrates, movingexistspartywhendemonstrates, the raud nd the court “not only can act, [but] should.”[but] “not nd act, only court the can hich fraud cannot complacently be tolerated complacentlybe fraudtolerated hich cannot
djudging cases that are present forare present that casesdjudging F.2d 912, 916 (9th Cir. 1991) (quoting1991)916Cir.(9th 7 912, F.2d C.I.R., 316 F.3d 1041, 1046 (9th Cir. 2003). 2003). 1046 Cir.1041,(9th316 F.3d C.I.R., dard); Alexander v. Robertson, 882 F.2d 421,882 Robertson, v. Alexanderdard); t “is a wrong against the institutions up to against “is set the wrong t a hrey v. K.W. Thompson Tool Co., 62 F.3d 62 Co., ToolThompson hreyK.W. v. ng party’s misconduct has harmedhas“themisconduct party’s ng fraud prejudiced the opposing party . . . .” . . party. fraud opposing prejudiced the jointly prosecuted MoonlightFire jointly action prosecuted courtis not fraud the decidedly on ngparty’s 2 U.S. at 264). atofwhether Thus, 264). question U.S. the 2 improperly influence the court inits court improperlyinfluence the at 309).at e ¶ 60.33 (2d ed. 1978)). Whened. 1978)). (2d conduct ¶60.33 that constitutes fraud on the court,” fraudconstitutes the the on that et aside for fraud upon the court . . ... fraud asideforcourt upon the et FRAUDCOURT ONTHE maybeentirely conduct .” 6
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Prosecutors. Prosecutors. address its conduc to inherentpowers the of weight fraud,aswe egregiousquality the of the compounds to wouldterminatbe on sufficient that, own, their Fireveritablewarehouse servesasa Moonlight case vacactionnowand the terminate Court to cause the pervasive, involving numerous, distinctmi numerous, ofinvolvingtypes pervasive, Moonl the uponthrough this Court fraud perpetrated patent, which the Patent Office opposed. Id. atId.24 Office whichopposed. Patent patent, the SpecificaU.S.at 322 245. merits-baseddecision. manufacturedpresented Hartford, action,underlying B. process. grievouscourts, fraud upon antwo egregious worked Id. appealed. infringement. Hartford Id. patent cascourtdismissed the TheId. district grounds. authorsh fraudulent concerning article’srumors the 241.While at waspend Id. case the infringement. Hartford 240-41.then at Id. ultimatelygranted. itin ofarticle support the subsequentlysubmitted anditpub had expert disinterested ofa signature” andTher “revolutionary.”in Id. art” advance the articlebogus a descr officialswrote attorneys and
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING 1. In Hazel-Atlas, the Supreme Court found fraudaSupreme on the Court InHazel-Atlas, aca misconduct havewide range heldof that Courts Court. the The Third Circuit reversed the district court’s dec court’s district reversedThe the ThirdCircuit Examples of Litigation Misconduct Which Have Been H HaveWhichBeen Misconduct ExamplesofLitigation
Hazel-Atlas Glass Company v. Hartford-Empire CompanHartford-Empire v. Company GlassHazel-Atlas 7
brought suit against Hazel-Atlas for patent patent for Hazel-Atlasagainst suit brought e in any event, finding Hartford failed to show failed findingto Hartford in anye event, s pending patent application, which was pendingspatent
ibing the device at issue as a “remarkableissueibinga device as the at e an action for fraud upon the court court onlyfraud the anfor eupon action lished in a trade journal. Id. Hartfordjournal. Id.in trade alished eafter, the attorneys and officials “procured the “procured attorneys the officialseafter, and 0. In support of the application, Hartford’s Hartford’s application, Insupport of the 0. lly, Hartford had a pending application for a for hadpending application a lly,Hartford ing before the district court, Hazel-Atlascourt, heard district ing the before ip, but did not defend on did those suitnot but the ip, t of the Moonlight Investigators and Investigators Moonlight of the t iseach to one of which sufficient sconduct, ate the settlement. The fact that the The fact that settlement. the ate display of numerous types of misconduct numerous oftypesdisplay of ll as the need for this Court to use the fulluse for to llthis the Court need as the evidence to the court in withacourt connection evidence the to ight Fire prosecution isandmulti-facetedFire prosecution ight ly damaging the integrity of our judicialintegrity our ly the of damaging ision in favor of Hazel-Atlas, quoted the quoted ision inofHazel-Atlas, favor n constitute fraud on the court. The fraud court. on the nconstitute the court whenplaintiffin the the court the eld to Constitute Fraud eld on toConstitute FRAUDCOURT ONTHE y y
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vacate the judgment for fraud on the court. Id. atId. fraud judgmentfor court. on the the vacate court exists only where reliance on the fraudulent the exists onlyon reliance court where decision. Id. at 246-47. In this regard, the Supr atIn the Id.246-47. regard, this decision. toDefendants’ motionforsummary judgment,just as executedschemetoonly not Defendantsdefraud but thisinto litigation andthen allowed Moonlight the Appeals.” CircuitCourt of the s carefully“aand executed to deliberately planned Hartford’sswo but nothing itif“consider[ed] even haveperjury.”guilty been believedof to possibly judgmentaidwitnesswho, ofa the obtained with a asidefraudulentlyset of equityto historic power h fraud“Every stated: of the element Court Supreme articlewas the investigating whether wasactively dissenting).J.,At 253 (Roberts, at Id. mandate. Hazel-Ajudgmentagainst courtentered district the Hazel agreement, As settlement result ofa the Id. $1,000,000 paid at Id.241. It Hartford case. the 24 at article.Id. the he had stating written that statemesignedobtained a Hartford wasapproaching, WhileHaz241-42.for at deadline Id. the patent. length,article and heldat pro-Hartford fraudulent ProsecutorsWhite’ssubmitted false affidavitandt knowingly and recklessly advanced Moonlight the Inv toplan manufacture ablatantly falseofficial repo 7 artic the lawyersofficialsthought “Hartford’s and
regardingother fires. falsified upon official documents inthe ofform ta The fraudulentThe wasreport only not work ofa fictio Asdiscussed in detail,more infra,case this s is DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Importantly, the Supreme Court firmly rejected Hart firmly Supremerejected the Court Importantly, l fullyfactsto when later, theseyears came Seven 7 Id.
imilar toHazel-Atlas inthatthe MoonlightInvesti rt of investigation.rt their Thereafter, Moonligthe mperedwitnessstatements andfalsified origin and Investigators tolieabout it repeatedlyoat under hefraudulent origin andcause report insupportof n with respectn toitskey findings,butit alsoatt theCourtwell. as As discussedMoonliginfra,the Hartfordthe partiessubmitted bogusthe articleo estigators’fraudulent report andtheir manufacture 2-43. Hazel-Atlas then “capitulated” and settled Hazel-Atlas 2-43. “capitulated” then eme Court found it more than adequate that it foundmorethanemethat adequate Court 8 the time the judgment was entered, Hazel-Atlasjudgmentwasentered, time the the and “entered into certainlicensing into agreements.” “entered and 243. Finding the story “sordid,” id., “sordid,”243. the Finding story the begotten judgments. This is not simplyjudgments. not This iscase ofa begotten that Hazel-Atlas had infringed Hartford’s validinfringed Hartford’s had Hazel-Atlas that
el-Atlas’s petition for rehearing of the appeal the rehearingfor el-Atlas’sof petition le material. They conceived it in an effort to itinmaterial.to effort Theyan le conceived Id. at 245. The Supreme Court also noted that noted alsoatthat 245. Court The Supreme Id. filerehearing, forand didpetitionnot a -Atlas evidence was “basic”underlying the wasevidenceto fraudulent. Id. at Id.242. fraudulent. cheme to defraud not only the Patent Office but defraudonly Patent not cheme the to rn admissions,” Hartford’s conduct amounted conduct Hartford’s rnadmissions,” tlas in accordance with the ThirdinCircuit’s the with accordance tlas on the basis of after-discovered evidence, is basisevidence, after-discovered the on of ere disclosed demands the exercise of the exercisedisclosed the demands ere nt from the supposed authorarticle, supposed fromof the the nt ight, Hazel-Atlas brought a motiona Hazel-Atlas to ight, brought ford’s argument that fraudford’s the that argumenton FRAUDCOURT ONTHE achedand relied ht Prosecutors ht h, all all h,ina carefully gatorsconceived a their opposition their cause reports n theirpatent. n ht ht devidence
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finding of fraud on the court. In United States v. InUnited States fraud court. on the finding of Atlas provides the foundation for assessing what co assessing for foundationwhat provides Atlas the Id. ofsociety.”order good consistently the with institutionsfrainpublic, which the and safeguard w “ajustice,” andcommitted thusof administration judgments.”at Id. asidefraudulently begotten set frauddemands here disclosed of the “every element Hartford’ leastpossibility of the been ofat aware specifically a Court The Supreme (emphasis added). pat infringementof the forclaimed the Hartford to doId. so. attempt to wouldnot appraiseinflu accurately. . the . impossible [to] Furthermore, Id. its the effectiveness.” dispute concl 247. The Court attherefore Id. prevailed.” get it [T]hey. . published.. urged to and expense grant Officepattheir to hostile a persuadePatent he didn 1991 that “asearly asSeptember attorneys Indeed, Id. in discrepanciescredentials. Caron’s wrongfully theattorneysalso obstructed government cas hisin that misrepresented credentialsacademic EPA the and that court defendants the the revealto ofanrecoversuit envi costs to the brought Agency failurecomplya lawyer’sto government 1993), Cir. misconducthave judiciaryfor must intolerance the sufficient. Specifically, in Shaffer, government a ingovernment Specifically, Shaffer, sufficient. DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Of course, manufacturing evidence is not the only t manufacturingnot isthe evidence Ofcourse, forcalls..fraud . ofall this“The total effect 2.
United States v. Shaffer Equipment Company Shafferv.StatesCompany Equipment United ence that the article exerted on the judges,”it on the article exerted that the ence Court observed that, because “it isbecause“it that, Court whollyobserved 9 Shaffer Equipment Company, 11 F.3d 450 (4th 450 F.3d Company,11 Shaffer Equipment at 246. The Supreme Court’s decision inTheSupremedecisionat 246.Court’s Hazel- and CircuitCourt the the article upon ent application, and went to considerableent troubleandto application, went s fraud at the time of bothappeal, the and trial time offraud s the at Caron had admitted to one of the government of the to onehad admitted Caron ttorneys forEnvironmental Protection the ttorneys ud cannot complacently be tolerated complacentlybecannot tolerated ud positionwas“in now no to Hartford that uded
245. Hartford hadwith the “tamper[ed] Hartford 245. ent thereby procured and enforced.” Id. at 250at Id. and enforced.” ent therebyprocured ’s on-scene cleanup coordinator, Caron, hadCaron, ’scoordinator, cleanupon-scene e and in prior cases. Id. at 452.The sameat Id. cases.in and e prior ronmental cleanup but wrongfully failed to wrongfullyfailedto but cleanupronmental ot have a college degree,” id. at 459, because459, id.at have college a degree,” ot which defiles the court. whichcourt. defiles the nstitutes a fraud on the court andfraud confirmsanstitutes court on the the protect institutions up to against set the rong with his duty of candor wasfoundbe to ofcandor his duty with nothing less than a complete deniallessnothingofrelief complete a than the exercise of the historic power of equity to ofequityexerciseto historic the power of the defendants’ efforts to root out root these to efforts defendants’ cknowledged that whilehad Hazel-Atlasthat cknowledged ype of misconduct that can lead to alead can ype that misconduct to of FRAUDCOURT ONTHE
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had had liedtoinvestigators aboutwhereabouts his on findings werefindings afraud. They theirbreachedduty of investigators’fictional origin andcause report to and their whitehidden flag. The MoonlightProsecu participatingin andperpetuating this long-running InvestigatorJoshua White’s declarationinoppositi depositionsandfailing to inform Courtthe thatth gov issues,Despite the theseId. by and EPA. the defenseand t disclosecourt, to counsel, the to to discovery . the to relevancy objection the withdraw hado which objected government credentialsthe (to supplementgovernment’s the response to “did not he coordinator’s later days the that andtwo concluded Idwasin work organic chemistry.” degree master’s statedhis that bachelor’s degree [Caron] degree. “heand that had continue paperwork[,]” question of atandRutgers degree the a onlyfor r requirements infalselyhisde simplytestified as Caron watched 454.Instead atany id.o schools,”.. other at . fordegree ahis “complete[d] work hadclass henot repeatedlybreached theirduty ofcandor Cou tothe 8 summaryinjudgmentformoving made by Caron record TheId. defense counsel. being disclosedfromto litigation. in falselyhad testifiedCaron another involvedin casesupervisor, wasaw the a attorney, investigationst disclosingto the without unabated inquiry was not relevant to the litigation. Id. T litigation. Id. relevant to the not inquiry was have degr receivedto in claimed resume Caron which obstructionof justice bywitnesses telling thwhat tofailinginform Courtthe thatfederal Moonlight and and allowingwitnesses blatantly tosign falseinte ofreports samethese witnesses. The Moonlight Pro Aswascase the Shaffer, in buton far a greater s DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING At a later deposition, the government directed Caro directed government later the deposition,a At the Courtthe andfailing toinform Courtthe thatits eyandcouldcould say not andby falmanufacturing rrogatories regardingthe Red Rock Lookout Tower,t cale,Moonlightthe Prosecutors, includingtheirsu ey lied repeatedly underwhile oath abouttheirsec InvestigatorDiane Welton engaged inwitness tamper federal cover-up, by failing toinformCourt the t the daythe fire,bythe ofand generallycontinuing to candor bycandor tofailinginform the Court that leadMo ontoDefendants’ motionforsummary wasjudgment f rt, by rt, aggressively Moonlightdefendingthe Investi tors alsobreached tors theirduty byofcandor submitti secutors breached theirduty byofcandor themselve f exposing this corruption, the government attorney government the fcorruption, this exposing his same government attorney researched the issuehisattorney the researchedsamegovernment 10 Id. This attorney, however, prevented these facts prevented however,these ThisId. attorney, hat Caron was being investigated both criminally wasbeingboth investigated Caron hat work washisinscienceand work environmental he Court.” Id. at 456. Anothergovernmentat Id.456. heCourt.”
ernment “continued to litigate the matter matter litigate the “continued to ernment all“he hadof the completed position that government also relied on the administrativereliedalso the on government are not only of these facts, but also aware that butaware also that facts, not onlythese are of eason he had not receivedwasa his not diploma hadeasonhe credibility was relevant as a matter of law, but matterlaw,but asa ofcredibility wasrelevant . . .” Id. at 455. The government also failed455.alsoThe governmentat Id. .” . . from Rutgers and never attended any and neverfromattended classes Rutgers d taking courses at Drexel for a master’saDrexel for at takingcourses d . at 454.at . n the basis of irrelevance) and did not not andnirrelevance) didbasis of the an earlier interrogatory directed to Caron’s to an interrogatorydirected earlier ees fromandclaiming the Drexel,ees Rutgers . 8 Id. at 460.at Id. n not to answer any questions about his answern about not to any questions FRAUDCOURT ONTHE mostfundamental hat partya third ret point of ret origin litigate thiscase pervisor, onlight onlight se interview ng the ng gators’ hereby ing and s craftings alse, alse, andby
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Court’sdecisions Hazel-Atlas, in Fourththe Circui process, is itthisHere,one. bestthe thatcan b guard againstguard corruptionthe thatjustice will be d the judgmentthe entered forthe government. While the record [was] relevant” to central issues incentralissues cas [was] the relevant” to record administrativer examination of the the relevant to general duty of candor that attorneysasoffice that candor owe general dutyof integrity the “undermine[d] attorneyssufficiently andit,” in “continuing to relatinginvestigations adviseincourt of to failing the that, repeatedly 11F.3d inattorneysviolated. Shaffer government in preserveis the to “generalthere duty rulethat F.3d judicial 11 entire the integrity process.” of faithand good requ general ofcandor “broader duty U.S. Chambers,458. 501 Citing id. deceit,” at to guardagainstcorruptio the bydutyultimatelyto a id.45 at integrity process[,]” the of the assuring serve“[L]awyers, atasof 457. who Id. justice.” i which issystem’s process of the object truth the adversary forresolution ofdispu the system“[o]ur existsin at withcourt an connection the candor to powerinherent toimpose order, respect, decorum,s F.3d 11 461.at courtThe stated: “[d]ue tothe ve 9 unabated,despite knowing that entirethe investiga acourt.constitute fraud the on to sufficient been acasebeen where government lawyersgrossly failed said is that theyaffirmatively inanassistedeffo organic, withoutorganic, ofneedorstatute a forruleits Notably, Fourththe Circuit did not relysolely on DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Ninth Circuit’s decision in Pumphrey, 62 F.3d 1 F.3d in 62 decisionPumphrey, TheNinthCircuit’s 3. The court found that the issue of Caron’s “credenti issue of foundCaron’s the that Thecourt
Pumphrey v. K.W. Thompson ToolThompson Company K.W. Pumphreyv.
e said e said is that Moonlight the Prosecutors did absolu definition, andit is necessaryexercisetothe of rt to havedispensedjusticert based on numerous acts ispensed onispensed of an act deceit.”11 F.3d 458.at Th ry nature ofcourtrythe nature as an institution,it musta Rule 60(d)(3) inupholding the court’sdistrict de tion wastion teeming with dishonestycorruption. and I tfoundits ability tovacatejudgment the from its 9 ilence, andcompliance withlawful mandates. This Fourth discussedCircuit onfraud courtthe andth tocarry outtheir responsibility toassurethe in See id. at 461.Seeat id. “the Caron problem and the civilproblem the criminal Caron and “theand 11 7, and their duties to their client “are 7, trumpedclient their andto dutiestheir at 458. The court cited to Hazel-Atlas for Hazel-Atlascited the The court at to 458. tegrity of the judicial the which the process” of tegrity to litigate the matter unabated,” the governmentunabated,”matter the litigate the to e. Id. The court observed that “a generalTheId. court observed of that duty e. ficers of the court, have the first line havefirstoftask court, the ficers of the s designed for purpose ofdispensing the designed s torney’s role as an officer of the court,” and court,” that of the officer torney’sroleasan of the judicial process” and violated “the judicialviolated andof process” the is Circuit found32,athere Fourth the that ecord,” and the “integrityandadministrative the of the ecord,” n that justice will be dispensed on an act justiceanof act on be n dispensed that will
tes rests on the unshakable foundation that foundationunshakablerests the that on tes rs of the court.” Id. at 459.These at were court.”actionsId. of the rs at 458 (citing 322 U.S. 238). The court found The court 238). 458 (citingU.S. 322 at ired” of officers of the court “to protect the ired”court of the ofofficers als, capability, credibility als, and [were] 128, is also instructive.Pumphreyis 128, also
FRAUDCOURT ONTHE all other all powers.” Id. nd does nd have an tely nothing “totelynothing eworst thatcan be of deceit. inherent power. cisiontovacate tegrity ofthe fthere ever has eSupreme power is
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responsesomittedwhich the mostimportant facts. concealwhat actuallyhappenedat Red the Rock Look fromlearned Defendants’ expert that he hadused th company would make them available to the plaintiff. the maketo available company themwould handgun relatingaware testin to of anynot records Defendants, andoninformation andbelief, instruct themselvestofailedproduce data expert thatwould fieldown evennotes though understood he that liti hesee hadfalsely never manager that the testified TheId. genera its video results. originalor the neverdisclosedto The general also 1132. counsel sh record wastest no ofa there andresults stated and,in secondvideo the answ companyonlyproduced gun did the not which companyvideo, produced, the gun the which companyvideo, withheld, the original aand company itmanager During 1131. thesetests, vidmanufacturer guncourt, the district the before bothsafeties havingdespiteengaged or dropped one mod incertaina issuecase waswhether primary the defraud participatedinth schemeto amanufacturer fromac an arising action wrongfulinvolved adeath Prosecutorsroutinely concealeddestroyed or inconv 11 presentedit Courttothe ineffort an toinfluence “perjury is not that onlycan onfraud bea couthe court.the Id. 1130-31.at Thus, contrary tothe did notenter an appearanceinthe litigation,was 10 dropped. sa whethergun’sengaging the falseabout testimony depositionsat present also Thegeneralwas counsel perjured himself.62 F.3d at 1132.The company’s know that wasit perjured.Id. 1131.at It was en Asdiscussed infra, thiscase presents facts simil The counsel general subornedneither thisperjury DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Before filming the videos, the company answered req company videos, filminganswered the the Before 11 Id. MoonlightProsecutors’ statement Jointinthe Statu its its decision.” (Docket No. 612 18.) at oughthatthe counselgeneral “participated in the not not admittedpro vice,hac anddidsign not any doc rt ifcounsel committedrt or intentionally suborned t ar ar tothose ofPumphrey, inthat the MoonlightInve gationwould fromresult findings. his MoonligThe edtheirexpert not tocreate anamended report,ev have been harmful totheireffort topinblame on ewrong set. Moonlightdata The Prosecutors alsoa trial counsel whotrial presented testimonythe cotothe enient facts.enient White, alaw enforcement officer, de nor presented nor it court;tothe hemerely observed a outTower daythe offire by falsethe drafting int l counsel then attended the trial aslwatched the and attended then counsel 12 owing that the gun had accidentally fired. Id. at Id. fired. gun had the accidentallyowing that eotaped drop tests involving the gun. Id. at Id. dropinvolving gun. tests the eotaped n the gun fire when dropped during firetests.dropped gunwhen n the
g, but if records were laterdiscovered the butif were g, records the company’s trial counsel the existenceofcompany’s the counsel trial the e Court by withholding evidence. Theby evidence. withholding Court e in subsequent cases when the managercasesgavein when the subsequent cidental shooting wherein the defendant gun defendant whereincidental the shooting el of gun could accidentally firewhen couldel accidentally ofgun s general counsel were present. Id. InId. the present. were counsel generals . Id. at 1133.While at pending Id. case was . the fety affected whether the gun firedgunwhether the when fety affected fired when dropped. Id. In the second InId. the fireddropped. when Id. During the continuedId. discovery, fire when dropped. Id. fire dropped. when ers to interrogatories, mischaracterizedinterrogatories, the to ers uests for production by stating itwasproductionfor by uests stating FRAUDCOURT ONTHE case,”although he sReport, the law he perjury he and uments filedwith uments en after en he these stigatorsand stroyed his s thes manager urt did urt not htProsecutors errogatory ttempted to 10 Id.
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Circuit, Circuit, clearlyit Pumphrey, is. F.3d 62 1133. at testimony, [the general counsel] undermined the jud the general undermined [the testimony,counsel] corre failinganddrop-tests,to of the results the corporation had not soldand its wasnot stilla had assets corporation Id. (quoti judicial integrityprocess.” the of the mor but opposingparty the fraud allegedprejudiced foc underRulefraud for60(b) court upon the aside inquinAs noted ‘thewe Intermagnetics, produced. whether[theplaintiff] iswoul issuehere not “The defendant the Ninth that stated the regard, Circuit not didofevidenceconcealment found the be where specifically Importantly,Court the considered Id. a fraudjudicial on to and amounted of the process, abide pr and [rulesofdiscovery byto “failure the I “immaterialinaccuracies.” to went technical and misrepresentationsfraudulent the examined whether 12 corporation’s of the becausepartnershipone of the and th The court bankruptcy only.Id. corporation debtors awarded therefore the Thecourt bankruptcy which corporation the to partnershipexistence ofa debto neither the attorneys’feesawarded, the were attorneys’fees awarded whoaagainst were debtors F.3d1120. at 180 decision. inaissuing testimony Prosecutors’contentionthat “failure todisclose . The NinthThe Circuit’s focus on defendant’sthe “fail DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING In Levander, the Ninth Circuit found fraudfound the c on Ninth the InCircuit Levander, 4. The Ninth Circuit found that “[b]y failing to discl“[b]y failingfoundto that TheNinthCircuit
In reIn Levander
. is .. nota fraud on court.”the (Docket No.612
ure todisclose” directly clearly and refutesM the ng Intermagnetics, 926 F.2d at 917). 917). at F.2d 926 ngIntermagnetics, ct the false impression created by [the manager’s]by impression falsect [the created the 13 n active company. Id. Notably, Id. Ninth the active ncompany. ofessional responsibility]” harmed the integrityharmed the ofessional responsibility]” ’s argument “misse[d] the point.” Id. at Id.1133. point.” “misse[d] the argument ’s and rejected the argument that fraud could not fraud couldnot that argument the and rejected d have prevailed had the original video been video originalhadhave the d prevailed
The Levanders were Chapter 11bankruptcy Chapter The Levanders were the court committed by an officer of the court. court. bycommittedof the officer court an the general found the that The court counsel’s d. officers falsely testified at a deposition athat th falsely at officers testified existence asignorant the to Levanders were e 1117. at Id. itshadallassets. of transferred rs nor the bankruptcy court knew of the bankruptcy the nor court rs uses not so muchso the in not ofwhether uses terms iry as to whether a judgmentshouldwhethera be iryset to as e in terms of whether the alleged fraudallegedharms the in e of whether terms icialprocess.” certain corporation. Id. at 1116. Atat Id.1116. time the certaincorporation. attorneys’ fees and costs againstfees costs the and attorneys’ went to the main issue of the case, or instead or maincase, to issue the of the went affect the outcome of the case. In this affect the case. outcome of the ose the original video, mischaracterizing video, original the ose ourt where the court court reliedwhereperjured the on ourt 12 Id. at Id.1133. The court FRAUDCOURT ONTHE at 18.)atIn Ninththe oonlight e
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before the corporate officer testified. officer corporate the before ordered, itwashadrevealed purcha partnership ordered, the found to amountcourt.fraud the to on to found falseeve discoveryresponses, discoveryand abuses motion. inCourtopposition tothe motionforsummary judgm atId. opposing to party. documentsthe fraudulent businetheir relevant to financial manipulated data fai bad‘stonewalling,and practice pattern ofin a itsandr [court] the jurisdiction authorityof and Cir. “parties InDerzack, 1997). the were (3d 1575 aff’dofA Cnty. 1996) v.nomPa.Derzacksub (W.D. partywi the thanrather on Corporation fees the on reliedthe court on because the court, the deceived PartnCorporation the the and“not only becausedid wasbeingcommitted. corpo the never discusseswhether Circuit’sopinion requests fraudare onnot court.”the (Docket No. 15 theseDefendants. MoonlightThe prosecutors submit deceivedCourt asthe well, andthey so ondid not 14 onlycan beonfraud a courtthe ifcounsel committ courtthe inthe JointStatus Report. (Docket No. 13 se,fraubecause per the court, fraud the wasno on his andthesedocuments related about at deposition on the on court .. .”. (Id.) inCourtaneffort toinfluenceits decision,” w as upon upon workthe of investigators,these Courtand the Aswascase the Levander, in Moonlightthe Investi Levander isyet anothercase which clearly demonst Of course,Derzack directlycontradictsMoonlithe DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Because “[t]he discovery process isintegralanpar discovery “[t]heBecause process 5.
Derzack v. County ofAllegheny, Pennsylvania County v. Derzack 13 Two years later, after the corporation failed to failedto aftercorporationlater, yearsTwo the 14 15 Id. The court found there was a fraudcou on TheId. courtthe found wasa there Derzack v. Cnty. of Allegheny, Pa., 173 F.R.D. 40 F.R.D. 173 v.Derzack Pa., Cnty.ofAllegheny, ell astheir ell statement “[p]erjury that byparty o a 612at 18.)Levander expressly assertirefutes its 612at 18.) peripheral issues buton issues togoing corethe o edorintentionally perjurysuborned the presen and did relyciting upon it, thatdeclaration initso ghtProsecutors’ statement that“false answersto d ted White’sted declaration andthe fraudulent JointRe gators andProsecutors only not deceived Defendants ent. The MoonlightThe ent. Prosecutors expected Courtthe rates thattherates United States misstatesthe law rega 14 ules and procedures.” Id. “engagedTheId. plaintiffsules and procedures.” th and lack of candor.” Id. lackTheId. plaintiffsand candor.” of th Corporation’s depositions to impose attorneys’ to depositionsCorporation’s ss loss claim, and turned over falsified,loss over and claim, turned ss dulent documents were never submitted to the never submitted were to documents dulent
404. One of the plaintiffs then testified falsely One plaintiffstestified of the 404. then th the assets—the Partnership.” Id. Partnership.” assets—the th the engaging in court-ordered discovery the in engagingunder court-ordered sed the Corporation’s assets several monthsseveralCorporation’s the sedassets facts. Id. at 405.The plaintiffsat Id. there facts. argued ership deceive the Levanders, . . . they. . . also Levanders, the deceive ership thisration’sperjurythat aware attorneys were n when not presented to the court, have presentedcourt, beento the not nwhen llegheny Children & Youth Servs., 118F.3d Servs., &Youth llegheny Children t of the judicial process,” pervasivejudicial t process,” of the FRAUDCOURT ONTHE pay the attorneys’ feesasattorneys’pay the r witness isr fraud not rder denyingrder the on“perjury that f the case f the against tedit tothe rding fraudrding on iscovery porttothis rt to rely , they, 0, 4160,
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the usual manner.” Stonehill, 660 F.3d at 445. Stonehill,at F.3d manner.”usual 660 the present are that ofadjudgingcases impartial task judicial so the machinerthat court of the officers attempts t or inwhich“frauddoes[,] partyengages lawmacase malfeasance. the Rather, litigation of Ruledeperelief 60 that under authority suggesting undertakenconstit which counselby conduct general adversmisconduct “plaintiff’s the Thus,Id. .” . authorityha the court’s at penumbra the and the of discoverysettlement becauseand the confines,and bothbe court reaches conduct power of the inherent falsediscoveryplaintiff’s responses the Inshort, viol conductdid not “improper plaintiff’s that the l grossly the supervision. . . andtainted court’s intand“knowing and plaintiff’s the procedures[,]” discoveryauthorityjur the and court-ordered under courtfo However,atdistrict Id.403. the court. 16 instancesmal litigationof seven separate analyzed pr by to [opposingparty]“an the to effort amounts is1133, immaterial. Pumphrey,at F.3d conduct, 62 court’srelia the for testimonyperjuredproffering fraudde Whether the which (citation 916 omitted). aspectofdiscovery the process.” than a single act of fraud directed at the court. court. atfraud the directed of act thansingle a Asfoundby Judge Nichols, Moonlight the Firepros DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Fraud upon the court may also be found infoundcourtmaybe the entire an upon Fraud also 6. Stonehill evidences the Ninth Circuit’s recognition NinthCircuit’s the Stonehill evidences
Fraud Upon the Court May AriseofCon CourseMay Courtthe a From Upon Fraud ecution wasplaguedby “abusesvirtually affecting Pumphrey, 62 F.3d at 1133(listing ofcourse Pumphrey, at F.3d 62 itigation process of the court,” it did not matteritdid court,” not of the process itigation 15 und that since the “parties were engaging insince“parties engaging the were und that ely impact[ed] the judicial system . . . .” Id. judicial .” . . the system. impact[ed] ely amounted to fraud on the court “[b]ecausefraud the court on the to amounted y cannot perform in the usual manner itsperformin mannerusualy cannot the nce, Levander, 180 F.3d at 1120, or a course a 1120,of at or F.3d Levander, 180 nce, for adjudication.” Intermagnetics, 926 F.2d at F.2d 926 adjudication.”Intermagnetics,for 4 at Id. sea.” . . . per ofthisorder court ate
kes clear that fraud on the court occurs whencourt afraud the occurs that on clear kes feasance identified by complainant Stonehill,by identified feasancecomplainant event the judicial process frominfunctioningjudicial the event process judge] magistrate . . of[the nds-onsupervision o, defile the court itself, or is perpetrated byisitself, defile perpetrated or court o, the act egregious singleexistence ofa nds the on underthis conduct occurred improper entional isdiction of the [court] and itsisdiction rulesand [court] of the files the court occurs in a single act, suchin as occurs filesact, single court a the processes in this case were certainlyin were processeswithin case this fore the court directly and beyond the court’s directlycourt’s beyond fore the court the and The sole issue is whether the conduct isconduct issuewhetherThesole the uted fraud on the court). There isThere court). no fraud the uted on of this rule. There, the Ninth CircuitThere, the rule. ofthis course of conduct by party, aofrather conduct course FRAUDCOURT ONTHE duct . . every 16 16.
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highest degree of diligence [the] fraud cannot be c fraud degree cannot ofdiligence [the] highest court from granting relief under Rule 60(d)(3). Se 60(d)(3). fromRule court under reliefgranting C. not. separately,does considered frauda upon may collectivelymisconduct constitute 444-45. at Id. manner.” infunctioningusual the judicialintegritys of the process” “harm[ing] the alsoparty’sentirec whethermust a consider court incourtanalyze require the each not that law does constitute frau initsnot totality, did considered at 452.Id.451, fraud court. to on the amounted story aspr “change[d] the whole” asa“allegations 466-51.at Id. satisfystandard. individually the andacourt, fraud the itupon constituted whether examinedfirstinst The Ninth each 446-51. Circuit govof the Ruleas proofaction, the 60 brought who acmotion bringingor aany in Thus, 1987)). delay Miller, R. &WrightArthur AlanCharles 11 (citing isandgreat,”..largely is . court fraud the on fraud on the court.” Stonehill, 660 F.3d at 443(c Stonehill, at F.3d court.” 660 fraud the on limitcourts’power to on time“provides no Rule 60 languageInkeeping ofth plainwith the 60(c)(1). in forthdoes (b) subdivisioncircumstances set to ma60(c).Civ. Indeed, rule R. Fed. P. the court. issues of the case. Id. at 452. Despiteatfact Id.452. this case. the issues of
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING There is no time bar to a motion or action to set a setactionmotion ato isbar or to no timeThere Settlement. The Supreme Court has recognized, “[E]ven if [the m hasif “[E]venrecognized,[the Court TheSupreme A Motion or Action For Fraud on the Court is Not PrisCourt Not orthe For Action on Motion Fraud A “free from procedural limitations . . . .” Id. at Id. .” . . limitations from. procedural “free -specific conclusion, Stonehill makes clear that that th clear makesStonehill -specificconclusion, d on the court because it did not go go central to the not becauseit didcourt on the d 1 The Ninth Circuit then examined whether the the TheCircuitwhether thenexamined Ninth kes clear that the one-yeartime-limit applicablethat the clear kes 6 uch that it was “prevent[ed] . . . from . . . itwas“prevent[ed] that uch conduct, ultimately the that foundThe court itation omitted). “[T]he power to vacate forvacate “[T]he itationpower to omitted). Accordingly, several instances of litigationinstancesof Accordingly, several not apply to subdivision (d)(3). Fed. R. Civ. R. Fed. P. subdivision notapply (d)(3). to determined that each not categorydid that determined e rule, the Ninth Circuit has clearly held that hasheldthat rule,NinthCircuitclearly the e stance of misconduct in a vacuum. Rather, in the Rather, misconduct vacuum.aof stance
ondoned for that reason alone...... itreasonSurely alone.. for that ondoned ourse of conduct rises to the level rises the ofconduct ourse to of e, e.g., Hazel-Atlas, 322 U.S. at 247.at U.S. e.g.,Hazel-Atlas, 322 e, esented to the district court” such that suchthey district court” that the esented to tion for fraud on the court does not bar not doesfraud the for court on the tion ance of misconduct in isolation to determine inisolationmisconduct to ofance ernment’s fraud on the court. 660 F.3d at660F.3d court. fraud the on ernment’s set aside judgments based on a findingasidebased a judgments set of on Federal Practice & Procedure § 2870 (2d ed. 2870(2d § Federal&Procedure Practice the court, even where each instance,even each court, where the side a final judgment for fraud the forfinal aon side judgment oving party] did not exercise not the did party] oving ecluded By Passageor ofTime By ecluded FRAUDCOURT ONTHE 444
e
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Herring v. United States, the Third Circuitanalyze the Unitedv.States, Herring at322243. U.S. agreement. settlement involveda inevenaction, which underlying court the the when courtshoulda grantinthat recognized Hazel-Atlas Sta in assertionProsecutors’Joint their Moonlight lawisThecase case.consisten the disposition of fraudjudgmentfor “setasideon power to a court’s Civ.See R. Fed. settlement orders. or judgments, final itsapplicationto distinctiond regarding no fritselfas court victim the a the verdict, of was distr fraud, the indiligent the uncovering wasnot inst this Pumphrey, reasoning NinthCircuit echoed andalways helplessmust mute bethey that impotent Thepublicdem litigants. welfare diligence of the integritybepreservation of the of the cannot that F.3d19 Cir. 1080 12 (Fed. court. fraud the for on meritsof fullin the analysisof Circuitengageda e the clearly that court the assessment, recognized factparties settled the had the that hador passed substantivecourt d wasa the conclusion; committed Cir. The court 384 2005). 424(3d F.3d court. the t ground the agreement on fifty-year-oldsettlement judgmen litigationstipulatedin aended underlying meritsfullhavea of the courts analysis conducted bar to relief. barto DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Lastly, Rule 60 unequivocally applies to any “judgm to unequivocallyLastly,applies 60 Rule In Broyhill Furniture Industries Inc. v. Craftmaste v.IndustriesInc. Furniture InBroyhill Recognizing that resolution through a settlementa ag resolutionthrough that Recognizing aud.” 62 F.3d at 1133.at62 F.3d aud.” 17 ispositions such as stipulated judgments, consentjudgments, asstipulated ispositionssuch . Id. at 390-92. Thus, in390-92. at thisThus, undertakingId. . the judicial process must always wait upon the the always upon must wait judicial process the a Rule 60 motion to vacate a consent judgmentconsentmotionavacate Ruleto a 60 t with this broad language. Contrary to Contrary the language. to broad withthis t ict court was still empowered to set asidewassetstill ictto the court empowered ands that the agencies of public justice be not so not bejustice agencies ofpublic the that ands 93). The court ultimately denied the motion formotion ultimately The 93). court the denied itself no wascertainlysettlement xistence of the of a claim of fraud on the court where court fraudthe the claim on ofa of
tus Report, the Supreme Court implicitly Supreme the Report, Court tus P. 60. Indeed, Rule 60(d) does not not doestie the 60.RuleIndeed, 60(d) P. ’s determination that nofraud’s been had that determination d the merits of a Rule 60 action to set asideset a meritsaction to 60 Rule d ofa the relief from a judgmentby on fraudobtained reliefa from ultimate nature of the the court” to the t or settlement agreement. For example,inFor settlement agreement. t or
hat the settlement was procured bywasprocuredfraud hat on settlement the the fraud on the court was committed, fraud court on the the [theplaintiff] ating:“[E]ven assumingthat id not even consider the amount oftime eventhat id amount the considernot victims of deception and fraud.” Id. The Id. fraud.” and deception victims of r Furniture Corporation, the Federal the rFurnitureCorporation, reement does not bar relief, other barrelief, not does other reement ent, order, or proceeding,”makes and order, or ent, FRAUDCOURT ONTHE
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the underlying judgment; in s thesewaycases judgment; do no underlying the procedural issuesevidenceinsufficientu or to due agreement does notbarsettingunderlying aside the does agreement existenits the meet burdenofshowing partymoving frau issuepartycommitted whethera substantive of agreemen involves settlement awhencase motion the 1978) aff’d sub nom. Southerland v. Irons, 628 F.2d 628 Irons, v.Southerland aff’dnom. 1978) sub fraudjudgmentfor on consent vacatingrequired the from standard case professional underlyingdeparted courtfound district that the hearing,evidentiary at matters the clearlymaterial representations, to isinby case re reachedthis parties agreement the Corporation, cour the Suzukiv.Motor InBlack 87. beyondwassomehowthe c settlement connection with misconductlevelshowrequisite the failureof a to inprecisely Circuit stated As First so the 1989). Mobilv.judicial Aoude system.” of the fundament w marauders; ifthat unscrupulous integrityagainst (E.D. Tenn. May 30, 2008). AndO v.in 2008). May SoutherlandTenn. (E.D. 30, frauda Court on the through wasprocured agreement egregious fraud. See Hazel-Atlas, 322 U.S. at 246.at Hazel-Atlas, See U.S. fraud. 322 egregious havethe federalrepeatedly recognized lower courts precedent.A controllingCourt Supreme to contrary judgments,consentdi are thesecasesor settlement fraudclaims and on of artificial constraint narrow inaction. agreement underlying settlement the ofa DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING These cases merely represent instancescourts where merely Theserepresent cases Still, other cases purport to limit availabilitcasesto the purport Still,other 18 Aoude, it is “[s]urpassingly difficult to conceive itis to “[s]urpassinglyAoude, difficult the attorney’s “carefully planned scheme” inscheme”attorney’s “carefully the the planned issuesettlemen in“[t]he because civilcase” this ndered void by [the plaintiff’s] falsevoid by plaintiff’s] ndered [the on the court in cases resolved through in through court resolved on cases the , but did not suggest that judgment entered in judgmententered suggest did that but , not nrelated to the form of the finalform of of the the disposition nrelated to
ere so, it would place at riskitwould very so, the at ere place stinguishable or are wronglyand are or stinguishabledecided a suggest might law anyTo extent the case “Courts cannot lack the power to defend lack to cannot “Courtstheir power the judgment pursuant to Rule judgmentpursuant to 60(d)(3). need to protect the institutionsfromjusticeprotect ofneed the to d on the court makes clear that, should makes a court that, the d clear on the court. 77 F.R.D. 727, 733 (E.D. Mich.733727,F.R.D.(E.D. 77 court. the settlement itfound“unquestionable the t that peak to the propriety of granting a Rule 60(d) Rulepropriety a ofgranting the 60(d) to peak 978 (6th Cir. 1980). Cir. (6th 1980). 978 Oil Corp., 892 F.2d 1115, 11191115,(1st Cir.F.2d 892 Corp., Oil s set forth above, the Supreme Court and forthSupreme above, the Court set s s demanded of an officer of court and anofcourt demandeds officer of ce of fraud on the court, a settlementa court, fraud the on of ce akland County, after conductingafteran akland County, *3 2008WL 2:04-CV-180, No. 2278663, .” t. The very fact that address the thesecasesThe very fact that t. y of relief under Rule 60(d)(3) in face the Rulerelief y60(d)(3) of under ourt’s reach under Rule 60. Id. at 1086-at Id. Rule reach 60. under ourt’s have denied relief under Rule 60(d) haveRule 60(d) relief denied under FRAUDCOURT ONTHE
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to a controversy, but of a sovereignty . . . [whose .. . controversy, asovereignty but ofa to judicial in asthey our system, playunique role a haveby govern iscommitted beento a issuealleged D. here.committed court inheren precludes inCourt’s waylimitsor any this isThus, 246). U.S. at ab nothingthere 322 Atlas, unchecked. go public” the and safeguard to protect itwould wouldonly be not superficial, settlement ait, ruleoft upon application proscribing worked inherent robust many the andrecognizing cases the Inof light Id. specifically Court Atlas warned.” foster would. . . power existencedenyofsuch the practicwould who dare combat to – those to process inherentpow usemore appropriate court’s ofa ofa seeals1992);F.2dCir. 47 45,962 (D.C. F.E.R.C., in attorneys civilcases. and criminal government concurring) (Brennan,(1985) 25-26J., (emphasis 1, isat 150 the (“The Op. prosecutingattorney A.B.A. States, in particular, is “held to a highera is standar in “held to States, particular, gove judicialour andboth the integrity process of s interests andattorney’s duties, role, government applicablein on specialstandardsplace, and rules justice see convict isbut to done.”). that not to win a case, but that justice shall be done.” Berge justice be shalldone.” but case, winthat a
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING 1. Court. the DefraudActors The Integrity of the Judicial Process is Most Sever Process Judicial Most isofthe Integrity The The standards discussed above are applied even more appliedeven are above Thediscussedstandards
HigherStandard Because They Represent the Sovereign, Government AtSovereign, Government the Represent They Because . . As a result of this unique position, there are are there As uniqueresult position, ofathis d of behavior.” United States v. Young, 470 U.S. 470 Young,Unitedv. States ofbehavior.” d 19 the Supreme Court’s decision in decision Hazel-Atlas, the Court’s Supreme ] interest in a . . . prosecution is not that itinterest shprosecution inisthat ] . not . . a are “the representative not ofan ordinary not “the party are representative r, 295 U.S. at 88 (emphasis added); see also 88U.S.see(emphasisat also 295 added); r, out the settlement of the federal action that federalthat of the settlement action the out o as to safeguard the publicsafeguard the the asensureto and o his power to judgments through his obtained to power rnment. An attorney representing the United An United rnment. attorneyrepresenting the attorneys,government a defining lyto the very impotency against which the Hazel-which the very impotencyagainst the
See Freeport-McMoRan Oil & Gas Co. v. Oil& GasFreeport-McMoRan Co. See allow a “wrong against the institutions set up up to institutionsset the against “wrong allowa t power to address the egregious fraudegregious upon address the the power to t o A.B.A. Code of Prof’l Responsibility EC 7- EC A.B.A.ResponsibilityofProf’lCode o er than to protect the sanctity of the judicialsanctity protect the of the to er than Pumphrey, 62 F.3d at 1133 1133 (quotingPumphrey,at Hazel-F.3d 62 power of a federal court to confront fraud federalto power ofa court torney of the state, and itisand his state, duty torneythe primary of in original). This standard applies equally to inequallyappliesto This standard original). ment attorney. These lawyers forpublic lawyers the Theseattorney. ment e unmitigated fraud upon the court itself. To itself.To fraud court upon the unmitigated e stringently when the misconduct at misconduct stringently the when ely Damaged When Government When elyDamaged FRAUDCOURT ONTHE torneys Are Held to a a torneysHeldto Are all
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Responsibility: Report of the Joint Conference, 44 44 Conference,Joint of the Report Responsibility: objectiveonly ofone accomplishment the pledgedto other, being on the but possessed, any controversy, furnishadversar to hand, the one on obligated, the 1249Cir.1244, (9th F.3d 1993). Chu, v.5 States iscase the all relevant presented to that evidence justiceseek requir responsibilityspecifically,to ConferenJoint of the Report Prof’l Responsibility: ifmustprosecut becurtailed the severelyadvocate Thef individual client. behalf an appearing on of o guidecannotasforaconduct the take prosecutor Undecivil (discussingto 14 actions). application example,inPet v. For Demjanjuk assettings well. have policy that the federalopined numerous courts Id. prosecution.” not d onlyviolateshis withholdsevidencesuch who producee failure the to exculpatoryevidence, just While government’sId. evidence.” the sufficient isjusticeprocedural a accorded defendant that the This simply responsib ofannot and advocate. that “[a]prosecut becauseevidenceall present relevant clause. Id. Due process is“irrespectiveDue violated processId. clause. Bradyv.constitutional violations. risegives to obligation to “refrain from instituting or continui “refraininstituting fromor to obligation (1980) ofProf’l7-14 Code EC A.B.A. Responsibility harass to . . hisuseshouldpar position not . . . DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Generally speaking, these standards require that “[ that requirethesestandards Generally speaking, Although the Supreme Court hasyet explicitlys not Court Supreme Althoughthe ties or to bring about unjust settlements or resultbringunjust settlementsor or to about ties 20 es lawyers representing the United States “tosee lawyersUnitedStates representing the es Maryland, 373 U.S. 83, 87 (1947). A 8783,prosecutor (1947). U.S. 373 Maryland, of the good faith or bad faithbadfaithof the or good of the , even if unfavorable to itsUnited position.” if evento unfavorable , ng litigation that is obviously unfair.” Id. More Id. is litigationunfair.” ng that obviously r this heightened standard, “[t]he public“[t]he heightened r thisstandard, reedom elsewhere wisely granted to a partisana to wisely granted elsewhere reedom vidence “material either to guiltpunishment” to or “material either vidence nd that guilt isguiltbasisof the ndupon that decided y element essential to the informedessential ofdecision the yto element A prosecutor thus occupies a “dual role, being “dualbeing occupiesa role,thus A prosecutor
or’s duties are to be properlydutiesto discharged.” are or’s disclosure obligation encompasses morethan encompassesobligationdisclosure justiceministerof hasresponsibility ofa or the ce, 44 A.B.A.J. 1159, 1218 (1958). 1218 A.B.A.J.1159,(1958). 44 ce, f his office the standards ofanstandards the attorneyfhis office A.B.A.J. 1159, 1218 (1958). Prosecutorsmust (1958). 1218 1159, A.B.A.J. are governmental that important powers of rovsky, a Sixth Circuit caseSixth examining a rovsky, Circuit seeit to specific obligations ility with carries justifications underlying Brady apply inBradycivilunderlying apply justifications isclosure obligations but also the due processalsodue isclosurebut the obligations , that of impartial justice.” Prof’limpartial justice.” of that , . A government lawyerhas A angovernment . also a] government lawyerin . governmentcivil action a a] tated that Bradyin appliescivilthat cases, tated FRAUDCOURT ONTHE s.” s.”
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the prosecutor does not haveinvestigawhere it,not andoes prosecutor the be kep “exculpatorycannot evidence recognizedthat investigating N Both applies the agencies. to also function of the trial process.’” Id. (quotingId. Unittrial of the function process.’” itsimplicatingBra thus Federal261.5, Regulations in Defendants, premisedp its against claimsStates isasthis applicablecasetant is here, Brady also 1966) 142(quotingv.136,(S.D.N.Y. Campbell Supp. ‘shallc a not Government isthat win the objective becauseby“in civil actions government brought the inherein crimi aprocess requirementsthat due the AndinH at295 88). &U.S. Sperry Berger, (citing in criminallawa thancase. defendant process aof by inabrought defendantcivil a that stated case go the court ordered Inc., the Constructors, Alamos (discussingandCir. ex denaturalization 1993) (6th ofallegedoft activitiesproof criminal “based on coverc Brady extendedbe to should that made clear court fraudcommitted the on government whether the falsepresentation evid of the “hasemphasizedthat (quotingN. remaining willfully ignorant of the facts.’” Morri facts.’” of the ignorant willfullyremaining avoidcannot Aobligat thisprosecutor it. resolve finessebyahead problem the pressing to attempting invemustleast at prosecutor perjury, the suspects agivenhas witnesshe proffered hasthat suspects DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING A federal prosecutor’s responsibilities also requirresponsibilities also federal Aprosecutor’s Finally, the duty to discloseismaterial evidence duty Finally,to the
Mariana Islands v. Bowiev.IslandsMariana , 243 F.3d 1109, 1118 (9th Cir. 2001)). The Supreme 2001)). 1118Cir.1109,(9th F.3d 243 21 amount to a criminal case. Indeed,United a the criminal case. amount to ed States v. Agursv. States ed the government should be afforded no lessshoulddue beno government afforded the he party proceeded against.” 10 F.3d 353 338,10 against.” party he proceeded ion by refusing to search for the truth andsearch the fortruth ion by to refusing s v. Ylst, 447 F.3d 735, 744 (9th Cir. 2006) 2006) 744 735,Cir.447(9th F.3d Ylst, v. s actdischarged ‘is by not The dutyto stigate. inth Circuit and the Supreme Court have inthCourt Supreme the Circuitand
perjured testimony: “When a prosecutor “Whenprosecutor testimony:a perjured 382 F. Supp. 1373, 13831974)1373,(D.N.M. Supp. F. 382 ase, but that justice shall be done.’” 256 F. justice 256 be done.’” but that ase,shall nal case should also apply inapply shouldcivilnalactions also case ting agency does.” TennisonCityv. and ting agency does.” art, on criminal violations of 36 Code ofCode criminal 36 on violationsart, of ence involves ‘a corruption of the truth-seekinginvolves of the ‘a corruption ence Los inv. Likewise,EEOC traditioncases). dy obligations. dyobligations. vernment to disclose a listdiscloseofwitnesses vernment and a to utchinson Co. v. F.T.C., the court stated that courtstated the F.T.C., v.that Co. utchinson without a diligent and good faith attempt to faith a to anddiligentwithout good attempt ,” like“the ultimate criminal ,” actions, ases where the government seeks remedies government the ases where t out of the hands of the defense just becausejust hands out defenseof the oft the in civil extradition proceedings, the court court in the proceedings, civilextradition United States, 365 U.S. 85, 96 (1961)). U.S.96 85,(1961)). 365 UnitedStates, not limited to government attorneys;governmentit limited not to e him to take certain actions when he certainwhentake him actions to e , 427 U.S.10397,(1976)). 427 FRAUDCOURT ONTHE Court Court
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safeguard the public.” Pumphrey, 62 F.3d at 1133 1133 ( at F.3d public.”Pumphrey, 62 the safeguard “aconstitutes wrong conduct Prosecutors’ Moonlight those of the defendant’s lawyer. The prosecutor mu lawyer.The prosecutor defendant’s of the those r a jurylaw likelyisto charged enforcement, with Attorneys UnitedStates Assistant positiontheiras placed inby the – trust them understanding of the not unique onlyoftheir requires understanding an about the law or the evidence or about probity lawevidence the the the or about or Kyles v. Whitley, 514 U.S. 419, 438 438 419,(1995)). U.S. 514 Whitley,v.Kyles prosecu andpolice the investigators not to only to fails whengovernment the occurs “Brady suppression inWestVirginia,v. w Youngblood in on reliespart forId them.”he materials asks unlesshim certain andit,pr byhave the ought to allowing prosecutor prosecu out byof the report the defendant] keeping investigatin by the “wouldallowing Brady undermine Giving investi 2004)). 388 382,Cir.(9th F.3d 392 10871078,(9th570 F.3d C Francisco, County ofSan asreason in “publicprosecutors (discussingtrust” Imble 212(1960));see361 also U.S. UnitedStates, (Posner, Cir.(7th F.3d 1997) 333 330,109 Cooper, decisions.” Dixon, 316 F.3d at 1046;2 seeBerger,at F.3d 316 Dixon, decisions.” judicialintegrity “theof the compromiseprocess” attornegovernmentfor iteasiermake unfortunately inves attorneys inand necessarily placegovernment and importantProsecutors’ obligations, damages). DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Appreciating the wrong committed by the Moonlight P bycommitted Moonlight wrong the Appreciatingthe motion,servethesestandardspurposes ofthis For 22 tor.’” 547 U.S. 867, 869-70 (2006) 869-70867,(quoting 547 U.S. tor.’” prosecutors are immune from suits forare immunefrom suits prosecutors epose greater trust in his arguments than ininthan eposegreater his trust arguments . (quoting Blanco, 392 F.3d at 388). Tennison388). at 392F.3d (quoting. Blanco, . “Because a prosecutor is“Becausepublic officiala prosecutor a .
public and by this Court – directresult asa of Court bypublicthisand of the defendant’s lawyer . . . .” Hennon lawyer.” v.. . . defendant’s of the osecutor to tell the investigators not to give not to investigators to tellosecutor the and to “improperly influence the court inits “improperlycourt influence the andto role within the justice system, but anjustice but system, rolewithin the gators immunity obligationsfrom Brady‘s gators 95 U.S. at 88 (“It is fair to say that the average sayis the (“It at fair that 88 U.S. to 95 tor’s hands the untiltor’s decided agency the the trust that the courts and the publicand the courts the trust that the hich the Supreme Court made clear that made that clear Court Supreme hich the r v. Pachtman, 424 U.S. 409, 424 (1976) 424 409,(1976) Pachtman,U.S. v. 424 r ys and government investigators to ysand government quoting Hazel-Atlas, 322 U.S. at 246). U.S. 322 quotingHazel-Atlas, J.) (citing Berger, 295 U.S.78;Stirone 295 v.(citingJ.) Berger, tigators to meet theseobligations, to tigators st not abuse that trust by misleading the jurybynot abusemisleading trust the st that against the institutions set up to protectandup institutions to set the against ir. 2008) (quoting United States v. Blanco,v. States (quoting United ir.2008) g agency to preventproduction the [to to agency g to turn over even evidence that is ‘knowneven that evidenceover turn to as the measure the as the ofwhether rosecutors against these institutionsagainst rosecutors these FRAUDCOURT ONTHE
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validity of the process.” Shaffer, 11 F.3d at 457.at F.3d 11 Shaffer, process.” validity the of lacka or accommodationofcand deceit slightest of forpurp is the which system’sprocess designed the liesit.”Islamic CouncilShuraGovernment the to TheCour liberty. them oftheir wrongfully deprive falsely not does accus Government the ensuring that is “The 25-26. humb withat the charged Court U.S. behavioviolationof“higher standard direct of the isonlyincongruous not by actionsuch prosecutor a man usualfunctioning the from‘in judicial process is prosecutor a no judgethat necessarilyAassumes andU representativelaw aof the enforcement” with justice do all acting seeking and is, to at times, a andof duties responsibilitiesknowing the judge, carry properlytheyaccused shouldwhen the against ofperson and,especially, assertions insinuations, faithfullyobserv willbeprosecuting attorney, the lesshas t or in confidence degree, jury, greater a a worked and,indoing, process so validity the of acts, fraudulent numerous commission the ofthrough on rests the forresolution ofdisputes the system behave to assumesrequires prosecutors and process F.Stonehill, 660 manner,” in functioningusual the at1125, 2d Supp. the F. 779 IslamicCouncil, Shura justic Cal.While “deception perverts 2011). (C.D. this “higher standard of behavior.” Stonehill,660 ofbehavior.” “higherstandard this DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING In engaging in the conduct detailed below, the Moon detailed the below, in Inengagingconduct the While much of the case law holds that a jurya law holdscasemuchplaces ofthat the While in a manner befitting “amannerinbefitting charged public official a 23 hat these obligations, which so plainly rest uponplainly whichrest so hat theseobligations, By failing to meetheightened thisstandard failing By to unshakable foundation that truth is of object foundationtruth the that unshakable al knowledge are apt to carry much apt weight knowledgeto are al ed. Consequently, improper suggestions, improper Consequently, ed. fraud on this Court. fraudthis Court. on F.3d at 445. They “pervert[ed] justice,” 445.They“pervert[ed] at F.3d r” to which a prosecutor is held, Young, 470 is Young, held,which to prosecutor a r”
prosecutor, must also assume that a prosecutora mustassume alsothat prosecutor, of S. Cal. v. F.B.I., 779 F. Supp. 2d 1114, 1125 2d1125 1114,779Supp. F. Cal. F.B.I., ofv.S. 3d at 445, precisely because the judicialprecisely445, becauseat the 3d e[,] [t]ruth always promotes it.” Id. it.” always[t]ruth e[,] promotes ner,’” Stonehill, 660 F.3d at 445, because445, at F.3d any 660 ner,’” Stonehill, t simply cannot perform this important task if task important performsimply t this cannot t engaging in “an effort . . . to prevent the in to . . “an. engagingeffort t or in any material respect quickly erodes the the quicklyin erodes materialor any respect ..Even justice.. the ofose dispensing inalso but attorney, asan withdutiestheir reby “preventing the judicial process fromjudicial “preventing process reby the e people, needlessly invade their privacy or invadeprivacytheiror needlesslypeople, e nited States. See Hennon, 109 F.3d at 333. 333. at Hennon,F.3d See 109 nitedStates. none.”). ling task of defending the Constitution and Constitution oflingdefending the task in a certain way. Indeed, “[o]ur adversary in“[o]ur Indeed, certain way. a the Moonlight Prosecutors damaged the Prosecutors Moonlight the greater confidence in a prosecutor, a confidenceprosecutor, in a greater light Prosecutors did only Prosecutors lightviolate not FRAUDCOURT ONTHE
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for the truth sufficient to establish a fraudestablish on sufficientth a the to fortruth placed in trust publicthose because the of public morehasinvestigators far government attorneysand Indeed, ofcare. standardhigher underoperatinga judicial the threat pr to where the and appropriate judicialitsintegrity the of the safeguard process tribunal, causinto the ofcandor hisviolates duty thisCircuit659.echoedThe Fourthconcer at U.S. becomeinvites a law;for itman to contempt every If. . . by its. examplewhole teachespeople the isGovernment the Our ...potent, the existence. itslaws,o own its failureobserve to quickly than preventansteps adversa no take that to obligation withdisregard attorneys “acted reckless government attorneyhasattorney private byprivate sincea a havewould not such even court, though conduct the failuresrepeated held to court that the Demjanjuk, government’s obligation to work for justice workfor rather to obligationgovernment’s fraudth on resultingandattorneys, the government foundThe Sixthby Circuit requested Demjanjuk.”). observefailedobl theirto they Demjanjuk’sguilt, in circumstancesof court the fraud the Thison was Shaffer, 11 F.3d at 457. Given that Rule 457.Given at that 60(d)(3) F.3d 11 Shaffer, for system the support justifiedin thenabandoning DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING 2. As the Supreme Court held“NothinginOhio, v.Mapp Supreme the AsCourt Given these duties, the Sixth Circuit foundgover CircuitaSixth the Given theseduties,
Upon the Court. Court. the Upon Sufficient Governmentis Attorney a Recklessnessby e court. See Demjanjuk, 10 F.3d at 354.In at Demjanjuk, F.3d See 10 court. e 24 elf, relief under 60(d)(3) isnecessarrelief particularly 60(d)(3) under elf, the Government becomes a lawbreaker, itbreedslawbreaker, becomes Government a the g our judicial process to “falter,”judicial “theare to people our process g no Brady obligations. Id. (finding the Id. Brady obligations. no ill,for it good For or teacher. omnipresent r worse, its disregard of the charter of its of r own itscharter disregardof the worse, individuals as government officers. individuals officers. asgovernment attorneys, byisgovernment ocess occasioned igation to produceexculpatorymaterials igationto fullyfairly. his presentingcase and ryfrom
turn over exculpatory evidence was a fraud on aexculpatory over was turn evidence serves as a means through which the court can court which means the through servesasa a fraud on the court perpetrated by government byperpetrated court government fraud the a on than for a result that favorsitsresult a attorneys’ for thanthat in favor of one where honesty is preeminent.” ispreeminent.” whereinhonesty ofone favor n, observing that whenattorney government observingn,a that this case where, by recklessly assuming byassuming case where, this recklessly e court, “was not consistentwith the “was not court, e law unto himself; invites367 itlaw unto anarchy.” for the truth and forgovernment’s and for the truth the serious consequences for both the court and court both the forconsequences serious that this failure on the part part of the failure the this on that constituted a fraud on the court if acourt fraud the committed on constituted nment attorney’s“reckless disregard” nment can destroy a government more destroygovernment cana FRAUDCOURT ONTHE to Constitute a Fraud a toConstitute y
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defrauded the court. court. the defrauded Moonlight that the demonstrates hereoverwhelmingly evenBut findingcourt. a fraud the on warrant of federal and court both of the prosecutors officers itscounsel,”recklessdisrega of the participation r acourt Report party’sfraud the upon that Status Moonlight Prosecut Contrary the to courts. and the articulatedinan Berger, prosecutors government to in Mapp, articulated principleby the necessitated cofraud the involving inon isallcases warranted l isand different court the defraudedattorneyhas legaloutcome of the pro ideasofwhat preconceived
instance of misconduct, Defendants address whether Defendants addresswhether misconduct, instanceof At conclu the meaning60(d)(3). ofRulewithin the the ofDefendants’ truthallegations, assumingthe misconduct. misconduct. whichadditionalfactsar asappropriate, and then, allinstances is that germaneto factual background Ruleclaima 60(d)(3) relief state which under upon assessmeconvenient formost Court’s the manner the inOrder,2014,and ef anNovember 24, thisCourt’s forstandards the into them and relation assessing facts Motion by those 60(d)(3) Ruletheir assuming III. EACH INSTANCE OF THE MOONLIGHT PROSECUTORS’ M PROSECUTORS’ MOONLIGHT INSTANCETHEOFEACH III. DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Demjanjuk‘s conclusion – that the showing the necessary that – Demjanjuk‘sconclusion Defendants understand that the Court will Court that ruleupon the understand Defendants Immediately following each instance of misconduct, instancemisconduct, ofeach following Immediately CONSTITUTES A SEPARATE FRAUD ON THE COURTTHE ON SEPARATE A FRAUD CONSTITUTES 25 rd for the truth, committed by attorneys who are are bycommitted forwho truth, the attorneys rd esser than that applicable to a privateattorneyapplicable – to thanthat esser – charged with doing justice – is sufficient to is –to sufficient justicecharged with – doing equires “the knowing and intentionalequires“theknowingand e relevant to each particular instanceeach relevant ofto eparticular urt by a government attorney. Indeed, itis Indeed,attorney.by urt government a if their statement were correct, the evidencecorrect, the were statement if their behaviorapplicable ofheightened standard the relief under Rule 60(d)(3). In accordance withInaccordance 60(d)(3). Rulerelief under
facts separately constitute fraud court on the separatelyfacts constitute of the Moonlight Prosecutors’ misconduct, misconduct, Prosecutors’ Moonlight of the d the trust placed in prosecutors by publicin the placed trust prosecutors the d can be granted, Defendants belowprovidecan be granted, ors’ statement in their portion of the Joint instatementJoint of the ors’ portiontheir sion of the discussion regarding each separate separate eachregarding sion discussion of the to be true in all respects (Docket No. 618), 618), No. (Docket inbe true to all respects fort to reframe the underlying allegations inreframe to allegations underlyingfort the ceedings should be . . . .” Id. at 349-50.at Id. ceedings.” . . be should . the multiple instances of misconduct multiplemisconduct instancesof the nt of whether the allegations, taken as true, astrue, allegations,taken the nt ofwhether Prosecutors knowingly and intentionallyknowingly Prosecutors and the sufficiency of the factsunderlying sufficiencyof the the Defendants addresswhether, for establishing that a governmenta establishing for that FRAUDCOURT ONTHE ISCONDUCT
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coincide with his arrival on a varietyofgeographi a his coincide on arrivalwith serial employeesuspected arso and Service (“USFS”) Moonligh the Fireunknown because Moonlight are the Hist Firewhereabouts Moonlight began. the before t transferred Fireand BattalionPrevention, Chief, M surveillance, McNeiland catch transponders using favorite place to cut firewood. cut placefavorite to areaencircled sontheiran his During deposition, Bauers firethat he the began;testified where the a privatepatrolm Fire Moonlight started, the after illegallyanusedso,Bauer modifieddo chainsaw To ancut activityhefirewood, enga in to be area the residentaoft fire,Ryan dayBauer, On ofthe the i canopy. were Aofpeoplenumber the beneathtree substaa ispropertythrough readilyaccessible the behasBecausearea the ATVriders. andmotorcycle byfrequentedu wasalso recreationalsameproperty firewood propertyremote, prime wasthe a somewhat Defendan Landowner the by membersof property owned A. withinfraud Court on the t collectively constitute 17 details todetailssupport the reliefsought.Detailed evi Defendants’Request forNoticeJudicial (Docket No. Defendants’previous briefing(Docket No.593-3), t Defendants’ previous briefsupport filedin of the
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Others may have been in the area too, including inmaytoo, area Mic the been haveOthers 1. Misconduct. Background Facts Relevant to All Instances of the M Allofthe Facts to RelevantInstances Background The Moonlight Fire began on a Monday, Labor Day, Monday,Se Labor beganaFire on TheMoonlight
A Brief Overview of the Moonlight Fire. Moonlight Briefofthe A Overview 17
dentiaryfor ofsupport all factsthe identified he Rule 60(d)(3) Motion provided extensive evidentiar he Declaration he of R.William Warne(Docket No.596) 593-10). 26 said they were looking for their son Ryan.sontheir forlooking theysaid were ged in frequently through a side business he inbusinesssideran.frequently a through ged he meaning of Rule 60(d)(3). meaning 60(d)(3). ofRulehe he town of Westwood, told his parents he he toldwould histown ofWestwood, parents an found Bauer’s parents dangerously close to dangerouslyto found close parents Bauer’s an o Lassen National Park about two months two Lassenabout o NationalPark which included where the fire started ashis fire the started included where which ofnavigableroads trailsdirt and ntialnetwork cal assignments. After a lengthy attempt lengthy to a After attempt assignments. cal
sers, including hikers, hunters, andincluding hunters, hikers, sers, n the area on Labor Day, or may have Day,or been. Labor on area n the he morning and early afternoon day morningon heofthe earlyafternoon and , which increased its fire danger. Shortlyits firewhichincreased danger. , en logged over the course of manycourse the of loggeddecades, over en cNeil was inexplicably promoted to to inexplicablypromoted cNeil was nist on numerous fires that appeared fires to numerousnistthat on cutting area for local townspeople. The local for cuttingtownspeople. area t Investigators never bothered to look into look never to Investigators bothered t ts and managed by W.M. Beaty. While Beaty. W.M.managed andby ts hael McNeil, a United States Forest UnitedStates haela McNeil, ptember 3, 2007,private on 3, ptember oonlightProsecutors’ FRAUDCOURT ONTHE rein is contained is rein in yfactual , and,
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carried outcarried complicatedthrough a scheme designed t BarbaraBoxer andCongresswoman Mary Bono.McNeil makingextortionistemail threatstovarious judges Defendantswere keen totakeMcNeil’s deposition be USFSissuedpickup truck. Ultimately, McNeil was a that summer that thatWhite quickly made ofa point requ theywhat time.knewthe at Lead Moonlight Investi the Landowner Defendants’ land. Defendants’Landowner the Sierra InPacifichire turn, Defendants. Landowner harbid to ahad Sierra won Pacific defendant year, help skidbars” “water prevent trailsacross to or w (“Crismon”), Kelly Crismon and BushJ.W.(“Bush”) and cause scene.and cause starti for responsiblemay been have whetherMcNeil 18 long-heldsuspicions thatMcNeil maybeserialar a whereserving he is a year, nineteen eight se month thereforedeposed intheMcNeil state action Feb on uniform andvehicle, and timingthe of arrival his but was prevented from doing so byFi from Moonlight so wasprevented the but doing t return Bush to to attempted work, their finishing se did as theyor out, smellor they landing,drove no At down. timewithwhile working truck windows backheadedeach p.m.,Bytoward was leaving.1:30 a mile about and bulldozers their then road parked couldbe anywheresettolastbetween minutestoda the “fuses”the was onlylimitedby imaginationthe of understood howtiming tomake devices couldwhich s inacresand Lassen Plumas ofwhich the 45,000 were ov acres approximatelyburnwould Firestill65,000 in, firesuppressionresources was Oncecalled the Lookoutlocated is Toweron Rock TheRedp.m. 2:24 The MoonlightThe Investigators’ failure toinvestigat DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Both operators wrapped up their work that day up befor that wrapped work theiroperators Both On the morning and early afternoon of the day the f day morningof the the and On earlyafternoon the The Moonlight Fire was spotted fromUSF closest spotted Fire the TheMoonlight was 18
inSusanville in relationshipMoonlighttothe Fire , lawenforcement, officials, andpoliticians, inclu the creator. the He confirmedsuch that delayed igniti ntence. During ntence. thatdeposition, McNeil testified t sonistwho easilycould perpetratesuchcrimes whil ruary 14 2013,and 15, at R.J. the Donovan Correcti e the whereaboutsethe ofeven is McNeil more inexcusabl ys. gator Whitegator was so concerned about McNeil’s arrival omake it appear as if ex-wife his perpetrthewere esting thatatransponder be onbottomplacedthe o cause of the “blame-someone-else”cause ofthe of nature cri his rrested and chargedrrested and with arsonin anothermatter an tartwildfires, and that typesthe ofdevices t and 27 pledguilty extortionisttothe threats, acrime he erosion. They were there because earlier that that erosion.becauseTheyearlier there were e any smoke or fire. Within two hours fire. of Withine any two or smoke he general area in which he hadheoperatinghebeenin general which area
were directed to the site, but the Moonlight Moonlight but the site, directed to the were vest a portiona by the owned vest of property to the south where they serviced them before thembefore where theysouth to serviced the d Howell to conduct the loggingconduct on operations Howell the d to er the course of the next two weeks, someweeks, next two of the course the er ng the fire before they released their originfiretheir theybefore released ng the the nearby town of Westwood inhis pickupofWestwood nearby the town re. re. National Forests, the propertyUnited Forests, ofthe the National in the area that day,log the while inat that area the Red Rock peak about ten milesaboutpeak ten away. Rock Red ere using bulldozers to create soilcreate bermsere to using bulldozers ire started, two Howell iretwo employees, started, e 1:00 p.m., drove down to a servicea p.m.,e drovedown 1:00 to S lookout tower and called in lookoutand at called tower S FRAUDCOURT ONTHE dingSenator . Defendants . hat he onmechanisms he he lengthof ator. einUSFS his onalFacility, fMcNeil’s dwith mes, the e in ein lightof in areathe initially
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strike marks, which they preliminarily identified a identifiedwhichmarks, they strikepreliminarily chosen area of origin and marking the scene with in markingscene with oforigin the chosenarea and beginth processingbehindto while Reynoldsstayed bars. There day installingthat earlierwater area meetin Duringroughly that p.m. discussion at 6:00 fire the s interviewat first back ofCrismon their op upmeetingset a bulldozer withHowellto phones backleft, t drove they scene,securing the Without States. The USFS and Cal Fire jointly worked to ex to jointlyFire andworked The USFS Cal States. 19 thenare removedtrucksbylogging to takethem to a skida trail. Aslead. they White taking the with investigation,
Moonlight Fire” (“Joint Report”). Report Report”).The Joint Fire” Moonlight (“Joint fire, causeent on of the the officialtheir report investigation the next morning. next investigation the Whitenight, firstR that and on investigativework sameitwasBecauset later that evening. arriving lawenforcemeFireCal ChiefaWhite,and Battalion Tower. Lookout inRock Redbycalled fire the was b had David who Reynolds(“Reynolds”), investigator the However,Diane Welton (“Welton”). investigator Josh investigator Fire’sCal officers:enforcement “Skid trails” pathwaysare within forest the creat DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING When White returned, heplac and Reynoldscontinued White Whenreturned, The USFS and Cal Fire jointly investigated the Moon the investigated jointlyFireandTheUSFS Cal 2. Early that next morning, on September 4, 2007, Reyn2007, morning,4, Septembernext on Earlythat
19 After turning on that trail and walking down a sl downAftera walking that and trail on turning The Moonlight Fire Investigation, as ToldasThrought Fire Investigation, Moonlight The edby bulldozersdragging logsdown to“landings” w mills. itled “Origin and Cause Investigation Report, itledInvestigationReport, “Origin Cause and 28 after, White took Crismon back down the hill,CrismonWhiteback the down took after, finishingthat in area, chosenorigintheir cene, oo hot and too dark to doany darkand hot to substantive oo too ua White (“White”) and the USFS’sand the Whiteua(“White”) s the general location of where the fire began. fire the began. location ofwhere general the s
walked into the fire area, they eventually foundthey fire eventually into the area, walked owards Westwood for lunch,forWestwood and their used owards eynolds agreed they would start their joint theytheirwould agreed start eynolds g, Crismon confirmed that he had been inhe had the been that Crismonconfirmed g, dicator flags. dicator was prepared and signed by two law andby signedwasprepared two tinguish the blaze. blaze. the tinguish He arrived at approximately arrivedp.m. He at 3:30 e scene, putting a pink tape aroundtheir puttingscene, pinketape a nt officer, was also dispatched to the fire, the to dispatchedwasalso nt officer, erator Crismon. The investigators conducted investigators Crismon.eratorThe first investigator on the scene the investigator on firstwasUSFS een dispatched to the scene shortly after scene the shortlyafter the to dispatchedeen olds and Whitetheirbegan and olds light Fire, and later jointlyissuedlaterFire,lightand ing indicator flagsin theyindicator area the ing ope, they located some rocks with somelocated rocks they ope, FRAUDCOURT ONTHE he Joint Report.heJoint here the here logs
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finished an “Incident Report” identifyingPa Sierra Report” “Incident finishedan “wereand“were done theyconfident” they Reynolds, having after comm lesshours oforiginthan area48 bulldfromHowellstrikesa by wascausedFire rock metalwhere the they photographed to trucks, their metal,invest the findingAfter the “Evidence#1.” rocks foundmetalthesetwo allegedlyat placed the Acco metalrecovered.” ofwere shavings,with that two material.”“Within proximity of ferrous close ‘swee magnet to handheld“a ReynoldsusedWhite and as indicators they photographing those indicators, they when provides they returned Report Joint that BothMatt Weltonand (“Matthews”). Marion Matthews hersupervisor alongWhite, morningwith withthat lead USFS’sreplaced Reynoldsas the USFS, with the point ofpoint canorigin make “a worldof difference,”a pointwhereit isany that evid physicalat fire as ofori findingfire’s point testifiedalso the that infirewildlandprimaryofa goals of the that one flagtypicallyA white fire des the wasadvancing. yellowflags the fire where wasbacking, where the asAccordin oforigin.general area the designated theyare necessarilywhatmissing could bediff far causation. If investigators findwhat they believe scienceofandcauseorigin investigations, confirm 20 device,agasolinespill, amatch, set a of footpri Asdiscussed infra, USFSthe Fire’sand Cal leado DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING White and Reynolds returned the next morning,nextSepte the Reynoldsreturned Whiteand Three days later, on September 8, 2007, Special2007, 8, Age later,September on daysThree White 2007, andSeptember Reynoon 5, a.m. By 10:15 nts, etc.nts, is a competent a ignition is source inaspot where the erent causation potentials erent at the pointactual of o edduringdeposition his thatbeing off feby eight slocating correctthe point ofcritical is origin rigin andrigin causeinvestigatorLarry Dodds,anexpert gin is necessary before determining the cause ofth determiningbeforecause necessary the is gin 29 ence of the actual ignition is likely to be located be likelyisignition actualto of the ence vestigation is to find Whitepoint oforigin. ais to vestigation
ignates the point of origin. White has Whitepoint oforigin.conceded the ignates g to their training, blue flags are used to denote flagsto used training, theirare blue g to went. The Joint Report also providesalso Report The Jointthat went. igators left igators downhill the walked origin and area cific as the “defendant.” “defendant.” cificas the of the rocks . . . a ferrous material consistent materialferrous a... consistent rocks of the at 10:02a.m. at into one bag, which they labeled E-1, for intoE-1, labeled bag,whichtheyone placed “numbered plates” next to certain fire to “numberedplates”next placed fire was moving laterally, and red flags where laterally,red movingfire and was enced their investigation. According to investigation.Accordingto their enced rding to the Joint Report, White ReynoldsrdingReport, and Joint to the and fellow USFS law enforcement law officer andUSFSfellow enforcement ozer. Importantly, they then “released” theirImportantly, theyozer. then .” Indeed, later that samelater Indeed,Reynolds that day, .” investigator. Welton visited the fireinvestigator.Welton scenevisited the p’ the area in an effort to identify in to anyarea effort the an p’ hews were directed to join hews directed to were the nt Welton, a law enforcement lawa officer Welton, enforcement nt mber 5, at roughly 8:00 a.m. Theroughly at mber a.m. 5, 8:00 lds concluded that the Moonlight ldsMoonlight the concluded that FRAUDCOURT ONTHE toestablishing rigin –a timing rigin fire did start, not et regarding the in the . 20 e
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conduct of these investigators duringinvestigators origintheir ofthese conduct t investigationand Firecause and Moonlight origin fails Report Joint to the convincingthat evidence sepidentifies two anthat sketchcontains official bladefront from S- strikegrouser or the rock with whichReport, conclud Joint theirFire Cal released severalarea weeks into McNeil the employeeMichael RepodoesJoint hill, up the nor the farther extend investigat concerns the Matthews’ that about stated signed and sent a letter to each primary letter to Def of the a andsigned sent
more area fartherwest. hill up the the to morearea origin Matthews the believedar that and Reynolds. size the sheof hadabout Welton reservations that McNeil with respect to the Moonlight Fire. Moonlight to the McNeilrespect with duringMatthe both Yet depositions, theirarrival. invarfires arson numerous that and the assignments h historybeingbefore criminaldisturbingMcNeil’s putWelton instructed together Endicott fact,to In oth theyand who Officer MichaelMcNeil, Management in interest hadkeenathe Welton Matthews and Both (“ Craig byEndicott supervisor investigation their 21 p.m.AirAttack video, discussed infra,shows s the Placing firethe fartherup thewould hill brhave DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING After this investigation, nearly two years nearlyinvestigation,passed. this After two 3. motion,inDe however, this thoroughly Asdiscussed On August 4, 2009, approximately2009,themonth 4, after Augusta On When Matthews and Welton visited the fire scene on fireon scenevisited the Welton and When Matthews
The Initiation of the Actions. ofStatethe Initiation The 21 The Joint Report, however, sayshowever, whatsoeve nothingReport, The Joint ought allegedthe ofpoints closerorigin tothe ar mokeplume. 30 arate points of origin, labeled E-2 and E-3. labeledand points E-3. E-2 oforigin, arate and cause investigation. cause and rt say anything about the arrival the USFS sayrtabout of anything disclose what actually happened during the the actuallyduringdisclose happened what ws and Welton disclaimed any interest in interest Weltonanydisclaimedandws a “confidential” lengthy report cataloguing lengthy “confidential”report a endants, claiming that they had been foundbeenhad claimingthey that endants, 2 CRISMON’s bulldozer.” This Joint Report Report This bulldozer.” CRISMON’sJoint 2 Endicott”), Assistant Special Agent inSpecial Agent Assistant Charge. Endicott”),
the alleged origin area as established by White asestablishedarea theorigin alleged ed that the cause of the Moonlight Fire was “aFire Moonlight wascause that of the the ed ors should have enlarged their area of origin to to shouldoforiginenlarged area theirors have hat, instead, the Joint Report covers up the real up covers the instead,hat, Report Joint the ea should have been enlarged to encompass enlargedshouldeato been have ired by the USFS, as well as hisaswellgeographicalas USFS, ired by the iably broke out inhisshortlyareasiably after those broke out actions of USFS Fire Prevention ofUSFS actions before the Moonlight Fire. Moonlight the before ers suspected of being a serial arsonist. ofserialbeingasuspected arsonist. ers Finally, on June 30, 2009, the USFS and2009,USFS the 30, JuneFinally, on Joint Report wasreleased,White Report Joint fendants have discovered clear and clear fendantsdiscovered have September 8, 2007, Matthews2007, told8, September FRAUDCOURT ONTHE eawhere the 3:09 r r
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“WiFITER”and, discussed as more fully below,was c against them and add interest to its interest damageto claim. add themagainst and with forthletter in asset payments for the demand Training and Equipment Fund.” Equipment Trainingand payable t of$400,000, incheck amount separate the forState millionofCalifornia, the amount of$7.6 S fullto the instead ofdemanding payment However, investiginincurredsuppressingand allegedly Fire Fire fortheyMoonlight andwe the that responsible 22 Association. to as the “state action”). as “state to the alllaterconsolidatedm ofanddiscovery, purposes courtcon investigation,state the origin cause and inmillion $60 damages) well lawsuits over (seeking fivepartylawsuitsan were private there Intotal, G Attorneyprimarily byassisted Deputy (“Winsor”), Supervisinglead Fire’s CalFire.was counselCal inFireits Moonlight action filed GeneralAttorney extensive were d there knew that liability also and and“early obtained referral” an sought ultimately it substantialbecause Fireof the damage Moonlight Dis in Eastern Team the Litigation AffirmativeFire Attorney itsUnitedStates Assistant action, filed After settlementAfter offederal the action,Defendants DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Cal Fire did not wait thirty days. On August 9, 20 Onwait9, August days. thirty Firenot Cal did 4. In the summer of 2008, before the Joint Report was Report beforeJoint the summerof2008, In the Several other private parties who claimed damages f claimed privatepartiesdamages who Several other
The Initiation of the Federal ofthe Initiation Action. The 22 White stated that if Defendants failed to comply failedWhite to if that stated Defendants learnedlater that this“fund” was internally refe ontrolled byFire,ontrolled CaliforniaCal not the District 31 d one Cal Fire suit. Because all six state court Because allCalstate six one suit. Fire d Robert Wright (“Wright”), the acting head the (“Wright”), Wrightof the Robert solidated the actions early in the litigation for litigationinearlyactions the the solidated but then also demanded that Defendants issueDefendantsa demanded but that then also amages. Wright also understood that such understood alsothat Wright amages.
because he believed he had a strong case on hadstrong hehea believedbecause in thirty days, Cal Fire would file itsfileactioninFireCal days, would thirty
ating the cause of the Moonlight Fire. Moonlight causeatingof the the Deputy Attorney General Tracy L. Winsor Winsor Attorney L. TracyDeputy General Plumas County Superior Court on behalf Court on of PlumasCounty Superior atters for areferredfor liability trial(together atters on re therefore liable for $8.1 millionCal liable$8.1 forthat re therefore trict, had become particularly interested in had the becomeinterested particularlytrict, had caused to USFS land. In fact, Wright land.USFSInfact, had causedto o something called the “CDAA WildlandFiresomething“CDAA the calledo relied on the same joint USFS andUSFSjointFire Cal samerelied the on eneral Daniel M. Fuchs. eneralFuchs. M. Daniel tate of California, White sought the reduced reduced the White sought ofCalifornia, tate 09, the Office California the 09, of the released, and well before Cal FireCalbeforeand wellreleased, rom the Moonlight Fire also filed Fire suit. Moonlight also the rom FRAUDCOURT ONTHE rred toas rred with the the with Attorneys
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The factthatThe Welton made ofapoint Wrighttelling tocover up information harmfultotheirgoal of pi shewithwhat Defendantstold under oath,yet anoth Welton2011, testified follows: as
Specifically,suppressedWelton the harmful keyfac she was she so forthcomingnot toDefendants oathunder years the itsnearlyafter complaintand filed two complaintfilingon A that and eventuallyexecuting beganMoonlight ofdrafting the process Wright the damages. damages. given the typicallynot were after untilreferrals 23 numerouslevels,discussed as further herein.On t originatedinalocation differentwherefrom the i denied any memory of it. ofdeniedmemory any Wel Later,whenhowever,asked Defendants Report.” andincondu trustworthy honest their “scrupulously Wri time, At forfire. the the allegedarea origin itbegan fiveafter daysorigin visitedalleged the e Weltonneedthen you.”we to tell something that withWhite intruck into town backpickup drivinga workingbulldozer metal strikefrom tracked arock investigators the Report, Joint indishonest their fromWhiteWeltonfrom andFireCalt Investigators ina When the Attorney. they arrived UnitedStates visitedfireOctober2008,2, witthe site about or In In his declaration,Wrightexplains: “In hindsight DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING A: Notthat A: I recall. generalof area shouldorigin beenhave bigger,bot DidMarion Q: Matthews anyat point in timeever ex Idon’t A: recall havingthatdiscussion. potentiallythan thelarger areathatwas bounded b Q: Was Q: thereany discussionyou that theat recall After discussing the matter witha matter his consultants, discussingAfter the At some point prior to October of 2008, Wright retaOctoberWright ofprior 2008, someto At point 23
nvestigatorsalleged.” had Wright’s loss oftrust nning blame fornning thisfire ontheir chosen targets. his point, his Weltonwhile confessed Matthews’ concern , I believe I , Matthews that thought that firethe may aboutMatthews’ commentarycritical directly is at erexample ofMoonlight the Investigators’ willingn t regardingMatthews t during her deposition.AugOn and insteadkept to scriptthe of falsifiedthe Jo 32 Forest Service determined its amount ofclaimedits amount Servicedetermined Forest ght believed that White Weltonbelieved were and that ght , had wanted the investigators to declare a largerdeclareinvestigators a to wanted had the , both claimed the Moonlight Fireby aboth Moonlight claimedwascaused the h consultants along with another Assistant Assistant along with another consultants h fire began. Thereafter, WrightThereafter, the began. oversawfire sceneabout the general areaof beingorigin ypink the flagging? h uphill h anddownhill?
rea, they were joined by Moonlight joinedbyMoonlight theyrea, were xplained that investigator Matthews,had who investigator xplainedthat ugust 31, 2009, three weeks after Cal Fireweeks2009,31,after three ugust in their selected “area of origin.” When“area in of origin.” selected their presstoyou thoughtthe that she believed the ct of the investigation andof the of the preparationct and Welton, Welton told Wright “there’sWright WeltonWelton, told and Fire complaint on behalf of the United States, States, FireUnited behalfof the complainton he USFS. Consistent with what isConsistentwithwhat described heUSFS. ton about this issue inhershedeposition, issue this about ton nd with investigators White Welton, withandinvestigators nd ined several expert consultants and, on consultantsand,on inedexpert several FRAUDCOURT ONTHE is warranted is on
int Report. int well have odds ess s toWright, ust ust 15,
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balance. and viabilityand the communities ofentire in manyalr number listed The herein.” federal continueaction instruction thatwould jurythepermit toassess en Taylor’s disclosure brought the total claim the against brought Taylor’sdisclosure witTogether million. in of$791 Defendantsexcess Rulefirst signed United Taylor States’ the later, federalprosecutionledof the the who (“Taylor”), approximately $662 million. However, in that discl many of the same expert witnesses. sameexpert manyof the for theirhired investigators depositions, primary federalAdditionally, the versa. vice andaction, would Prosecutors oftenTheMoonlight action. one so th incollaborated bothTheyactions. usedalso coordinatedth depositionso scheduling prosecutors regardingtwo-fron agreement this prosecution joint of that day from working on the federal action infederaldaya from action on the ofthat working hebeing relieved wasnot asonly that toldWright a inyearsasmanyofexperiencehis unprecedented i federalfromadditionalwith an action Wright the UnitedAttorneyStates Assistant David supervisor, litigationFireaction” (“federalfederalMoonlight 24 was approximately $100 million. million. wasapproximately $100 the federalmarketvalue where fair ofproperty The cre absencehighlightingofany the of credibility,
On OctoberOn 2011,21, the United States supplemented DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING
Shelledy then replaced Wright with Assistant Unitedwith Wright Assistant replaced Shelledy then 5. Defendants intended to defend themselves at b defendtrialintendedat themselves Defendantsto For the next three years, the Moonlight Prosecutors Moonlight years, the next three the For
The Resolution of the Federal Action. Federal ofAction. the ResolutionThe vironmentaldamages in an amount“significantly hig eadydepressed CaliforniaNorthern logging regions dtopose catastrophicdamages forDefendants. Tho osure,theStates United also reservedits to right its initial disclosures, reducing its purportedda 33 and state prosecutors jointlyprosecutors the state prepared and 26 disclosure, claiming damages against against disclosure, claimingdamages 26 many of the same consultants, and disclosedmany sameconsultants, of the dible evidence that Howell had started the fire, Howellhad the started that evidence dible ) until January 4, 2010. On that day,Wright’sOn that 2010. until 4, January ) at certain depositions would only be taken inbecertainwouldtaken only at depositions
these Defendants to more billion.than $1 to these Defendants action from that point forward. Three months pointforward.Three from that action ny capacity whatsoever. nywhatsoever. capacity he but aswasbarredthat lead the prosecutor, viewedWright as nstructionthat fire burned were it placed on the open market market open itplaced the burned fire on were t litigation. For example, the federal example,state the Forand litigation. t Shelledy (“Shelledy”), abruptly Shelledyremoved (“Shelledy”), at testimony from certain witnesses could be could witnesses from certain testimony at h estimated interest and attorneyfees,interest hestimated federal prosecutor. Specifically, Shelledy federal prosecutor. attend depositions noticed only in the state state onlyin the noticed depositions attend y demonstrating the investigators’ lack investigators’ the y demonstrating and Cal Fire collaborated under their andcollaborated Fire Cal States Attorney KelliAttorney States Taylor FRAUDCOURT ONTHE seekjury a her than the her hunginthe usands ofusands jobs magesto 24
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that someone else started the fire. Asfire. mor the alleged someone that elsestarted D that things,holding, among other pretrial orders This ruling was contrary to well-established Califo to wascontraryThisruling liablebecouldDefendantseve of Regulations, Code tentativelyheldt Court Additionally, the ruling. ofcriticalevidence concealmentCourt through the Moonlight the federalthat of the conclusion action from advancing these defenses at trial. at fromthesedefenses advancing filed Prosecutors motions witTheMoonlight party. Moonlig the that compellingevidence and submitting
federal matter. federalmatter. Defendants re issues case.thus the central the of whocontin byProsecutors, Moonlight the misconduct settleofcriti alsofederal action, whetherto the motionscerin liminewere the tentative rulings on defrabreach to ethicaltheirto willingnessduties Prosecutor Moonlight the penalty casedeath against a period of years,tha parties ofperiod agreed expressly the a Becausesettle the time. Unitedover to States the millionPaci Sierra$55 timeand Unitedover States applicable ofconduct heightenedwithstandards the behaving not only in accordance with the ethicalinwith ru the not only behavingaccordance be fu to byincorrectly)Court (albeit the presumed asAssistwho, Prosecutors bywieldedMoonlight the DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING On July 2, 2012, at the urging of the Moonlight Pro urging at Moonlight the of the On2012, July 2, With one of their primary defenses gone, Defendants gone, primaryoftheirWith defenses one Under the terms of the settlement agreement, Defendagreement, settlement termsofUnder the the settlefederal action to the Ineventually agreeing cal importance was the threat threat ofongoingwasimportance the cal 34 hat, under title 14, section 938.8 of the Californi of the undersection 938.8 hat, title14, ud Defendants and the Court. While Court’s Court. andDefendants the the ud ached the reluctant decision to resolve the decision achedto reluctant the t the Court would the jurisdiction Court over retain the t ment agreement contemplatedperformance agreement over ment e fully below, Defendants learned the Defendantsafter fully below, e
efendants could not elicit any evidence to argue elicit to not anycouldefendants evidence tainly factored intoDefendants’ of assessment tainly factored lfilling their duty to “seekjustice” andto lfilling duty their Prosecutors procuredby rulingdefrauding Prosecutors this rnia law. rnia les binding all attorneys, but also inalso lesbut accord allbinding attorneys, that would have been material to the Court’s material the would been have to that fic agreed to convey 22,500 acres of its landitsconveyofacres fic22,500 to agreed to government attorneys. attorneys.government to h this Court attempting to preventDefendants attempting hCourt to this s, who had repeatedly demonstrated a hads, repeatedlywho demonstrated n if a third party started the Moonlight Fire. Moonlight the ifpartystarted nthird a ant United States Attorneys,naturally were United States ant ht Fire was most likely started bylikely mostFire third a started ht was ued to engage in egregious fraud relating to fraudinengageto relating egregious to ued , Defendants understood the great power great the understood Defendants , secutors, the Court issued Court secutors, tentative the faced going to economic intrialfacedan going to ants agreed to collectively to agreed pay the ants FRAUDCOURT ONTHE a
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press release reveal yet additional misconduct by additionalt misconduct yet pressreleasereveal assertion. preposterous Prosecutors’ Moonlight the inneither Pacific’spre Sierracontext, understood signifiesenddis ofthe a “Typically,settlement a PacificTherein,Sierra couns trialpressrelease. Prosecu Moonlight the support ofthesecontentions, asideset to theyt wouldsettlement) seek that the “presen theirsupposedly were Defendantsconcealing at contend that Prosecutors TheMoonlight action. “preDefendantscounterfactually, only that assert, the agreed upon settlement containsuponexp settlement agreed Defendants’ the havinfor andblamed wronglyDefendants settlement” federal the followingsettle immediately conference juryMoonligh the pool, Plumas influence County the m not to ethicaltheirDespiteobligation claimed. inaction,in state later which the months several Defendants federalsettlement, notwithstanding the concerning criticalCourt considerations ofseveral order confirming its ongoing jurisdiction. jurisdiction.confirming its ongoingorder t Inconnection with agreement. of the enforcement ( 5-120(A);3.8 A.B.A.RuleConduct Cal.Prof. Rule settlement” for purposes of career advancement and purposes advancement for ofcareer settlement” prosecution.i And corrupt second, a wasotherwise courtjurystatea would potentialessenti the that influe itwas an first, to obvious effort purposes: DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING In their portion of the Joint Status Report,Mo Status the Joint of the portionIntheir (Docket Report Status Joint of the portionIntheir In retrospect, the Moonlight Prosecutors’ presscon Prosecutors’ Moonlight the Inretrospect, 35 nce the Plumas County jury, thereby increasingjury,Plumasthereby the nce County el William Warne isasstating, William Warne quoted el ally ratify what the Moonlight Prosecutors knew Prosecutors Moonlight the what allyratify damages in excess of some $60 million were in $60 damagesofsomeexcess pute, but this is justbeginning.”Properlyisbut the this pute, he settlement for fraud upon this Court. In fraudthisfor Court. settlementupon he ss release nor Mr. Warne’s statement support support Warne’sMr.statement releasenor ss ake public comments that might unfairly that public comments ake tended to settle” the federalFiresettle” Moonlight the tended to
he Moonlight Prosecutors. Prosecutors. heMoonlight Sierra Pacific’s press release. First, First, Pacific’spressrelease. Sierra the time of the federal settlement in federal 2012, Julysettlement time of the the Indeed,this circumstances surrounding the were still set for a juryastillCounty forin were Plumas set trial ment in which they announced their “record “record inmenttheir which they announced t was meant to trumpet their “record “record trumpet meant to their was t he settlement agreement, the Court issued Court an the heagreement, settlement tors cite to a Sierra2012, cite PacificJuly to tors 17, garnering personal accolades. Thefact that garneringaccolades. personal licit denial of having started the fire.See the having started licitdenial of “Special Responsibilities of a Prosecutor”). Prosecutor”). a“Special of Responsibilities t Prosecutors brazenlyheldpress Prosecutors a t t intent” (apparently meaning at the intent”meaning(apparentlytimeat of t g started the Moonlight Fire,even Moonlight though the started g onlight Prosecutors failapprise Prosecutors the onlight to No. 612) the Moonlight Prosecutors Prosecutors 612) Moonlight the No. ference appears to have two ferenceservedto appears FRAUDCOURT ONTHE
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in causing Defendants to settle. Despite Defendant Despitesettle. to inDefendants causing likelyoutcomeof it the wouldchanged have action, miscandknown Defendantsofthis Court had and the Prosecutors’ Moonlight that the whichdemonstrates evidence that the Moonlight Prosecutors feel Moonlight Prosecutors the quite that evidence Sier circumstancenecessitated whichtrue Court the Warne’sas“crowing”t comments Mr. mischaracterize T courtactionsmore.nothing – state the trial of expectation merely ofDefendants’ expressionwasan that t Sierra Pacific’sstatement counsel’sFire.” Misstatements Made Pacific“Sierra titled, Corrects not did ethical applicablerules, proscribedby all state juryintrial the in upcoming unbiasedtheir interfereDe would with comments extrajudicialsuch millionwell $30 as United paidStates over the now federal assertion the settlement that Prosecutors’ undersfederalin Further judgment the the action. evenand con had Defendants “corrupt tainted,” were the M that “clearconvincingevidence” andby found assure the Court that these payments and land conve andthesepayments Court that assure the United Stat the has Sierrato Pacificthat conveyed inSierra itsJuly Pacific didown 17, so 120(C). u allegations,right aswasabsolute theirimproper respond Defendants but to choicehad no District), PlumasCo the had polluted statements extrajudicial DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING As alleged further herein, new evidence has come to herein,comehas evidence newfurther alleged As At no time before the entry of Judge Nichols’s Febr Nichols’sentryofno Judge time the before At Mo likelihood the facedthat the Nevertheless,with 36 he federal settlement was “just the beginning”he the was “just federal settlement he Moonlight Prosecutors’ effort effort Prosecutors’ heto Moonlight action, and the fact that such are fact statements and action,that the hing to dissuade the Moonlight Prosecutors. hing dissuadeProsecutors. Moonlight the to 2012, responsive pressreleaseappropriately 2012, was a charade is the fact that Defendantsfact have is charadethat was athe nder California Rule of Professional Conduct 5- Conduct California ofProfessionalRulender coring the absurdity of the Moonlight Moonlight absurdity the the coring of
es thousands of acres of land.canDefendants esthousandsofof acres at liberty to continue misleading this Court. libertycontinue misleadingCourt. this at to and publically deny these wrongful and and thesewrongful publicallydeny s’ diligent efforts s’ to efforts obtaindiligentall discoverable by United States Attorney on Moonlight Attorney Moonlight by on States United Court rulings which were substantial factors factors substantialrulings were which Court ra Pacific’s press release, ismorePacific’s simply ra pressrelease, part of the federal settlement, and federalfact the settlement, part of the unty jury pool (which isuntyjury Eastern within the (which pool yances most certainly are not “pretend.” certainly mostnot are yances misconduct was even worse than suspected, suspected, waseven than misconduct worse sidered the possibility of seeking to set asideset possibility to seeking the sidered of prosecutioninvestigationFireand oonlight fendants’ constitutional right to a fair andfendants’to constitutionalright that they would vindicate themselves inthemselves the vindicate they would that onduct during the pendency of the federalduringpendency the of the onduct o the press, whilefrom the press, o the concealing onlight Prosecutors’ unethicalProsecutors’ onlight uary 4, 2014, Orders, whereinOrders, he uary2014, 4, light since the federal sincelightsettlement the FRAUDCOURT ONTHE
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others controlled, such that they had a direct cont had direct athey controlled, that such others i wildfire settlements ofstate millions ofdollars Alanmentor( Carlson and supervisor his anddirect lead the Moonlight that whichevidence established beenhasCalFirewrongfully Fire Moonlight action, duringent the by discoveredchancethat Defendants vid anddeposition deposition transcripts evidence, thousand submissionbyof all the involvingparties 2013.4,The filing October of Sanctions on and/or associatedprosecution ofwiththese the misconduct in violation of all ethical and legalinandrequirements. ofallviolationethical prosecutionjointp and theirProsecutors Moonlight due ofthisunaware evidence they were information,
prima facie case on the element element facie ofcausation. the on prima case amongground Defendants the forthat, o on judgment di issuedseriesoforders aNicholsJudge hearing, OnJ Program. Assigned Judges under the California law tort ofCalifornia underprinciples Defendants ofRegulat sectionCalifornia of the 938.8 Code 14, if causedits suppressioncosts recover Defendants Inrulingthe thesecross-motions, on party. third f Defendantsliable heldcould be that suchaction, import tentative pretri the to summaryadjudication rulingscourtissued state two spring the of2013, DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING After obtaining these dismissals, Defendants contin Defendants obtainingthesedismissals, After 6. Thereafter, Judge Nichols was assigned to the case the NicholsJudgeto wasassigned Thereafter, discovefederal of the settlementaction, the After
Resolution of the State Court Action. Action. CourtofStatethe Resolution 37 nto an illegal off-books account whichaccountthey illegaland an nto off-books
state court found that Cal courtfoundonly could that Firestate ingent personal/financial interest inoutcome the ingent personal/financialinterest rejecting Cal Fire’s effort on cross-motions for cross-motions on effort Fire’srejectingCal smissing the state courtactions and state entering the smissing or the Moonlight Fire even ifFirebyait wasMoonlight caused even or the
to suppress or detect third party fires. detect party suppressthird or to eo. As set forth more fully below, in late2013, forthAsbelow,morefully set eo. the fire. The state court likewise ruled that courtlikewisetitl ruledthat Thestate fire. the s of pages of briefing, declarationsbriefing, with ofpagessof al rulings in the federal action into the state state into the federalinal action rulings the this motion initiated a lengthyinitiatedamotion process this ions could not create “duty” part aofions the on not could artner Cal Fire and its attorneys to conceal itCal itsto and Fireattorneys artner “Carlson”), had been engaged inhadskimming been“Carlson”), engaged actions by filing a Motion for Fees,forExpenses Motion aby actionsfiling Investigator, law enforcement officer White law officer Investigator, enforcement and intentionally withholding documents and intentionally documents and withholding ire pendency of the state and federalirestate the pendency of to the active and intentional efforts byintentional active efforts the to the and uly 26, 2013, following a lengthyfollowing a 2013, three-day uly26, ther things, Plaintiffs could not present a not Plaintiffsthings, could ther ry continued in the state action.inIn the state the continued ry ued their effort to exposeegregious the to effort theirued for all purposes by the Chief Justice ofallChiefby forJustice purposes the FRAUDCOURT ONTHE e
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force ofthis Court’s decision, findings andorders beaboutconduct the said andadvocacy ofattcited
of the Moonlight Fire investigation and litigation.investigationFireand Moonlight of the 25 from read whole,b as a the court which the conduct conclusi containscourt’s the order twenty-sixpage twenty-s issued one NicholsJudgeorders, two 2014, and state prosecutioninvestigationof the and the con have neutralopportunity to anto arbiterfirst In con Sanctions. Fees,forand/or Expenses Motion lawsuit in its entirety for itsforin “egregiousitsrepr and entirety lawsuit byeviden to references findingssupported detailed investigators, Reynolds and Welton.” Reynolds investigators, and includingthe ofvariouswitnesses, misconduct USFS federand state of the support prosecution oftheir originca as welland other federal andas actions, falsifiedstatements, honestly,witness to testify madefindingsitall,” court recite the specificto as it as relates tosanctionsagainst officers of the compliancewith the requirementsofState the BarA misdirection with the purpose of recovering moneyf ofrecovering purpose withmisdirection the co andin“egregious reprehensible hadFire engaged failure wasits andrepeated discovery obligations, ispresentco to the time, action, prosecutingthis million. approximately to amounting$32.4 expenses” The courtThe noted thatitsleniency Cal Firegarding DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING While the court elected not to sanction counsel forsanction not electedto counsel court While the Four months later, on February 3 and 4, 2014, Judge2014, months4, later,Februaryand 3 on Four Although the misconduct was “so pervasive that it waspervasive“sow misconduct that Althoughthe Defendantsawarded c “full orders Additionally, the In these orders, the court found that “Cal foundFire’s that court a the Intheseorders, courtshould notin any waybeas softening or seen as it as Fire.toCalrelates It simply means that, orneys, bewillit not sanctioned here.” re’s counsel re’s “in way no speakstoissues ofe legal ct.” The court also noted“lenity, that its pruden that critical USFS and Cal Fire witnesses failedcritical andwitnessesFire Cal that USFS 38 ehensible conduct.” ehensibleconduct.” and falsified both the Joint Report forstate the Report andJoint falsifiedboth the rrupt and tainted. Calcomply failed andwith rrupt tainted. to Fire sider the full scope of the governments’ abuse infullabusegovernments’ of the sider the scope al actions. Judge Nichols specifically noted noted the NicholsJudgeactions. specifically al inuse whichto theyreports, attempted use federal actions. In the afternoon of February 4, afternoon 4, In the federalofFebruary actions.
willful.” Additionally, the court found that Cal found that court Additionally, the willful.”
ons regarding Cal Fire and itsFirecounsels’regarding onsand Cal ce. Together, the orders terminated Cal Fire’s orders terminated Together, the ce. ench. The fifty-eight page order contains pagefifty-eight order The ench. sidering this motion, Judge Nichols wasmotion, the NicholsJudge this sidering nduct” andcampaignnduct” “aof systematic rom Defendants.” Defendants.” rom ix pages and the other fifty-eight pages. pages.The fifty-eight ixother the pagesand “improper efforts of the two federalefforts of the two “improper
ctions initiating, maintaining,andinitiating, ctions Fire,Cal ompensatory attorney feesand ompensatory attorney Nichols heard oral argument on on the heardNicholsoralargument ould serve no purpose forCourt the purpose no ouldserve 25 FRAUDCOURT ONTHE the court expressed court the whateverelse might mitigating the ce,andcaution thics or
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profound concerns regarding the conduct of the stat of the conduct concerns the profound regarding
only advance just actions.” actions.”just onlyadvance forward,”and go meritless to matter a “by allowing the Department Responsibi Department ofJustice’s Professional the AtinCivil Chieftime matter.”O the the the that intoquestioncalled t defense to the that document caseshad Inheth determined ofthose one office. filed the United States’ complaint in the federalina complaint Unitedthe States’ the filed dismissedSeveral and action. Wright the document, Wright’s D.C.PRAO supported understan Washington, Because Shelledy resisted disclosing this error, Wr disclosingerror, thisShelledy Because resisted whichincorrectlyUnited States the increased error disclosedefen the to to washis obligation ethical withWrShelledydisagreement significant regarding a declaration in support of this motion. in motion. ofthisdeclaration asupport during ofth prosecution had the injusticeoccurred and Report ot aswellJoint copya of the orders as ins issuedbyNichols the Judge termination orders DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING In the fall of that year, on a separate wildlandfi separate year,a fall on In the ofthat 7. The court also found that the state prosecutors cre prosecutors state foundalso the that Thecourt In the spring of 2009, Wright was working on other wasworkingWrightother on springof 2009, In the Wright, having left the United States Attorney’shaving left Of UnitedStates the Wright,
Wildfire Cases in the Year He Filed the Moonlight A Moonlight YearFiled He the the Wildfirein Cases to Moonlighthe ExperiencesHis Relating and Wright in every other instance, has exemplified. instance, exemplified. has ineveryother from highstanda thoroughly the departed General so andinjudge,c as a the which anyears advocate as instanceinitrecallsexperie no palpable,because b and distressconveyed ofdisappointment Thesense 39 se a document revealing calculation document seriousaa se ffice was Shelledy. Wright sought advice fromadvicesought Wright Shelledy.ffice was ction. ction. her materials, Wright concluded that a gravea concludedherWrightmaterials, that
at he was “ethically obligated to disclosehe to was“ethically a at obligated he viability of the government’s prosecution inviability prosecution government’s he of the e federal action, which led to his ledofto preparationwhichfederal e action, ’ damage claim in the action by $10 million. inby $10 claim action ’damage the ight “sought advice from PRAO to fromadviceobtain“sought to ight PRAO tate action.reviewingAfter Nichols’ Judge tate that this ran afoul of their responsibility “to “to afoulresponsibilityoftheirthis ran that e prosecutors. The court stated: prosecutors. eThe court lity Advisory Office (“PRAO”) in lityAdvisory (“PRAO”) Office months later, in August of 2009, Wrightin Augustlater, monthsof2009, ight’s desire to carry out what hewhat believed carry to ight’sout desire re action he was handling, Wright hadWright ahandling, he actionwas re ding that he had to disclose he had the to ding that ated “a tremendous burden” on the court “acourt ated the burden” on tremendous fice, eventually obtained copies of the eventually copies fice, obtained wildland fire prosecutions for wildlandfire the prosecutions nce over forty over nce seven onduct of the Attorney of the onduct rd it represents, and, it represents, rd y the court is y so court the FRAUDCOURT ONTHE ction. t FireOther t and
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counsel for the United States forremainder the ofUnitedStates the forcounsel latelyabo that Wright theyShelledydisagreed told inmatter the capac on any working him fromforbade ofanyWright and Chief relieved Shelledyabruptly hisfor work WagnerAttorney Benjamin UnitedStates lawyer.”On2 January as a 4, inconduct unethical yearsfirstinmy o time marked the 40 fire actions t encounteredin I withrespect that 2009 struggles disclosures and the case has since settled. case sincehassettled. the disclosures and position you assert.” Wright provided calculat you the assert.” position butdeliberat mis-statement not affirmativeonlyan in“Partemail, an stating directive,crystal clear “flippant.” “flippant.” hisShellstatesWright that supervisor document.” lowerindamagesnumbe awould result losses, which mootrequiremen disclosure the amofto wayaware I theory “David,pursuingour Shelledybyexplaining, seekjustice anddeveresponsibility aand court to California memberof the and Department ofJustice volunteerBecau harmful a to obligationdocument?” beginning.Nowa that’s “Okay,Bob, email stating, Whenmatter.Wright on the to advicegave the PRAO disclosure by oppose Shelledyto defense, continued itwashis ethicalfromstatingobligat advicePRAO exercise profession of[his]forproper the support
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Thereafter, Shelledy treated Wright withWrighthostility. Shelledy treated Thereafter, Thereafter, on October 23, 2009, PRAO2009,23, attorneyKand October on Thereafter, of the issue in making a false statement meansin falsemakingissue statement of the a 40 al responsibilities.” When Wright receivedWrightWhen alresponsibilities.” lop a full and fair record,” he responded to heto full responded faira record,” lop and f practicing law that I felt pressured to engage Ifelt to fpressuredpracticinglaw that thesewildland my on o concerns professional the case. case. the
ion error document in the United States’ initialindocumentUnited ionStates’ error the ely withholding information which refutes the the informationwhich refutes ely withholding edy responded by calling his comment hisbycomment edy calling responded ut almost everything. Taylor remained leadTayloreverything.remained almost ut 010, just after receiving a commendation fromjust commendation receiving after a 010, ion to disclose the $10 million reduction to the disclosemillionion to $10 reduction the to what can you do to avoid youethical cando creatingan to what all responsibility for the Moonlight Fire, forMoonlight all the responsibility sending his own email to PRAO,questioning hisemail own sendingto of timber loss requires disclosure. The loss onlydisclosure. requires oftimber Bar, he “had a broad duty of candor to the heduty to “hadbroad Bar, ofcandor a se Wright believed that, as a lawyerforasa the believedWright that, se t would be to dropclaimtimber forwould the be to t ity, and replaced Wright with Taylor. withWrightTaylor. ity, and replaced r than simply disclosing the harmful the than simply disclosing r on another wildland fire matter, Civil matter, wildlandfire another on that effort failed, Shelledy sent Wright anWright failed, effort Shelledysent that Wright further states, “the internal“the furtherWright states, ice Wilcox responded with a with Wilcoxiceresponded FRAUDCOURT ONTHE
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inhishe offictold(presumablysomeone Warne that Ihaveyes, nevmycareer, entire my entirecareer, rarity the ofregardingby Nichols Judge expressed mybricka hemyhead then wall,banging against am Warn toldOverby wouldstay.” also staying,then I wasany said, there He Utah.thought “If backI to Warnemeeting,th Overby with that Duringconfirmed meetina in up andmeet theyset person, they could p leavingheMoonlight himwould the be inform that to Sacramento to assist with the federalwithassist Sacramento to the action. to Uni Assistant seniorhighlya respected (“Overby”), prosecutionofthis misdirected about the up opened train and try to gain control or jump I’mgainoff. cho andor traincontrolto try really You edge cliff.on the ofa towards control following:“Imagine Beaty, W.M. the andDefendants Kim OverbyInfact,Daniel told he waswitnessing. i with his frustrated became Overbymonths,several 26 discussionwith Overby follows: as byworkingtothe Taylor relationshipwith defense Underwoodalsotold that he had hopedpresence his Defendants.Overby Underwoodtold hewas that work Matheny,atLinkert LinkertSears, & Jamie, who was Sometime after arrival, Overbyhis spokewithKath DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING On May 12, 2011, Overby contacted SierraOverby Pacific’s 2011, Oncontacted 12, May 8. Wright is not the only federal prosecutor who worke who isonly federalprosecutor not the Wright ofmy career.” defendant(s) theirdefense Mr. costs. Overby descr withdismissal prejudice, his recommendationwas ac demonstrated that government’sthe case should be d said therewas adeposition taken, essentially t on anotherUnited States prosecution he hadbeen sent order In tofurther explain his intherole Moonlig
Assistant United States Attorney EricAttorneyStates Overby United Assistant counsel. Underwood’s summarizesdeclaration atell inthiscase could some repair ofdamage the that h acting lead trialcounsel forW.M. Beaty L and the erineUnderwood, anattorney theworking at timefo ing onMoonlightthe ing Fire matter asan“evaluator.” 26 41 Unfortunately, after working on the case for caseworking the Unfortunately, on after he eve he whereinoftrial, evidence was obtained ht Fire ht prosecution, Mr.Overby aboutme told osing to jump off.”osing to ly have two options: head to the front of the the options:to head two ly have er seen anything like this. Never.” OverbyNever.” seen like this. told anything er ibedthis toaction asme“the mostsatisfying act
thing positive that wouldme from result that positive thing toevaluate shortly Mr.trial.Overbybefore what he was witnessing, Overby also said, “Insaid, heOverby also what was witnessing, g later that same day at Downey Brand. same Downey later Brand. that day at g e that it was a physics problem, and that, “If I that, physicsit wasaand problem, that e ted States Attorney from Salt LakecameCity,from Attorney Salt States ted ismissed.Mr. Overby recommended matter. In March of 2011, EricInMarch matter. Overby of2011, cepted, Unitedand the States reimbursedthe , an attorney representing the Landowner the attorneyrepresenting an , nability to rectify prosecutorialproblems to the nability e) a few days earlier the following:few“It’s the earlierdaysa e) ad loses.” Echoing similar sentiments assentimentsEchoing loses.”similar ad ifWarneOverbyrosecution team. asked you’re on a train that is running out ofis out trainrunningyou’re a that on at he was leaving the matter andmatterleaving hegoingat was the d on the federal action and who who federal on and the d action lead trial counsel William Warne to WilliamWarneto lead counseltrial FRAUDCOURT ONTHE adbeen done ingpoint of andowner Overby r Rick r
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Stonehill, 660 F.3d at 445. Atevery 445. these p at F.3dturn, Stonehill, 660 judicial“prevent litigation the to p realmthis of multi-fFire aThe Moonlight case reflects system. grdoes fraudspecies – that ofthat court upon the andrises investigators Fire Moonlight prosecutors itis judicialRule for60(d)(3), under need action Utah. Utah. Uni the return to decidedinstead andto California in firematters Easter litigationof the management Later,Overby District. by fireEastern cases the indiscusseOverby and with Wright person met 2011, DistrictinC Eastern the somethingwrong seriously call, During that in Over of2010. OfficeDecember Department of Justice, we win if justice wins.” winjusticeifwe wins.” Department ofJustice, called not It’s ofJustice. calledDepartment the byfollowingWhilen are 458. at the examples F.3d variousand dispensebased on justice system the to B. who took federal part ofcertainon prosecutors the Washington in ofProfessionalOfficeResponsibility InJulyagency. law enforcement nation’s principal highestinwith the performaccordance dutiestheir per lawensureenforcement attorneys and General to
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Office of Professional Responsibility wasestab Responsibility ofTheProfessionalOffice 9. Using as guideposts controlling legalcontrollingo authorities guideposts Using as Court. theFraud on Constitutes In May of 2011, Overby also contacted Wright, who h Wright, who contacted Overby also In2011, May of Selected Instances of Prosecutorial Misconduct, Eac Misconduct, Prosecutorial SelectedInstancesof
Filing With The OfficeThe ofProfessionalResponsibili FilingWith 42 rocess from functioning ‘in the usual manner.’”functioning from‘in usual the rocess the Department of Revenue. Since we are Sinceare we the Department ofRevenue. the clear that the interconnected conduct conduct of the interconnected the that clear told Wright that he was so concernedhe the wasso Wrightwith that told rosecutors and investigators attempted to causeattempted investigators andto rosecutors ave damage to the integrity of the judicialintegrity the of the ave to damage ted States Attorney’s Office forDistrict of the Attorney’sStates Office ted
n District that he altered his plans to stay inhishe to plansaltered that n District over the federal removal.Wright’s over after the action aceted plan designed and executed withinplan the executed aceted and designed well above what is required for findingfraudfor is a wellwhat required above professional standards expected of the professionalexpected standards repeated acts of deception. See Shaffer, 11 11 Shaffer, See acts repeated ofdeception. , Defendants submitted a lengthy brief to lengthy the briefa to submitted Defendants , ivil Division management?” Later in management?”Later Mayivil of Division by asked Wright, “Is it just me, or isme,itjust “Isor Wright, bythere asked o means exhaustive, they highlight some ofhighlight meansthey exhaustive, o D.C. detailing the prosecutorial misconduct detailing prosecutorial the D.C. sonnel with the Department Department ofJustice the sonnel with d his dissatisfaction with the prosecutionof the his dissatisfactionwith d n the kind of conduct which the triggers kindnofconduct the lished by order of the Attorney by of the lished order ad left the United States Attorney’s leftUnitedStates the ad h of Which SeparatelyofWhich h FRAUDCOURT ONTHE ty ty
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flag, the existence of which they concealed fromth existence the theyflag,concealed of which diffefocuseda 2007, on 4-5, Septemberhillside on “official”ofre origin wellafter these two points Report.Inreality, inhow Joint then the repeated attempte Investigators Moonlight Specifically, the pointsjust of origin,two focused on investigation litigation,Fire Moonlight the throughout persisted continue2007, 4-5, hillsideSeptember beganthe on the litigation. litigation. the falser Defendantsnarrative aby advancingagainst byPros flag,Moonlight efforts and the whitea the easeasthey repeatedly d themat and perfectly put falsely to indepositiotestifytheirInvestigators Moonlight Pr the government, of the representatives intoofthis jurisdiction oversight the and Report fraby effort the in transporting participated that Pro Moonlight began the firepre-litigation, of the which now cries out forvacatio cries and now termination out the which anfraudthis egregious Co upon collectivelyworked p investigativeand moreobviousof occurrencesthe
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING 1. While these efforts by the Moonlight Investigators Investigators by WhileMoonlight theseefforts the “changeorig story” the to regarding the The effort Discussed below are the factssecre to relating the the belowDiscussed are
Committing a Fraud Upon the Court. Court. theFraud Upon a Committing ofTheir Veryabout Foundation W the underOath Lie LitigationAllowedandInv inthe the Investigation OriProsecutorsFraudulent a Advanced Moonlight The The Relevant Facts TheRelevant ns about the most critical aspects of their work, criticalmost work, oftheir about ns the aspects 43 udulent fire investigation and the fraudulent Jointfraudulent investigationfireand the udulent leasing the scene. Their investigationTheir the leasing scene. on the Court. Ignoring as obligations their Court. ever, the Moonlight Investigators conceived Investigators Moonlight of the ever, identified as E-2 and E-3, a fictiona and they E-3, which asE-2 identified secutors joined,and activelyadvanced, secutors
up until the time of that judgment was entered. judgmentwasentered. untiltime up ofthat the id so. so. id ecutors to enhance to chanceofprevailing theirecutors e Joint Report. Joint e egarding the E-2 andpointsin E-3of origin E-2 egarding the rent, secret point of origin, denoted by whitepointasecret oforigin,denoted rent, n settlement. of the d with the drafting of the Joint Report, and Report, Jointdrafting withof the the d rosecutorial misconduct whichseparately and rosecutorialmisconduct osecutors allowed Moonlight the osecutors urt, anmisconduct appallingurt, of expanse t, undisclosed point of origin marked by markedundisclosedpoint oforigin t, d to create the fiction that createfiction their the that d to in and cause of the Moonlight Fire Moonlight causeinof the and to “change the story” about the origin “change the story” to about the FRAUDCOURT ONTHE estigators to Repeatedly to estigators ork, Thereby ork, gin and Cause and gin
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ignition source at that location.at that source ignition findarea poi they the and origin withinthat area, locategeneral indicators the o to area originburn systematicause ares and trainedto investigators accuratelyits–th origin to andlocate to started sketching or diagramming the locationorigin diagrammingof the the or sketching locationof the of measurementsthe origin,taking immov identifyingorigin, the origin,photographing proper documentation of the origin typically includ documentation origin of the proper typically carefullythe are trainedto investigators document thus cannot identify the correct cause of the fire.identifycauseof the correct cannot the thus investigator correcta origin,an without because, bypointoforiginev the incorrectly locating that Prosecutors TheMoonlight be determined.”). cannot if or (“Generally,17.1 the § Ass’n Protection Fire isof the evidence where anybecause that physical pointofor fire. that Finding of the actual cause Moonlight Investigator used blue, yellow,blue,usedi and Investigator red Moonlight usepointdenote of investigators the to color that markedE-2their Reynolds neitherhe nor ever that assessfalse markpoints these or investigation to Investigator Moonlight – the 5 Septembermorning of points and E-3 o identifiedE-2 theyofficialtheir DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The primary purpose of any wildland fireinvestigat ofany wildland Theprimary purpose As this sequence reveals, locating the correct poinlocating correct the reveals, this As sequence Despite what they state in their Joint Report – andin – Report Joint they state what Despitetheir Because of the critical importance of the origincriticalofimportance the to of the Because a.
What Transpired on the Hillside on September 4-5, 2 4-5, SeptemberHillside on Transpired the What on en find its cause. To accomplishToits this, cause. find en 44 igincause the is determiningbefore necessary
en eight feetmakeofcandifference” “a eight world en nt of origin and next identify competent next the nt and oforigin origin. White testified that he and his that co- White origin. testified f origin before releasing the scene fon the the releasingbefore origin f the fire, then they locate a smalleraspecific fire,locate thenf the they of origin. While under oath, White oath, concededWhile of under origin. cientific process. First, the investigators First, read the process. cientific cannot identify the correct ignition source andidentifyignition cannot source correct the igin of a fire cannot because determined,fireigin the cannot ofa
ir determination of its location. Thorough andlocation. Thorough its determinationir of origin in relation to these reference points, and thesereferencepoints, in to origin relation actual ignition is going to be located. Nat’llocated. be to isignition actualgoing es such tasks as placing a white flag at the flagat as placingwhitea tasks essuch ndicator flags as they processed the scene, but but scene, flags the processed asthey ndicator and E-3 points of origin with a white flag, the pointswhiteaof origin and with E-3 . . able reference points invicinity the the points of reference able ’ primary origin and cause expert ’ expert primarytestified cause and origin sactualtheir duringnothingdid absolutely the cause determination, fire determination, the cause t of origin is critical to determining the is critical to of origin t despite to their repeated testimony that testimony to that despiterepeated their ion is to find where and how the fireion how isfind the and to where FRAUDCOURT ONTHE 007.
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simply did not want to reveal that they fabricated revealfabricated want to they not simplythat did in interest no thesepoints had becausetheypoints blatantlyHisfalse. is“No.” testimony responded, you “CanWhent fire. asked the supposedlystarted locationhephotos test where of the no and origin” contemporaneousfixedthephotos no r on Whitetook investigentireprimaryof the of the wasone goals mark supposed failed the having forto explanation W know.”That “Idon’t Whitewhy, Whensaid, asked f documented, they never admitted that and Reynolds one of which is presented here. here. isofwhichpresented one photograph White three Report. took in Joint their crita Report,” “Fire Investigation entitledOrigin investigationfromduringthismeasurement the GPS an 10 “official”feetfrom away the E-2 trail about Investigators Moonlight the 4, eveningofSeptember deception,theirthroughcuts one Once oforigin. origin pointsalleged when the theythose processed which t inisconfirmsevidence record no there the and had released processed Investigators Moonlight because officialInshort, the poin investigation. wh revealing evidenceandinvestigation, suppressed E-3. E-2flags or anyat white flaginwhitenevera placedth they testifiedthat releasingbeforescen the investigationdays two of DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING In addition to conceding their failure to mark conceding to failure E-2 theirInadditionto On the other hand, the Moonlight Investigators perf Investigators hand, Moonlight the other On the 45 ts of origin E-2 and E-3 were created after created the were and E-3 oforigin E-2 ts placeall, atany not for didsceneand purpose eir ical document that the investigators neverplacedinvestigators ical the that document these points of origin after finishingtheirof origin thesepoints after the suppressed evidence reveals that on the the on that revealsevidencethe suppressed . Under oath, the Moonlight Investigators Investigators Under Moonlight the oath, . d E-3 points of origin. Reynolds took his pointsonlyReynoldstook E-3of origin. d ation, is an affront to the judicialis to the ation,affront process. an
There is no record of any interest in interest isofanyrecord Therethese no ified that he collected the metal he collected that the that ified e regarding their actual, and suppressed, point point andregarding suppressed, e actual, their s of Reynolds as he took these measurements, thesehe took ofReynoldsass in had anyInvestigators interest heMoonlight points of origin, the identificationof which points oforigin, the scene on September 4-5. 4-5. September on scene ell me why you didn’t do do Whitethat?” ell youmedidn’t why at they had actually done during theirduringthey donehad actually at the alleged scene of the origin of the fire, the origin of the allegedof the scene were focused on a different rockin different focusedaskid a were on rock and wrote the coordinates on a forma on andcoordinates wrote the rock lagged, or marked those points inpointsmarked any or lagged,those way. ocks he claimed to identifyof“points he his claimed to ocks as hite would profess under oath to having oath no to hiteunder wouldprofess and E-3 as their points of origin, Whiteandasoforigin, points their E-3 ormed extensive work during thesework extensive ormed FRAUDCOURT ONTHE
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cropped format. cropped flagiswhitepr photographsof the referencepoint fromflagsuppressedwhite were of the photographs readingo the onlyGPS asReynoldstook 4 September White isrepeatedlyphoto samerock the photographs inRepo Joint the trailfrom the locationpresented soil into the nextmetalfromplaced stema hanging white adepicts ofthesephotographs Each one RP2. a.m.an 8:18 fivephotographs between took separate lab established referencepoints, two Investigators DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The next morning, September 5, beginning at approxi beginning morning, at 5, September The next 46 rt. The large white flag rock infive flagThe largert. thesewhite rock eled “RP1” and “RP2,” from which theyfrom then “RP1”which “RP2,” and eled ovided for reference below in a magnifiedinreferencebelowand for a ovided
to askid adifferent inlargetrailarock on to the Joint Report. One five ofWhite’sReport. Joint the flagview,field middle of the inof the d 8:20 a.m. – three from RP1 and two from andfrom – two RP1 three a.m. 8:20 d graphed Reynolds crouching over graphedReynoldsover on crouching f the investigation.Allffiveofthese the mately 8:00 a.m., the Moonlight Moonlight the matelya.m., 8:00 FRAUDCOURT ONTHE
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Sketch,” which the investigators also omitted from also investigators whichomitted Sketch,” the m bearing thesedistanceand Reynoldsthen recorded measuring to that location with accuracy to a quarta location withto accuracythat measuring to where same the th rock directly referencepoints to precisethen took dista Investigators TheMoonlight photographedthe fragments metal onsheet ofa whit Defendantsdiscovered that these lawenforcement of 28 IThentake those measurements. That’s verythe fo the get absolutemeasurement tobe abletogo and r 27 “xasit po states = that confirms intent, hisalso l “x”markedanand with skid which Reynolds trail, their suppressed their flag.white Yet inanotherwildla markedflag. whitewith the large rock bethesedistanceand that depositionstheirduring Curtisf and Wooley Christopher surveyorsand David Cal Firev.Cal DustinWhite critical purposecritical withassociated triangulating meas BothReynolds andWhite denied anyconnecton-site White attemptedduring this matter todeny o under DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The suppressed sketch, shown below, shows a singleshowsbelow, ashown sketch, The suppressed
( LassenCounty CourtSuperior Case WhiteNo.43654), nd fire nd matter,White had no troubleexplainingthe urementstopoint his of Specifically, origin. on ecreatethatofpoint soorigin that I establish tw undation of a origin of causea undation and investigation.” epaper 10:02at thata.m.same morning. ficersactually tookphoto a of portion ofska the ath the ath importanceof these referenceinpoints rel ion to the sketch.iontothe However, discussed as fullmore int of origin.” Retained United States expertland intStates United Retainedoforigin.” 47 aring measurements intersect perfectly at perfectly the intersectmeasurements at aring
er-of-an-inch and to a singlea anddegree. er-of-an-inch to flag,andtriangulating whitehad the eyplaced the Joint Report. Joint the nce and bearing measurements from their two frommeasurementstwo their bearing and nce abeled “P.O.” formthis“P.O.”The key same on abeled easurements on a forma “FireOrigin on entitled easurements ire investigator Larryall investigator Dodds confirmed ire point of origin alongside the sameoforigin the alongsidepoint 28 testified“asidethat, from tryingto FRAUD COURTONTHE
oreferencepoints. August8, 2008, in process and the etchwhile they ationship to 27
y,infra,
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Moonlight Investigators’ claimed points E ofclaimedoriginInvestigators’points Moonlight inof is There whatsoever nothingeither flagging. identify bu to certain numberedplacards along with yello– the flags,blue backing the work processing showingsubstan photographic athe createrecord to “Overview ofIndicators.” eponymously, 9:25Botha.m.at ofthesephotographs andanother White evidence up the work. oftheirset carefully 29 Indi Whitelabeled the “Overview of that photograph fabrication oftheseso-called after-the-fact their the Joint Report. Joint the revealedvery by the th wouldsamespot expect, one flaga.m.in“overview white9:16 a the in isfact Importantly, Moonlightthe Investigatorsdecided t DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING White confirmed under oath that he“ took thesetwo oath that Whiteunder confirmed Importantly, under computer magnificationnati ofa undercomputer Importantly, As they processed the alleged origin scene on Septe on alleged scene the origin theyAs processed 29
oplace thiscritical “overview ofindicators” phot 48 points of origin. Below isof the Belowcopy a oforigin. points of indicators” photo, stuck in the ground at, asat,in stuck photo, ground indicators” the of these photographs signifying any interest in interest anysignifying the thesephotographs
took two critical photographs, one at 9:16a.m. critical at one took two photographs, w lateral flags, and the red advancing flag,advancing lateral andred flags,w the -2 and E-3, a fact perfectly consistent witha and factperfectly E-3, -2 consistent rn indicators related to directionaltheirindicators related to rn are in the Joint Report and entitled,Report in are Joint the ce of the investigators’ primary investigators’ the scene of ce e five white flag photographs omitted from flag omitted five photographs white e cators.” cators.” mber 5, the Moonlight Investigators Investigators mber Moonlight the 5, ve photo, this Court will that there Court vesee this photo, Overview of Indicators” photographs ofIndicators” Overview FRAUD COURTONTHE o in theirJoint
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aiding aiding andabetting colossal a fraud uponcourtthe MoonlightProsecutors pressed forward, undeterred b qualms aboutunderlying oath, andwere attempting dismissed casethe immediately on groundthe that t oforigin revealedbysketch the itself. On these photosof“cause offire,”the the isandit their Despitetheirdeceit, theysketchthe drafted durin himselffrom sketchthe by testifying that hemust sheet of paper sits the secret sketch containingth secret sits the sheet ofpaper investigators r beforea.m.just 10:02 the at taken Court will see that those metaldirectsit will those shavings Court seethat Jowhichmetal the bagshavings, plasticcontaining
31 30 Report,assuch overview anessentialphotosare an havetoobeen worried aboutforcedbeing todoso, comparison of the full sketch, and the photo showin fullphoto and the sketch, comparison of the paper, is below. paper, provided Warne(Docket No. 596) Ex. 41 129-130,at 220-221; onitplaced the hoodofWhite’s vehicle, justunde existenceuntilwasit shown to byhim prosecutors repeatedlytestified that he had notseen duringit nativephotographic filescomputer on a screen with fadesbackground.the into Eventually, however,de twodays. ofcritical In all those photographs,es carefullyJointreviewed Reportthe as well as all copiesofJointReport.the Their ruse nearlywork Reportso is smallandof such poor resolutionthat Consistentwith other his acts of whendeception, A detailed more analysis ofthis photographic comp DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING
Consistent with the Moonlight Investigators’ focus Investigators’ Moonlight with the Consistent 31
ownphoto that“gives them away” it as revealsthat lies alone, a properlyfederal aligned prosecutorw peciallythe overview 9:16a.m. photograph, whithe his investigation,knew nothing about it,anddid g g theirinvestigation, and they withhad it themwh ofthe nativephotographs of investigators’the wor haveprepared afterit investigationthe but back a the secretthe flagwhite isall butinvisible to the rneaththe ofphoto metal the they collected t from ed.Initially, defensecounsel the missed white fl . well after this casewell began.after this Reynolds alsoattempte aseachof twothese overview copiedphotos as into d requiredelementof any andcauseorigin report. he Moonlight he Investigators had no respectforthe l back-lit magnification. fensecounsel spotted the single whitewhile flag r defensecounsel showed this“smokingWhite skegun” tocollect money on basistheof deception. a Here ygrowingbody the ofevidence demonstrating that t arison is providedinexhibits Declarationtothe o Ex. 45Ex. 26;at Ex. 47 4-5,at Ex.45, 58; 59;Ex. Ex 49 e single point oforigin.single e point eleased their scene, and that underneath eleasedandthat that scene, their ly on top of a white sheet of paper in photo a oflypaper whitetop ofsheet a on
int Report calls “Evidence #1” or E-1. This E-1. calls int Report or “Evidence #1” g the left edge of the sketch under a pieceleftundersketch a of of the edge the g on a single point of origin, there is oforigin,onethere single a point on
FRAUDCOURT ONTHE 30 Abyside side naked eyenaked printed in notlearnof its they had actually ould have ag ag as they enthey took toffice. his k in k those first he pointhe hidden te flagte easily dtodistance They must not eviewingthe aw, had no , the, the Joint fR.William . 61. . heywere tch, he
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nothing to document their so-called “official”document poin so-called their to nothing document actualtheir an didpossibleto everything been a violation of evidence collectionviolationprotocols. beenofevidence a ch no bag;hadinto Whiteone then sources ignition hespots separate– would metalfromtwo collected 32 onlyasingle pointhad of origin,whichwhy is the Atthe timeWhite collected metal,the wasit of c DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING
White struggled to explainifhad actuallyhe to – White why struggled In short, a timeline of the key events on September on a key timeline events the In short, of ywhatplaced they into afound single bag. ourse not oursenot a ofviolation evidence protocols, as he 50 32
ts of origin E-2 and E-3: and E-3: oforigints E-2
d suppressed point oforigin,while suppressed doing point d oice but to concedewoulddoinghave that so but to oice have put what he haveclaimscompetent put are 4 and 5 reveals that the investigators revealsand the 5 4 that found two pointsof originfound and two FRAUDCOURT ONTHE andReynolds
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origin area at 10:15 a.m. on September 5, 2007.a.m. 5, September10:15 on originat area singleintoa metal fragments pl ofthose placement metof collection fixedtheirpoints, two reference ofdistancean oforigin,carefulrecordation their to withth Investigators took respect Moonlight the informed that are believe and Defendants preserved, ofhisduringcourse Novemb fact the confirmedthis waswithReynolds, White field who notes. copious documentactualtheirsu and possibleto everything 33 consultant/metallurgistLesterHendrickson, andWhi Sierra Pacificlisted Industries as“Defendant”the Fire was likely to resultin likelylitigation. wasFireto Specifically, September on 5, 2007, daythe White DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING At the time he created hisandall at notes, timescreated time At he the Notably, on September 5, 2007,dateMoonlig the the 5, September on Notably, 33 White nevertheless destroyed his notes andhis his notes White nevertheless destroyed on anincident samereport. That day,FireCal re te mette fivewith him daysBy later. September 2 5, andReynolds processed allegedthe origin scene,Re 51 d bearing measurements to that single point fromsingle to measurementsthat point bearing d al fragments from that single point, and single theirfrom althat point, fragments
e placement of the white flag at aflag single white point at of the placement e astic bag, all before they released the alleged theybefore the released bag,allastic ppressed point of origin, White was takingoforigin,White was ppressedpoint they would have detailed the careful have the they steps detailed would beenHadnotes the deposition.2012, 1, er at allscene atprocessing, the during times thereafter, White Moonlight the knew thereafter, ht Investigators were doing were Investigators ht FRAUDCOURT ONTHE tained litigationtained 007,the ynolds
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heflag whitefirst photograph omitted copyof the intoadditi causedhis that descent – they revealed hadheflagomitwhich whiteoftheir – photographs and our system of justice to prop uppropfictiona system justice theirto of and our des Investigators’prevent Moonlight the to nothing § 1512(c). § proceeding,orattempts todoso,” subject is toa availabilityuse for in anofficial proceeding; or conceals a record,document, orother object, or at their secret origin, even when Defendants confronte Defendants when origin,secret eventheir and nature purposeful significant knowledge of the to these two rocks. Reynoldsrocks. testified similarly. to thesetwo MoonlightmetalInvestigato fragments the the found pointswerespur located a ever on two Investigator the Whitethat testified focusedrepeatedly work. contemporaneous computer files before the federala files the before computer contemporaneous ofUnitedthe States. 18 U.S.C. § 1512(c) provides 34 saidDietrich would he copyfaxme a of their insur Howell and reported, “Dietrichsaid the [Safeco] po MoonlightFire hadalready toovergrown 22,000 acr assessinginsurance policies of defendan“potential contemporaneous notes of what actually whe occurred ofwhat notes contemporaneous selectandbelieved free to theyInvestigators were falseinnarrativeWhiteJoint the advanced the so, ofhisaccord, notes own these Whitedestroyed thus h Firenot Calmaterials, did theseWhite destroyed litigation that Moonlightthe Firewould in,result varietycan inlitigation. result Each of fathese Notonly violatedidWhite Brady destroying in his DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING During these questions and answers, the Moonlight P Moonlight the answers, thesequestionsand During During their depositions, the Moonlight Investigato Moonlight the depositions, theirDuring b.
of Their Secret Origin. of Their Secret The Moonlight Investigators AreinConfronted Depos Investigators TheMoonlight
ctsevidences White that was already contemplating (2)otherwise obstructs, influences,or impedesany fine“orimprisoned not more 20thanyears, or both but who wouldbe defendantthe in thatcase. temptstodo so,with the tointentimpair the obje ts.”White alsoadmitted thatunderstood he f that that:“[w]hoever corruptly—(1) alters, destroys, m ancepolicy.” White testified that investigati his licy was$3million licyfor liability insurance, as req notes, White notes, alsoviolated criminal obstruction of es.On September2007,7, White interviewedD Bill 52 This testimony was false. wasThis testimony l Joint Report. Ironically, itIronically, wasWhite’s own Report. Joint l onal perjury. When initiallyWhenwitha provided perjury. onal only points of origin he and his co-Moonlight heoforigin onlyand points Report. With the notes gone, the Moonlight Moonlight With the gone, notes the Report. shape the evidence, unimpededby evidence, shape the
took on September 5, 2007, at 8:18Whitea.m.,at 2007, 5, September took on ave any policy requiring their destruction. destruction. theiravepolicy requiring any trail, E-2 and E-3. White also testified that he and White testified E-3. that also E-2 trail, perate efforts to exploit the discoveryeffortsexploit the to process perate of their multi-faceted effort with respect to to with effort multi-facetedrespect oftheir d them with indisputableoftheirevidencethem with d ted from the Joint Report because Report Jointfrom ofwhat the ted and for his own reasons. After havingAfter andhisreasons. done for own ctioncommenced. rs claimed were the ignition source adjacent ignition rs the claimedsource were n the origin scene was processed. processed. scenewas originn the rs violatedrs any by oathstheirdenying rosecutors sathands,theirrosecutors doing on
FRAUDCOURT ONTHE 34 Notably, at Notably, the timeat ition withEvidence official onincluded ct’sintegrity or not only not the .” 18 U.S.C. .”18 uiredby SPI. iresof every utilates, or justice laws ietrichof
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photos he carefully aligned and took fromhehis carefullychose and took aligned photos explain he wasunable to that w nervously testified inflagorigi anywhere placed white Reynoldsever a leastbecausehad earlie attempt counsel at defense a flaginits view, wasany white there denied that
nothing to correct the record or correctReynold’s corrector record the to nothing Prosecutowhite flag,Moonlight the exactlythat at Reynolds’s distan testified that surveying experts) expsurveyingdesignated own Prosecutors’ Moonlight actuallmeasurements bearingdistanceand which the “eightfeet a at ten intersected E-3, to his sketch himselfclaimi again, Reynoldsperjureddeposition, dowith “these anyto nothinghave k testifiedthat his on Reynoldsrecorded measurementsconce bearing correlatio the about askedcounselReynolds defense du 2011, OnNovember 15, his deception. compounded abovein “loo photograph flag the whiteobviously a everplaci above,Reynoldsdenied one includingthe confronte When flags.Defendants anyuse not white contrary, repeatedlyReynolds the also to evidence Prosecutors’ charade fails for numerous reasons. reasons. failsnumerous charadefor Prosecutors’ effort Reynolds’slast But androcks. E-2 E-3 the itmarked a significance rock the of the discounted he likelystating yet that plac another tack, tried bothRe itwasclear that after and federal action, DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING White and Reynolds had both earlier testified that testifiedearlierthat had both ReynoldsWhite and Reynolds attempted similar acts of deceit. InMarc ofdeceit. similaracts Reynoldsattempted During the last day of his deposition in laststate daythe ofhis the During deposition ed the white flag, but that they must have must later flag,they but whitethat the ed 53 way” from the rock marked with the white flag whitemarkedat the rock fromwith way” the ynolds and White were not credible, Reynoldsnot ynoldsWhite were and n assertion he apparently believed he needed to heto believedneededheassertion apparently n ind of a white flag.” Later, in that samein Later, that flag.” whiteindofa ce and bearing measurements intersected measurementsand bearing ce to salvage the Moonlight Investigators’ andInvestigators’ salvage Moonlight to the
false testimony. nd abandoned it that same morning in favor inoffavor samemorning it that nd abandoned r obtained his testimony that neither he nor nor neitherhe his r obtainedtestimonythat hy there was a white flag in the center of five flaginofwhite center wasa hy the there rs breached their duty of candor by candor breached doing rsduty theirof testified that the Moonlight Investigators did Investigators Moonlight the testifiedthat ng the distance and bearing measurements inmeasurements bearingdistanceand the ng n points of reference. ofreference. npoints ks like a chipped rock.” Reynolds likeks then chipped arock.” n area for any reason. Thereafter, White anyThereafter, for nreason. area ng any white flags, and claimed that what iswhat that andflags, claimed ng any white n between the white flagndistanceand between the white and the d him with photographs of the white flag,white of the him photographs d with y intersect. Despite the fact the Despite that the yintersect. ert DavidalldefenseWooley well (as as ert aled sketch. In response, ReynoldsInresponse, sketch. aled action, well after the settlement of the settlement wellaction, the after ring his deposition in the federalinring action, his the deposition they never placed a white flag, had no flag,no hadwhitenevera placed they h of 2011, and despite incontrovertibleand despiteh of2011, FRAUDCOURT ONTHE
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say, okay, that’s Reference Point 1.” All 1.” Reference ofthis that’s Point say, okay, loc to back this“go out exact could that so others inste but whiteto flag,a photograph not to center This focusphotographs. testimony of the even the focusedwhyupo or seriesofphotographs removed,a knowwhen not does white the act), thisperforming heunitfact(despitewith that the GPS a samerock he does White Indeed, that testified depositions. flag.Theyhad plenty markedbyspot the white the itsinto scetheiritwayeventually foundhow idea 35 flag.Allth placement white the of the of through jusincluding, ofwork, ofcourse, their indicators misplfunctionsof not denial are them,outright of knowwhya white there is flag at thatI rock?A. youchangedyourguyspoint of someat origin point that the very purpose of their overview photo was t overviewoftheirphoto very that the purpose that they cou ofthemeach preposterously testified magnifiedphoto, a.m.“Overview 9:16 ofIndicators” different than the official points of origin he andhe officialoforigin the points different than act hewould Reynoldswere and doing so revealthat changing) their actual point oforigin. point actualchanging)their theydecidingneeded that scene before the released concedealso He refused Report. to officialJoint In In samethe section of deposition, White’s the fol DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING White and Reynolds’ “forgetfulness” about num their“forgetfulness” about Reynolds’White and Moreover, when White and Reynolds were shown the pr the shownwhen Reynoldswere Whiteand Moreover, White refused to acknowledge that the photographs w acknowledge photographs the to that White refused White also testified that he took the five photos w hefive the photos testifiedtook that White also 35 All of this testimony was false. Allfalse. testimony wasofthis believehave I No,it.answered don’t. I Q: Okay. lowing questions lowing andanswerswere exchanged: “Q:An in time after that morningof 5th,September corre 54 Welton had already fully committed to in to fullyhad the alreadycommitted Welton testimony was false. false. was testimony t where they identified their point oforigin point theiridentified where they t ation and have this angle line up and be able to linebeto and able have up ationangle and this reference the themselves, photographrocks ad not know why Reynolds was crouched over over whythe notcrouched know Reynoldswas the issue, as doing so would reveal that theywould asdoingso issue,reveal that the is testimony was false. isfalse. testimony was aced memory. Instead, they are the functionofmemory. the Instead, they are aced ne, and that they had no interest whatsoever inwhatsoever interest no and had that theyne,
ld not explain why it was there, despite the fact the despite explain ld not itwasthere, why took not one, but three photos not but ofReynoldsthree one, took o create a record of the most importantmost record a create of the o was false. wasfalse. to change (and conceal the fact that theychange fact were that conceal to (and the of chances to statein otherwise to their chances of flag was placed on that rock, whenrock, itwas on flagplacedthat was ually focused on a point farpoint uallyoforigin focuseda on with the aid of a back-lit computer screen, aidcomputer back-litwithofa the n it. He denied that the white flagdeniedwhiteHe wasnever the it. that hich depict the same white flaginhichsamewhite the the depict erous and meaningful acts, and theirmeaningful andacts, erous ere centered on the white flag,aswhite the centered on ere esence of the white flaginwhiteesence the the of FRAUDCOURT ONTHE And it’strue that ct? A:ct?No.” ddoyou
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sketchedface, his even though theyphotographed hi ofapprehensioncriminal a suspect –even though th their their newsuspect all.at scenethe was recordedcrimewhenthe was committed the removefrom to them whenactions theypretended Join the from ofthemofeachexcludedevidence the the carefullyso same up eachlining that rock, at p standing behindreference eachor them, recording suchw measurementswork, astaking that performing aboutforget andtime e not the work, theytheirdo Moonlight Investigators. Investigators. Moonlight surround caseevidence that testimony the and state Fi flag.”CalLikewise, white the testimonyaround conclude “it’s more probable than not that there wa there not that moreprobablethan “it’s conclude “shadowofdeception a flag,”“a creates red raises federal the conclusion(after action the of of 2013 exami hours morethanthousand spendingaafter who for expert originjoint bycause and recognized the discovery. forregard and without ill-intent withjurisdiction trans facts, keyregardinginvestigative corruption gold a inwhile wearing and whileprovided uniform falseby lathisit.Indeed,testimony started who federalin – centraland issueaction the the work related to ofperjurynot These fraud. were acts a 36 Testifying in thismanner akin is totwo lawenfor DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Investigators did about th forget not Investigators TheMoonlight not do investigators and Paulunderstand, Dodds As The fraudulent nature of lawW officers nature offraudulent enforcement The 36
cementofficers, while oath,under “forgetting” abo eofficers recordedweight his and evenheight, tho monce, not but times,numerous andeven though his – failingandthen toweigh,sketch, measure, orp 55 w enforcement officers White and Reynolds – Whiteand Reynolds officersenforcement w the solemn vow of honesty inherent ininherentall vow of honesty the solemn white flag is centered. flagis whitecentered. namely, where the fire started, how it started anditstarted how fire started, where namely, the minor issues,veryof theirto the but minoressence ) during a state deposition that the white flagdepositionwhite the state that a during ) ported into the province of this Court’s intoCourt’s province ofthis the ported
” over the investigation, and caused him to himandinvestigation, caused over the to ” xpended and the physical tasks associated with physicalassociated xpended the tasks and the United States and Cal Fire, Larry Dodds, and CalLarryDodds, United States Fire, the ing the white flag caused him to disbelieve the ingflag himto white caused the in admitted the later BernieUnitPaulChief re with ofdeceptionact someassociated s oint and taking five photos of the white flagfivewhite andof the taking photos oint t Report. And they did not forget aboutforget Andthese Report. not they did t badge – isfunctionbadge ofprofound – a ir memories as they violated their oaths. oaths. theirmemoriesir violated asthey ning the evidence, finally conceded inMayfinally evidence, conceded the ning ith a tape anddeviceGPS aith and tape carefullya ese actions when they intentionallytheywhen actions ese forget about the “very ofabout foundation” the forget hite and Reynolds’ testimony was testimonywas Reynolds’hite and FRAUDCOURT ONTHE ughthey ut the ut hotograph presence at
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investigator Welton joined the group for anotherfoforWelton joined group the investigator inmeetingwereat present this JanuaryWinsor, and Whiteconfirm also TaylorWinsor. and prosecutors, officerspec White, law enforcement withCalifornia United State the meetingJanuary at a attended 2011 follows: “And they wasit going said tocome up and
after the conclusion of the federalconclusion action. the after of the daylast hisduri deposition revealedof the during flagwhite was the by deceitReynoldsthat telling M the ofdemandinganswers,Instead withReynolds. imagesenhance white screen the of the to computer white the had defense exposed the and which during facfalsea testimony, andthis assisted encouraged primarywork; theirfocus the of about untruthfully and their photographs is nothing lessisthansubsta a nothing and photographs their singlea how just denyof acts or understanding any Investig waspurposeful,Moonlight and the Eachact 38 37 topic.this askedhimsame about Reynoldsand absenceReynolds’sduring depositions is interestin absent,while Assistant United States Attorney Glen questions aboutwhitethe flag. During Reynolds’s attendance on firstthe day ofdeposition,the but meeting toprepareReynolds for deposition. his Th Curiously, Reynolds was defendedby newly-arrived During lastthe day stateofdeposition, his and a DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING During this meeting, which occurred after Whiteafterhad whichmeeting, occurred thisDuring hisfor inprepare depositi to order In particular, In March 2011, a fewthisa Januaryweeksafter 2011 2011, InMarch The Moonlight Prosecutors were not justaswere silent not t Prosecutors TheMoonlight c.
Moonlight Investigators’ False Testimony. Testimony. FalseInvestigators’ Moonlight The Moonlight Prosecutors Affirmativelyan Assisted Prosecutors The Moonlight skippedthe daysecond whenSierra Pacific’s counse 37 fter federalthe settlement been had reached,Reyno
g,doesit nothing toabsolve of her her responsibi November2011,15, federal deposition, Taylorwas o e depositiontranscript reflects that lead prosecut Dorgan defendedthe deposition. While the timing sawas ita nonissue.” AssistantUnited States Attorney Overby, whowas no 38 56 In response, Reynolds feignedignorance, ReynoldsInresponse, ng the state action on November 1, 2012, long2012, 1, action November state ng on the a “non-issue,” a fact that Reynoldsfinallyfact “non-issue,” that a a t recognized by Judge Nichols. recognized by Nichols. Judge t
ntial fraud upon this Court. this Court. upon ntialfraud the Moonlight Prosecutors also affirmativelyalso Prosecutors Moonlight the ur hours after lunch.after hours ur white flag became the focusattentionofflagtheir white the became the morning for three hours, and that co- andhours, that morning three for the s Attorney’s Office in the Eastern District District inof Eastern OfficeAttorney’s sthe ial agent Welton, and the federal and state federalandWelton,ial state the and agent flag. They openly discussed the white flag whiteflag.They the discussed openly ators’ efforts to deny those effortsmemory any to of ators’ ed that heTaylor andas wellas Reynolds, that ed flag, the Moonlight Prosecutors used aused flag, Prosecutors Moonlight the oonlight Prosecutors encouraged more encouraged Prosecutors oonlight on, law enforcement officer Reynolds law officer enforcement on, he Moonlight Investigators Investigators testified heMoonlight meeting, Defendants deposed deposed Defendants meeting, already been deposed for sixfor days, alreadydeposed been FRAUDCOURT ONTHE d Encouraged the Encouraged d or Taylorwas or in lityto madehave l began l asking lds testified aslds ofTaylor’s nce againnce t thet at
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photosshown byto prosecutors.him the Reynolds statein the Duringaction. thatdepositi he ultimately he concededexistence the ofwhite flaa discussed the white flag with Reynolds. flag whitewith the Reynolds. discussed thishad testimon actualthat knowledge Prosecutors “eight intersectedmeasurementsto the claimedthat the hadto any sceneconcealedsketch relationship his falselythat distan denied above, Reynoldsalso flag”really testifyi “Iseeanddon’t a responding 40 39 Reynolds sure that testified honestlyto and have c truthful.Instead, Taylordid tocorrectnothing t Reynoldsattempted towaffle what on hesaw whenvi JudgeBrennan thatruled ofnonediscussions the wh Unitedthe States. Indeed, because United the Stat depositionprevailing after ona motiontocompel b attorney-clientprivilege andtheirjoint prosecuti answerquestions about waswhat discussed thduring the white flag discussion with the federalstatflagand withwhite the discussion the Reynolds hesitantly reveal to Defendants the factsDefendants the to Reynoldshesitantly reveal preva meetingDefendants pre-depositionafter until remained mute.remained withhadReynoldsduri discussed what been discover apparent Prosecutors TheMoonlight responsibility. intervenet did to nothing Prosecutors or Moonlight
thing once put under oath,” and second, that the pr under and the second, oath,” that put thingonce a “wouldthingtableto oneof Investigators, admit t things:byFirst, was“deeply court two troubled” wro andmisdirectionmany other ofevasion, so acts Orders Inhis2013, February Office. Attorney’s 4, After MagistrateAfter Brennan’s order,Defendants depos During the depositionof Reynolds March ofin 201 DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING As Reynolds repeatedly provided falsetestimonythr ReynoldsrepeatedlyAsprovided Judge Nichols reviewed this series of events relati events seriesreviewedof NicholsthisJudge 39 In fact, Defendants did not learn not DefendantsInfact,discu about did the
he record regarding thisfoundational dishonesty. on on agreement. Thereafter, Defendants were ableto on,Reynolds clearly concededexistence the “whit a orrectedtestimony his shefound outwhen that he h es had namedbothWhite andReynolds experts, as Ma g.yearA November later, in of Defendants2012, d ecauseReynolds both andWhite been had exnamed as ichtook inplacetheirpresence were confidential. emeeting at United the States Attorney’s office, i ewing photographswith federalthe andstate prosec 1, federalthe1, andstateprosecutors instructed him edReynolds againinNovember of Even then,2011. 57 ng it “looks like a chipped rock.” As noted As like noted chippedit “looksarock.” ng e prosecutors.
hat Reynolds, one of the primary Moonlight primaryMoonlight Reynolds,of the one hat ‘friends’ and then refuse to admit same the to then‘friends’ refuse and ce and bearing measurements recorded recorded on the bearingmeasurements andce osecutors sat “idly by as Reynolds . . . denied . . “idlysat by Reynolds. osecutors as associated with his pre-deposition meetingand with hisassociated pre-deposition rock marked with the white flag,falselyandwhitemarked the rock with , he stated that these events stood out “among out stood he that stated theseevents , o correct the record afterward, aswas afterward, record their correct the o ten feet” from the white flag. The Moonlight flag.TheMoonlight feet” whitefrom the ten iled on a motioncompel.didOnlyiled to a then on y was in fact false, as they hadfalse,earlierastheyin fact y was ly believed that Defendants would lynever that believed ngful acts . . . .” His Honor stated that stated the His .”.. that ngful . Honor acts ng their pre-deposition meeting,and ngpre-deposition their ng to the meeting at the United States meeting United States the the ng to at oughout his the deposition, oughout 40
ssion of the white flag the at white ssionof the FRAUDCOURT ONTHE reopen his eflag” inthe adbeen not
eposed nvoking the not to not gistrate utors, but utors, pertsfor
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Rule 60(d)(3). See Hazel-Atlas, 322 U.S. at 246(s at Hazel-Atlas, See U.S. 322 Rule60(d)(3). flagwhite “no wasa the Prosecutors that Moonlight deposition revealhis not state untilReynoldsdid action, wellinafter state discovery the commenced and hadeffect this on Investigators, the Moonlight retain government’sfrom the admissions the action, Defe knowninitialoforiginto was concealed point one party to hide a key fact from the court and the court from hide the fact party keyone a to by their own concealed conduct, photographs,do and conduct, concealedby own their repeatedly Investigators t Moonlight silenceas the originscenetheirand processing dishonestlyabout Defendant informationto exculpatorydisclosedthis a doMoonlight Investigators, so, the to obligation we for changebeen, but have the reasonsshould the by former federalAs prosecutor noted litigation. original about determination, the origin the truth a document lawthat the officialenforcement truth, o very the despiteIndeed, purpose andCourt. this ori – hide the fact to Prosecutors, keya Moonlight by involved schemeCourt a fraud the the Here, upon fraud the settleme timeat of the investigating the and th that yearssettlement, the after sevenuntil factparties that notwithstandingset the court the cou in. . heconceded. what had in hisdeposition
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Although most of the false testimony by the Moonlig mostfalse by the of the testimony Although The Ninth Circuit has observed that “most fraud“most upo that observedhas TheNinthCircuit Perhaps worse, the Moonlight Prosecutors allowedbo Prosecutors Moonlight the Perhapsworse, Analysis Analysis 58 e defrauded party suspected and wasactivelye partydefraudedsuspected tled, that the defrauded party did not seekrelief not partydefraudeddid that tled, the perhaps the most important issueinimportant most this perhaps the nt). in 2013 that he had been advised byhebeen hadthat advised in the 2013 Wright, “Thein and point oforiginchange the Wright, nsel’s presence several weeks earlier.” nsel’sweekspresenceearlier.” several opposingparty.” nd later the Moonlight Prosecutors, neverProsecutors, Moonlight later the nd
ginal origin determination – from Defendants – ginal determination origin estified in ways that were directly contradicted directly were incontradicted estifiedwaysthat fandreporttruth only the to Report, Joint the their opinions, were not disclosed until expert disclosed not expert until were opinions,their dvanced a critical falsehood, and covered up up and covered criticalfalsehood, a dvanced etting aside a judgment for fraud the judgmentfor upon ettingasidea determination. They intentionally sat in Theyintentionallydetermination. sat the federal action settled. Moreover, Moreover, federal settled. the action ndants before the settlement of the federalof the settlement the before ndants ed experts regarding the deception byregarding deception the the experts ed s. s. re not, disclosed in the Report.” Despite their disclosedinnot, Report.” re the n-issue.” This does not preclude Thisn-issue.” not under relief does the Moonlight Investigators, and later the Investigators, Moonlight the cuments. Once confronted with Oncecuments. what confronted n the court cases involve a scheme byinvolvecasesn schemeacourt the ht Investigators concerning Investigators the ht th White and Reynolds to testifyReynoldsto Whiteand th
Stonehill, 660 F.3d at 444. 444. at Stonehill,F.3d 660 FRAUDCOURT ONTHE
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they assured Reynolds that the white flagwhite “no wasa the Reynoldsthat they assured inlies,perfectly their investigators comfortable And worse, even other. deposition the testimony on sketchephotographsand the between inconsistencies never report, discl ethicallyto theyrequired were lieswasbasedand Report engende Jointon that the a havetheir quickly woulddismissed anddishonesty byimmediatel to this candor Court by dutyof their feder Report.Properly focused truthfulJoint ofa work their testify honestlyInvestigators regarding federalfocused happened,properlyprosecu actually 42 41 at afeet officialeightfrom or ten spot the point at esmost more the that thanfarmeans discovering up is Report Joint si flag whiteinthat originof the ismore no prosecution.There“ its andsubsequent Moonlight Prosecutors were willing to play willing were to Prosecutors along. Moonlight revealedbyair video attack an takenoverhead roug originexisted all inan area toodown thefar slop air videothe attack demonstrates that investigthe certainly doesnot mean that the investigators were flag, andcould see forthemselves this“non-i that violated their oath. violated oath. their action failuretake Prosecutors’w to Moonlight the discovery very the ofour purpose cynicism towards admithad refusal done they what Investigators’ to were waywere offwherefrom firethe actually started. blame onblamechosen defendants, nottofind truth.the surprising. is not As these investigators quickly The MoonlightThe Investigators’ deception regarding t Atthat point intime, the MoonlightProsecutors h DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Instead of taking these actions, the Moonlight Pros Moonlight the oftaking theseactions, Instead Critically, the Joint Report was very foundatioReport the Joint Critically, the processedtheentire scene,the point of exerc that e, roughlyto200feet 150 thefrom ofcenter s the ators’ secretators’point of andorigin theirfabricated ssue”destroyed credibility. his becauseThus, they engagedwere not scientifi in a Oncethe mindsetof investigatorsthese exposed, is 10feet correct.beingfrom Indeed the plumeof s hly an hour after hlyan hour fire the began. Given their mind adalready watchedWhite be cross-examined about th his central issuehis is far more meaningfulthan 10fe s of origin, and it means far morefarmeansfinding itthantha s of origin,and flagIndeed, white cover the milarly significant. 59 as revealed by the pre-deposition meeting where by asrevealedpre-deposition the osing to Defendants or to the Court the gross Court the to Defendants the or to osing al prosecutors would have also certainlywouldhave abided also alprosecutors on the hillside that day, and forcedcreation day, the and hillside on that the
42 reflects a profoundly disturbing arrogance and profoundlyarrogance a reflects disturbing y reporting the Moonlight Investigators’ Moonlight the y reporting hen the Moonlight Investigators repeatedlyInvestigators Moonlight hen the key fact” in this matter. And concealment matter. in the fact” this key ring numerous additional lies in additionalliesdiscovery. numerous ring n-issue.” Once an investigation is discovered to have investigation isOnce to discovered an sential point of the investigationwasactuallyof the sentialpoint the Moonlight Prosecutors made Prosecutors Moonlight the the Moonlight the that insistedwouldhave tors rules and our legal inasdoes andsystemgeneral, our rules ction against Defendants once they foundDefendants they oncection against s, on the one hand, and the Joint Report and Report Jointandhand, one the on the s, n of the Moonlight Fire investigationFire Moonlight nof the ecutors simply chose not to what simplyreport not to chose ecutors 41 In the end, the Moonlight Moonlight In end,the the FRAUDCOURT ONTHE butofficial points of isewas topin mokeplume mokeinshown cexercise they iteasy is to set,error their et, andit et, ewhite - t t
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started. PacificSierra employee Mitzel,Mikewho saw anothe video,andthought better ofbecause it implicatit investigatorsinitially acompletelyplaced differe orsecondthird, which they abandonedinfavor of a pointsother of asoriginwell, that white-flagthe failed a effort to“strengthen” case, their it also this this matterclearly convincingly and demonstrates a false)be knew to attorneys testimony presented the evidence, attorneysrelevant in up IRS two covering (finding1046-47 Seeat Dixon,F.3d court. 316 the involves,i itmisconduct fraud,gross andthis the discovery, litigationindepos through findings the yettheycontinued into engaged were deception, a ast this deception, certainlyto mostparties were investigatineverything else the about immediately distait isabout not infusedbeenwith dishonesty, alsoimagine thattheir “initial” andsecret point opposition to Defendants’ motion for summaryDefendants’judgmeformotion opposition to presentedfollowingallegedly the asan Prosecutors
regard, it is worth noting that “some courts and co“some itis notingthat courts regard, worth I lies and Report Moonlight Joint of the fraudulent party to it.’” Stonehill, 660 F.3d at 445 445 (quotingStonehill,it.’”at F.3d 660 partyto courtunless‘afraud the on usually not constitute DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Relying solely on the Joint Report and the Declaratand the Report Joint the Relying on solely 2. advance chose Prosecutors to the WhenMoonlight the
Committing a Fraud Upon the Court. Court. theFraud Upon a Committing Judgme ProcuringFavorable a Summary in ReliedUpon Moonlight Rock Strike a the Caused That “Admission” Cou theProsecutors to Misrepresented Moonlight The 171. In a signed statement that Bush submitted to i Crismon Bush in to that area submitted signedwasoperating Inthat athe he statement admitted 171.
demonstrates distinctthe possibility the that inv The Relevant Facts TheRelevant oforigin mayhavebeen even theirnot first point gedpoint of isorigin only not their point,other nt point ofnt origin the near areawhere plumethe is ed wrongthe party, a possibility suggested by the willingness by investigators these tomove p their point more “connected” to their defendants.target r flagged r areafurther upon the few ridge a daysa 60 11 Wright & Miller, § 2870). Here,lawyers the 2870). &§ WrightMiller, 11 hey well knew what the Moonlight Investigators Investigators hey Moonlight the what wellknew s enough, standing alone, to findfraud upon alone,to a standing enough, s n attorney or other officer of the Court wasa Court officerof nthe attorneyor other nces or a single point of origin or two. It isIt single a two. point oforigin nces or or ition, and motion practice. The core nature Thecore ofition,motion andpractice. mmentators have suggested that perjury have shouldthat suggested mmentators
nvestigators, they defiled the Court. In Court. theythis defiled the nvestigators, ion that can no longer be trusted. canlonger trusted. no be ion that “undisputed fact” in fact” United States’ the “undisputed . . a fraud on the court based on the actionscourtbased fraud the the aof on on advance the Joint Report andinvestigative itsReport advanceJoint the includingwitnessesby silently sitting as nt: nt:
ion of Joshua White, the Moonlight Moonlight ion the White, ofJoshua ir prosecution by relying upon the the irby upon relying prosecution
closest closest to the nvestigators, nvestigators, FRAUDCOURT ONTHE rt Bush’s Alleged rtBush’s Fire, Which They Fire, Which nt Ruling,Thereby nt estigatorssuppressed butperhaps their ofSince origin. shown in the testimonyof ointof inorigin Perhaps the fter thefter fire
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say that the CAT tracks scraped a rock to cause rock to ascraped the tracks CAT say the that furtherHe heread. tes cannot grudginglyadmitted language,have read “I the begins whichform,with caused the fire. Plaintiffs challenged Bush on on fire.thi PlaintiffsBush challenged caused the he bel that statement making the hehowever, denied hedispute s that Bushnot STATEMENT.” does GIVING a it Bushon signstatement, signed the to present the Joint Report and relied upon by the Moonlight P and reliedReport Moonlight by Joint the upon the isboxNeither c witness. signature ofa signature officer, on September 3, 2007, a littlea 2007,hou an 3, September over on officer, “undisputed” fact. “undisputed” andby isExhibitMoonlig referenced the the Report causeReynolds’sfire.”of summary rock scrapedto endinterv sign ofthe the Bushat for completed to isfedera a Bushpurportedlydiscussed Reynoldsand recordeinterviewnot tape wasThat Tower. Lookout specifically denied having this belief.ThehavingMoonli this specifically denied in causeinterviewInfact, his fire. the rock to no interviews;time did Bushstate those at during investigatinginterviewedBushtw that officers the they presented this allegedly “undisputed fact” to this“undisputed allegedlythey presented
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Notwithstanding Reynolds’s failure to sign failurestat the to NotwithstandingReynolds’s The form Reynolds used calls for a signature by signature a forthe formcallsused The Reynolds The first interview was conducted by Moonlight Inveby Moonlight interview first wasconducted The The form Reynolds filled out asserts that Bushasserts stat filled form that out The Reynolds In making this representation to the Court, the Moo the Court, to making the representation Inthis White Decl., ¶ 6, Ex. A, p. 133.p.A, Ex. ¶6, WhiteDecl., scraped “Cathe believestracks firethat that and with lead Moonlight Investigator White, heInvestigator lead Moonlight with 61 s assertion by pointing out that he had the signed that byassertionout spointing ompleted on the version of the form included informincludedversion on of the the ompleted line marked, “SIGNATURE OF PERSON OFPERSON “SIGNATURE line marked, r after the fire was reported from fire Rock Redrafterwasreported the the the Court. theCourt. that he believed the bulldozer tracks scraped ascraped tracks bulldozer he the believed that
iew. iew. ght Prosecutors were aware of these factsaware when were ofthese Prosecutors ght Bushwhat misrepresented said Theyice. also Moonlight Fire, but he never madehe Fire, neverbut Moonlight that tified that Reynolds tried to persuade him to himpersuade Reynoldsto that tifiedto tried the foregoing statement.” In response, BushInresponse, foregoing statement.” the rosecutors. rosecutors. ht Prosecutors in purportedlyof theirProsecutors support ht the first interviewincluded inwasJoint first the the ieved the CAT tracks scraped a rock and rock ascraped tracks ievedCAT the l form titled “Statement,” whichlReynolds form “Statement,” titled d. Consequently, the only record ofConsequently,what only record the d. ed that hetracks “believesthat CAT ed ement and his failure to havewitness ato and failure hisement igned the form. During his During deposition, form.igned the nlight Prosecutors failed to disclose failed Prosecutors nlightto officer issuing the report and the issuing report officer the stigator Reynolds, law a enforcement stigator rock to causefire.” rock to FRAUDCOURT ONTHE
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as the officer completing the summary. summary. officercompleting the as the notdoesappea Bush’s signature so interviewee, the formReport.FireThe Caluse in Joint summary the summarizehis purporting conv document a to drafted oft recordinginclude the did aspart not Bushbut 20 10, Septemberlaw on aofficer, also enforcement statement. statement.
interview confirms. confirms. interview in fire the hestarted never thought explained that MoonlightBus Fire.and the started rock ascraped had ever t Bush White asked Bushwhether recording, strike rock government’sliability the of regarding deposition occurred more than a year before the Moomoreyear the before thanadeposition occurred Instead,heexplain it. not Whitecould summary. tape the inconsistencybetweenglaring wasa there himconfronted Defendants w White Whenwasdeposed, interviewWhite,repor and the thus“reiterated” to madeBushneverwords,sta it. the Inother caused cau he neverwhat toldanyone that Bush’sstatement coimportant most fire,” andof the the one started falsityis the interviewBushhis t with summary of Reynolds.” I-1 informationto heprovided had same asan un Prosecutors by andMoonlight presented the DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING White’s written summary of the second interview fal interviewsecondsummary the White’s written of Bush’s second interview was conducted one week late week one wasinterviewconducted Bush’ssecond Nevertheless, White’s written summary of the inter summary the White’s Nevertheless,written of Defendants obtained the tape recordingi of White’s tape obtainedDefendants the impomost false,as the is ofcourse Thisstatement 62 that manner, a fact which the recording of the the factrecordingwhicha the manner, of that he Joint Report. Instead,he,like he Report. Joint Reynolds, mponents of White’s interview with Bush iswithinterviewBush of White’s mponents theory. In particular, as confirmed in the tape inInparticular,asconfirmed tape theory. the
ts involve falsities upon falsities. involvefalsities upon ts responded, “No. I don’t know why.”This know I don’t “No. responded, and rock a“ascraped Bushbelieved CAT hat tement to Reynolds that he supposedlyReynolds that tement to h flatly denied having done so and further so havingdone flatly hdenied recording of the interview and the writteninterview the recordingand of the r on this document. White signed it, though,White it, this signed r document. on 07. White tape recorded his interviewrecordedhis withWhite tape 07. d by White does not callby not signature a Whitefor does by d sed the fire and that he did know what hadhewhat fire did that know the sedand states:“Bushfact, the reiterated disputed nlight Prosecutors filedUnited Prosecutors States’ nlight the ersation with Bush. White includedWhite this Bush. with ersation old Reynolds that he believed the bulldozerhe believed the old Reynoldsthat ith this contradiction and askedwhyand contradictionith this rtant component of Reynolds’s written componentofReynolds’swritten rtant nterview with Bush during discovery. withdiscovery. Bushduring nterview view, advanced in Report Joint advancedview, the sely attributes to Bush to an selyadmission attributes r by Moonlight Investigator White, Investigator by r Moonlight FRAUDCOURT ONTHE
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under Federal Rule of Civil Procedure 26(g)(1)(A). ofunderCivilFederalRuleProcedure inverifiedresponses, discovery witnesssummaries beforeMoon the Thedepositionoccurred also time. by andjudgmentopposition, Ta wasattended summary
interview, without any regard for whatforBush any actuall without regard interview, purpo the forWhite’s wasinterviewsimply and that “confwrittenfirst White that the demonstrate knew Moonlight as the his during questioneddeposition, n interview,and 10 could September summaryofthis Whitefire.started t he the knewanyone what that when Bush he remainedsilent reveals recording that But Reynolds3. September on (supposedly)to said rockascraped CATlongertracks the no believedhe interinterview,haveWhitewould first in made the namely, who started the fire, and how. fire, how. started and the who namely, conclusion of the federal action, but this does not does but federalthis of the conclusionaction, Prosecutors’ misrepresentations to the Court, were Court, the misrepresentations to Prosecutors’ into its interrogatory responses.” interrogatoryits responses.” into interviewfalsifiedlead investigator Bush’s Fire’s byFederalRu asdiscoveryrequired theirresponses fals intentionally interviewthe perpetuated second statement, inaccurate Reynolds’sreliancetheir on never Prosecutors corrected TheMoonlight motion. DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING If White believed Bush was recanting or changinghi or BushWhitewasrecanting Ifbelieved This misrepresentation was directly relevant to one to misrepresentationrelevant wasdirectlyThis This Court ruled in favor of the United States and United States ruledinof the favor This Court These facts concerning the falsificationBus of the concerning the facts These Judge Nichols recited these facts infindingbythesefactscle recited NicholsJudge 63 preclude relief under Rule 60(d)(3). See Hazel-See precludeRule 60(d)(3). under relief statement, and incorporatedfalsification and that statement,
hereafter prepared his falsifiedhis written prepared hereafter ity that Reynolds created, and never amendedReynoldsand never created, ity that White’s summarythat of the never disclosed rogated Bush on that issue, askingBush Bush why that rogated on generally known to Defendants before the the beforeDefendants to generallyknown Prosecutors sat by and watched. These factsThesebysat Prosecutors watched. and ession” by Bush was fabricated byfabricated wasReynolds, by Bush ession” y said. le of Civil Procedure 26(e).le ofCivilProcedure signed by Taylor inherviolationsignedduties byof Taylor se of perpetuating the fraud through a seconda fraud sethrough the ofperpetuating emphatically stated that he had never to said that stated emphatically to cause the fire, when that was what hewaswhat had fire,whencause that to the light Prosecutors relied on these falsifiedreliedthese Prosecutors light on White did no such thing. Instead, Instead, the tape Whitething.such did no the record before the Court, never beforewithdrewCourt, the record the ot explain when contradiction the ot ylor, the lead Moonlight Prosecutor at the Prosecutor lead the Moonlight ylor, ar and convincing evidence that “Cal and convincingthat evidence ar h interviews, and the Moonlight Moonlight andinterviews, the h denied Defendants’ summary judgment judgment summarydenied Defendants’ of the central issues in – issues case central the of the s alleged statements to Reynolds to statements allegeds FRAUDCOURT ONTHE
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the so-called fact in fact discoveryso-calledverifiedresponses. the fact” “undisputedt so-called the thisbefore Court Prosecutors Moonlight the summary, withhis written answerreco why tape not White the evencould after interviews,p falsification ofBush’s uncovered the government’sliability the admissionsregardingof inteasummary writtenrespective oftheir produced Fire,evidence Moonlight undisputed the the started effort t Inanother flaggedoforigin. white point settlement). timeof the defrauded the andpartysuspected that settlement, defrauded the partythat parties that settled, the judgmentfo 246U.S.(settingat a 322 aside Atlas, wa andissue, himself then key a witness on perjure defen trialin-house the attended counsel on There, itundermined workingsof the the that fundamental issuekey itthe went issue; instead, to tangential discusses in Stonehill, the Moonlight Investigators Moonlight in the discusses Stonehill, Infurtherance relief 60(d)(3). Rulewarrant under verifieddiscovery response judgment oppositionand intervi presentationofthose and interviews, their manner.’” Stonehill, 660 F.3d at 445.This no wasat F.3d Stonehill, manner.’”660 judiciaprevent to by the government “an the effort inand usedis Court submission the Prosecutors’ to DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Standing alone, the Moonlight Prosecutors’ actionsProsecutors’ Moonlight alone, the Standing The Ninth Circuit found similar behavior to constit foundto similarbehavior TheNinthCircuit This behavior constitutes fraud on the court. More fraud court. on constitutes the Thisbehavior Analysis did not seek relief until seven years after the the seekyearsrelief not after seven until did 64 in the case – causation – and, as such, “was so “wasso and,assuch, – causationcase in – the o sell their fraudulent scheme that a bulldozera sell scheme fraudulent that o their ews insummarywithsuccessfultheir connection ews
hat Bush had admitted liability,Bush proffered hat and had admitted of the type of scheme the Ninth Circuit typeNinthCircuit ofschemeof the the
rominently displayed in the Joint Report, and Report, inrominentlyJoint displayed the and was actively investigating the fraud at fraud the at investigating the andwas actively fact notwithstanding the fraud court upon r the here falsified more than just originalfalsifiedmoretheirthan here dant company’s behalf, watched an expert expert an company’swatched behalf, dant l process from functioning ‘in the usualfunctioning from‘inl the process rock strike theory. Even after DefendantsEven strikeafter rock theory. covery of the falsified Bush interviewswas falsified the Bush coveryof t perjury or nondisclosure relating to a nondisclosureperjury to relating t or tched the same expert perjure insamehimselfagain the tchedexpert establishes that Reynolds Whiteestablisheseachand that rviews with Bush, falsely attributing to Bush falsely to Bush, attributing rviews with adversary process itself.” Id. Id. itself.”adversary process rding of his interview of Bush conflicted rdingofBushinterviewconflicted ofhis s, constitute fraud upon the Court andfraud Court upon the constitute s, stillinpractice motion advanced knowingly
specifically, the Moonlight specifically,Moonlight the ute a fraud on the court in acourt fraud the on ute Pumphrey. with respect to the falsified the Bushto withrespect FRAUDCOURT ONTHE
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they “made no misrepresentation” to the Court, and Court, misrepresentation” the no “madeto they Ninth Circuit in Pumphrey, the Moonlight Prosecutor Moonlight in the NinthCircuit Pumphrey, allfor Court.reasoAccordingly, the District the falsifiedincludingReport,Bus the falsifiedJoint Declaratio co-wrote, the or theywrote, undoubtedly circ misrepresent the Prosecutors Moonlight did the Defendant to opposition withintheirBushadmission asevidenced byisincorrect clearlythe assertion anything sim by ofevidenceor “fabricationcounsel Pumphrey, where the in-houseex the allowed counsel the Pumphrey, where Defendants’successfullymotio to Pumphrey), defeat inandthem relied disco on Investigators Moonlight disclose to did the falsehood thisnot Prosecutors falsehoofor answerhad the no White andas watched White’sbetweendiscrepancy questions the the about he CATbelievedtrack the that havingtoldReynolds haveTheydepositio the attended Prosecutors done. witness’s] testim byexpert impression [the created discoveryandr incomplete inaccurate, “misleading, litigatioinwere subsequent taken that depositions Court. fraud the upon opposition to Defendants’ motion for summaryDefendants’judgmeformotion opposition to investigatiabout the thereto attachments Whiteand DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING In their portion of the Joint Status Report,Mo Status the Joint of the portionIntheir The Moonlight Prosecutors proffered to this Court proffereda Court to this Prosecutors TheMoonlight 3.
Favorable Ruling, Thereby Committing a Fraud t Upon a Thereby Committing Ruling, Favorable Succeed forand SummaryMotion Judgment Defendants’ Prosecutors Testimony False ProfferedMoonlight The The Relevant Facts TheRelevant 65 ns stated above, as well as those stated by above,aswellstated the stated nsasthose h interview summaries, and presented them to andthemto presented summaries, interview h Moonlight Prosecutors’ reliance on the supposed supposed the relianceProsecutors’ on Moonlight Court; instead, they took the liesbyinstead, the Court; the created they took n. 62 F.3d at 1132. He alsoHe at helped F.3d1132. prepare 62 n.
ony.” Id. This is Moonlight exactlyThisId. the what ony.” on of the Moonlight Fire in support oftheir in Firesupport Moonlight of the on umstances of the supposed Bush supposed admission, the umstancesof ilar.” (Docket No. 612 at 18:6-7.) 18:6-7.)612No.This at (Docket ilar.” very responses (as the in-house counsel did inin-houseverycounsel the (as did responses n the whichWhite, attaches ofJoshua esponses,” and “fail[ed] to correct the false correct the to esponses,”“fail[ed] and ns of Bush and White, heard Bushdenyns ever heard White, ofBush and that the instant motion is not about ismotioninstant not the that s scraped a rock to cause the fire, listened to listenedcause to fire, the rock to ascraped s s’ motion for summary judgment. Not Not only summaryjudgment. formotion s’ interview summary and the tape recording,tape the summaryinterviewand n for summary judgment (just likein summaryjudgment(just for n d he intentionally created. The Moonlight The Moonlight dintentionallyhecreated. s’ behavior in this instance constitutes a s’instancebehaviorin constitutes this pert witness to testify falsely at trial). witness testify falselytrial). to at pert nt. In doing so, they committed a frauda on In doing they nt. committed so, onlight Prosecutors incorrectly state that incorrectly Prosecutors state onlight false and misleading declaration frommisleadingdeclaration false and FRAUDCOURT ONTHE in Oppositionto in he Court. he ed inProcuring ed a
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the investigators were so desperate to conceal.were desperateso to investigators the actu metal fragmentswere that these actions, their inofquestion,canview But no bethere and E-3. wehavi identifiedrocks as that two fragmentsnear whitebyflag.White attests t that origin denoted andmeasuring, diagram marking,photographing, work mentionofcritically,any White But omits flags. includinginvestigation, aspart oftheir undertook r material Court’s contended the were to government proffer itsdeclarationat exhibits to and on that N (Docket by defense. profferedmaterialfacts the 2007, tocollect2007, rocksE-2 andE-3,long after he h perfectlytotriangulate whitethe flag and notE-2 “wereWhydone”? else onlywouldthe diagramscene had accomplishedat scene the shortly before he rel them relevantinthe “overview of indicators” photo wouldthe rocksE-2and E-3 haveindicator flags no methodsandown his training? Why wouldWhite else asingleinto bagcollected from twosome locations
opposition to Defendants’ motion. oppositionto Report, Joint thereby fraudulentpresenting of the attachealso Prosecutors Moonlight the Declaration, this Court. thisCourt. 43 at rocksE-2 andE-3falsely as claimed in their Jo a declaration by lead Moonlight Investigator White.Investigator leaddeclarationMoonlight bya fil 2012,United States 2012.the On 28, March 29, Defendants are informed andbelieve the that Moonl DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING White’s declaration discusses in detail variousintas discussesWhite’s detail declaration declaration and reliedthat TheUnitedupon States The equally deceptive Joint Report attached to Whit attached Report to TheequallyJoint deceptive In addition to the affirmative misrepresentations a affirmative misrepresentations the Inadditionto Defendants Sierra Pacific and Howell filedMotion aPacificand Sierra Howell Defendants orE-3?Why else wouldWhite havewaiteduntil Se int Report. int ad ad releasedscenethe threedays before? easedthe scene,and roughly a beforehalf hour Rey graphs graphs hetook todocument allthatMoonlight the I feetten inviolationapart, of mostbasicthe inv , no evidence no , tents, markings, no nothing tosugges ight Investigatorsight collected metalthe at white the onSeptember 5 haveandbearingdistance measureme and Reynoldshave lied about whitethe flag? Why 43 least twenty-five additional facts that the leastthat facts twenty-fiveadditional 66
hat he“smallfound hat andmetal Reynolds the placement of red, yellow, indicator andof bluered, theplacement the white flag,mentionofhisanyand omits the white it to the Court as evidence in support asevidenceoftheir Court init support the to ally collected at the white flagoforiginwhite at point the allycollected
all the evidence that has beenabout that revealed evidenceall the
o. 435.) Additionally, the United States relied Additionally,States 435.) United o. the ng been struck by heavy equipment,” i.e. E-2 i.e.byE-2 heavy equipment,” ngstruck been ed its opposition, the centerpiece ofwhich centerpiecewas its the opposition, ed Whyelse wouldWhite haveplaced fragments metal d as an exhibit to the declaration virtuallyas the an all d exhibitto (See Docket No. 437.) 437.) No. Docket (See uling on the motion. (Docket No. 435-1.)No. (Docket motion. uling the on ming the original, undisclosed point of undisclosedpoint ming original, the ks that hesupposedly and that ks Reynolds nd falsehoods byinWhite’s falsehoods omission nd its exhibits to disputeleast at twelve itsto exhibits e’s declaration isinstudy adeclaration e’s for Summary Judgment on February Summaryon for Judgment FRAUDCOURT ONTHE estigation ptember 8,ptember nolds said said they nolds nvestigators t White t found flag rock, not else nts nts that
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motion for summary for judgment. motion inand relyingthem Court upon the interviews with efforts to obs fiction theyandofconstituted that Report t Joint of the theseaspects that have known ToweLookout RockRed the transpiredat that events andHavingjustice. def ofattended an obstruction impede, intentob with to the any falsifying record fireminutesin the beforewasre Tower the Lookout reveals. Bu ofwhat opposite exact summaryinterview the his firsth subject. There, they saw that deposition on Report.The Moonligh Joint of the attachesaspart summaryjudgment. formotion Defendants’ byProsecutor Moonlight the Court to thispresented and All prosecution. “corrupt tainted” aideofthis and witness statements falsified numerous witnesses and White’sDe Report, TheJoint oforigin. points frau the perpetuates point oforigin,and abandoned investigatfabricationwith the regarding replete a thi Asjustice.throughout detailed obstructionof e insteadaddress in themway,and any attention or imconcealmost aswritten are to so the statements White’s co-investigator Special Agent Welton. As e As Welton.Special Agent White’s co-investigator Lookout The Tower. Rock Red the personnelstaffing DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING At the time that the Moonlight Prosecutors filed Prosecutors Wh Moonlight the time At that the infraudulent attaches also the White’s declaration Whitealleged the Bu supra, discusses discussed, As The Moonlight Prosecutors did nothing to bringdid to nothingthes Prosecutors TheMoonlight 67 truct justice. truct s supplemental briefing, the Joint Report is Report Joint the briefing,supplemental s and White’s inability to explain why he wrote inexplain heinability wrote White’s why to and ion. It conceals the existence of the secret concealssecret existenceion.of the It the of these documents were attachedand were to ofthesedocuments struct or influence an investigation constitutes investigationinfluenceconstitutes struct or an
ended all pertinent depositions the regarding ended allpertinent hey elected to present to the Court were works works were present Court to to the heyelected RockRed the eventstranspiredat that portant t Prosecutors were presentWhite’s were for Prosecutors t claration, also attach and incorporate incorporate andattachalso claration, xacerbated them by filing falsifiedwitnessfiling thembyxacerbated withmanufactured associated belatedly d the support of their opposition to the defense the oppositionoftheirto support s for its careful consideration in on itsrulingfors carefulconsideration ported. Under 18 U.S.C. section U.S.C. Under 18 1519, ported. interview summaries, all manufactured in manufactured interviewall summaries, xplained in more detail, infra, these falseininfra,morethesedetail, xplained sh said, as the recording of the interviewrecordingas the of the said, sh r, the Moonlight Prosecutors knew or shouldknew or Prosecutors Moonlight the r, se falsified official forms were prepared by prepared were forms falsifiedofficial se terview summaries of the USFS of the summaries terview sh “confession” which he also he“confession”sh which also ite’s declaration with the Court, theyCourt, with the ite’s declaration e serious issues to the Court’s the issues to serious e FRAUDCOURT ONTHE
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flag from the Joint Report, andReport, that from they testified flagJoint the concealed Investigators and Moonlight the knewthat 44 Fire, throughFire, White, repeatedlyso.” did processfalsethethrough testimonyleadinv of its good fires, no andhad thus reports oftheseother Prosecutors TheMoonlight conclusions. fraudulent weree indetailthesereports below, greater forth fires,FirGreens namely other the reports ofthree the location of the white flag. whitelocationof the the witha Reynoldsprepared sketch the on measurements confirmin surveyingfromexpert own their testimony filedCour with the White’s declaration Prosecutors honestly.” falsespecifi and testimony,“repeatedly” had given foundevidence andhe convincing byclear whereina allat depositio in the present point beenof time, screen.it video a of on pictures viewedissue” and flagwi this hediscussed fact hadthat the earlier sceneandhis claimed secret sketch examined about daysd indirectlyfour ofReynolds’s indirectly or TheMo Reynolds’s for deposition. in – preparation videoscreena it on – of photos reviewed enlarged infamousmeetingReynolds with now their conducted White’sdeposition.of daysin indirectlyseventeen Prosec pointin Moonlight the bytime,Indeed, that Specifically, Judgefound:Nichols “[I]t isthisC DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING In addition to the Moonlight Investigators’ falseInvestigators’ t Moonlight the Inadditionto White’s declaration and the Joint Report attached Report t Joint andWhite’s the declaration 44
estigatoronMoonlightthe Fire,White. ThisCourt ourt’s responsibilitytoreview whetherCal Fire ab 68 th the Moonlight Prosecutors as“non-being Prosecutors aMoonlight the th ns that were the subject of Judge Nichols’ orders, Nichols’ofJudgesubject were orders, the that ns falsely about the white flag inwhite flag the falselydepositions.their about quallyandequally contained specious, faith basis to rely upon these reports. Rather, relythesereports. faith upon basis to eposition, during which Reynolds had beenhad which duringeposition,Reynolds e, the Lyman Fire, and the Sheep Fire. As set Fire. Lyman Sheep and the the Fire, e, The Moonlight Prosecutors had also, byhad also, Prosecutors that TheMoonlight
The Moonlight Prosecutors had already TheMoonlightProsecutors while brazenly telling him it was a “non-issue”itwasa brazenly himwhile telling cally found that “Reynolds did not testify“Reynoldsnot found did cally that utors had already participated directly had alreadyutors or participated t, these government attorneys had also heardattorneys had also thesegovernment t, onlight Prosecutors had alreadyProsecutors onlight participated to be unable to seeflagdespite bewhite – unablethe to to attended all of the depositions concerning depositionsthe all the attended of suppressed their work white relating the to work their suppressed g that the distance bearingthe and that g standard that the Moonlight Investigators Investigators Moonlight that the standard single point of origin intersected exactly single intersected at oforigin point to discuss the white flag,discusswherewhitethey the to estimony, by the time that the Moonlight Moonlight estimony, the timebythat the hereto also contained the falsifiedcontainedalso the hereto FRAUDCOURT ONTHE finds thatCal usedlegalthe
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with White’s fraud. Cf. Shaffer, 11 F.3d at 460 460 (f at Cf.F.3d fraud. 11 White’sShaffer, with a scheme to “change the story as presented to the d to the “changestory schemeasto presented athe h the corruptionat the by upon prosecution relying a When judgmentpractice.thesegovernment summary misleadingfalse and by submittingthe proceedings preclude relief under Rule 60(d)(3). See Hazel-Atl See Rule 60(d)(3). precludeunder relief hadofafalse proffereda declaration Prosecutors summary judgment motion, even though EPA did not su did motion,not EPAeven judgmentthough summary but hadratherCourt, su the to White’s declaration ifevenbe filed.”Of declarationthe to course, a analsothis affront Court, are to ofhis actions, the histestimonyregarding deposition absurdityof declarations.. to White’sfinds . also Court that alsoW discusseddeclaration abrought,” action was incentralissuesmost ca this the testimony wason corr withdraw excusenoror failure to theirCourt, Prosec excuse actionsnot Moonlight the of the does fraud the tim at investigating the andwas actively seekyearssetrelief the after seven did not until factt notwithstanding court the fraud the for upon defendants. affluent against chargesbuttress understand exactlyth what had everyto theyreason liedcreated bya who witness administrativerecord findfraud t to a be on alone sufficient wouldthat f whitediscussingafter the Nichols, JudgeIndeed, DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Prosecutors advanced the fraudulent i advancedfraudulent Prosecutors the The Moonlight Defendants knew prior to the settlement of the fedeof the settlement the knewto Defendants prior Analysis Analysis as is Cal Fire’s counsel’s willingness to allow sucasisto willingness counsel’s Fire’s Cal 69 tlement, and that the defrauded party suspected andpartydefraudedsuspected that the tlement, this Court, wherein he repeated and advancedwherein the repeated he Court, this Moonlight Prosecutors had not submittedhad not Prosecutors Moonlight he court, given that the Joint Report was also rifewasalso Report hegivenJoint court, the that law enforcement officer, but this does not not but this lawdoes officer, enforcement e of the settlement). However,knowledge that settlement). of the e inding fraud on the court when court fraud the EPA on inding hat the parties settled, that the defrauded the partythat parties hat settled, the ect that pleading.ect that bmitted only the Joint Report created byReportWhite,created Joint onlybmitted the
se – indeed,whichvery thisbasison upon the se– lag and “just how incredible the investigators’incredible how “just the and lag eart of the investigative work, they engaged in investigativetheyengagedwork, eart of the istrict court.” Stonehill, 660 F.3d at 452. 452. Stonehill,at F.3d court.” 660 istrict white flag in effort to avoid consequencesflagin the whiteto effort as, 322 U.S. at 246 (setting aside a judgmentat 246 U.S. (settingaside a 322 as, bout credentialsin of support wassubmitted bout ey were: fraudulent materials to fraudulent designed were: ey White declaration and Joint Report aspart Report of WhiteJoint declarationand hite submitted in the state action, stating:action,in“the state the hitesubmitted in the White’s declarationto submitting utors ttorneys chose to advance to their ttorneys chose bmit declaration of that witness). Theirwitness). declarationbmitofthat ral action that the Moonlight the that ral action nvestigation into the judicialinto the nvestigation FRAUDCOURT ONTHE h
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Berger, 295 U.S. at29588. U.S. Berger, representativesasgovernment viewstatus oftheir now di in“areposition to Prosecutors no Moonlight attorneys “thought th noted Hartford that the Court for“basic”appe “thebasis” the primaryor wasnot co attorneysnot submissiontheirdid that Hartford motion. Whitefraudulentdeclaration repeate the here cited journal fraudulentcited the trade court appellate summaryjudgmeformotion deny defense the Court to conceivedWhi Prosecutors of the Moonlight here the Officegr persuade hostile a Patent to to aneffort InHazel-Atlas,motion.Hartf summary judgment the itJoint fraudulent the to attached declarationand 240.SimilarlyU.S. the at here, 322 application. journal bogus awh trade article, attorneyscreated fraud Court. on constitutes this therefore conduct while that conduct, of the similarto Prosecutors’ uponthis Report Joint attached the Declarationand Likewise, and prevailed.”th Id. court] appellate Hartford it foundsufficient the that Court Supreme de fact that they reliedupon bythat evidenced the White the Prosecutors declaration thought Moonlight government contended were material to the summary j materialsummary contended the were to government profferat to as wellas defense, profferedby the DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING As with the alleged Bush admission and associated d associated and admissionalleged withAs the Bush Notably, in Hazel-Atlas, the Supreme Court rejected inSupreme the Court Notably,Hazel-Atlas, Hazel-Atlas is instructive because of itsinstructivebecauseisparallelsof Hazel-Atlas 70 least twenty-five additional facts that the leastthat facts twenty-fiveadditional article in its decision, id. at 240-41, id.Court the at inits decision, article ant their patent application,” id. at 247, while247, id.application,”ant at patent their Report, which they submitted in whichopposition to submitted Report, they Moonlight Prosecutors created the bogus Whiteboguscreated the Prosecutors Moonlight e Moonlight Prosecutors urged the White urged the Prosecutors Moonlight e Hartford attorneys, is all the more egregious inisattorneys,moreegregious allHartford the
ich they submitted in patent ofa support submitted ich they claration to disputeleast materialfacts clarationat twelve to
nstitute fraud on the court becausefraud article court on the the nstitute who have a duty to see that justicesee is done. havethat duty to who a dly in its order on the summary judgment summaryjudgment the its on dlyorder in e article material,” id. at 247, just asid.just 247, the at article material,” e llate decision. Id. at 246-47. TheSupreme246-47. at Id. decision. llate attorneys “urged the article upon . . . [the.. . attorneys articleupon “urged the Court and prevailed. That being the case,That the and prevailed. Court spute its effectiveness.” Id. The Moonlight TheId. Moonlight its effectiveness.” spute and attached Joint Report were material,Report were andas Joint attached te declaration in an effort to persuade in to this effort an declaration te ord attorneys“in article“conceived”of the ord udgment motion. the InHazel-Atlas, udgment nt. And, as inwhere asthe And, Hazel-Atlas, nt. to this action. In that case, Hartford Hartford case, Inthat action.this to the argument advanced byadvancedargument the the ocuments proffered to the Court, the Court, profferedto the ocuments FRAUDCOURT ONTHE
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around 1:45around p.m. and producedsmokeenough tobe spotted. According “freestate.burning” fireand the halfhad a hour after approximately an shows2007.The aerial video 3, Septemberp.m. on significantp a on lightwouldhave shed video that failedd Prosecutors to Moonlight Additionally, the dispel video analysis the that whenrevealed expert Report, Joint their correct the to remedial action Moonlight Prosecutors disclosed this critical videodisclosed Prosecutors critical this Moonlight origin conclusionscau the and about Investigators’ fireadvancing generallybegantowards Fire the and action. action. hadwhen done proffering partners prosecution joint repeatedl so they did that convincingly establishes 612 No.a anything (Docket similar.” by or counsel instaand the Court, that to the misrepresentation” belies Report in assertiontheir the Joint and the presentation creationProsecutors’ofand Moonlight 45 hour hour and half, and then allegedly transitioned into Prosecutorsadvanced the theory Moonlightthe that until until more twothan hours later, approximatelyat 2 suggeststhatfirethe started later andduetod a Moonlightstartedthe Fire aroundat 12:15 p.m.whe The oftiming ignitionthe ofMoonlight the Fire i DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Air Attack video was taken by a pilot flying byvideowastaken ov pilot aTheAttack Air pieceisimportant videoofevide an TheAttack Air 4.
Fraud Upon the Court. Court. the Upon Fraud ProduceFailed Evidence, RelatedExculpatory to and Government’san Origin Undermined the that Evidence ProsecutorsTake A Remedialto FailedMoonlight The 45 The video shows a largehillsi the plume showssmokeon a The video The Relevant Facts TheRelevant ifferent cause.ifferent Faced with the discrepancy,timing a“free burning”state, whichat point firethe “a :24 p.m. :24 Defendants contend thatthissignificant s a hotlyissue.disputed government The contends Firebegan smolder, as a remainedinan“incipient” n his bulldozer his n ranover aHowever, rock. smoke no tothe MoonlightProsecutors, firethe began free 71 Joint Status Report that they “made no no Report “made that Status they Joint discovery responses, or depositiontestimony or discoveryresponses, nt motion is not about“fabrication ismotionofevidence not nt
allegedly transitioned from an “incipient” to a from “incipient” to allegedlyan transitioned y, just as Judge Nichols concluded that theirconcludedNicholsas Judge that just y, roblem with their origin determination. determination. originroblemtheir with during discovery, they failed to take any take duringfailed to theydiscovery, led their origin and cause theory. causetheory. ledand origintheir se of the Moonlight Fire. AlthoughFire. Moonlight the seof the isclose expert evidencewith the associated iscloseexpert t 18:6-7.)The evidence clearlyand t the northeast: northeast: the the same evidence in the context of the state state inof the context sameevidence the the to the Court of the false Whitefalse DeclarationCourt of the the to the Moonlight Fire, still in its infancy,Fire,itsstill in Moonlight the
nce undermining the Moonlight Moonlight the undermining nce er the scene at approximately scene at the 3:09 er FRAUDCOURT ONTHE Thereby Committing a Thereby Committing ction Afterof Learning ction de where the Moonlight Moonlight the where de d Cause ConclusionsCause d the Moonlightthe ctuallytookoff” lagtime that Crismon that statefor an burning was spotted
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fire started. The video demonstrates alle that demonstrates the The video firestarted. location of west the the hill up the locatedto and start Fire Moonlight didnot the that demonstrates b fire been the despite hadfact area that the that not factalleged oforiginthat the points Theare importa The downhilltrees. unburnedlocated among Moonlight Fire. In the field of fire investigation firefieldIn the Fire.of Moonlight underminesalso Importantly,video the conclusion. investigator cannot identify the correct ignitioncannot s identify correct investigator the makecandifference” “a feet of world byeight even testif primaryexpert cause Prosecutors’ and origin causecabe the determined, firea origincannot of fire.cause Nat’lF correct of the the determining frames of the Air Attack video. The Moonlight Pros video. The Moonlight AirAttack framesof the identifylocation preciseof to the retainedCurtis Among oth ProsecutionAgreement. underJoint their joinlandcivil asurveyor and (“Curtis”), engineer video due work of t to the AirAttack in origin the DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Air Attack video therefore severelyvideotherefore undermines TheAirAttack showssm the video AirAttack that the Importantly, The Moonlight Prosecutors werekeenly of the Prosecutors aware TheMoonlight 72 urning for approximately an hour andhalf, aapproximately forhour an urning in the smoke, and that the fire had not yetreached andhadfire that not smoke, the in the , locating the correct point of origin ispointoforiginlocating critical correct the , the alleged points of origin within specificalleged oforigin points within the where the Moonlight Investigators contend the Investigators Moonlight where the ource and thus cannot identify the correct cause. identify correct andcannot the thus ource ged points of origin are not in the smoke, but inbut not smoke, points the of origin are ged ire Protection Ass’n § 17.1 (“Generally, if(“Generally, Ass’n 17.1 Protection the § ire tly retained by the federal and state prosecutors federal by state and the tlyretained nnot be determined.”). The Moonlight be determined.”). nnot heir retained expert, ChristopherCurtis heirretained expert,
where the government contends. contends. government where the ied that incorrectly point oforigin locating the ied that because, without a correcta origin,an without because, their conclusion regarding the causeof the the regarding conclusiontheir ecutors hoped this identification would show show hoped identificationecutors this would er things, the Moonlight Prosecutors Prosecutors Moonlight er the things, nce of this evidence cannot be overstated. be nce overstated. ofthis cannot evidence oke plume from the Moonlight Fire isFire Moonlight from the plume oke the Moonlight Investigators’ originInvestigators’ Moonlight the location of the government’s allegedgovernment’s location of the FRAUD COURTONTHE to to
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placement of the alleged origin outside the smoke, smoke, the alleged of the originplacement outside simila produced video.The defense work AirAttack andstanding dow east trees unburnedunderneath the redrevealeddot to that Critically,work Curtis’s f in placing video dot certain red assigned a task, originInvestigators’cau and Moonlight support the center ofthe the near allegedoforigin the points advancecontinued thisthe untenable to Prosecutors flawedpoin deposition their regardingor testimony nocoremedial to Prosecutors action took Moonlight startg where fire the is not the evidencedid that atandforanleast hour “freeinstate burning”a yetreached government’s the hadFire not Moonlight analysis.videoTheand related expert the Attack Curtis, but thr disclosed expert, work own oftheir prob awaresignificant of Prosecutors the Moonlight findings the reportsand to disclosedtheseexpert DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Prosecutors also knew or shouldalso knewhave or Prosecutors TheMoonlight Defendants also asked their own experts to locate askedt to experts own also theirDefendants 73 overnment contends it did. Nevertheless, itcontends the did. overnment a half. The only logical conclusion fromthislogical a conclusion half.Theonly plume of smoke in the video, and video, intherefore plumeofsmoke the be at a locationhillsidebea outside the smoke,at the on rames to denote the government’s origin.government’sdenote the to rames United States. Therefore, not the onlyTherefore, Unitedwere States. ough defense expert reports defensetoo. ough expert Air Attack video clearly demonstrates that the video clearlythat AirAttack demonstrates
underneath unburned trees. Defendants underneathtrees. unburned t of origin. Instead, the Moonlight Moonlight the Instead, oforigin. t se conclusions. Curtis performed thisCurtis performed seconclusions. ory in discovery responses, throughin responses, orydiscovery lem with their alleged origin through the the through lemorigin withallegedtheir rrect the Joint Report, discovery Report, rrectJoint the responses, nhill from the smoke plume. plume.smoke fromnhill the r results to that of Curtis, resulting in that ofresultingCurtis,to the results r chosen origin despite allegedly havingbeen chosen allegedly despiteorigin he two alleged points of origin inallegedoforigin points he the two known of the significance of the Air the significance of the of known FRAUD COURTONTHE
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relating to Curtis’s testimony. Therein, Dodds wroCurtis’s Therein,Dodds testimony.to relating he claimedhe note created handwritten timeanother butpreclude not this reli does federalsettlement, “separation” between the smoke and the government’s andsmoke the the between “separation” Prosecutor Moonlight meeting the during with that a inWhen questionedthe federal Curtis’stestimony. depositio confirmedDoddshis state during video.” & the origin]GAOalleged the [government’s between video, particularly joint federal/state expertCurt federal/state particularlyjoint video, govern locationreconcile the to of the Prosecutors struggled Doddsreveal Thenotes that Defendants. Pros Moonlight which the but federal in action, the handwrittenh that produced notes Dodds deposition, frames. frames. federal the after settleand federalin action, the Prosecutionunder prosecutors Joint their andstate firea Larryby origin Dodds, expert, their created prov not attorneysdid government Specifically, the faileddisclose certainexculpatory to Prosecutors afterHowever,federal the settlement settlement). and wasacti partydefraudedsuspected the andthat s defrauded not the partydid that parties settled, fraudjudgmentfor upo 246 (settingat a U.S. aside authority. Court’s and anareports in depositionexpert and testimony,
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING For example, in his handwritten notes, Dodds writesDodds notes, example,inhis handwritten For videorel and the Attack Air the knew Defendants of Also during the state action, and after the federalaction, and the after during state Also the ment, again in the state action.laterstatInhis again in ment, state the 74 eek relief until seven years after the settlement, settlement, eek the yearsrelief after seven until is’s placement of the alleged origin in the video allegedvideo is’sinof the the originplacement ef under Rule 60(d)(3). See Hazel-Atlas, 322 underRule ef 60(d)(3). and cause expert jointly retained by the federaljointlyby expert the cause retained and evidence associated with the Air Attack video. Attack Airwith the associated evidence , Defendants learnedMoonlight the Defendantsthat ,
ment’s alleged origin with the Air Attack Attack Air the originment’salleged with Agreement. Defendants deposed Dodds firstDodds Defendants deposed Agreement. n the court notwithstanding the fact fact that notwithstanding the court nthe the ecutors had never produced or disclosed hador to never produced ecutors lysis, all conducted under purviewofthis the lysis,allconducted te that Curtis’s opinion was not only Curtis’s the was not that that te opinion vely investigating the fraud at the time of the fraud the the at investigating vely ide Defendants with the handwritten notes notes handwrittenwith the ideDefendants state action about this note, Dodds admittedDodds action note, thisstate about n that these notes reflect hisreflectn understanding of these notes that in consultation with the Moonlight Moonlight the in with consultation during the pendency of the state action state the duringpendency the of s, Curtis discussed his opinion about the s,about Curtishis opinion discussed e prepared while he was retained as an expert expert whileretainedasanhe was prepared e origin. origin. smoke seen in the AA [Air Attack] Attack] inAAseensmoke [Airthe settlement, Dodds produced forfirst produced Dodds the settlement, : “Chris Curtis testified to separation to Curtis “Chris testified : ated expert analysis prior to analysis the to expert prior ated FRAUDCOURT ONTHE e
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shall be done” and instead improperlyinsteadtryi focus on be andshall done” ignore exampleto willingness unfortunate oftheir Moreover, in Pumphrey, general counsel allowed a co ina general allowed counsel Moreover, Pumphrey, Prosec as1131-32, justMoonlight id. the at fired, inAdditionally,litigation. Pumphr the throughout yetandadvocated and advancedthey doubt, actively cor video, not originthat allegedtheir was Attack Similarly1131-32. Moonl at62 the F.3dhere, so. yetallowedandto counseltrial firedropped, when in Prosecutors thi Moonlight of the conduct and the parallels between strong because of the informative frau88.examplestrikingisIt at of another U.S. origin wholearea.” government’s yetburnedAtta Air the hadwhen not alleged origin conceded duri allegedDodds origin. Investigators’ “square” wasC Doddsand yet”to that trying burned in not allegedInvestigators’was origin Moonlight bye taken ofnotes production facilitate their the id.wh 1131, at fired, ingun the the which testing andt allowedinvestigators experts its Prosecutors gun test the hisabout deposition impressionduring advanced inmotiong that the practice declarations and mischaracterizedguntesting the responsesthat investigation. And, in Pumphrey, general counsel d incounselAnd, Pumphrey,general investigation. impressi falselocation the originabout of the and DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Prosecutors’ conduct with conduct to respect Prosecutors’ TheMoonlight In Pumphrey, general counsel was aware basedin- on wasaware In Pumphrey,generalcounsel Analysis 75 d on the court. In that regard, regard, isPumphrey In court. that on the d xpert that highlighted the flaws inhighlightedflaws the the xpert that ile similarly the Moonlight Prosecutors did Prosecutors not ile similarlyMoonlight the on about the accuracy of the initialaccuracy the of the about on utors profferedanddiscovery responses utors extreme subject veryat least, rect,to the or o create a falseinadepositions impressioncreate o their
ey, general counsel proffered discovery ey,generalproffered counsel their solemn obligation to ensurejustice “that to solemn their obligation ight Prosecutors were aware,Airbased the were on Prosecutors ight overnment’s flawed analysis.overnment’s origin advance the theory that the gun would not do not gun would the advance that theory the “not but had thissmoke, origin allegedthat the ing, id. at 1132, just as id.justMoonlight 1132, the at ing, ng to “win . . . [the] case.” See Berger, 295Berger, See “win case.”[the].. . to ng denied any record of the test in guntest whichof the deniedthe any record if depositiongovernment’sthat the state his ng s action. action. s case general inof the that conduct counsel the ck video was taken, “it the would negate was taken, video ck id not facilitate the production of a video video facilitateofid production the ofa not their flawed origin and cause theoryflawedtheirorigin cause and urtis’s opinion with the Moonlight Moonlight with the urtis’sopinion
mpany employee to create a falsea mpanycreate to employee the Air Attack video provides another Attack Air the house testing that a handguna couldtestinghouse that FRAUDCOURT ONTHE
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Air Attack video. Attack Air deposition sworn the Report, testimony inJoint the This allegedfrom fired the origin. of the spread pr knowingly deliberately Prosecutors and Moonlight salvagenew create evidence to plan ato conceived did Prosecutors noMoonlight the outsidesmoke, the video. The Moonlight Prosecutors directedCurtis Prosecutors t The Moonlight video. locationofthe the between discrepancy explain the missionmanua embarkedto on Prosecutors Moonlight warrants relief under Rule 60(d)(3). Rulerelief 60(d)(3). warrants under alone,this Standing location. origingovernment’s gr alleged northeast are of the origin the while to because the smoke plume (and thus the fire) isfire)loca the thus plume smoke(and because the at have firethe not started reveals the could that asRey northeast Fire the to Moonlight advanced the allegedand the pinpointedori video AttackAir the fire“do inmoved that the Whiteagreement were and Reynohis During deposition, chosenorigins.their f hypothesized the Investigators that Moonlight the f of the spread of originthe diagramingpoints and DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Long after the publication of the Joint Report and Report Joint publicationof the the after Long includes Report depictsketch official an TheJoint After learning that the location learning the government’ that of the After Rather than admit that the Moonlight Investigators Investigators Moonlight the thanadmitRather that 5.
Thereby Committing a Fraud Upon the Court. Court. theFraud Upon a Committing Thereby ProsecutorsFalse t Diagram a Created Moonlight The The Relevant Facts TheRelevant 76 alleged origin and then spread northeast, northeast, spread origin then alleged and iagram squarely contradicted the the official sketch iagramsquarely contradicted een, unburned trees. See picture, supra.picture, See een,trees. unburned
ire from those points. As points. this irefrom reflects, sketchthose conduct constitutes fraud upon the Court and Court fraud constitutesthe conduct upon gin. The Air Attack video does indicatedoes that video TheAttackAir gin. lds confirmed this theory, testifying that he testifyingthat theory, ldsthis confirmed of Moonlight Investigator Reynolds, the Investigator and ofMoonlight ire advanced downhill and to the northeast northeast of the to andire downhilladvanced ted northwest to the ted ir origin and the smoke in the Air Attack inirAirsmoke the origin the and o create a brand new scene diagram, one that brandthat aone create diagram, new o scene their flawed origin. As part of that effort, the part ofAsthat flawedorigin. their nolds testified; however, the video also video the however, testified; nolds t attempt to correct the record, butinstead correctrecord, attempt to the t wnhill, northeast” from the alleged origin. wnhill,allegedfrom northeast” the origin. offered a falsedirectionala diagramof the offered facture new evidence, attempting to to attemptingnew evidence, facture its official sketch, the experts analyzeditsexperts official the sketch, ing the Moonlight Investigators’ allegedInvestigators’ing Moonlight the s origin in the Air Attack videowas Attack Airinorigins the
had wrongly identified the origin, the had the identifiedwrongly FRAUDCOURT ONTHE
of the alleged of the origin, o FurtherCase, Theiro
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was also similar to the conduct at issueinat conduct similar the Derzack wasto also heightenedtheirviolationonlyethics was not of a re-plotted the location of the allegedofor location the points the re-plotted of 46 the yearsor was conceived after scene diagramthat Mooevidence).Similarly the here, manufactured on U 404;seeHazel-Atlas,also at 322 Id.court. the documents and those rela about depositiontestimony falsifiedopposing to party the produced documents to his officeto his “beforeChristmas” in2010and“asked could not withstand critical scrutiny and could not withstandcould scrutinynot and couldcritical facilitated Prosecutors t Moonlight the indicators, wentinto origina the that care Notwithstanding the make th clear officialto the andsketch finalizing to arrow northslightly revisetheir andto cant to the compassoffic north on of the placement precise Inveco-Moonlight testifiedthat Welton deposition, a the carelessofficia on correct drafting error to itextensively. establi Deposition testimony about a full ninety degrees. ninety fulldegrees. a Moonlight spread.Prosecutors the Thus, northeast vid Attack Air the and testimony Reynolds, sworn of contrary advancement, are itsnorthwest and uphill, fire up the showed spreading Thenewfire. diagram dra newCurtisa diagram that created behest, their Curtis testifiedthat“counsel from statethe and DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The conduct of the Moonlight Prosecutors with Prosecutors respe Moonlight of the Theconduct After the creation of this new diagram, Whiteunvei new creationofthisdiagram, the After from federalthe government,” along withconsultant me could if I dothis[diagram].” Analysis 77 l sketch in the Joint Report. In fact, duringInfact, in her Report. Joint the l sketch the left so asitsleftimprove before accuracy to so the igin and re-diagramed the spread of the fire.of the spread igin the re-diagramed and e fire advanced to the northeast. northeast. to the fire e advanced .S. at 245 (finding a fraud upon the court basedfraud (findingatcourt upon 245 the a .S. he creation of the new diagram since the oldone the he new creationof the diagramsince as representatives of our government, butit government, ofour asrepresentatives shes that this directional change was not done not thiswaschangedirectionalthat shes be reconciled with the Air Attack video. video. Attack Airwithbe the reconciled
matically altered the directionadvancing the of the maticallyaltered , 173 F.R.D. 400. In that case, plaintiffs400. F.R.D. Inthat the 173 , l placement of the northeast advancing northeast of the l placement to the official sketch in the Joint Report, in the Joint the sketch the official to stigator White took a particular interest ina interest White particular the took stigator igin and cause investigationiginand concluded, cause and changed the direction of the advancing fire byfireadvancingchangedof the direction the ial sketch, and that White even instructed her Whiteinstructed ialeven that and sketch, during discovery and then proffered and discovery during the hill to the northwest. northwest.diagram, This new the hill the to ted facts, thereby committing a fraud upon afacts, therebycommitting ted eo, all of which indicatedownhill,alla of which eo, nlight Prosecutors directed creationProsecutors nlightofa the
led it mid-depositionit testified led and ct to the false fire false diagramto spread the ct FRAUDCOURT ONTHE Carlson,came 46 At At
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error in his FARSITE modeling, one that hadsigni amodeling,that in one FARSITE hiserror the asdepictednortheast, offic on the downhillto andvideo, that the Attack Airnotwithstanding the suggestable were that Prosecutors to Moonlight the inplumeAtAirsmoke the the seen directly towards initiallfireDefendants,it the showed modelingto Whenfuel andCl wind, loads. terrain, surrounding c modeling,performTo Closeentered thisFARSITE. mo amongpurported to who, other things, specialist the fire did not start whereInvestig start Moonlight not fire the the did wouldorigi government’s the underminedhave report P corrective HadMoonlight the take not action. to t ofdoubt that leavingaware they no were mistake, he Closetestifiedwiththat error, this confronted Kellyrega by(“Close”) Close prepared expert their also constitutes fraud upon the Court and warrants Court fraud constitutesthe upon also court.”Stonehi district to the storyaspresented allwin in to costs. at effort an discovery process andfaulty pur Investigators’ determination, origin evidemanufactured Prosecutors Moonlight the doing, t Reynoldsand deposition testimony sworn of as the skofficialfrom completelythe scene that departed
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Through tremendous cost and effort, Defendants anddisc effort, tremendous cost Through MoonlightProsecutor the issue, this relevant Asto 6. The Moonlight Prosecutors faileddisclose the to Prosecutors to TheMoonlight
Expert Reports Thereby Committing a Fraud Upon theFraud Upon a Committing TherebyExpert Reports Co Prosecutors Disclose and to FailedMoonlight The The Relevant Facts TheRelevant 78 ll, 660 F.3d at 452. Standing alone, this conduct 452.thisStanding at conduct F.3d alone, 660 ll, This conduct is a clear scheme to “change schemeto is the This clear a conduct made the Moonlight Prosecutors aware ofthisProsecutors madeMoonlight the ial sketch and as testified to by Reynolds. to astestified ialandsketch y advancing from the alleged origin to the west, west, the allegedfromadvancing the origin y to ators and Prosecutors contended itdid.contended and Prosecutors ators posefully injected that evidence into the injected that posefully
fire burned uphill to the west, rather west, than the burneduphillfire to etch prepared during the investigation,duringaswell the prepared etch rosecutors corrected this mistake,Close’scorrected this rosecutors relief under Rule 60(d)(3). 60(d)(3). Rulerelief under he problem and that he theychose problempurposefully that and ose eventually produced his FARSITE eventuallyproduced ose rding the directional spread of the fire. Whenfire. of the directional the rdingspread their alleged points of origin were correct, oforigincorrect, points were allegedtheir del the fire spread using software knownas firedel usingspread software the tack video. From this FARSITE modeling, video.From FARSITE thistack he indisputable Air Attack video.Inso indisputableheAttack Air ficant effect on the direction of the firedirectioneffect the of the ficant on nce in an effort to salvage Moonlight to the effort in ncean n theory and provided additional proof that that additional andproof provided n theory ertain data into FARSITE, includinginto FARSITE, the ertaindata s retained Close, a firebehavior a retainedsspreadClose, defense a serious error in report defensea error serious a
overed that Closemade egregious that an overed FRAUDCOURT ONTHE rrectFalseAdmittedly Court. Court.
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youthinkyouy if understandfact that in “Do him, Close’s deposition, which occurred on March 5, 2012March on 5, which occurred Close’s deposition, Close nevertheless began by testifying that he had bybegan that Closeneverthelesstestifying incoaware were ofClose’sDefendants revealedthat Investigators and Prosecutors claimed, and that it claimed,andthat Prosecutors and Investigators provethat factsvideo. to These tended Attack Air no the fireagenerally to spreadmodelingrevealed nineincluding correct set, degr data the corrected Lautenberger Close data produced. the that through (“Lautenberger”)discovere Lautenberger Christopher from I corrected expert report aClose. or through Close’s slope (in red). red). Close’s(inslope isfollowingfrom demonstrative, the error apparent upslope and up-canyonwinds. Fires spread. will burnfaster uphillthan downhil of the hillside in the area of the fire, Close inpufire,inCloseof the hillside area of the the instead inSpecifically,ofcorr model. spreadhis 47 Asfire behaviorists and investigators recognize, DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING In light of the severity of his slope input error, input lighthisseverity slopeInofof the In light of Lautenberger’s work and his discoveries light work InofLautenberger’s Defendants did not learn of this error through a di learna through not error ofthis didDefendants lbecause ofpreheatingthe of uphillthefuels and slope has a tremendous onimpact the rate anddirec tted thirty-three degrees. thirty-three tted 79 ectlynineofslopeactualdegrees the inputting ee slope. ofLautenberger’s The resultsslope. ee actually started fartheractually hill. up the started nstead, Defendants’ fire modeling expert Dr. modelingfireDefendants’expert nstead,
the fire did not start where start Moonlight not fire the the did no changes to make to his make changes to report. to no ou found a mistake, that you are obligated to to you are mistake, that obligated found ou a rtheast – not to the west –consistentwith – the not west to the rtheast which compares the actual slope (in blue) to whichblue)to (inslope actual the compares re-ran the FARSITE modeling a usingre-ranFARSITE the rrect slope input before the depositionbegan, inputthe beforesloperrect . While Lautenberger’s supplemental report report supplementalWhile Lautenberger’s . d the error siftingonlycarefully error d the after defense counsel pressed the issue,defenseasking counsel the pressed sclosure by the Moonlight Prosecutors, Prosecutors, by Moonlight sclosure the , Defendants were eager to take Defendantstake eager to were , FRAUD COURTONTHE 47 Themagnitude ofthis influencethe of tion oftion fire
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correct thecorrect assoonreport as possible. Not here. tobeneed careful withsuch importantdatasets, a not to “speculate.” “speculate.” not to “m ofcounselaccusingdefense lineofquestioning,
firedirection.spread slope incorrect slope andcorrect with the Close’s Close’s La And,assertion, to contrary Defendants. private neverpro work and of hisresults corrected TheMoonli isunsubstantiated. however, completely modelinghiscorrecte with the results claimed that “fand allegedlyfixed error, slope models, the his th Closehowever, his did testify,report. correct testified that he brought the error error attentiohe to the the brought testifiedthat make changes to your report?” to make changes 50 49 48 of the terrain that I was examining.” Iwasexamining.” terrainof the that val caused some slopethat . . . FARSITE of the the in“there wasan specif error that finallyadmitted supplementorcorrect disclosure its orresponse orwho – 26(a) has respondedtoaninterrogatory, r 17.) Lautenberger.He “Ms.testified that Taylor asked toaskeddosome fromfilming a helicopter andwas Prosecutors were therefore aware that Close’s wereawarerepor that therefore Prosecutors nothing to correctrecord. the to nothing material respectthedisclosure or responseisinco R. Civ. P.Civ. R. 26(e)(1)(A)(emphasis added). informationotherwise has not madeknownbeen toth Of course,aproperly focused prosecutorwould hav UnderRule 26(a)(2)(E), expressly as by informed R Itappears Taylorwanted to Lautenberger’sattack DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING After a lengthy back-and-forth, and in a momentinand lengthyof a back-and-forth, a After Close also testified that he had considered makinghe had considered Closetestifiedalso that When defense counsel asked Close if he hadan heiftaken counselClose When asked defense 50
49 48
Assistant United States AttorneyElias Assistantob Richard United States
nd immediately nd theinstructed expert tocomply with : (A) inatimely: manner equestforproduction, or forrequest admission– ifIcould Lautenbergerrebut andIwouldn’t doit. asked togive onopinionscertain experts, oneof w workthrough expert her Curtis. Curtis testified t mplete orincorrect eother partiesduring discoverythe process or in equickly error withdiscussedthe expert, the disc ule 26(e)(1), “Aparty 26(e)(1), ule whomadeadisclosure has un n of the Moonlight Prosecutors. nofMoonlight the 80 at after realizing his mistake he went back into into backrealizing he at mistake hiswent after ically a slope map error that I used for inputs ininputsforused mapI that slopeicallyerror a or his own edification” re-ran the model.Close the his re-ran edification” own or produced dramatically different results indramaticallyresults the produced different
vided those results or the underlying data to underlying to or the data results videdthose d slope “were very similar.” This “were assertion, slope very similar.” d utenberger’s work proved that modeling proved that with work utenberger’s ues to be somewhat exaggerated in exaggerated beparts some somewhat to ues isstating the law” and instructingwitnesslaw” the the andisstating t contained significant errors and yettheyanderrorsdidcontained t significant ght Prosecutors allowed him to keepallowed him the Prosecutors to ght changes but ultimately did nothing to ultimately but to nothingchanges did understatement, expertwitness Close understatement, y steps to correct his report, Closecorrecthis to report, y steps , andif, additionalthe orcorrective iftheparty learns thatsome in FRAUDCOURT ONTHE
The Moonlight TheMoonlight must jected to thisjected to ” (Ex. ” 54 16-at hat he washat he Rule 26 and hich was hich writing.Fed. ussedthe derRule
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extremely favorable to Defendants. to extremelyfavorable evidencehave wouldhave created so because done to anycreate him instructed perman not to furtherand instructed h Moonlight Prosecutors the that concede believeinformedand th are facts,Defendants these 51 60(d)(3). and war Court fraud the upon separately constitutes malfeasanceto Prosecutors’withrespect Moonlight callcontrovert int or that ofexperimentalresults sufficient to support a findingsupportc a fraud the upon ofto sufficient retained expertsretained inthe stateaction, even i though alsoused. Addressing a similar issue, the Ninth Circuit inissue,NinthCircuit the Pu similar a Addressing expe discard, output of those the allowingCloseto inputdataslope correct the using experimentation co knowinglyClose to Prosecutors allowed Moonlight henothing hishad to that testifiedat deposition leadThereafter, of the Moon one 26(e). underRule disclose yetnothingtheydid to actualand slope) inva heegregiously had the used acutely that aware the most important aspects of the investigation;aspects to important of the most the fronts; t other on false submitdiscoveryresponses evidence; and to willfully and intentionallywillfully concea and and evidence; to Close’s waserror so harmfultothe government’s c DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Before the deposition of government expert Close, expert t government deposition Before of the The Moonlight Prosecutors t repeatedly Prosecutors demonstrated TheMoonlight 51
t t usedlesseleven than no other experts whom the U ase that FireelectedCal not todisclose Close as Analysis 81 correct in his original expert report. That the That report. correctin hisexpert original o question the reliability of produced results was produced questionreliability o the of ourt. See 62 F.3d at 1130-31. Accordingly,1130-31. at62 F.3dSee the ourt. his mistake or correct his report asrequired correcthis report or mistake his misrepresent to the court the state ofcriticalstate court the to the misrepresent
o actively facilitate false actively testimonyfacilitate o regarding mphrey found that the purposeful the concealment that foundmphrey for his “edification,” while discarding, or or while“edification,”discarding, his for l the state of that critical evidence. Inlightcritical of ofthat levidence. state the riments makes this abuse that much worse. much makesworse. abusethat riments this at if required to Closewould iftestify to required truthfully, at ent record of his corrected fire modeling,fire ofhisrecord corrected ent lid 33 degree slope input(more than the triplelidslope degree 33 rants setting aside the judgmentunderRule setting rants aside the light Prosecutors sathis Prosecutors whileon hands Close light im not to correct his erroneous expertreport, correcthis to erroneous imnot the use of false slope inputsbyfalseClose slopeofuse the
that, while truthful, would have beenwhilehave would truthful, that, nductmodelingadditionalfire he Moonlight Prosecutors were were Prosecutors he Moonlight heir willingness to prepare and heirprepare to willingness FRAUDCOURT ONTHE nited States nited had oneof its
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investigated solely by Cal Fire. The investigation The by Fire. solelyCalinvestigated to the Court in their trial brief: inbrief: Court to trialtheir the f these judgment oppositionregarding summarytheir lackandfraudulent scientthey investigation, were M on upWhiteshore and work Reynolds’ rushin ato aware that the investigations intoinvestigationsothe thesethree that the aware for their negligent hiring and negligent supervisio hiringnegligent and negligent theirfor TheMoonlightProsecutors Fire Moonlight occurred. fir negligentlyother for three causing responsible Prosec firesMoonlight four the because premised on nominal amount which the United States neverattemp UnitedwhichStates the nominalamount generated ofanand acre approximately quarter one its byPacific andthrough harvested Sierra Beaty, L propertyby the owned on eventuallyFirestarted,
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING At the time they submitted this statement to the Co the thisto statement time At they the submitted One of the other fires was investigated solelyinvestigated byt fireswas Oneother of the The Moonlight Prosecutors made misrepresentationst Prosecutors TheMoonlight The Greens Fire Fire TheGreens The Moonlight Fire litigation was not about about only not litigationFire on was TheMoonlight The Greens Fire broke out on June 21, 2007, abouta 2007, June out on 21, broke Fire TheGreens 7.
learned of those fires weeks before the MoonlightF the before firesweeks learned ofthose andHowell’s,Pa and Sierra Beaty, W.M. bulldozers, Sierrafor Pac work similar summer whileperforming fire other two alreadystarted had because Howell’s [Moonli foreseenhave the should All defendants the Fraud Upon the Court.the Upon Fraud There SummaryJudgment, on Ruling FavorableAnother WildlandHowell Other Started Wrongfullythat Claim t Prosecutors Evidence Misrepresented Moonlight The The Relevant Facts TheRelevant 82 r fires were fraudulent. r fires were es in 2007, two before and the shortlybefore one in after two 2007, es n/retention claims. claims. n/retention s of all three of these other fires completed were oftheseother ofalls three contractor, Howell.fire burnedThe contractor,
ific integrity.ific andowner Defendants, managedbyW.M. Defendants, andowner $4,500 in suppression costs –relativelya in$4,500costs suppression utors’ Complaint alleged that Howell Complaint allegedwas that utors’ ires. The Moonlight Prosecutors represented TheMoonlightProsecutors ires. relied on these three other fires as support fires other assupport relied thesethree on oonlight, and like Moonlight oonlight, the ted to collect. to ted he USFS, and two of the other fires andother two were USFS, of the he urt, the Moonlight Prosecutors were were Moonlight Prosecutors the urt,
e fire. It was, in fact, awas, lawsuit in fact, It fire. e mile west of where the Moonlight mileMoonlight ofwhere the west o the Court inbrief andCourt o trialtheir the s earlier that that earliers ire. ire. ght] fire, ght] cificall ificwith FRAUDCOURT ONTHE o the Court toCourt o the Fires to Procure to Fires by Committing a a Committing by
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why I . . . put ‘Approved by. . . Boysen.’” why I explanationfor apparent no couldthis give Foster whenneither in fact bysupervisor, been a approved had Foster appearance the Thisgavethat “Boysen.” approvalof supervisor’s (signifying the signature andin “Foster,” marriedthen, name,underher 2007 deadline, complyha she two-week the failedto with fireweeksofa within reports two origin cause and th that confirmationher deposition during Foster’s Foster fail to find a point of origin, she failedfind point oforigin,failsheat Foster to Gr the andfuel.Withto ignitedrespect contact a findt andignition competent source where a locate alsoidentify to confirmedDodds o that the cause. must find hebefore point oforigin a investigator Larryconfirmed underoatht Dodds expert and cause findshe not an in didherdeposition admitted that locatedpointashe oforigin never testified that have resulted in a finding that the fire’s wa the finding incause that have a resulted fire began as a result of one of Howell’s bulldozer ofHowell’sofone began fireresult asa causingblamesforGreens the delayed Howell report specific the at beganFireonly then and Moonlight
Foster did not submit an origin and cause report un submitcausereport did and not origin Foster an a conducted p Although investigation.Foster cause DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Under the fire investigation standards, Foster’s fafire Foster’s investigation standards, Under the the defendedwhichas Taylor her Duringdeposition, Curiously, Foster claimed to have submitted a singlhavea claimed submitted to Foster Curiously, surfacedafterjust FireGreens the report Notably, The USFS sent forestry technician Brigitte Foster Foster ( forestry techniciansent Brigitte TheUSFS o locate the far broader specific asbroader locateoffarorigin area o the 83 or even a specific area of origin. Foster also Foster oforigin. areaeven specific a or s “undetermined.” Joint federal Jointorigin state and “undetermined.”s or she can make a conclusion about a fire’sa makeshe about conclusionor can a eens Fire origin and cause report, not onlyeensreport, origin did Firecause and ignition source for the Greens Fire. forGreens the Fire. source ignition the report), Foster filled in her maidenname,Fosterinfilledher report), the s striking a rock. strikings rock. a
act of deception, simply stating, “I don’t know know “I don’t ofsimplydeception, act stating, rigin and cause of a fire, the investigatormust fire, the ofa rigin cause and e USFS requires investigators to complete investigators to requiresUSFS e . When defense counsel asked Foster why sheFoster When asked counsel . defense til September 8, 2007, five days after the the five2007, after daystil8, September request of Investigator Reynolds. Foster’s Foster’s Reynolds. ofInvestigator request hat competent ignition source came intocame ignition hat competent source of these things occurred. Inher deposition, occurred. ofthesethings erfunctory investigation on June 21, 2007, 21, Juneinvestigation on erfunctory the section designated for hersupervisor’sfor designated section the d no answer. no d properly submitted her report and that itandhadherreport that properly submitted Fire. It concludes that, like Moonlight, likethe concludes that, It Moonlight, Fire. hat it is almost always the case that an itisthat hat always almostcase the ilure to findoforigin should point to ilure the the Moonlight Fire ignited,Firedespite the Moonlight “Foster”) to conduct an conduct to origin“Foster”) and e-page excerpt of the report in Julyreport of the excerpt e-page lead Moonlight Prosecutor, Foster Prosecutor, leadMoonlight FRAUDCOURT ONTHE
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that there was no basis whatsoever to conclude that basisto wasno that whatsoever there Howellinexplicably,Gre the caused concludes, that facedoIn so. failedshe the ofto admitted that methodologyscientificrequ accepted Finally, while came that offby“fragmentCaterpillar,” a caused a magnet.” pull the needfeeldidn’tto and out I the metali forsearch effort potentialto asano made strang Foster also testified, or onlystrikestwo. doFoster so. failed explain not sheto whycould report, Foster arguably committed a felony.arguablya Foster report, committed all differedreport, substantivel which incident of manufactured Foster Amongother things, discovery. pufor actualitas the report memorysubmitted and conceded Foster t original. the from significantly ancreated entirel during litigation,Foster report starting to th Bushadmitted Howell’s employee that preparedand f Prosecutors Moonlight later the year Damon Howellemployee was the Bakertestified that Pros Moonlight ofwhichreport the origin cause and she sawrock She that testified report. and cause Greens Fire origin and cause report wasfalsified, report origin Firecause Greens and listed the cause of the Greens Fire as “undetermineGreenscauseof the as the Fire listed according Thus, th to source. ignitionwell asany
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING After Foster’s deposition occurred and Moonligh the depositionoccurred Foster’s After Additionally, when the Moonlight Prosecutors produc Prosecutors Moonlight the Additionally,when to regard additionalirregularities with are There testify thesehearingFoster consequenceto aofAs Foster’s deposition testimony presented additional deposition testimony Foster’s presented ely, that although she had a magnetshewithher,although had aely, she that these investigative failures, Foster’s reportfailures, investigativeFoster’s these 84 y new version of the report, which differedreport, version ofnew the y y from the original report. By policea falsifying yoriginalfrom the report. gnition source because “the wasdisturbed area source gnition strikes but took no photographs no but ofthemstrikestook and When asked whether she thought the fire the shewas whether thought When asked hat she manufactured a newfroma manufacturedshereport hat was unable to say whether there were 100 100 rock were saythere whether wasunable to e United States’ own expert, sheexpert, have own should United States’ e fraudulent, and unsupportable according to andtheir unsupportableaccording fraudulent, to
d.” d.” Foster paused and could only say “possibly.” pausedand“possibly.” couldFoster only say Howell caused the Greens Fire. Fire. HowellGreens the caused rposes of producing the document in document the ofrposes producing iled a sworn declaration fromWhitedeclarationstating sworn iled a ired her to test her claimed hypothesis, Foster herFoster claimed iredhypothesis, test herto ens Fire. Fire. ens e Greens Fire. Fire. Greens e ecutors were well aware. Whilewell Foster were ecutors aware. a new scene sketch, photo descriptions, and new aphoto scene sketch, responsible for starting the Greens Fire,Greensa starting the for responsible the Greens Fire investigation and the the investigationFireandGreens the facts, Taylor had knowledgefacts, Taylor actual problems with the Greens Fire originFire Greensproblems with the t Prosecutors were on notice were on the Prosecutors that t ed the Greens Fire origin and causeGreensand the origin Fireed FRAUDCOURT ONTHE
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cause. cause. FireLyman on the concl origincause report the and byPurportedly itswritten report. issued finally discovery responses. discoveryresponses. represented to the Court inbrief: Court to trialtheir the represented Lym the judgment oppositionregarding summarytheir wasfraudulent i report issuedFireLyman belatedly forMoonl blamed the Investigators Howell Moonlight Defendants. d in reportof numerous fraudulent support Foster’s a instancesofdiscovery many aswithAnd,so other Howell that in judgmentand argued, part, summaryw s Theysupervision claim.negligent theiralso for specificallytheory Foster’s relied on Prosecutors inmadevariousto claims support of they document d their violated expert’stheytestimony,still own
the case with the Greens Fire, there was no wasno origin there Fire, caseGreens with the the burnedofItacresSierr three approximately Fire. DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Defendants took Anderson’s deposition on July 14, 2 Anderson’sJuly on 14, deposition took Defendants On September 24, 2007, more than a month after themoremonth2007, thanafter 24, a OnSeptember Like the Greens Fire, the August 17, 2007, Lyman2007, Fi 17, August Fire,Greens the the Like The Moonlight Prosecutors also relied on the fraudualso relied the Prosecutors on TheMoonlight Fire TheLyman The Moonlight Prosecutors made misrepresentationst Prosecutors TheMoonlight Pacific land. Pacific opera strike conducting byHowell’s aemployee rock firecause of the the wasday that next learned the Howell’soperation inproximityagainto once close sameon A ignitedlater that season, FireTheLyman 85 Cal Fire employee Les Anderson (“Anderson”), AndersonLes(“Anderson”), employee FireCal uty of candor and elected to relyand to elected this uty on candor of that Howell caused the Greens Fire as support assupport FireHowellGreens the that caused uccessfully opposed Defendants’ motion formotion Defendants’ opposed uccessfully a Pacific’s property in Tehama County. As was in Pacific’s County. Tehama property a
and cause report on Lyman until after the the Lyman on after untilreport and cause iscovery responses they provided to iscoveryto theyprovided responses n ways similar to the Greens Fire report. report. FireGreens to the similar nways uded that one of Howell’s bulldozerswas the ofHowell’s one that uded buse, the Moonlight Prosecutors Prosecutors relied on Moonlight the buse, the Court. In their trial brief, the Moonlight Moonlight brief,In the Court. trialtheir the as responsible for starting the Greens Fire.Greens starting the for asresponsible ight Fire. AsFire. the below, explained ight an Fire. The Moonlight Prosecutors Prosecutors TheMoonlight Fire. an lent Lyman Fire report inlent Lyman theirreport Fire re broke out before Moonlight the broke out re 011, anddeposition011, took of the Lyman Fire broke out, Cal Fire broke out, Fire Lyman o the Court inbrief andCourt o trialtheir the an equipment-to- an s. Howell’s s. ugust 17, 2007,17, ugust tions on Sierrations on FRAUDCOURT ONTHE
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Fire, and that he was unable to rule out arson he or o rule wasunable andto out that Fire, no f Gutierrezhadhe reached cause.confirmed the m ignition source, thuspoint oforigin a locateor with asFos occurred that, thenGutierrez testified Gutierreandinvestigation, reliedupon real did no Ander Fire. HowellLyman the concluded caused that Both Anderson2011.19, October on (“Gutierrez”), witnessand expert investigator Lyman Fireanother
seen people associated with these farmsnearby. with theseassociated seen people marijuanafarmsneknown were there depositionthat inwhere the area bulldozer the wasaoperating who the balance was paid off. Eunice Howell closed her EunicebalanceHowelloff.closed the was paid to andHowell’s Ms.agreement receipt of$26,206.26 and2007, then Decemberanothe 10, letter on demand of$46,206.26. incheck aFire amount Calsend the chargescriminalalluded potential forto the Harp startingfor marijuanafarm wasnearbyresponsible pos the investigatedGutierrez Anderson nor Neither b statingwascausedFireLyman that the broke out, one of your bulldozers striking a rock with timbebulldozersyourastriking rock ofaone statin letter, Eunice Howell demand sent (“Harp”)a money. money. strikin bulldozer by wascausedFireLyman Howell’s DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Despite these facts, Cal Fire issued the Lyman FireLymanissuedFirefacts, the Cal theseDespite Evidence of other possible wasreadilyavail causes Evidenceofother Despite Anderson and Gutierrez’s testimonyconfirmi and Anderson Gutierrez’s Despite The same day that the Lyman Fire report issued, Cal report FireLyman the Thesameday that Similarly, the Moonlight Prosecutors never Prosecutors amended Moonlight the Similarly, 86 aking it impossible to reach a conclusion about impossiblereachconclusiona itabout to aking ter on the Greens Fire, he had been unable to hadunableGreenshebeento the Fire, ter on ther possible causes. therpossiblecauses. z to do the origin and cause investigation.do origin cause the and to z and demanded that Eunice Howell immediately EuniceHowell that demanded and
r harvest clear cut area.” Among things,area.” clear harvest other r cut ormal conclusions at all Lyman the at regarding conclusions ormal the fire. the y one of Howell’s bulldozers striking a rock. rock. bulldozersastriking Howell’s ofy one Harp then sent Eunice Harp Howellsent another then g that “[t]he [Lyman] fire . . . was.caused.byfire“[t]he . [Lyman] that g business shortly thereafter. Lyman Fire broke out, testified during his testifiedbroke during out, FireLyman for the United States, Greg Gutierrez Greg forUnited States, the sibility that an individual the an on sibility working that and Gutierrez testified they had not hadnot testifiedGutierrez they and ar where he was working, and that he had and that working, he was where ar make monthly installment payments untilpayments make installment monthly g a rock, Cal Fire never returned Howell’sCal neverFirereturned rock, a g r letter on January 6, 2008, confirming 2008, letterJanuary r on 6, son testified that he was not an investigator, anhe wasnot testifiedsonthat report shortly after the Moonlight Fire Moonlight the shortly report after able. Howell employee Robert Brown, Robert Howellemployee able. Fire Battalion Chief David Harp Harp Chief David Battalion Fire or withdrew the reliancetheiror on ng that concludedthey the never that ng FRAUDCOURT ONTHE
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allegedly a dangerous operator. All three frauduleAll three operator. allegedlydangerous a firesbriefing thesepl judgment that summarytheir Prosec “undetermined.”TheMoonlight asclassified m limitedand,based the on supported, sufficiently dre investigators investigators,” that those string Greens,LymLarry testifiedDodds that investigator Moonlight the Infact, fires baseless. other were in theseresponses, serving and misrepresentations The served. in they aswellresponses as discovery inbriefsummary their and Court to trialtheir the proximity to where the Lyman Fire occurred a month Lymanwhere the occurred Fire proximityto caused by “the bulldozer tracks or rippers or contacti tracks bulldozer by “thecaused method,Sheep origFire the ignoringscientific the She ledconclusion the shouldthe that have to fact pointfailea locate oforigin failed and Lyman, to support their allegations against Defendants inDefendantsthi against support allegationstheir inits evenand the operative pleadings, admission, in continued res relyreport this to on Prosecutors in an pleadingstheir causefalsereport and origin
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING As with the Greens and Lyman Fires, the Moonlight P Moonlight the Fires, andGreens LymanwithAs the Discussing similar conduct byNichoJudge Fire, Calconduct Discussing similar The Sheep Fire TheSheep Cal Fire purportedly investigated the SheepanFire the investigated FireCal purportedly S or either17 September on FireTheSheepoccurred properly classified as undetermined. asundetermined. properly classified th who testified Gutierrez, that Officer Greg Fire, investigato leadby wasflatly the Fire, contracted igni Howell’sabulldozer that his that conclusion, Therefalse. Anderson was byfireLester prepared CauseRe andconclusion Origin the of denythe that not e does FireLyman Cal the Fire, Withto respect 87 w conclusions which did not appear to be appear to not w didconclusions which Prosecutors’ primary origin and causeprimaryProsecutors’and origin judgment opposition regarding the Sheep Fire, the regarding judgment opposition d to identify a source of ignition. Again,ignition. this identifyof source to a d ponse to various interrogatories, requests for variousrequests interrogatories, to ponse Moonlight Instead, the discoveryresponses. d s action. action. s ng the rocks” in outcropping. rocks” an ng the Once again Fire’s wasundetermined. ep cause
pretrial brief to this Court, all to effort inan thisbrief pretrialCourt, to nt reports wereJoint included part of the reports nt as in and cause report stated fire that the was causeinreport and aterial he read, the three fires appeared better fires better three appeared the read, aterialhe Moonlight Prosecutors knew,inmaking Prosecutors Moonlight these aced Sierra Pacific on notice that Howell noticewasthat Pacificon Sierra aced for theseconclusions origin that cause the and an, and Sheep were not investigated by “first byinvestigated“first not were and Sheep an, utors nevertheless represented to the Court in Court the nevertheless to represented utors prior. It burned less than an acre. burnedItless acre. an than prior. d, aswas case andwith d, the Greens ls summarized the issues as follows:issues lsas the summarized eptember 18, 2007, ineptember2007, close18, rosecutors maderosecutors misrepresentations r of the Lyman r of the e causewase ted the Lyman the ted isdispute no ven attempt to to venattempt port for that port FRAUDCOURT ONTHE
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fraud upon the court. court. fraud the upon manufact Prosecutors’ Moonlight alone, the Standing Howello anddangerous rogue a that allegations was to upon morenothingthanseized opportunities were actively investigating the fraud at fraud the timeat ofthe investigating the actively settlement, the years after sevenseekrelief until fact pa that notwithstanding the court the upon the fires. andLyman andfalse upo reports reliedextensivelythese upon its In Or summaryjudgment. formotion Defendants’ exhibitto firstwhich as the Report, wasattached thisviolatesworke dutyand clearly all falsified, rela investigationsand reports the evidencing that (1985)).The 469 U.S.240 238, Pastore, Comm’rsv. litigati the of the outcome’ mayaffect conceivably in hadto “‘continuing a Prosecutors duty Moonlight duties of disclosure and candor to the Court. See Court. the to anddisclosureduties candor of rely sham.wasTaylora Yetcontinued to on report defended depositProsecutor Foster’s leadMoonlight and and which Brown,they attended UnitedStates), Anderson, (who GutierrezFoster, depositions the of Prosec Moonlight LarryInstead, the Dodds. expert, relief under Rule 60(d)(3). See Hazel Atlas, 322 U Hazel322 See Atlas, 60(d)(3). Rulerelief under conclusionfires the beforeofthe Lyman Sheep and DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Prosecutors were not limitedwere not in TheMoonlightProsecutors the The investigations and origin and cause reports for reports investigationsorigin cause and Theand Defendants were generally aware of the facts andfacts ci of the generally were Defendants aware Analysis 88 and that the defrauded party suspected andanddefraudedsuspected was the party that d aCourt. d fraud the on settlement). settlement). White’s Declaration in opposition to into White’sopposition Declaration ting to the Greens, FiresLyman were the Sheep and to ting Shaffer, 11 F.3d at 458-59. Of course, Of 458-59. the at Shaffer,F.3dcourse, 11
rties settled, that the defrauded party did not defraudeddid not the party that rties settled, on.” Id. at 458 (citing Tiverton Bd. 458 (citingat ofLicense Id. Tiverton on.” Greens the connectionto supposed n Howell’s .S. at 246 (setting aside a judgment for fraudjudgmentfor 246 (settingat a .S. aside this report and, in doing so, disregardedand,inher so, doing report this utors had access to allincludinghad access to evidence, utors the m they disclosed as an expert witnessfor the m expert asan they disclosed form the Court of any development which ofany Court form the development federal action, but this does not preclude not does but federalthis action, manufacture evidence to buttress the evidencemanufacture to perator that started the Moonlight Fire. Moonlight started the that perator in some cases defended. Specifically, the in defended. casessome ion and understood FireGreens ionthat the understood and ir failure to douponsolearning facts failure ofto ir uring of this evidence constitutes another another uringconstitutes evidence ofthis
der denying Defendants’ motion, the Court Court motion, the denying der Defendants’ the Greens, Lyman, Fires and Greens, Sheep the rcumstances concerning the Greens, the concerning rcumstances material they reviewed, likematerialtheir reviewed, they FRAUDCOURT ONTHE
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and cause report against Eunice Howell to collect Euniceagainstm Howellto report and cause adjudging cases that are present for adjudication.”forare present that adjudgingcases from“perform[ing Court itprevented the insofaras i relyfires willingness these to Prosecutors’ upon behindactorsgovernment about Moon the the know to from $50,000 in Eunice almost extortingact Fire’s cause ofth the about anynever reached conclusions experProsecutors’ Moonlight deposed the Defendants PacificLandowner Sierra the andits against claims information when it ruled in favor of the United itSt ruledinof the favor informationwhen Coand the summaryjudgment, formotion Defendants’ Prosecut Moonlight because the Court fraud the upon specificallymost Euni Defendants, harm caused this Prosecutors’ scheme “to improperly influence the coimproperlyinfluence the scheme “to Prosecutors’ underRule 60(d)(3). by actionCourt warranting the serve – Investigators byandMoonlight advanced the investi fires,fraudulent1046. These and their at necessarilyjudicialwas the integrity process” of regardwithout itknowinglyout Prosecutors carried intendedconceivedfraud, and ofthis investigators of candor, which they owed to the Court as Court officers the whichto ofcandor, they owed and inevidentiary made support were Court without Howellnotice Defendants on pre were other that the insteadopera dangerous awas decadesofoperation, Howell, compellingwhich that evidence constituted DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Of course, the most egregious facet of this fraud i facetfraudegregious most ofthis the Ofcourse, The Moonlight Prosecutors also continued to alsoreprese continuedto Prosecutors TheMoonlight 89 gation and cause reports –consistently relied on reports and cause gation harmed as a consequence of the Moonlight Moonlight of the consequence harmedasa n their filings with this Court. Separate from Separate the filings this n Court. with their Intermagnetics, 926 F.2d at 916. Indeed,at F.2d 916.the 926 Intermagnetics,
these reports to have Moonlight to the effect;thesereports this ates. This constitutes a fraud upon the Court, fraudaCourt, upon the This ates. constitutes s. whenThisonly s. fraudunveiled was Howell reveals much of what this Court needs Court Howellthis muchofwhat reveals of the court. See Shaffer, 11 F.3d at 458-59.at F.3d See 11 Shaffer, court. of the ] in the usual manner its impartialitsofin mannerusual ] task the for their duties as officers of the court. “The court. for of the asofficers dutiestheir e Lyman Fire. TheheartlessqualityFire.ofCal Lymane
ore than $46,000 from her in order to support in to order from her than $46,000 ore ce Howell, these acts rise to the levelrise to of athe acts these Howell,ce sented a danger. These representations to the Theseto representations danger. a sented Fire,and itMoonlight started that the tor, that urt in its decisions . . . .” Dixon,F.3d 316 .” in. urt. its decisions. actually had an exemplary safety record over safetyrecord hadexemplary anactually violation of the Moonlight Prosecutors’ dutyProsecutors’ Moonlight of the violation as yet another example of conduct anotherexample yet ofconduct as ors relied on this informationin relied opposing thisors on t witness Gutierrez, who confirmed hewho witness t Gutierrez, light Fire action, as does the Moonlight FirelightMoonlight the asdoes action, urt, in urt, reliedheavily this on turn, s the willingness to fabricatean originwillingness the sto nt to the Court that these other fires theseother nt Court that to the FRAUDCOURT ONTHE
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Moonlight Prosecutors. Moonlight litigati into realm the andof Service, transported conceived withi from Court, andDefendantsthem the morefullyforth assetarbelow,sooner), reported (i.e.wh fromRock Red report the of the timeliness But2:24p.m. at Tower Lookout t Rock Redfrom the Moonlight Fire began. Fire Moonlight l direct has Lookout an Tower unobstructed Rock Red latesummermiles,for the especiallyduringtower creat on theseroads tower Vehiclesapproaching the the second floor exteriorfloor balcony. second the the of the stairwayoutside to affixed Anexterior isexterior floor surr secondand the withwindows, daysend.forsometimes on tower, stationed the at “casa livingto (sometimes referred quarters room (approxi floor is The secondlargelyvacant. floor
range. These towers exist for one purpose: to fac forto purpose: exist one These towers range. approximately ten miles away from where the Moonlig the from where miles awayapproximately ten Lookout Tower Fire,Rock Redknown as the Moonlight firabefore firedispatch suppressionresources to DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING According to the Joint Report,fire Joint the was the spotted Accordingto Given the tower’s remote location, the tower can location,on the remote tower tower’s Given the The USFS staffs a number of fire lookout towers firethr towers lookout ofnumber staffsTheUSFS a The Red Rock Lookout Tower is a two storyisbuilding Tower Lookout two aRock TheRed 8.
Court. Court. Therebyto Court, theCommittofEvidencethe State M and VerifiedDiscoveryResponses Towerin Lookout Prosecutors Up Misco Covered Actively Moonlight The The Relevant Facts TheRelevant 90 on by both the Moonlight Investigators and the Investigators byMoonlight both the on e gets out of control. The closest tower to the Theclosest tower out gets ofcontrol. e tower provides access from the ground level from providesground access to the tower e the subject of a concerted plan to concealplan to concerted ofa esubject the mately 120 square feet) comprisesfeet)single the square mately 120 ilitate spotting fires as soon aspossiblefiresin spottingassoon order ilitate
The perimeter of the second floor is framedissecondfloor of the Theperimeter and fall, when the roads are at their driest. The at their are roads driest. fall, the andwhen ounded on all sides with a balcony/catwalk. all balcony/catwalk. on witha ounded sides ab” or “cabin”) for housing the USFS lookout “cabin”)USFShousing for the ab”or ether the fire could have been spotted and fire spotted been have ether the could e large dust plumes easily seen fromplumeslarge the e dust seen easily n the ranks of the United States Forest UnitedStates of the ranks n the he events that transpired at Red Rock,Redand transpiredat he that events ine of sight wheregeneral ineto the area the ofsight ht Fire began. Fire ht began. , sits on Red Rock Mountain,RockRed sitson , and reported via radio transmissionand reported
ly be accessed via miles of dirt roads. roads. milesaccessedviaoflydirt be oughout the Sierra Nevada mountainSierra the Nevada oughout with a square footprint. Thelower footprint. squarewith a FRAUDCOURT ONTHE ing A Fraud Upon theFraud A Upon ing nduct at the Red Rock atRed the nduct isrepresented the the isrepresented
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cover-up of what really occurred at the Red Rock LoRock reallyRedat the ofwhat cover-up occurred did Defendant efforts, anddiscovery timeconsuming 2 leading up minutesto in and hours transpired the infederal stthe and efforts Defendants’discovery obstructed justice in violation of at least 18 U.S. 18 leastjustice inofat violation obstructed Investigators which Moonlight through the narrative FireDay whenMoonlight erupted the Labor afternoon andconc witnesstestimony documents summaryof the misdir Prosecutors through Moonlight the Weltonand i White; investigator leadand Fire’s joinedby Cal
numerous reasons. The District Court so heldsoin itTheDistrictCourt reasons. numerous inhisperformanceduties the ofcare due exercised Rock Red the employeeat USFSstationed whether the law)on Californianegligence under ofcontributory d appearancefirst ofaffirmative itsnumber a with o fromMoreover, Fire.the Moonlight of the spread circumstances the conclusionsthereinregarding the
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The cover-up was conceived by the USFS and its leaditsandby wasconceived USFS Thecover-up the Moonlight importance the ofwhether of the Because criticfromwasa Rock report Redof the The timing concludesfollows: Report as TheJoint Lookout. Lookout. identifiedbeby enoughto and smoke produced stage into the ituntil entered hours approximately1/2 1 fuelsmolderinginstage, dry the incipient in the Ibelieve the byLookout, [sic] or Rock report Red CRISMON’Sdeparture lag fromtimeS-2 the Based on 91 C. §§ 1503 and 1519. andC. 1519. 1503 §§ ate actions that events the focused ate upon t was then advanced through the litigationby wasthen the through advanced t
efenses, including comparative faultspecies including(a comparative efenses, s pre-trial rulings. pre-trials rulings. :24 p.m. Only through persistent, expensive Onlypersistent, p.m. :24 through was necessarily a central issue in the case for issueincentralwas necessarilycase a the surrounding the alleged ignitionearlyallegedand the surrounding the part of the United States. Accordingly, United States. part of the the utset of the action, Sierra Pacific asserted PacificutsetSierraaction, of the asserted and arguably the Moonlight Prosecutors Prosecutors andMoonlight arguably the okout Tower on the afternoon of the fire. fire. of the afternoon on okout Tower the s eventually uncover a carefully executed carefullya eventuallyexecuted suncover ection and deception. What followsisWhat a deception. and ection , followed by an explication of the falsefollowed,of the explication byan Lookout Tower on September 3, 2007, 3, September Lookout on Tower erning what actually happened on that actually on happened that what erning al component of the Joint Report and Report Joint of the al component Fire was timely reported, Firewastimelyreported, investigatorWelton;itwas quickly bed for bed free-burning fire maintainedfire Red Rock Rock Red FRAUDCOURT ONTHE to the time to the
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radio. Juskaher,smelled “heavyit to the handedod heAs supposeds youand weren’t to said, bad,“My pocket Liefsink. t tower to quicklyadjacent grabbed the sheblue-what described asaspotted inside, Juska towards the door on the elevated cabin.elevateddoorAll of the thi the on towards sta top of the the ofstairs, reachedflight single and ofherdoor pickup the closed and Juska opened could easily be seen from the tower. tower. frombe the seen couldeasily day. The road earlier via plans that radio in her road windinga Lookout Rock on Reddirt Tower up to intendedbrok arepair to who technicianprevention ten miles ten away. kickedseedustu he 2007, wasable to 3, September Lieffact, In landscape wasexcellent. surrounding suppression resources in time to preventcatastroph in timeto suppression resources andsmokechargedLookout with spotting Tower, Rock
52 shoulder, “Don’t think I am weird or gorse i [sic], “Don’tam weird or thinkI shoulder, fromawayhim,h spun Liefbefore appearance sudden surprise. He was facing her direction, lookingdow wasfacingher Hedirection, surprise. Although Juska testified she that lookedsmoke for DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING 52 52 Shortly thereafter, Lief handed Juska the radio Liefradio tha the handed Juska Shortly thereafter, himself,andentere LiefJuska LiefAfter collected stairs of the the top at catwalk reachingAfter the basat the hertruck parked she arrived, When Juska Later that day, sometime shortly before 2:00 p.m., 2:00 beforeday,sometime shortlythat Later On September 3, 2007, a USFSa 2007,L employeeCaleb named 3, OnSeptember
a.
What actually happened in the Red Rock Lookout inTowe Rock Redactually What the happened plumes onthe landscapeuponentering towerthe an irs, stepped onto the catwalk, and turned right catwalk, and the irs, turned onto stepped 92 and the dust plume created byplumepickupher USFS created dust and the s escaped the attention of federal lookout Lief. federallookout attentionescapedof the s t’s an old Hot-shot trick to cure athlete’s foot.” cureathlete’s foot.” to trick old Hot-shot an t’s he pipe, put it behind his back or in backitbehindbackhis his put pipe,or he
testified that duringofmorning the hours testifiedthat green glass marijuana pipe on the counter marijuanacounter the pipe greenon glass ic burning. Visibility from the tower to the tower Visibilityfromburning. the ic n, urinating on his bare feet. Shocked byfeet. Shocked hisher on bare urinatingn, or” of marijuana on Lief’s hand and on the the marijuanahandon Lief’s and or” ofon en radio in the tower, began makinginherwaytower, the en radio p by the Howell bulldozers operating someoperating by bulldozers p Howell the walked to the tower. She then ascended its She then the walked ascended tower. to ee that.”ee er to zip up his pants, saying over hissayingzip over to his er up pants, in her USFS pickup truck. She hadin called pickupherUSFStruck. fire as soon as possible in order to alert aspossibleinto fire assoon order and turning right, Juska caught LiefJuskacaught by right, turning and t she had come to the tower to repair. repair. tower to hadsheto the come t d the second floor of the tower. Once tower. floor of the second d the Karen Juska (“Juska”), a USFS fireUSFS a (“Juska”), Karen Juska e of the tower roughly 20 feet away. roughlyfeet tower of the 20 e ief was stationed inRedief the stationed was FRAUDCOURT ONTHE r. dsaw
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statementiscontradicted by whoLief, testified th nothing,shewas byupset shewhatwitnessed had wi below tower.the andbot discussed reported by were Juska,witnessed by draftedJuska: set mile.Theevents off were byone approximately influenceo the indicativeof behavior(potentially isFire including Osborneknown asan what purpose, spottin plume the smokeby usingof the coordinates whowasin Lief incontacted tower, center then the as fromhervia truck radio center dispatch to the smoke plume was “huge.” “huge.” plume smokewas Lief’sfirefrom s the over plume Juskathe spotted While instand bedittruck. ofthe the and placed DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING A short while later, Lief and Juska took a baga oft Liefwhilelater, took Juska Aand short Juska and Lief dispute which one of them first spot first ofwhichthemone Lief Juska and dispute During the week after the ignition of the fire,ignition the the after of the week the During
at fire’sthe plumewas “huge”when they eventually th Liefwas th and notatrained fire-spotter. Moreov 93 Lief ran back into the tower. LiefThe dispatchinto the backtower. ran ing behind the bed of Juska’s pickup truck, pickupbedtruck, ofthe Juska’s ing behind f marijuana), the firehef provided marijuana), the coordinates
houlder. Lief testified that, byLief the time, that, thishoulder. testified the best position to providepreciseposition the best to the forth above were memorialized in a memoinmemorializedforthabove a were g equipment designed for that specificfordesigned that equipment g h verbally and through emailh verbally through exchanges and finder. Consistent with Consistent bizarre finder.Lief’s events that transpired at Red Rock, as Rock, Red that eventstranspiredat rash outside the tower to Juska’s vehicle tower to rash the outside ted the fire, but Juska reported the fire Juska the reported fire, but the ted
FRAUDCOURT ONTHE did see fromdid it er, herer,
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that day as she made her way up to the Red Rock Loo Rock Red made the dayherto way asshe that up details inconsequential bodyincludedofarguablya Thewitnessst actually what regarding transpired. internalfrom the greatly whichofJuska, differed know about that.” about that.” know day.In shethis that witnessed on had Juska what par those omitEssentially, fire.wasto the Juska sta instructedJuska to began, interviewWelton the fire. fire. atmisconduct of the Welton wasBywell-aware then, infurtheranceLiefof both Juska interviewsand of USFS law enforcement for investigation. The investinvestigation.Thefor law USFS enforcement formanagementPlumas teamNation the the involving 53 concealed the most important events that hadimportant transp mostthat events the concealed wa herreport that createappearance the detailsto witnessed at witnessedRedat Rockdescribingis akin Pr what to factmentionfails It tha the by to him)surprise. sole(whose p catch “lookout” the Juskato wasable Welton by formInvestigator Theofficialcompleted duringcriticalmome which the occurred misconduct, fact thathe hefact assassinated waswatched as the sho
Includingreference a wherehad Juska to lunch that DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING After providing those instructions,prepared Welton providingAfter those According to Juska’s sworn testimony and herownJuska’sco testimony and sworn According to On September 12, 2007, Unitedlaw2007,States enforcemen 12, OnSeptember Welton’s summary of her interviewomitte with Juska her Welton’s summaryof b.
about what happened at the Red Rock Lookout Tower.Lookout whatRock Red happened the at about The Cover-Up: What the Investigators and Moonli the WhatInvestigators the TheCover-Up: w. 94 esidentLincolnwore towhilethe omitting theater t Juska found Lief on the side of the tower Juskatower found of the side the Lieft on ticular facts as Welton purported to record fromrecord to Welton factspurported asticular
afternoonwhile omittingmaterialsh the facts all s complete and thorough, even though iteven s and though thorough, complete memorandum Juska hasJuska memorandumpreviouslyprepared
regard, Welton expressly told Juska, “I can’t Welton expresslyJuska, told regard, atement that Welton prepared for Juskafor Weltonprepared that atement her work on the origin and cause investigation. investigation. herorigin work on cause the and y silent about Lief’sday on ofthe misconductabout ysilent , including when and where Juska ate lunch Juska ate on including where and when, urpose was to notice all that occurred aroundwas noticeoccurred all to that urpose ired at the Red Rock Lookout Tower. Tower. Lookout RockiredRed the at fails to reference in any way the fact that referenceinfails the way any to igation never took place. igationnevertook nts while the fire was in its initial stages. initialinfireits stages. while nts the was Red Rock Lookout Tower Lookout dayRock on Red Tower ofthe the kout Tower. al Forest, and the matter wasreferred to matter and the Forest, al and signed a report of her interview ofherreport and a signed d any reference to Lief’s any d to reference ntemporaneous notes, just beforenotes, ntemporaneous t officer Welton conducted conducted Welton officer t 53 Weltonincluded these FRAUDCOURT ONTHE ght Prosecutors said Prosecutors ght the e
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below: was “true, accurate, and complete”Weltonaccurate, then and was“true, realintera conduct made to Weltoneffort that any law.Welton’ssummaryof Indeed,official and the mentionh burn, that and no beganFire to Moonlight properly Lief not showingperforming wasthat fact mention no fromofanything containsstatement Lief supervised Juska and Lief, confirmed inhe emailanLief, confirmedJuska supervised and engagdid not Prosecutors Moonlight the Weltonand Fire District Management Assistant the Heinbockel, topicofw the on discoveryfalseresponses written Prosecutand Moonlight what the records, employment attempt federalwhat the open prosecutors to motion did not want to hire Lief back for the next firehirewantfor next seback the Lief to did not design givingLiefsatisfactory uncomfortable” this H in evaluation. hismisconduct Lief’s performance da misconduct notwithstandingthat Lief’s2007, for giveHeinbockelL instructed Loomis that to Loomis, interview statements in the Joint Report. in Report. Joint the statements interview her. it heto whenhanded marijua Juskasmelledof “heavy the odor” fact that believedsheglas blue-green wasafound Juskawhat looking whileon urinatingfire, down the opposite 54 Heinbockel testifiedduring hisdeposition he that DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Defendants would not have discovered the true facts have the not true woulddiscovered Defendants witneand both signedprepared Welton Nevertheless, itpertain indeception as Weltonsimilar engageda had wantedhad immediatelyterminatedLief in2007. 95 ason.
view of Lief regarding these critical facts. facts. thesecriticalviewregarding ofLief hat actually happened at Red Rock.Red actuallyat happened hat his bare feet. It fails to record the fact failsfact that the record feet.It barehis to ation, that it was a “safety issue,” and that he andissue,”“safetyit that wasa that ation, na emanating from Lief’s hand and the radio radio from handthe Lief’sand na emanating her interview with Lief reflects no indicationinterview no herwith Lief reflects his lookout duties very the lookout the his at time y, and that he was not to mention to hey,any wasnot of and that sent to the acting U.S. DistrictRanger,Dave acting to sentU.S. the ed to shielded to “confidential” within einbockel told Loomis that he was“very that Loomiseinbockel told e was in violation of various federal inofvariousviolationpolicies was e included both of her falsifiedofherwitnessincluded both Officer in the Plumas National Forest who who inOfficerForest Plumas National the s marijuana pipe in the tower. It omitsIt in the marijuana tower. the pipe s Juska caught him doing, no mention no himofany caught doing, Juska ief a “fully satisfactory” performance reviewiefperformance satisfactory” “fully a 54 ors attempted to concealattempted patently to through ors A copy of Heinbockel’s email is set forth set isAcopy emailof Heinbockel’s s to Lief. Her officialLief. Her to s witness butfor successful ultimatelytheir e in this effort alone. Ron inalone. thise effort ss statements, affirming that each affirming that ssstatements, FRAUDCOURT ONTHE
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Lookout Tower: Rock inengagemanagement to cover-up a part ofUSFS the k to theywanted testifiedthat He mouthoff.” his makewant Li to didnot USFSmembers of the certain UnderHeinboc oath, documents. other testimonyand participat Heinbockelfactto ordered that Thewas Lookout is Tower Rock Red happened the actuallyat DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Under oath, Heinbockel gave the followingHeinbockel the testimony gave Under oath, Q. BY MR. WARNE: Go ahead,WARNE:sir. Go MR. BY Q. Or–WITNESS: THE TAYLOR: SameMS. objections. fired? fireplacewhat really the on took mouthoff about heinleast coul were concerned You part that at Q. yes. Part, A. ahead,What?sir. Go Q. it. ofPart A. wantdon’t– WARNE: I MR. BY Q. 96 e i o u ie” side.” eep him“on our
also revealed through his depositionrevealed through also kel testified that itwashis understanding that kel testified ef angry as they did not want him to “shoot himwant not to angryasthey did ef of the events that Redtranspired the that events at of the e in conduct designed to cover upwhat designed cover in to conduct e , wherein he confirmed the intent on the confirmed whereinhe , if in fact he wasfact inif d shoot hisshoot d FRAUDCOURT ONTHE
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employee ever investigated the allegations ofLief’ investigatedallegations the employee ever leadUSFS’sMoo Neither the fire seasons. and 2009
Court’s ruling that the timing of the report ofthe report ruling the of the timing that Court’s Defendants obtained only after filing a motion:filing a obtainedDefendantsonly after in documented alsoHeinbockel’s were fact, concerns faile havewhethermightLiefbearing on facts some inhistha deposition Heinbockeldefenses, conceded possible while Welton’s fraud was slowly exposed. fraudexposed. Welton’swasslowly possiblewhile questi the Weltonassisted throughout so, Taylor do R daymostfirst ofher of the deposition. through pertineitday“wasn’t because that Juska witnessed andallowed instead byofcandor, herabideduties As Taylor.Welton Prosecutor, testi leadMoonlight DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING When law enforcement officer Weltonwaseventuallyofficer law When enforcement side, Liefkeep plan“on withto our the Consistent Of course Lief’s inattentiveness and conduct washi inattentivenessLief’sconduct and Of course A. Just be slanderous. Just A. what? hesideyour could heon do wasn’t fired and if i concerns were were that there about understood y thingsAndWARNE: that Okay. MR. BYother the Q. Yes.WITNESS: THE speculation. for inAssumes not facts eviden TAYLOR: Misstates. MS. fired?WARNE: IfMR. BY he was Q. TAYLOR: Argumentative. MS. fire, dayactuallyhappened ofthe the on waswhat him concernedyouabout were Onet of the Q. things Service. Forest the bujust that – somethings just of the ofour Or A.
97 fire was relevant to Defendants’ affirmativewasrelevant fireto emaining perfectly sanguine in allowing her to in emainingsanguineperfectlyallowing
s drug use. use. drug s Welton to testify that she did not report what she report didnot testify Welton to that nt.” In this regard, Welton lied Welton underoath Inthis nt.” regard, oning by interposing as many interposingasas objections by oning fied, the lead Moonlight Prosecutor failed Prosecutor to lead fied, the Moonlight d to spot the fire when he should have. Inhave. spotfire he the to when should d t Lief’s conduct was relevant and Lief’swasrelevant the that conduct t nlight Investigator nor any USFS nor Investigatornlight other an internal USFS document which internaldocument USFS an ” the USFS hired him back for the 2008 for2008 hired backUSFS the the him” ghly “pertinent.” ghly deposed, sheby the wasdefended deposed, gged him about himgged about correct? correct? n fact he wasfact n alking about alkingabout FRAUDCOURT ONTHE ce. Calls ce. ou ou
In addition to Inaddition the to
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July 9, 2010, asfollows: 2010, July 9, La Chief byPlumas Division penalty ofUSFS perjury verifiedProsecutors’ res Moonlight In the action. interrogatory: interrogatory: isexpose the to Pacificsought Sierra in case, the inUSFS’s spo the diligence that Accordingly, given impacton itmay have some had firethat of the and at the occurred somethingthat was coveringup USFS part ofLief on the misconduct above-referenced the of cross-examination. ofcross-examination. identifya havewitnesses able beennot to critical Lookout RockWith Red Tower. malfeasanceat Lief’s producehad materials Prosecutors they to Moonlight revealedwithinonly were falloutafte USFS the the DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING As set forth below, most of the above-referenced famostabove-referenced of the forthbelow, set As
This was the first interrogatory Sierra Pacificinterrogatoryfirst pro Sierra This was the Early in the case, before obtaining the documents o documents obtainingthe beforein Earlycase, the c. rating. give satisfactory hima to [sic] Loomisreply[was] rating anperformance andno-re-hire unsatisfactory wante I performanceIn[Lief’s] [evaluation], go…. is mainlookout stoned the say Theattorneys would seecouldallo justValley. sorts I Moonlight the This matter. is our knew this realI serious wasa PERSONS. PERSONS. b andinvolved actiontaken all conduct and PERSONS IDENTITYo limitation) the including (without 2007, Lookout Rock Redin activityDescribeat detail all
actually occurred at the Red Rock Lookout TowerLookout RockRedat the actuallyoccurred The lead Moonlight Prosecutor Taylor joinedin Taylor the Prosecutor lead The Moonlight 98 sue by propounding the following unambiguous following the unambiguous by sue propounding nd would not have known to pursue certainlinespursue have would knownnot to nd ponse, signed by Taylor and verified andbyunder signed ponse, Taylor
whether the fire was timely spotted. fire the wastimelyspotted. whether r Defendants filed a motion to the motionrequirefiled Defendantsto a r , Sierra Pacific had heard rumors that the that rumors Pacifichad heard Sierra , tting and reporting the fire was a central issuefirecentralwasa the andtting reporting been wrongfully withholding concerningbeen wrongfullywithholding Red Rock Lookoutday first Tower the Rock on Red rry Craggs, the United States responded on on Unitedresponded States the Craggs, rry out those documents, Defendants woulddocuments, those out pounded in the federal Moonlight Firein poundedfederal the Moonlight r subsequent testimony that disclosed rsubsequenttestimony that cts concerning Lief’s misconduct andmisconduct concerning cts Lief’s flegal problems. main lookout in main lookout performance on September 3, 3, September on …AndDave d to givehim to d a and letfireaand fall FRAUDCOURT ONTHE y those .
effort to cover up whatcover up effort to
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in any way. The Moonlight Prosecutors have failedhave Prosecutors TheMoonlight inany way. thiswhichday,th to responsesRock, Redregarding
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Thus, the Moonlight Prosecutors drafted anddrafted signed Prosecutors Moonlight the Thus, 99
ey have never amended, modified, or updated updated modified,or never amended, have ey to do so, even though Craggs, who verifiedeven who do so, Craggs, though to demonstrably false interrogatorydemonstrablyfalse FRAUDCOURT ONTHE
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land also constitutes misconduct. The fact misconduct. th The that constitutes landalso illegalbyfederalofdr Theemployee possession a illegalThe ofusemisconduct. w drugs constitutes meaningless.”) becomes disti the DepartmentofJustice, the actingthrough Petrovsky v. Demjanjuk Cour anTaylor,of the In doing officer issue. so, Sierra Pacific’sreque into false denialsresponse “mis amounted 2007,to 3, Septemberinteractions on Despitefi internalUSFS’s Lookout the Tower. Rock furtherdiswritten propounded Pacific Sierra also regardingfac the resolveanyto attempting dispute following: signedforUnited States the Prosecutors responses Speci falsely,request. each denied expressly,and signed Prosecutors 2007,Moonlight the 3, September at was any “misconduct” there whether admissions on frau thencontinuedProsecutors this TheMoonlight instanceFor discoveryadditionalfalseresponses. document.” more the add to to itby waswrittensomeone that handeddocument, the perjuresponseunder penaltyhad the of heverified duringt hisadmitted that response, deposition the
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Lief engaged in conduct prohibited byinUSFS. Lief the engaged conduct Karen2007,JuskaSeptember witnes on 3, Admitthat USFS. by prohibited the Caleb2007,Septemberengaged Lief on 3, Admitthat LOOKOUT. RED duty whileon he at USFS, was by prohibited the Caleb2007,Septemberengaged Lief on 3, Admitthat 10 F.3d 338; 353 (holding that “Whenpartyis the (holding 338; that 353 F.3d 10 100 t, was also speaking for the United States. forUnitedspeaking States. the wasalso t, sts for admissions regarding that very admissionsforsame that regarding sts e USFS understood that Lief had engaged inLief engaged understood had that USFS e he response was not askedwhytruthful.heWhen response wasnot fically, without objection, the Moonlight Moonlight the objection,without fically, nction between client and attorney actions and attorneyactions client nctionbetween , in response to Sierra Pacific’s effort to obtain Pacific’sSierrato into effort , response hile on duty as a federal employee on federalfederal on employee dutyasa hile on misconductRedat associated the with the ts ry when he knew it was untrue, he saidwas ithewasuntrue, herywhenknew
that expressly, and falsely, deniedfalsely,expressly,and the that conduct,” the Moonlight Prosecutors served Moonlight Prosecutors the conduct,” wassupposed “I didn’tI know that and else, nding that Caleb Karen Juska’s and that Lief nding responses for the United States that forUnitedthat States the responses the Red Rock Lookout Tower Lookout on Tower Rock Red the covery requests on the United States, United on States, the requests covery ug paraphernalia while on dutyparaphernalia on ug while d on Defendants and the Court with Court andDefendants d the on FRAUDCOURT ONTHE sed Calebsed in conduct in conduct ROCK the United States, UnitedStates, the
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Court withCourt respecttotheir conduct.actual the on MoonlightFire case took advantageof their becould not true. Clearly, judges have to a right becamebefore he a magistrate,was justifiedbase – Attorney’stheOffice for EasternDistrict of Calif
contradicted both Heinbockel’s internal writings, a internalbothHeinbockel’s writings, contradicted false neverwri corrected these yet anddeposition, Prlead The instead. Moonlight satisfactory review f hebe believedshould and rating “unsatisfactory” sup Juska’sdirect and LiefHeinbockel above,Ron – Attorneys t denied Again,Fire.U.S. the Moonlight Calebto ter Lief wanted superior to employees USFS furth wasalsocover-upTower Lookout Rock TheRed Sierrat responsePacific’sto request Prosecutors’ “misconduct.” by generated USFS internal the document Finally,an Juska’s when al that testified sheNational Forest, USFS the wasconfirmed byGarcia, Maria misconduct 55 ManagementOfficer Larry SierraCraggs, Pacific sou Perhapsthe magistrate,inof light own his experie JudgeMagistrate Edwin Brennanon January 2011.14, requests. Prosecutors Moonlight the occasions where numerous f barehislooking whileon urinatingburning, down lookout, the opp on the LiefCalebfoundof outside RockRedSepte on whenat arrivedshe revealedthat However, Moonlight P the deniedthis U.S. request. limitation) Caincluding ROCK(without RED LOOKOUT, p.m. 2:30 fromsomeon “at to 2:00 point admit that forin itsinstance,For ninthrequest be true. to In In light ofMoonlight the Prosecutors’ false inter DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Prosecutors alsodeny choseto Prosecutors other TheMoonlight 55
expect the federalbestfrom prosecutors, andthe ornia andasUSFS’sthe counsel lead in ac numerous nce as as ncea long-time Assistant United States Attorney rogatorywhichresponses, were verified byUSFS Fir d on d own his experiences – in assuming thatsuch ch credibilityJudge with Brennanwhile committing af ght, amongght, other sanctions things, by filing a moti Toitssurprise, Sierra Pacific did o not prevail admission, Sierra Pacific asked the government to government admission, the Sierra Pacificasked 101 legations were referred to law enforcement. law referredenforcement. to were legations hat the government admit that one or more admit or government hat one the that tten discovery responses, which flatlywhich discovery responses, tten ired, but was forced to givefully wasforced himbut a to ired, nd his sworn deposition testimony. deposition testimony.nd sworn his
osecutor attended and defendedthisosecutor osite side of the cabin from where the firewascabinwhere the the from sideosite of September 3, 2007, no employees2007,USFS at 3, September he request, despite the fact that, asdescribed despite fact he that, the request, eet. These are but a fewa Thesebut ofexamples are eet. rosecutors knew that Karenknew had Juska rosecutors that ervisor – attempted to giveattempted – Lief to ervisor an mber 3, 2007, between 2:05 and 2:10, she andbetween2007,mber 2:10, 2:05 3, described Lief’s interactionsJuskaas with Lief’s described minateLief the followingimmediately chose to lie in response to discovery choselie in to to response deputy forest supervisorforPlumas forest the deputy leb Lief, were watching for fire.” Thefire.”for watchinglebLief, were requests for admissiontheyrequests knew that ered through the Moonlight Moonlight ered the through FRAUDCOURT ONTHE federalprosecutors in the U.S.the in n that motion.n tionsforyears raud uponraud the argessimply onwith e
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additional facts to correct the record and hiscorrect record Orde the to additionalfacts an States, United behalfof the responses on served amendedhave Prosecutors never Moonlight false, the discoveryshow false,andafter even responses were revealed. revealed. andfalse theirProsecutors discovery Moonlight the beincidentwould see not Rock Red of the treatment management cautioneditwasCarltonUSFS who fact, PlumasNa the headand Maria the of Loomis, Garcia, and Heinbocke Craggs, Welton, ofJuska,depositions Prosecutors’ plan to cover up cover damaging planRock Red the Prosecutors’ to Judge that Brennanwould only not grantedthehave 56 recommendations dismissingthe foractiongross pro admit to askingadmissionfor USFS, the request on fraudulent, were Rock Red RFAconcerning responses itwasclearMoo that the closeofafter discovery, revealedduring the numerousdepositions were that Defendantswere abletodevelop Honor after denhis to Defendants’ motion for summary judgment. summary judgment. formotion Defendants’ to W Declarationsummaries, to ofJoshua the statement inclu Report, Joint corruption the by the attaching ofcorrectingInstead fabrication. complete wasa Report Joint the – that the documents testimonyand the United States incorporated by reference the Joi byincorporated the Unitedreference States the If, beforeIf, the Magistrate hearing, JudgeBrennan h DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Prosecutors also anyneveramended Prosecutors of TheMoonlight th admitted that Craggs after thisTo even day,and Defendants took other depositionsconfirmed th other took that Defendants The Moonlight Prosecutors’ fraud on the courtconti fraud the on Prosecutors’ TheMoonlight
not not takenuntilafter wasthe motion iedtheirmotion on January 2011,25, includingthe adknown offacts the regardingthe Red Rock cover- motion butwouldlikely issuedfindingshave and secutorialmisconduct. 102 nlight Prosecutors’ written interrogatoryandwrittenProsecutors’nlight r. r. ding Welton’s falsified Red Rock witnessfalsified Welton’sRock Red ding the record, the Moonlight Prosecutors deepened Prosecutors Moonlight the record, the nt Report, even though itbasedwasclear – even on Report, though nt
d never informed the Magistrate Judge oftheseinformed neverMagistrate d the responses, the truth maybeennever have the truth responses, ’s depiction of what happened at Red RockRed ’shappeneddepiction at ofwhat ed other responses on Red Rock were also were responses Rock Redother ed on it that the United States’ previous response to previousresponseUnitedto States’ the itthat n as a cover-up. Had DefendantsHad relied on cover-up. a nas hite filed with the district courtin district filedopposition the hite with l all confirmed this, as did the depositions ofldepositionsasdid the this, allconfirmed or retracted anyfalse discoveryor retracted of the tional Forest in 2007, Alice Carlton. In inAlice Carlton. 2007, tionalForest facts and obstruct justice.facts and obstruct that they needed to be carefultheir theythat to needed that the Landowner Defendants servedDefendants Landownera the e Moonlight Prosecutors’ interrogatoryProsecutors’ Moonlight e e Moonlight Investigators’ andInvestigators’ Moonlight e nued on other fronts as well. Near the the aswell.fronts Near other nued on the discovery responses whereindiscoveryresponses the
FRAUDCOURT ONTHE
heard,Defendants believe 56 The facts up up that
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trial brief states: brieftrialstates: cover into and culpability theirattempting Tower, falsethe regardingnarrative their which continued oath at his deposition that the interrogatoryrespo his the at oath that deposition seeking the truth from the Moonlight Prosecutors re Prosecutors Moonlight fromtruth the the seeking interrogatoryverifiedprior who respon the Craggs, sig Prosecutors TheMoonlight false.” response was infull. “[T]hedenies USFS request this asserted, depositions. depositions. testimony sworn or through documents, internal USFS harmful fact th to existenceofvirtually the every admission,for theserequests responseswritten to providerefusedanswer an to unequivocal or denial, lead the interrogatories,Moonlig thesemajority of aspec inwithother connection prosecutorialabuses a These hazard. requests publicsafetya presented “keep himemploy[thei on LiefCalebcontinue to to LoRockRed the transpiredat that events Court the federalgroupplana ofthe employees about amongst United States knew it to beservingit falseth knew before to United States RoRed aboutwhat 1 transpiredat No. Interrogatory
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING As trial approached, the Moonlight Prosecutors made Prosecutors Moonlight the trialAs approached, The Landowner Defendants also served over 250 addit 250 servedalso over Defendants TheLandowner Moonlight Prosec the RFA, Landowners’Answering the “suppressed” evidence of conduct at the Red Rock LoRockRedat the ofconduct evidence“suppressed” S Forest the allegationPacific’sthat vague Sierra hasany arguab defendant that defensehands unclean Here, ..th giving defense. . the rise conduct to itselfiswherepartypurges ainappropriate hands The def up. itself anycover allegedpurged has of becauseth failshands unclean the defenseFurther, 103 e prosecution that hadby beeneither established prosecution that e nse was not complete and truthful. wasnsenot The USFS denies that any of the portionthat denies TheUSFS e verified response. verified e response. the lead Moonlight Prosecutor falselyProsecutor leaddenied theMoonlight ht Prosecutor either falsely entered aneitherfalsely Prosecutor entered ht events that occurred at the Red Rock Lookout RockRedat the occurred that events lso covered the landscapecoveredinvestigatoryand lso the of up those events. The Moonlight Prosecutors’ The Moonlight events. up those
se, had at this point alreadyunder hadadmitted thisse, at point okout Tower, and the effort by to andUSFS the Tower, effort the okout ts of the litigation. In response to the vast litigation. the Inresponseto of the ts without justification. Through dozens Through justification.withoutof garding what hadbeen finallydiscovered what garding ck Lookout Tower wasfalse, Lookout the ck andTower that r] side” even though they believed hebelievedthey side”even though r] ned and served this response even though though even this nedserved response and to concealand the from theseDefendants to of USFS witnesses during theirduring witnesses ofUSFS submissions to the District Court District the submissionsto e only basis for anefor onlybasis ional requests for admissionsionalfor requests utors objected, and thenbrazenlyobjected, utors ervice of the inequitable of the enseofunclean e United States UnitedStates e ly pled isly pled FRAUDCOURT ONTHE okout...... okout.
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party suspected and was actively investigating the andpartysuspected was actively yeaseekrelief not seven until partydefraudeddid notwithstanding t fraud forcourt upon the judgment Pros Moonlight to the witness, asa his cooperation Joint interviewinto the reports fraudulent Lief’s Moonlight interview the herto ofJuska, summaryof “judicial mach and the 1046, theyat prevented F.3d . . . .” Intermagnetics, 926 F.2d at 916.From at F.2d 926 th Intermagnetics, .” . . . does not preclude relief under Rule 60(d)(3). See preclude not 60(d)(3). Rule relief does under durin Lookout Tower Rock Red the that transpiredat falseandverifi false reports, witness statements, Moonlight Investigators and Prosecutors harmed “theand Prosecutors Investigators Moonlight facts. facts. profferfalse discoveryandresp continued to Court nevermade MoonlightProsecutors anyas the Tower, regardinginequitable wha conduct themselvesof the Th misrepresentation Court. to this gross itselfa judgment. judgment. relief andfraud warrant Court upon the constitute “purg hadCourt that they the to misrepresentations transpcoverthat events up the to efforts unabated DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Prosecutors’ representation that they Prosecutors’ TheMoonlight Standing alone, the Moonlight Investigators’ and Mo andInvestigators’ Moonlight alone, the Standing Defendants discovered the Moonlight Investigators’ Moonlight the discovered Defendants In covering up these key events that arematerial that thesekey t In covering events up United States’ subsequent full disclosure of the inof the full subsequent disclosure United States’ was“suppressed,”suchwaspurg suppression conduct evide couldprove that ifevendefendants Thus, the Analysis 104 e Moonlight Investigator’s preparation of a falseofa preparationInvestigator’s Moonlight e ed discovery responses concerning the events events concerningdiscovery the ed responses e Moonlight Prosecutors in no way in purged no Prosecutors Moonlight e Report, to the USFS’s retention of Lief to secure Report,Lief USFS’s to to the of retention ired at the Red Rock Lookout Tower, andLookout Tower, Rock Redtheirat the ired rs after the settlement, anddefrauded that the settlement, the after rs Hazel-Atlas, 322 U.S. at 246 U.S. (settingaside a 322 Hazel-Atlas, under Rule 60(d)(3), setting aside the 60(d)(3), underRule fraud at the time of the settlement). settlement). time of the fraud the at
onses about the attempted cover-up attempted ofthese the onsesabout ecutors’ repeated falserepeated discovery responses ecutors’ ed” themselves of malfeasance, separatelymalfeasance, themselves ofed” inery [from] perform[ing] inmannerusual the perform[ing] inery [from] he fact that the parties settled, that that factparties the hesettled, the that t truly occurred at the Red Rock Lookout Rock Redat the trulyt occurred Investigators’ incorporationandInvestigators’ ofJuska g the pendency of the federal action, but but federalthis pendencyaction, the of the g integrity of the judicial 316 Dixon, integrity process” of the
attempt to correct the record beforerecord correct the the to attempt o the issues at the heart heart ofthisissues the the case,at o the had madewas“full disclosure” had a and the Moonlight Prosecutors’ falseProsecutors’ Moonlight the and onlight Prosecutors’ continuedProsecutors’and onlight formation. formation. nce of Lief’snce of FRAUDCOURT ONTHE ed byed the
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evidence somehow only amounted to “immaterial or te to only amounted somehow evidence forceful in so federal Shaffer the misconduct court anmagnitudemorepervasive of orders responses are In t this Fireteam. regard, Moonlight prosecution informatiin the concealedcaseandDefendants this Loo Rock Red the whichtranspiredat very“conduct” with ofrepresentinghonor th the lawyersentrusted upon the court. upon the bothDefendants events profferedto those regarding Red to exclude inrelated evidencelimine motionto confirm Court as the issuein case, defensesat the Redat the occurred 1133.Thethat eventsat F.3d 456.at Shaffer,F.3d See 11 court. fraud the upon frauda on to the whichdecisions,”inamounts its isscheme “anor which plan unconscionable executed and Investigator Prosecutors Moonlight the conduct, misrepr andsubsequent theirthese events regarding admitin discovery to resp in subsequentlyrefusing fraudulently ex that submittingdiscovery responses itsandrulesproce and [court] of the jurisdiction inengaging were court-ordere “parties Derzack, the discovery process is an integral part of the judici isofintegral the an part discovery process would havealoneCourt, constituted of the officers malfeasance,perjudiscoveryandtheir abuses their to falsely andthe not had theyrepresented Court, DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Moreover, there is no room for argument Mo that argument the forisroom no there Moreover, position Prosecutors’ Moonlight Notwithstanding the Even had the Moonlight Prosecutors notpresented Prosecutors th EvenMoonlight had the 105 dures.” Id. The Moonlight Prosecutors, inProsecutors, TheId. Moonlight dures.” al process.” Derzack, 173 F.R.D. at 416. As inAsatF.R.D. 416. Derzack, 173 process.” al ed when it denied the Moonlight Prosecutors’ itMoonlight deniedwhen the ed Court that of“purged”they themselves had Court that court. Dixon, 316 F.3d at 1046.at Dixon,F.3d 316 court. he Moonlight Prosecutors’ falseProsecutors’ discovery he Moonlight
ly admonished, and which easily constituted a constituted easilyand which lyadmonished, Rock Lookout Tower are central to affirmativearecentral Lookout Tower to Rock a fraud upon the Court because Court fraud the “[t]hea upon
e United States – – the they activelyUnitedconcealed States e onses that the initialfalse,and was the onsesresponse that red discovery responses, perpetrated by perpetrated discovery red responses, on that would be most damaging most the would to be that on cluded any reference to these important facts,important these to any cluded reference Rock. Accordingly, the falseAccordingly, narrative Rock. the Court regarding the theiresentationsto d discovery under the authority the and discovery under d and to this Court serveestablishfraud to this and Court to s,and separately,ofand conceivedtogether d egregious than the prosecutorial the than egregious d designed to improperly influence the court court improperlyinfluence the to designed kout Tower that would be most relevant to koutmost would be that Tower chnical inaccuracies.” See Pumphrey,See chnical 62 inaccuracies.” e false Red Rock interviews to the interviewsto false e Rock Red onlight Prosecutors’ falsificationofProsecutors’ onlight s within the Department ofJustice– within s Department the FRAUDCOURT ONTHE
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with the assistance of Moonlight Investigator Welto Investigator assistanceofMoonlight with the federal law. Specifically, USFS employee Heinbocke Specifically,employee USFSfederallaw. byimproperly i to attemptingCourt fraudthis upon judgment is not about bribery of a judge or jury, judgeaboutbriberyo or isa not of judgment bymotionc mischaracterizewrongly and Defendants’ truth and then justify their efforts to do so. justifyand to efforts truth then their avoidwit to concession any allresponses,designed au Prosecutors Moonlight discovered, the were facts no concealment perpetuate the ofevidence to effort knew byth who thememployee USFSverification a of interroga falsesigningand by authoring personally Prosecuto Moonlight the here, thoroughlyexplicated 18:7-8.)612Th at No. (Docket anythingsimilar.” Rule 60(d). Rule60(d). andDerzack Pu the behaviorthat than the egregious e active andProsecutors’ ongoing Moonlight and the Loo Rock Red the transpiredat withwhat associated court.fraud the on ofdefendant’sa commission the mischar whichfalse discoverydefendant’sresponses withdiscoveryevid supplement to failureresponses Similarly, NinthCir the Court. andDefendants the and facts, manipulated the th Prosecutors Moonlight documentsthe fraudulent to falsified, over turned financial manipulated da plaintiffswherefound the lackfaithofca bad and practice of‘stonewalling, this Court abus that the infinallyto representing
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Finally, the facts associated with the Red Rock Loo Rock Redfactswith the associated Finally, the In their portion of the Joint Status Report,Mo Status the Joint of the portionIntheir 106 e had been purged, “engaged in a pattern andin“engaged beenpattern ahad purged, e ndor.’” Id. In Derzack, fraud on the court wasfraud court on InId.Derzack, the ndor.’” r fabrication of evidence by counsel, or byrfabricationor ofevidence counsel, opposing party. Id. at 404. Here,at Id.404. the opposingparty.
tory responses, and securing the perjuredsecuring andresponses, the tory is assertion is clearly incorrect. As so is incorrect. is clearlyassertion ta relevant to their business loss claim, and lossbusinesstheir relevant claim, to ta cuit in Pumphrey found that the defendant’s foundin the cuit that Pumphrey nfluence a material witness, inofviolationmaterial witness, a nfluence h respect to their original efforts to hide to h respect originaltheir the efforts to true the Oncesupportiveclaims. their t of 62 F.3d at 1131-32. The true facts atThe true F.3d1131-32. 62 ence once itwasdiscovered,aswell as the once ence n, engaged in yet a furtherdistincta inspecies engaged yet n, of e language of an interrogatory, to mislead interrogatory,to language ofan e mphrey courts agreed warranted reliefwarranted agreed mphrey under courts thored scores of additional false discoveryscoresofadditionalfalse thored rs did in fact affirmatively fabricate evidence rsaffirmativelyfabricate did in fact kout Tower were central litigation, thiswere koutTower to acterized material evidence, contributed to to contributed materialacterizedevidence, ffort to cover them up ismore cover them ffort up to even l conceded that the USFS continued to continuedlUSFSto that the conceded laiming, “The motion to set asideset motion[sic] laiming, “Theto em to be incomplete and untrue, allin incompleteandbe untrue, an emto onlight Prosecutors attempted to recast attempted Prosecutors to onlight kout Tower establish that the USFS, USFS, establishkoutTower the that FRAUDCOURT ONTHE
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positions taken by the Moonlight Prosecutors in Prosecutors the by taken positionsMoonlight the pretria Court’s to the directlywhich were relevant legitimaabout this the Court to misrepresentations the factsthat whichrevealed discovered Defendants influence a witness is fraud on the court”). court”). fraud the is on witnessinfluence a 498494,C (7th F.3d 517 Inc., Softbelly’s,v.Inc. cons itself isthat act anwith tamperingwitnesses isillegal andThisfraudulent conduct proceeding. influence intentwithso”th do to the to “attempts w forwhich liabilityfelony 1512(c), § establishes “interviews,”consti Juska andtheirbefore to Lief The USFS’s con ofpublictrust. morethan breach a buyhe regardless po risk hisof the asto silence, USFS membersof the certain behardlyuglier: any Fire matt misguided how Moonlight the volumes about financi promiseandofa the cover-up put own their US the “shootingThat mouthoff.” his otherwisego Moo side”inof the context the him “keepingour on USFS the his indeposition, by revealed Heinbockel even keeping fire lookout, though a employLief as
Defendants’ so-called conspiracy allegations were p were allegations conspiracyDefendants’ so-called Prosecutors f Motion, Moonlight the support ofthat ofGover ExcludeArgument “Motion to styled, motion DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING As part of their pretrial Omnibus Motion inLimine, Motion part pretrialofAstheir Omnibus p its dismissalentered order thisafter Long Court 9.
Ruling on a Material Issue, Thereby Committing a Fr a Thereby a Committing Material Issue, on Ruling ProcureAnoth to ProgramRecovery Fire’sCivil Cost ProsecutorsReckless Misrepresen Made Moonlight The The Relevant Facts TheRelevant 107 sed to others. But such conduct constitutes farconstitutesBut such sed conduct others. to e testimony of any person inofficialan person testimony ofeany titutes a separate fraud upon this Court. See TySee fraudseparate a Court. upon this titutes ir. 2008) (holding that “[t]rying improperly to ir.“[t]rying(holdingimproperly2008)to that tuted the obstruction of justice under 18 U.S.C. U.S.C. 18 justice the under obstructionof tuted hoever “corruptly persuades another person” or person” or another “corruptly hoever persuades l rulings. The true facts flatlyfacts rulings.Thetrue l contradict directly related to this Court’s determination as to this directlyCourt’s related cy of Cal Fire’s civil cost recovery program, Fire’s cycivilcost ofCal
al recovery above the safety of others saysof others safety the above al recovery ir pretrial motions. irmotions. pretrial him employed was a known safety issue. As issue. himknownwassafetya employed irst attacked a straw man,straw aarguing attacked irst that Moonlight Prosecutors made Prosecutors Moonlight reckless duct on this front, and Welton’s instructionsand Welton’s front, on this duct remised in part on the fact “that Calfact“that ahas the Fire in on remisedpart were willing to bribe Lief with a position so so willingbribe were position withto a Lief FS personnel involved in this matter would matter in involvedthispersonnelFS nlight litigation for fear that he wouldfearfor litigationnlightthat made this election for the purpose offorpurpose made the this election nment Conspiracy and Cover Up.” In Up.” Conspiracy Cover nment and er had become. In short, the story er the hadInshort, become. could remised on the federal settlement, federalremisedsettlement, on the
the Moonlight Prosecutors included Prosecutors aMoonlight the FRAUDCOURT ONTHE aud Upon the Court.the Upon aud erPretrial Favorable tations About Cal About tations
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little information to support support thiscon informationcommonsense littleto Defendants’di inhowever, liminebriefing,motions noprosp generally little who or arsonists, provide andfrom collect affluent to target unconsciously, financialb instillnaturallya practicesuch would co intoaccounts fires wildlandaccused ofstarting portionbemighta oft diverting Fireprogram,Cal Defendants concern.we Instead, Defendants’stated Butmere .”.. the recovery e . program fire cost ra individualsasdefendants, entities andaffluent suchbenefits fundperpetuate a the and To causes. whichblamingaffluen favored be created wouldbias reachingfor responsible ofthose beneficiaries out any civil cost recovery dollars earmarked for accoufor recovery dollarsearmarked any civilcost representationsProsecutors’ Moonlight the Despite follows: Fire’s cost recovery system as a benignrecoverypublica prog systemcost as Fire’s conspiracyunsupp a are “defendants’of allegations Cal Fire and the Moonlight Prosecutors benefitted f Prosecutors Moonlight FireCal the and lastpartyin a te were which the YOU to litigation any moof useevidencing the “AllseekingDOCUMENTS DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Prosecutors nevertheless int claimed Prosecutors TheMoonlight In the state action, Defendants propounded discover action, propounded Defendantsstate In the conspiracy. conspiracy. i investigators fire andtrain established equip to investigation(e.g., investigators forki equipment suppor fund publicseparateto a to trust allocated fr recovered ofassetsportion program,a Under the inferencesupportan not that does recoveryprogram isrelyequallyevidence upon Defendants Theother 108 xistence of a cost recovery program was neverrecovery wasprogram cost xistenceofa ias in investigators, whether consciously or whetherconsciously in investigators, or ias ther than name penurious culprits, such assuchculprits, name ther penurious than ect of financial recovery. At At ect the timeoffinancialof the recovery. defendants. defendants. causation decisions. As such, an unacceptableAs decisions.causationsuch, ntrolled by wildland fire investigators. Any investigators. firebyntrolledwildland n years.” Notwithstanding the fact that bothfact that Notwithstandingyears.” the n he money it was recovering from those itfrom those moneyithe wasrecovering flowing from it, investigators might namemight investigators it, fromflowing
nts controlled by Cal Fire investigators created investigators byFirecontrolledCalnts ram established for altruistic purposes, as altruisticpurposes, for ramestablished rom the assertion of a “joint prosecution “jointprosecution ofaassertion the rom clusion. clusion. orted” and falsely described for the Court Cal Court the falselyfor and orted” described scovery efforts had uncovered remarkablyhad uncovered efforts scovery to the Court, Defendants were concerned that Defendantsconcerned that were Court, to the re troubled by the possibility that, underits bytroubledthat, possibility re the t parties to the exclusion of other possibleexclusion the partiesofother to t s hardly evidence of a multi-agencyofahardly s evidence ts and cameras). Apublic and cameras). program ts t investigator training and to purchase trainingto t and investigator om Cal Fire’s civil recoveries can be can civilomFire’srecoveries Cal ney recovered from wildfire neyany recovered y on Cal Fire in October 2010,y in Cal on FireOctober flimsy. That Cal Fire has a fire cost Calfire hasFirecost That a flimsy. investigators concealed investigators evidence. heir motion in limine that inheirmotionliminethat FRAUDCOURT ONTHE
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woulddisclose anyfacts calledwhich questioninto prosecutors’ state duties of Defendantsdisclosure, withoutaccount express authority Departmethefrom incluinvestigation,Fire Moonlight controlling the (ostensiblyC by the WiFITERaccount controlled the conspiracy associated or cover-up oftheoryatheir federal the timeat of the Thus,conferenc pretrial wase account that the ever suggest time didParker anyth suggestion rejected benefitCaliforniansand But testifiedacc in that Parker the 2005. account he h Parker reluctantlythat admitted Enforcement), Chris (a expert Parker States deposition ofUnited the defensethe concerning WiFITER. o AssociationAttorneys’(CDAA) District California EquipmentTrainingFireand “Wildland Investigation aCal pertained November2009 Fire to Audit Report andCal what described Fire accountingspreadsheet, co responsive documents onlytwo attorneys produced Inre action. state onlyinFire the Cal documents athus federal partyand the action to wasnot Fire when prosecutionjointagreement a privilege”under counsellitigation from Officethe ofCalifornithe 57 account. Asaccount. discussed infra,during the pendencyo fund. Moreover, fund. section 8002of StatetheAdminist HealthandSafety sectionCode13009, proceeds the federal action that this audit report provided to D providedreport to audit this federalthat action Defendbelow, As by explicated but CDAA. the Fire, asWiFITERifwas it appear materialmade proffered internalreveal“did not significant audit any the UnderCalifornia law,FireCal isstatethe agency DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING This audit report generally found WIFITER to be ofgenerally to WIFITER foundreport This audit Defendants encountered similar road blocks f similarin road the encountered Defendants a Attorney a concealedGeneral, virtually evidenc all expected that,officers as ofcourt, thethe gover credibilitythe offlowinginvestigators from the f the federal action,fCalthe Fire,its in-house genera charged with charged pursuingwildland fire cost recovery rative Manualrative makesillegalitfor anyagency tose of whichofare requiredby lawtobereturnedtothe nt of nt Finance. Given thisRequest Production, for 109 control problems or weaknesses.”Thus, the problemsor control e, Defendants had only limited evidence to prove limitedhadDefendantsto onlyevidence e, efendants was falsified. falsified.efendants was ount was created only for altruistic purposes to altruisticto purposes forwas created only ount sponse to Defendants’ requests, CalDefendants’its and Fire requests, sponse to for discovery propounded Defendantsrequests ding law enforcement officer White and hisWhite lawand officer enforcement ding recently retired Cal Fire Deputy Chief ofLaw Deputy Fire Calrecently retired with WiFITER, or to prove their theory that provetheorytheir or to withthat WiFITER, at the fund might bias investigators. At no At investigators. biasmightfund the at
stablished to circumvent state fiscalstatecircumvent controls. stablishedto ad conceived of and founded the WiFITERfounded the ofand conceived ad as a “CDAA Audit Report.” TheCDAA “CDAAAudit Report.” asa Cal mutualfor theirpurposes, convenient nbehalfFire.Cal of a legitimate program controlled not by legitimateCalprogramnot controlled a DAA) instilled any bias in those individualsinbiasinstilledany DAA) those internal audit of a program labeledprogram internalthe ofa audit Fund” (WiFITER) administered by administered Fund” the (WiFITER) ants learned after the resolution the learned the of after ants ncerning an outside fund:singlencerning a cryptic outside an ederal action. During the federal the During ederalaction. “considerable value” and stated that that stated and value”“considerable FRAUDCOURT ONTHE 57
nment attorneys nment l counsel, l andits WiFITER efavorable to t up aseparate up t actions under actions state’sgeneral andgiven the
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January 13, 2015). The final portion of the State The finalState of the 2015). January portion 13, http://www.bsa.ca.gov/ CentralizedSystem, Treasury Carlson. mentor, officer and supervisor 58 summarizedAuditorfoll whichas State the WiFITER, established outsideestablished Statethe Treasury tobe approv
Centralized Treasury System.” California State Aud State California CentralizedSystem.” Treasury issuedAuditorAudit Repo Formal a State California limitedavailabl the surprisethen evidence agiven disagreed Although federalDefendants the action. andsub itwasa assessment, Defendants’settlement issuecontri rulingthis on The Court’s collected. retentio handling, the ofanyconcerning conspiracy fromforeclosingarguin an Defendants order entered inmotionliminet representations Prosecutors’ and recovery impact cost Fire’sofCal the pertainedto inmotionlimineProsecutors’ Moonlight granted the Elsewhere, the StateAuditor confirmed State that DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Circumstances, however, changed rather dramatically changed rather however, Circumstances, t thento evidence available of the state Given the controls or to oversight by the control agencies or by to agencies oversight controlcontrols the or subjectCal norm to Fire’s wasnot recoveryrevenue thiso portionAs appropriations. result, abudget request submittingappropriate the without revenues and byand spending account establish diverting the itssubmit acc to failingrequest a byto processes andunitbypassed accounting Fire’s Cal enforcement management Fi ofCal Specifically, the adequately. account’s monitor did itthe track or nor controls, t subjectaccount money in the outside didnot this neither authorized by statute nor approvednorby Finan bystatute neitherauthorized t Fund Fund), Fire(Wildland Equipment Trainingand Inve Wildland and anFire the outsideinto account, recoveryrevenu investigation(cost suppressionand fo paymentsin million hadFiresettlement Cal$3.7 edandauthorized byCalifornia the Department of F Administrative Manual section 8002 requires all ac 110 buted increased to the and oftrialbuted risks Auditor’s report contains findingscontains regarding report Auditor’s e to the Court. to the e Moonlight result asofa the Thus, program.
o the Court concerning WiFITER, the Court Court the concerningWiFITER, Court o the n, or expenditure of wildland fire moniesfireexpendituren, or ofwildland with the Court’s ruling, it was not necessarilyit wasnot ruling,with Court’s the stantial factor in causing Defendants to settle to in factor Defendants causing stantial g that the Moonlight Investigators were part Investigators Moonlight the that g with respect to conspiracy arguments as it conspiracyas arguments to respect with itor,Outside AccountsState’s the rt concerning “Accounts Outside the State’sconcerning the rt“AccountsOutside pdfs/reports/2013-107.pdf (last visited (last pdfs/reports/2013-107.pdf ows: ows: his Court and Defendants, the Court andhisCourt Defendants, the Court after October 15, 2013, when2013,15, the October after ounting office to to office ounting f cost Fire’sCal revenues the Legislature, theLegislature, o its own internalits o own stigation ce. fire rofcost the cost recoverycost re’s law re’s es) deposited es) to increase itsincrease to al internal al budgeting FRAUDCOURT ONTHE hatwas 58 Further, itFurther, inance. inance. counts
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States certainly produced them. never States neverDefendantshave would report, Auditor’s State fesettlement the of the untildocumentsafter well Cal all Fireth withheld WiFITERdocuments, produce non-state entities.” Id. at 33. 33.email,entities.”Parker’s at w Id. non-state includmoney bestate should spent, how in deciding preventedFinance management and t recoveryprogram instead [WiFITER] recovery through revenuesofcost at conclu32. The discussion emailofParker’s Id. describedAuditor TheState WiFITER. formationof hi to byother ChrisemailFireCalParker internal informing WIFITER. scienter Fire’sCal itwasdesignednever disclosed fund, asParker the conflictsi with histestimony sworn United States, demanded production of all responsive documents. T ofalldocuments. responsive demanded production immediatelyof FireCal notified Defendants public, findingsAuditor’sba at The State 26-39. were Id. DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Once the State Auditor’s report and the existenceandreport the Auditor’s o OnceState the Despite eventual orders by the state courtin by2013 orders state eventual Despite the purchasing, and contracting limitations,and contractingspendi and purchasing, budg besuchitwhen, used, couldas where and how, limitin lot ofmoney,would be there a received the wentsayHe to that moreeffectivemanner. on ina moneyit so the receive outside see an organization saidHe investigators. h fire Fire’sequipping Cal manageupsetfundand purpose with the a partyto or attorneys association the using chief discussed Specificallyfiscal avoid to controls. part, state at designed management [WiFITER], recoveryprogram suggests manager [Parker] recovery former case cost formerfromdeputy January the 2005 An dated e-mail leaving Cal Fire open to possible misuseoftheser to leavingopen FireCal 111 hich had never been produced by Cal Fire or by the or beenFireCal produced never hich had deral action. In fact, but for the issuancebutInfact,for ofthe the action. deral gh ranking Cal Fire managers the regarding Fire Calranking gh des that “[b]y portionsspending andthat des directing n the federal action regarding the purpose purpose federalof the actionnregarding the sed in part on a critical January 8, 2005, criticala in2005, on January sed8, part
“to avoid state fiscaland avoid evidences “to controls,” state its failure to produce produce this emailfailureand its to ing whether some of it on shoulding besome spent whether of learned of these documents; the United the learned ofthesedocuments; and analyzed this email as follows: follows: emailandasthis analyzed hat demand precipitated anhatbydemand admission precipitated of following normal state processes, cost processes,cost following normalofstate is critical document and thousandsofother is critical document he Legislature from role hetheirperforming Legislature requiring Cal Fire and its counsel to itsrequiringandto FirecounselCal f this unproduced document became document funproduced this , the formerdeputy the , e would like wouldto e another another third evenues. evenues. g factors factors on g couldbe used ng freezes. ng if State the of training and oftraining that cost that eting, FRAUDCOURT ONTHE chief to a chiefto least inleast
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ofevidence partiespointing toother and damagthe investigatorstotarget affluent defendants, partia Defendants’ subsequent requests in2012. requests October Defendants’subsequent De manyto directly were responsive which pages, of bel FirewasCal“nothing” else) there hearing that previo (despite andpages, then approximately 5,000 Calbelatedlyproduced attorneys Fire’sdocuments, order DefendantsAfterthird asecured documents. and Auditor, thousandbyidentifiedState email the Office A the of the itsthat Fireattorneys Cal and 59 revealedmostclearly moral hazardthe WiFITER crea existenceprove the of conspiracy a toactively con documentsdamaging (thosemostfavorable toDefenda withheldthe mostimportant documents, that Offthe following: the things, amongother issuedits pre by Defendants Court timeto this the byCaleventually documents specifically,produced beneficiary himself WiFITER investigator lead the a contr or byoversight anyunencumberedState money, WiFITERand confirmingCalreason created Fire true
Itwas not untilafterthe October15, Stat2013, DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Through this belated process Defendants finallyprocessDefendants obt this belated Through ° ° ° °
law. byasrequiredstate Depa Californiafrom the obtainingapprovalwithout fireandinvestig wildland lawFireCal enforcement general fund dollars. fund generaldollars. limitations strict circumvention of investigators’ facfor purpose of the WiFITER FireCal established investigation, strategized on how to conceal WiFITE how to on strategized investigation, includingmanagement, oversee those FireCalsenior draft Moonlight Fire Joint Report in Report FireFebruary 2008, Moonlight Joint draft rev wasreviewingand in action, UnitedthisStates e who ChiefRegionCarlson, WhileNorthernFire Cal llyexplainingeffortthe topinblamehere onDefe eAuditor’s report,which revealedthatCal Fire an ceal WiFITER.cealIt was this batchlast of documents e it wouldeit cause tooursystem ofjustice. ice oficeAttorneythe finally General began toprovid ted, namely motivationalthe bias thatWiFITER inst nts). nts).These documents, largely the offormin inte 112 ttorney General had failed to produce the critical produce the failedto had General ttorney trial rulings on motionsrevealed,in limine, on trial rulings 59 atedly produced moreadditional thanatedly2,000 produced
s of pages of additional critical WiFITER WiFITER ofpagessofadditionalcritical requiring production of all WiFITERrequiringof all production
two tranches of documents: first, first, ofdocuments: tranches two usly assuring Judge Nichols inuslytelephonicNicholsa Judge assuring Fire’s counsel, none of which were providedwhich were none of counsel, Fire’s – to seek out monied defendants. More monied seek defendants. to out – fendants’ 2010 request for production for and to fendants’request 2010 ol, motivated the Moonlight investigators – investigators Moonlight motivated the ol, free this suspicionsthat Defendants’ ainedrevealing the criticaldocuments in expenditure of State expenditureofState in ising his mentee White’smentee his ising ators created WiFITER ators Carlson also expressedCarlson also ilitatingFireCal R from regulators. fromR regulators. rtment of Finance (DOF) of Finance rtment ing the Moonlight ingMoonlight the ventually assisted the the ventually assisted FRAUDCOURT ONTHE ndants, regardlessndants, ditslawyers had thatalso e the mostethe rnal emails, rnal illedinfire
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profile,”directedWhite todivertonly White 5%. WiFITER.But Carlson, apparentlyheedingthe advic demandletters,White wanted todivert20% of what off-booksIn account. one instance involving anoth 60 up up money for CDAAfund?the Can’t we untilwaitwe moneyshouldinitiallythey for demand WiFITER the
In other In instances,Carlson andWhite (the leadMo DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING ° ° ° °
recovery.” arsonsee brinconvictionswhere our are hardto is investigate enhance abilityto Fire’sCal funds to re sameaemail denied day,CarlsonInanother that ism “unless goingto someone wouldfundremainso, inand red” WiFITERwas“running the concernedthat
regulators did not discover the fund. fund. discoverdid the not regulators fundbecause not w Carlson,againemail the 2008 to lawrankingenforceme fromhighest Fire’sCalemail fishy.”T Million,willlook are $1 that costs but cut arecover ofa If offtop take profile.we the “t stated: counsel Specifically,generalFire’sCal preventdiscovery t but of to fundillegal, the was adv Court, of the officer an generalhouse counsel, Inresponse WiFITER account. into fund the general firepercentage settlement ofwildland evengreater lawCalCarlson Fireother enforcem red,” the urged WiFITER accwhile the that 2008, concerned InMarch money. money. rulescircumvent wascreated restricting to WiFITER internal 2005, January email wrongfully8, withheld whichitswasinc andand benefits, purpose WiFITER provide misleadingWiFITER, testimony to creator of formera Fi expertCalwitness Parker, States Chris produceWiFITERdoc failureto counsels’Fire’s Cal because “as Alan [Carlson’s] boy, I can do nowrong can do I boy, “as Alanbecause[Carlson’s] himcircumventingCofor the rat [she]out wouldn’t i He he tellsperson the analyzer (“CVSA”). stress instance,expinan – this WiFITER-fundedequipment his get ha himfundsallowWiFITER to would whether circumventing command(“Co chain the anof emailto inveFire,lead Moonlight months the to Threeprior not formed in compliance with law and had neverbeeinlawhadformed and with not compliance f earliera Those contained versionsreport. audit supplant document that fraudulent wasa trialdate) Defendant providedWiFITERdocuments to ofonlytwo proreport internalaudit 2009 WiFITER TheNovember reluctantlycomplied, butbefore not pleading toCa erfire only few short beforemonths a sent he the Cal FireCal was demanding Defendantsfrom on fire that onlightInvestigator) strategized together about ho eofFire’sCal counselgeneral Giny Chandlerto“k accountfrom theirchosen defendants toperpetuate get the CVSA?”the get 113
ysay are $100K where assets his advice was repeated in hisanrepeated advice was he point is to keep a lowa iskeep he point to inding that the account wasaccount the indingthat arsonists because, he said, “ithebecause, said, arsonists he fund by state regulators. regulators. he byfundstate ging in additional cost ingingadditionalcost ised against it – notbecauseit – against ised s writing to that he “figured that writings to re investigator and investigator the re ed earlier versions of the the versionsearlier ed of dollars from dollarsstate’s the quest to use WiFITERuse to quest stigator White admitted inWhite admitted stigator , which showed that that showed which , ent personnel to divert andivert personnel to ent C” questionon this as illegal, but to ensure illegal, but asto . . . .” .. . expenditure of state ofstate expenditure , Cal Fire’s then lead in-leadCal then Fire’s, nt official in a March innt aofficial umentsUnitedenabled ake a high % recovery.” high% a ake in this case about inabout case this n approved. napproved. onsistent withhis own onsistent ensive computer voice computer ensive C”) so as to check as soon C”) to emphasized that the that emphasized ount was “running inwas“running ount ndsadditional on duced byduced (one FireCal s as of the federalasof the s FRAUDCOURT ONTHE 60
MoonlightFire rlson: “Giving rlson: wmuch eepalow theirillegal to
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outside bank account, and that Cal Fire had not com Calandnot had that Fire bank outsideaccount, Cal failed obt hadto that Fire similarly concluded DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING ° ° ° ° ° ° ° ° The California Department of Finance also issuedit ofFinance also Department TheCalifornia
state and federal Moonlight Fire complaints were fi Fireand were federalcomplaints state Moonlight lawofficer ofurging enforcement the suppressed at finalfirstillegality findingaudit inof the The San Diego, and expensive equipment, suchc andas$1800 expensive equipment, SanDiego, includinglocationsat beachfront “training”events benefi fires.Thesefor blame those scenes,assign witha who, exclusive very investigators—the people fundsformillionbenefit of the those $2.9 some of 200 between WiFITER account moneyinto the ofstate Cal Fire ultimately and illegallyFireCaland ultimately funded WiFITER events. numerous attended inveleadby,Fire Moonlight or requested overseen, w WiFITERpurchases and training the Manyevents of expenditure of millions of dollars in recovered funinmillionsofdollars recovered expenditureof fireswildlandmoneycontr for recoveringblame and managersand case sameinvestigators resp the Thus, investiga recoverystaffand bycivilFirecost Cal expenditureofWiFITE merely the processed TheCDAA received approval for multipleofWiFI expenditures for receivedapproval money,heand WiFITERspend how to on all decisions members staffFireCalhandfulof only a was one of managerMoo on the initial Cal case Fire’sCarlson, receiving his salary as a state employee. state a salaryreceiving hisas atWiFITER t instructor hisforasan participation from personal apparently payments Carlson received account. infusionshistoryo inWiFITERcash largest the the would of$400,000, inCDAAha amount to the payment othe the State and ofCalifornia the short-changing millions in of$8.1 payment two whichthe demanded FireWhite’slet demand investigator Moonlight Lead general counsel, who provided the above-quoted advi above-quoted the provided who general counsel, Calin 2013, malfeasance.Thereafter, March Fire’s Sacramento Angeles the Los and Times, the Journal, exposedWiFDefendantsafter lateJanuary,2013, In
siphoned approximately $3.66 million dollars $3.66 approximately siphoned 114 ain the legally required authorization for ain the legallyauthorization required the
plied with state mandated the restrictions on withstate plied report was deleted andwasdeleted report s own review of WiFITER, and s review WiFITER, own of tors, including Carlson. tors, ts included numerous ts raining events, while raining also events, its wildland fireits wildland resorts in and Pismoresorts Beach ds. ds. r requiring an illegalrequiring r an led in led 2009. f the illegal off-book illegalf the off-book Carlson, the shortly after stigator White,also who stigator Fire’s lead in-houselead Fire’s nlight Firenlight prosecution, on a committee that madecommittee a on that TER money. TER onsible for assigningfor onsible ITER, the Wall Street Wall the Street ITER, olledunlawful the nd private access to fire access ndto private BeeranstoriesCal on the WiFITER account WiFITERaccount the ter of August 4, 2007,4, ter ofAugust ce, was terminated. wasterminated. ce, eparate checks, one eparate amera packages. amera packages. 5 and 2012, and spentand 2012, 5 suggested and suggested ere coordinated and coordinated ere ve effectuated one veofeffectuated R money Rdirected as FRAUDCOURT ONTHE
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and operating WiFITER.andoperating whichadfocus on and1075) SB 1074 legislation (SB B Specifically, Governor Legislature. California’s itwasThus,anything on themselves. investigators be delivered to the state’s general fund. Andit w generalstate’s fund. the to be delivered from moneywasItfilled a skimmed trust. with not itwassecr fund.”Infact, public “separate trust recoveryres andcivilunit Fire’scost Cal WiFITER yetblower another“whistleas forward Hoffmancame
expenditure of state money. expenditureofstate criminalundertake a investigation,Attorney Genera CaliforniaStateSenator GainesTed others and o in 61 are unsupported.” unsupported.” are multi-agencyand conspiracy;” ofahardly evidence “[a]public arguingestab program noblethat cause, motions their Court through this into representing Fire by Fire individualsnumerous inactingcoordination White, was White, andis already felony a Californiaunder This legislativewasaction largely symbolic, beca DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The eventual disclosure of the true facts precipitatrue of the disclosure The eventual In stark contrast to these facts, the Moonlight Profacts, contrast Moonlight to these the Instark Shortly after publication of that report, retired C report, publicationofthat Shortlyafter The Moonlight Prosecutors also recklesslymisrepres Prosecutors The Moonlight what was the right thing to do. right was the thingto what retired)(shortlythe I it out, wipedafter someone in Thisoriginal the draft Fund. andwas Training approval for Wildland of the Department of Finance alsoCALFIR recommendI [sic] myearlyretirement. isdo thing right my management the fromto support Thesystem thing. wasdoo own their everyone doing becameItwildRegion. we the South Region the and every Iwasstymiedrecoverymonies.turn at cost centrali get hardIto feel vindicated. so triedI 61 In an effort to ensureagencies would to that Inan other effort penletters toAttorney GeneralKamala Harrisurgin Seelaw. Cal.Penal Code § 424. But despite a re , including, Carlson and Moonlightthe Fire’slead i use diversion ofusediversion money by employees, wasstate as d l Harris l claimedshe could nottakeany suchaction 115 et, not public. It was an off-books illegal wasan off-books public.It accoun not et, as controlled and spent by wildland fireby and ascontrolled spent wildland in limine that WiFITERwasessentially ain liminethat rown signed into law two newlaw pieces into signed two of rown
but “separate.” but lished to train and equip fire investigators isinvestigators fire equip andtrain lished to wildland fire settlements legally required to legallyto firerequired settlements wildland ponsible for the state action, stating: forstate the ponsible that “Defendants’ allegations of a conspiracy“Defendants’ofa allegations that dressing Cal Fire’s malfeasance inmalfeasanceFire’s creating dressing Cal ,” offering his own revealing criticism of hisrevealingcriticism of ,” own offering al Fire Law Enforcement Chief Tom LawFireEnforcement al ted much-needed corrective action bymuch-needed action corrective ted secutors recklessly the truth secutors disregarded ented WiFITER to the Court asa Court WiFITERto the ented zed management of management zed reby coveringup report, but report, by the North North by the Investigation what led to what st with st med.Lackof FRAUDCOURT ONTHE E go to go to E not engage inengage not similar quest byquest nvestigator because her g g herto one inCal t, t,
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Moonlight Fire investigation, includingand Carlsoninvestigation, Fire Moonlight i motivationalbiasshowing the includingdocuments fullofwhat ain his accounting having possession NicJudgeIndeed, fraud court. on the ofaproduct malfeasance. malfeasance. n sent Controller’s also OfficeState the behavior, officeCalrepresented Fire. financialinterest. hisDefendants contingent declarationthisfrom himCourt to expert extensive witnessin witnessthe expert asan percipient and ofthesel one Prosecutors then proffered Moonlight ino the beneficial interest contingent illegaland infire instilledwildland skimming which operation perpetuate an illegal account for which Carlson, Wh anwhich for Carlson, illegal perpetuate account could, by(and who exte therefore suppressioncosts affixingaffluen blame on towards biasedWhite were I managerCarlsonMoonlight Fire and Moonlight case WiFITERis that argument supportive ofDefendants’ “manhe found orders, that 2014, February ofhis4, exclu inmotionlimineto Calhad heFire’sgranted Department of Finance or by parties. or opposing Department of Finance w illegal the possibilitythat account minimizethe coordinatstrategy, agreed-upon an followedcounsel DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING This Court’s ruling on the Moonlight Prosecutors’ m Prosecutors’ Moonlight ruling the Thison Court’s Armed with that information in the state action, Juinformationin state the Armedwith that At bottom, a small cadre of Cal Fire managerst and Firebottom,small ofCal a cadreAt The belatedly produced documents establish that establishdocumentsthe that The belatedlyproduced
116 utcome of their own investigations. Theinvestigations. utcome own oftheir otices to all state agencies calling out Cal agencies out Fire’s all calling to otices state ould be discovered by state regulators at the regulators bydiscoveredstate ouldbe federal Moonlight Fire action, and submitted anFire submitted andfederal action, Moonlight actually occurred with this illegalwith fund, slushthis actually occurred hols reached this very conclusion after finally after very holsconclusion this reached
, all without ever disclosing to the Court Court ever or disclosing the all to , without de reference to WiFITER during trial. Inone WiFITERduring referenceto trial. de y of the belatedly produced documents are are documents belatedlyyproduced the of investigators an undisclosed personal, direct, aninvestigators undiscloseddirect, personal, aw enforcement officers, White, as both a asboth White, officers, enforcement aw nsion, help fund WiFITER) in order into fund helporder WiFITER) nsion, White. White. ite and others were beneficiaries.” were others iteand ed their activities, and acted in to ed acted concert activities,theirand t instilled in those involved the instilled in with those t t defendants who couldFire’s Calwho fordefendants pay t relevant to the question to the ofwhether relevant nvestigator (and subsequent case manager) case nvestigator (andsubsequent dge Nichols reversed his ruling whereinNichols his dge reversed ruling heir counsel created a money-a heir created counsel se Cal Fire managerstheirand Fire seCal otion in limine was therefore the inliminetherefore was otion
FRAUDCOURT ONTHE
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full and complete record upon which to baseits rul uponrecordwhich to fullcomplete and Court to the dutyProsecutors’ofcandor Moonlight inengage Court to care the a they Givenasked that recklesslyf Prosecutors’ Moonlight the reliedupon wasfrom that there precludearguing to Defendants WiFITERt to about representations recklesslyfalse Defend to account disclose WiFITER failure the a to upon this Court. Court. upon this itfrom Defendan of concealment prosecution’s joint Dis the to recklessmisrepresentations Prosecutors’ action. But given the belated disclosuresofWiFITbelated given But action. the falsedeclarationco and White’stestimonyperjured generalin wasthat bulldozer timewhen aHowell a atDemjanjuk,F.3d 10 in thereon. rulings reliance nature thereby ofWiFITER, true misrepresenting the Moonlight P Instead, the court). to dutyofcandor “ba or reverse Investigators engineer, to Moonlight stage” to “incipient fromFirean Moonlight alleged ign expert the regarding opinions purported things, White’s d summary judgment. formotion Defendants’ decfiled Prosecutors expert the whenMoonlight the isto for truth sufficient the “reckless disregard” DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Prosecutors’ intentional misconduct w misconductintentional Prosecutors’ TheMoonlight moralhazardWiFITERand the existence of the Here, In view of White’s contingent interest in interest case, the White’sIncontingent viewof a.
The Moonlight Prosecutors’ Misrepresentations to th Misrepresentationsto Prosecutors’ TheMoonlight WiFITER Constituted a Fraud Upon the Court. Court. UponFraud the a Constituted WiFITER Analysis Analysis 117 establish a fraud on the court). court). fraud the establish on a rosecutors defrauded the Court by grosslydefraudedrosecutorsCourt the 353-54 (holding that government attorneys’government(holding that 353-54
ings. Cf. Shaffer, 11 F.3d 457-58 (discussing457-58 F.3d 11 Shaffer,Cf. ings. trict Court concerning its true nature, andnature, Courtconcerning the its true trict ition and supposed early spread of the earlyspreadandition supposed ful balancing of interests andinterests evidence, the balancing fulof ER documents to Defendants, it isclearDefendants, now it documents to ER coincidesainto,” ignitionwith timethat ck of alse representations in granting that motion. inthat granting alserepresentations the free burning stage, all in an effort byall free the effort in stage, anburning the nstitute fraud going to the central issuefraudin nstitute central goingto the the he Court in support of their motion inmotionliminein heof theirCourt support any government conspiracy. This Court ThisCourt conspiracy. any government vicinity. As addressed in Asdetail elsewhere, addressed vicinity. required them to ensure that the Court had a Court ensure the requiredthat themto ts collectively establish three distinct frauds distinct collectively establishthree ts laration of White in opposition to into Whitelaration opposition of ants. The Moonlight Prosecutors also madealso TheMoonlightProsecutors ants. inducing the Court to make erroneous make erroneous to Court inducing the eclaration is replete with, among other amongisother with, replete eclaration a fraud upon the Court wascommitted Court fraud the a upon it represents, the Moonlight Moonlight itrepresents, the ith regard to WiFITER was not just WiFITERwasnot ith to regard FRAUDCOURT ONTHE e Court Concerning Court e
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Moonlight Prosecutors’ false Prosecutors’ representations. Moonlight werev simultaneously who the withholding partners, Court, to the nature ofWiFITER the misrepresented 3.) This assertion is clearly incorrect. As demon This isincorrect. clearly3.) assertion misrepresentat no “made theycounterfactually, that proceedings, and their fraudandt necessarilyextended their proceedings, materialand defensedirect a the had to favorable decis and actionstheir attorneysthat plainlyknew jointinvestigationjointisanda based iton when claimedwere privilegedcommunications with these e asserted viewthat, in Jointof its Prosecution Agr prosecutors, and even assuming, arguendo, that the arguendo, andassuming, even prosecutors,
See Pumphrey, 62 F.3d at 1130-31 (holding that in-h (holding1130-31 that at F.3d Pumphrey, 62 See also were office litigationcounselwho counsel and fraud upon th of the case dismissedresult the asa WiFITER this the Court, to about misrepresentations WhiteMoonlig himself,WiFITER, the through through White’su fromByCourt concealing the testifying. interes from contingent having a testifyingexperts Professi contravention of Ruleofdirect California White submissionProsecutors’of Moonlight that the 62 haco vice,wasadmitted officer pro and not record JudgeBrennanentered anorder granting Defendants’ The MoonlightThe Prosecutors listedWhite andReynold DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING
Fraud perpetrated so thoroughly and on such a broad soasuch thoroughlyon perpetrated Fraudand Report,Mo Status the Joint of the portionIntheir Even if there was no joint prosecution agreement bi prosecutionjointagreement if no Evenwas there b.
Concealment of the Motivational Bias Created byWiF Created Motivational Bias of the Concealment Fraud Upon the Court. the Upon Fraud eementwith Fire,Cal itobligation had no toprodu Motion toCompel production byUnited the States, xperts germane totheiropinions. On May2011, 26, s as expert as s witnesses. The Moonlight Prosecutors t 118 prosecution. Cal Fire’s investigators and investigators prosecution.Cal Fire’s strated here, the Moonlight Prosecutors in fact Prosecutors here, Moonlight the strated is Court committed bycommittedgeneralisFire’s Court Cal effect on the concurrent federal Moonlight federal Moonlight concurrent on the effect ions to disclose or notdisclose disclose to evidence ions or onal Conduct, Rule 7-107(C), whichRule prohibits onal 7-107(C), Conduct, t in the outcome of the action inactiontheyinof the are which t outcome the o o Court.this
f the Court for purposes of Rule 60 analysis). purposesanalysis).for 60 of Rule fCourt the rs of this Court under Ninth Circuit precedent. underNinthprecedent. ofCircuit thisrs Court ndisclosed contingent interest in interest action the ndisclosedcontingent Moonlight Prosecutors made no Prosecutors Moonlight ion” to the Court. (Docket No. 612 at 19:2-612No.at (Docket ion” Court. to the ouse counsel, even though not counsel not counsel,though of even ouse aided and abetted byaidedprosecutionjoint theirabetted and judgment should nonetheless be vacated and beshould vacated nonetheless judgment ery documents and evidence that belied the andthat evidence erydocuments ’s expert declaration to the Court was also inwasalso Court declaration the to ’s expert ht Prosecutors, defrauded this Court. defraudedProsecutors, Court. ht this onlight Prosecutors state, state, Prosecutors onlight nding the federal and state federal state the and nding scale is not confined to tribunalisconfinedone not scaleto 62
FRAUDCOURT ONTHE ITER Constituted a Constituted ITER cewhat it despite Magistrate hen hen
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the expertthe offered has anopinion.” Certainly, cou investigatorWelton can beonly found thissecti in States’United provisionalwitness list/section inc Moonlight lead Investigator White of FireCal inth first section first was alistingof those witnesses the answeredUnitedwhenthe States served itstrialwi 210.) investigators’ opinion the germaneto alldocuments Court andevidence the Defendants, to disclosethat clea – prosecutionjointpartner prosecutionteam’s defense, FirematerialCalasthe the – evidence to that discoverability that ofexpertfilesthe turned on prosecution agreement”and that FireCal was “reapi subpoena,JudgeBrennan againfound thatFireCal a at547 U.S. Youngblood, 8 prosecutor.’” the not to even tha evidenceover turn fails government the to madehas The Supremealso388). at Court F.3d 392 materialsgivenot unl himcertain to investigators it,have ought to prosecutor agency the the decided bypreventproduction keepi investigatingto agency at392rule“woF.3dSuch 388). a (quotingBlanco, have investigatingwhere it,not andoes prosecutor beofth kept out “exculpatorycannot evidence that NinthBoth Circ the disclose material to evidence. 63 Courtthe WiFITERthe program andWhite’s withrole enteredBrennan onanorder Fire’sCal motionforp “[t]hefinding that USAO AGOand the haveentered i Prosecutorstofaileddisclose andanyof it, inste opinion expert than acontingent financial/benefici Unitedthe States. Cal Firesimilarly refused top Ruledocument 45 subpoena on Fire,Calseeking docu
counsel (who are undoubtedlyCourt) are of the counselofficers (who Any ofquestion whether federalthe prosecution te 63 DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Cal Fire’s general counsel and litigationCalcounsel general Fire’sand counsel Accordingly, regardless of whether the federal the pros ofwhether Accordingly,regardless As the investigating agency upon which the federalinvestigating the agency which the As upon
UnitedStates absolutely tocall.intended The Uni whetherthe documents “germaneare subjecttothe m addefended WiFITERthe program. roducedocuments, andonNovember 2011,8, Magistra luded witnessesluded may that “ifbecalled the need ari nsel forFireCal nsel andthe United States were obliga on. al interestal investigation/outcome.in the Yet the tnesslist.United The States witness list had two at section.Heat the is only MoonlightInvestigator rotectiveorder.ordering In Cal Firetocomply wi ng the benefitsthe ng of arrangement.” that Judge Brenna nd nd the StatesUnited had“voluntarily intoentered amconsidered Cal Fire tobe leadthe investigating nto a joint nto a prosecution agreement.”Defendants als ments pertainingtoWhite andReynolds’ expertopin init. difficult It is toimagine material “gmore 119 ess he asked for them.” Id. (quoting Blanco, (quotingforId. Blanco, them.” asked he ess investigating agency and the federalinvestigating the and agency uit and the Supreme Court have Supremeand the recognized uit Court rly possessed such evidence and had a duty to haddutyto a andrly evidencesuch possessed agency does.” Tennison, 570 F.3d at 1087at F.3d 570 Tennison, agency does.”
and by allowing the prosecutor to tell prosecutor to and the the by allowing e hands of the defense just because the just handsedefense of the 69-70 (quoting Kyles, 514 U.S. at 438). U.S. 514 (quoting Kyles, 69-70 t is ‘known only to police investigators andinvestigators ispolice t only‘knownto at least in connection with a motioncompelinleast to at a connection with s, which this Court granted. (Docket No. granted.(Docket this which Court s, uld the by allowing Bradyundermine ng a report out of the prosecutor’s hands prosecutor’s untilout of the ngreport a had a constitutional obligation under Brady hadconstitutionalunder a obligation clear that “Brady suppression occurs when “Brady occurs clear suppression that , officers of the Court, also hadalsoduty to a Court, of the officers , ecutors even possessed WiFITEReven possessed ecutors prosecution relied, Cal Fire and itsFireCal relied, and prosecution
FRAUDCOURT ONTHE ted Statested included Moonlight ses.”USFS fire sections. sections. The ted todisclose to listed. The atter onatterwhich ermane” toan th ofmuch th the ajoint agency was n also n ruled te Judgete oserved a ionsfor
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motivationalbiases createdby practices. such The practiceis“widely condemned” and theraising very http://www.mercedsunstar.com/news/state/article3274 Civil Chief Civil Matthew Jacobs, now General forCounsel elsewherederiding the practiceof financicreating present for adjudication.”F.2Intermagnetics,for 926 present imitsmannerperform in usual machinerycannot the ininvestigationandoutcome oftheir the interest finan haveinsteadconcealed a officersenforcement defend constitut the lawto oaths their enforcement necessarily TheCourt theseof here. casepresumes inlaw trust en these necessarilyplacestremendous prov officers lawto enforcement depend on entirely fouisThis action.outcome of the prohibition the witnesses in litigation on a contingency basisincontingencylitigationa wher on witnesses governmental prosecution.governmental beneficialinterest contingent haveundisclosed any cirpossiblyatcannot 659, U.S. 367 tolerate Ohio, beento the not haddocumentssubmitted fraudulent arisingfrom discover Court fraud the (findingupon th investigations,therebyfire wildlanddefrauding of evidence suppressed counsel,litigationactively Nevertheless,1130-31.in-houseFire’s Calcoun at workaction not didjointlythis ensureprosecuted 64 FederalMoore’sPractice Lucas, In In this regard,onFebruary 2013, former7, Easter DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING California Rule of Professional Conduct 7-107(C) ab 7-107(C) ofProfessionalConduct RuleCalifornia “imperativeas arjudicialintegrity” the ofFirst, c.
The Existence of WiFITER Constitutes a Fraud UponFrauda t Constitutes ofWiFITER TheExistence 64 The judicial process, particularly government pro particularlyThejudicialgovernment process, ¶ 60.33 (2d ed.(2d1978)). ¶60.33 al incentivesinvestigators for andprosecutors, in article may befound atnow n District n ofCaliforniaAssistant United States At concerns expressed concerns by herein Defendants relating t CalPers,published anarticle Sacramentointhe Be 403.html. 120 a lawsuit derived from it, “the judicialfrom“theit, derivedlawsuit a nded upon nearly a century of case authority. nearly authority. upon century ofcase anded cumstances where law enforcement officers lawenforcement cumstances where Pumphrey,SeeF.3d 62 fraudanya court. upon is Court. See Derzack, 173 F.R.D. at 416at F.R.D. Derzack, 173 See is Court. WiFITER’s illegality and its impact on its illegality WiFITER’sand d at 916 916 (quotingat 7 d ion and protect the innocent. When lawinnocent. protect the ionand e the amount of their compensation depends on dependson amountcompensationoftheir the e
forcement officers. Suchwascertainly officers. forcement the in an investigation which is the basis for isbasisinvestigationinwhich the an sel, with the cooperation of Cal Fire’sofCal cooperation with the sel, ficers are serving the public trust and fulfilling publicservingtrust the are ficers y abuses and lack of candor, even y lackwhere ofcandor, abuses and cial bias driven by an undisclosed contingent undisclosedbycontingent biasan driven cial ide both percipient and expert opinions, bothpercipient ide court). court). partial task of adjudging cases that are are that ofadjudgingcases task partial ticulated by the Supreme Court inv. byMapp ticulated Court Supreme the solutely prohibits proffering expert expert proffering solutelyprohibits FRAUDCOURT ONTHE James Wm. Moore &Moore James Wm. J. he Court. he Court. secutions that dicating howthe torney and othe eand
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prosecution partners. As in any joint venture, botventure, inAs joint any prosecution partners. dista now everyandFirewithCalat interest” turn cannot Prosecutors TheMoonlight prosecutionteam. WiFITER with the associated facts disclosecritical in aidedpr another the one abetted prosecutors and evidentiaryassociat the prosecution privileges and MoonlightProsecutor the and federalstate actions, At its Fireattorneys. FireCal and Moonlight with a joinundertake voluntarily to elected Prosecutors an e bothto actions necessarily infected that bias in interest outcomeo the contingent investigator’s Investigators gave testimony that would be used in gavewould be used testimony Investigators that bofor foundationinvestigation the jointas served irrelevantfed are the investigators to FireofCal the worse. worse. the incontingent the That he beneficiary. whichwasa c $400,000demanding aDefendants letter to White’s investi in interest outcomeoftheir the contingent interest is disclosed in the course of the action. inis of the course the interest disclosed forcefull This withapplies (1918)). prohibition (1933) 657 Cal. 131 Kesler654, App. Von Baker, v.
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING To the extent the Moonlight Prosecutors attempt Prosecutors to Moonlight extent the the To Here, the lead investigating agency Cal Fire and leleadandFireinvestigatingCal agency the Here, contracts illegal. contracts law,witht wisdom, impelled whichhas the persons, detectivesoth or hands private the ofunscrupulous justicefraud, andtrickery, pervert through truth t testimony,ofperjured productionand charges the arecalculated to in nature both ofwhich and their a successful litigaessentialoffacts givento set agree handthe isoneand the It contingency on the 121 See Cal. R. Prof. Conduct 7-107(C).Conduct SeeProf. Cal. R. eral action, this argument is incorrect. Aissingle incorrect. this argument eral action, even if the existence of an expert’s contingent contingent ifexpert’s evenexistenceofan the qual degree. Moreover, the Moonlight Moreover,Moonlight the qualdegree. gation by virtue of WiFITER, asevidenced by ofWiFITER, virtue by gation h parties become responsible for the acts foracts of the h the partiesresponsible become th the federal and state actions. The Moonlight TheMoonlight actions. federal andth state the nce themselves from the acts of their joint acts fromoftheir the nce themselves f the state action created a financiallyaaction fdriven state created the t investigationof the and prosecution t ed with it. Given that the state and federalit.Given state that with the ed concurrent path along of the the every point
s availed themselves of the benefits of a jointa benefits of of the availeds themselves osecution of both actions, any failure to to failureactions, any ofboth osecution terest in this case was concealed makes itallin makes wasthisconcealed terest case account arejointfailures entireaccount of the trials of both actions. Accordingly, the leadAccordingly,actions. the both trialsof (quoting Hare v. McGue 178 Cal. 740 McGue(quotingv.178 Hare ash infusion for the off-books account foroff-books of the infusionash seize the benefits of their “commonseizeoftheir benefits the ad investigatorWhitea had ad clearly argue that the motivationsbiases argue andthat the tion on the other, the on tion and chicanery at and inducefalse ment to furnish ment to a er conscienceless er o subvert subvert the o o declare sucho FRAUDCOURT ONTHE
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lead Moonlight lead Investigator White’s status asa rec WiFITERslush fund. sameThe can be saidabout the other. 65 the facts regarding Bauer and his whereabouts and a hisregardingfactsand whereabouts Bauer the of the Moonlight Fire. Moonlight of the a proveWestwoo that tending to suppressedevidence discoveredDefendantsth evidence filed, actionwas isneare California,which the Westwood, from miles Howell (a low-level position working at landings low-levelat of working Howell (a position c goingto on he out wasplanning to tell themthat
chainsaws on his days off. hischainsaws on off. days HowellBut no had record. hadexemplarysafety an chainsaws are not fire-safe, Bauer was forbidden frforbiddenfire-safe, was Bauer not chainsaws are andlackfire a components safety horsepower ofkey conducted logging operations in the weeks before loggingth before in operationsweeks conducted the ara forested area, Creekwas in Cooks the firewood alsoHe fire. testifie day ofthe narcotics the on inhefact, habit. In testified drug his expensive Thatthe government did notinvestigate Ryan Bauer DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Fire began on Labor Day, September 3, Day, September beganLabor Fire on TheMoonlight 10. Bauer woke up on the morning of September 3 and cal upandmorning 3 the ofSeptember on woke Bauer Bauer ran his own side businessselling cuttingand ranhis sideBauer own During his deposition, Bauer circled an area around area circledanBauer his During deposition, Bauer had a personal “hot-rodded” chainwhich saw, “hot-rodded” hadpersonalBauer a
Material Issue, Thereby Committing a Fraud on the C theFraud on a Committing Thereby MaterialIssue, Favorable a ThemEnabled to Obtain Pre Which Bribe, ofa Bauer’s FalseEdwin Report Witness Percipient CourtProsecutors the from Concealed Moonlight The 65 Thus, Defendants focusedDefendantsThus, much discoveryof their The Relevant Facts TheRelevant ipient ofipient benefitsvarious associated with Fire Cal investigators’failure toinvestigate Michael McNe , an, individual unabletopay wasanydamages, cons 122 d that his favorite place to scout for andfor scout cut placefavorite histo that d his deposition that he was high on four different different hefour washigh on deposition that his ut firewood that day. As a knot bumper day.for As knot firewood a that ut
om using his when working for Howell,for which his omworkingusing when logging sites), Bauer had Labor Day off. had Bauer Labor sites), logging ea located south of Westwood whereHowell Westwood south located ofea at the Moonlight Investigators ignored andignored Investigators Moonlight the at ctivities on the day of the fire. day ofthe the ctivities on e Moonlight Fire erupted. Fire erupted. Moonlight e such as spark arrestors. Because such thesearrestors. asspark control over Bauer’s use of dangerous ofdangerous Bauer’scontrol use over st town. Almost immediatelyAlmost this town. st after dpotentialcausewasalocal, Bauer, Ryan firewood cords, which helped support which support cords, firewoodhelped Cooks Creek as his chosen location to ashisCreek location to Cooks chosen is a modified machine with greater machinemodifiedgreater is with a led his parents Edwin andEdwin led Jennifer his parents 2007, deep in the woods about about ten in deep 2007,woods the FRAUDCOURT ONTHE Two DollarMillion ourt. ourt. and Defendants and trial Ruling on a a on Ruling trial efforts on uncovering on efforts ’sillegal il. il. istentwith
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Ms. Terry’s parents also confirmedalsodep their during Terry’sMs.parents “[t bat” knewthat “justoff right the inexplicably plumesawa Bauer of it foundodd that Terryaway. plumesmoke have the of suddenlyspotted to claimed a short while, and that he had not beenho he not while, theirhad short at anda that interviewed Ryan Bauer at the Cal Fire station inW Cal the station Fireat Bauerinterviewed Ryan Bauer, some ten miles from the fire’s miles fromsome the origin. ten Bauer, fro feet fewonlyhundredlived inWestwood aTerry hischaiwitha on clothing, dirtywith sawdust and with wasnot Bauer Shetestified that deposition. litigation,Def During the (“Terry”). Andrea Terry Thi forfire.” blamed the if being verify that I’m blurtingalibi – offeredunsolicited Bauer Ryanan sheriff that he was in the area where the firewasinwherehe the area was sheriffthe that inand hadchainsaw athe washighlyagitated Bauer itstarted, fire of the shortlyafter areafrom the b a ashein awaysped nearby(“like meadow aBauer corroin was cuttingarea, the wood they understood away several miles fromnearbymeadow a plumesmoke for for andsontheir concern expressing searching approximat inwoods, driving the deepparents alone hisThisisfor business. firewood the side scout
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Terry testified that Bauer,shortly he that arrive Terry after testified Bauer lied to the investigators duringliedinvestigatorsintervie his the to Bauer Four days later, on September 7, 2007, Cal2007, 7, later,Septemberdays emp Fire on Four The Moonlight Investigators intentionally failedto Investigators TheMoonlight At about the same time, a Lassenadeputy same sherabout County the At time, fire2:24 reportfirst of the the at Shortly after as he headed back toward the town of Westwood. ofWestwood. ashe the back town headedtoward 123 s statement wasfalse. statement s same area where the Moonlight Fire Moonlight began. the where samearea ]hat’s where we [Howell’s crew] are working.” are ]hat’swhere[Howell’screw] we burning to retrieve hisretrieve chainsaw.to burning me “all day.” “allme day.” her all day, but instead showed up mid-day, up showedinstead all but her day, nsaw in his pickup. At the time of the fire, At the intimehisof the nsawpickup. Shecan“I waswith my all day. out, girlfriend his safety. They claimed they spotted the spotted Theythey his claimed safety. endants tracked her down and took her her down and took tracked endants
ositions that Bauer wasatfor home their onlythat ositions borating what he had told them that morning. boratinghetoldthemwhatthat had estwood. During his interview with Cal Fire,During with interviewCalhis estwood. smoke she could hardly see, and that he andsee,hardly that couldshe smoke back of his pickup. Bauer deputy told the his backpickup. of ely one-half mile from where the firebegan,ely mile the from where one-half minterviewedFireCal fire where the station at out of hell,” according to the deputy) the ofhell,”to out according at the fire in its early stages from ten milesfrominfireits early ten stages the p.m.,foundprivatepatrolmana Bauer’s d at her home and in her presence, herin homeher at and d w about other issues as well, includingissues about aswell,other w and began searching for their son, whomfor son, their searching began and interview Ryan Bauer’s girlfriend, interviewgirlfriend, Bauer’sRyan loyees assisting with the investigation the assistingloyees with iff encountered and stopped Ryan and stopped iffencountered FRAUDCOURT ONTHE
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questions concerning his potential involvement in involvement hist potentialquestionsconcerning ever follow up with Howell’s bulldozer operators to operators bulldozer followwith Howell’s ever up made such statements, they were never asked how the how nevertheyasked were made statements, such i For illogical allegations. Bauerscrutinized the Bauers. eitherof the to madestatements suchany had such a conversation. hadconversation. asuch fal bywasalso Thisstatement Bauer conversation. isCuriously,th fire. Bauer having causedfor the th afterin hours severalnearbymeadow operators a Bauer toldtheminvestigators, tha the accordingto infsohe couldthat reveal certain recorder, their deputy he the away spedas told to storysheriffhe moun stashed on the hadanyhenot saying chainsaws inwhetherhe ar stashedchainsawa the askedabout firinwhere the area the tree behind hada stashed inf fire,red ana officer day on that, ofthe the
two days before even the Moonlight Investigators haInvestigators evenbeforedaysMoonlight the two ope bulldozerexplain Howell how the neveraskedto This state thisadmission. onlyallegedto witness replied Bauer, operator bulldozer the Accordingto heand stopped as that Edwin claimed pickup.Bauer for searching afterson, their they encounter woods heforfire. claimed Inthis regard, the operators attem also interview,Bauerhis EdwinDuring 2007. DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING At no time following the interview of either Ryan o interviewofeitherfollowingRyan no the time At fatinterviewedalso investigators Bauer’sRyan The asserted t Bauer his deposition, Eventually,during During his September 7th interview,suddenlyBauer 7th his During September ire engine helped to retrieve a chain saw that Baue retrievesawthat helpedchain to a ire engine 124 that as he and his wife were driving out asheof the driving and were out his wife that ormation in confidence. At that point inpoint At time, inthat confidence. ormation nstance, assuming the bulldozer operators had operators assumingbulldozer the nstance, e only person to have this alleged overheard to only e person e began. Later, duringwhen Later, his began. deposition, e ment by Edwin Bauer was false,wasBauer was byand ment Bauer Edwin from the fire. from the t he had overheard two ofHowell’sbulldozer hetwo had t overheard The Moonlight Investigators apparently neverInvestigators TheMoonlight ed one of the dozer operators drivingsilver a operators onedozer ed of the
he start of the fire. ofhe the start that a “bulldozer hit a rock.” Mr. Bauer isBauerMr. rock.”“bulldozerhit aa the that se, as both bulldozer operators deniedhaving bulldozer asboth operators se, e fire had been reported, blaming hadanother reported, fireonebeen e inquire about whether either of them hadwhethereitherofthem inquire about ea of the fire, Bauer contradictedhimself,fire,Bauer of the ea d processed the scene of the alleged origin. allegedscene of the origin. the processed d pted to blame one of Howell’s bulldozer blamebulldozer ofHowell’s one to pted ked the operator how the fire started. fire how the operator started. the ked rator couldconclusionhave asuch reached rator tainside that day. This also contradicted Thiscontradicted the day. also tainside that y could have known that the fire started asa fire y the started knownthat have could he Fifth Amendment in Amendment responseto he Fifth r Edwin Bauer did the investigators rEdwindid the Bauer her, Edwin Bauer, on September 7, 7, Septemberher, on EdwinBauer, insisted that the investigators offturn that the insisted FRAUDCOURT ONTHE r r
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proximity to the fire, less than a half-mile fromlesst half-mileafire, the than proximity to locati illustratesThe image below the encounter. mile) firehalf the the a (onlyorigin closeto of mil(somewoods into the justdeep ten how describe patrolmana while hissearchin and wifeencountered inThesummary the falseof many statements. other falsealibaltogetherhis unsolicited omitted Bauer But curious operators. bulldozer byadmissions the Eac both Ryanfor and Bauer. Bauer Edwin summaries when fire bulldoz the abelieving that ever started implausibledenysta madesuchany having operators facts,allforegoingwhich were of Armedwith the fire immediately in its infancy, just asjust wouldinfancy,one its immediatelyin fire i ignition,nevertheyaskedwhy were witnessed the unless h strikingtheybulldozerofa rock result a 66 flamessometime 2:00around p.m. The JointThe Report claims that firethe ignited 1 at DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Investigators intentionally Investigators prepared TheMoonlight 2:15p.m.,but remainedinan“incipient” stateunt Edwin Bauer and his wife were at that timeat of the that were his and wife Bauer Edwin 125 he origin, some ten miles fromhemiles civilization. ten origin, some ad witnessed the ignition.theyAssuming witnessed the ad er hit a rock. hita er extinguishcigarette. a i, and contains no discussion or analysis hisdiscussionand i,or no of contains on where the Bauers were spotted in spotted Bauers were close the where on
ly, the summary of the interviewofRyanly,summary the the of t was that they were unable to suppress the unablethey to were wasthat t terview with Edwin Bauer confirms that he that confirmsBauerwith Edwin terview es from the town of Westwood) and how ofWestwood) town from the es g for their son, but the summary fails to summary failsbut for the to son, their g tements to eitherand Bauers, denyof the to tements h interviewallegedincluded the hsummary known to Defendants the before knownto misleading witness interviewmisleading witness FRAUD COURTONTHE 66 Howell’sbulldozer ilburstit into
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careless smoking. carelesssmoking. viaarson unintentionally,whether intentionallyor moreBa argue or of the that one alwaysintendedto limitedneveralternatheirDefendants thisregard, demonstrat among to facts, others, presentingthese approa Defendantsfederal of the settlement action,
substantially outweighed by the riskprej byofunfair substantiallythe outweighed mayeve evidence, exclude (“Acourt ofEvidence 403 inengagingaftercarefulb a argument exclude such mayshowBauers the tendingofevidenceto “shred” misre Prosecutors Moonlight motion, the makingthis muchkeep rela evidenceto of the effort calculated undue delay, and wasting time.”). time.”). unduewasting delay,and that they were entitled to present them to the jury present the themto to that entitled they were with the presented Court Defendants the Bauers, the representations that there was not a “shred”wasnot there ofevi that representations and,in 403 ofunderEvidence FederalevidenceRule fire. of alternativethe potentialcausesconsider settle the federal action. federal the settleaction. w fire” that the criticalruling waselseastarted “elicitmay Defendants to evidencenot that ordered its rulings potential and reiterated other causes, Court motiong the hearing, and Pretrial Conference Asfire. for maybeen the haveresponsibleBauers DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING On May 31, 2012, the Moonlight Prosecutors filed vaMoonlight Prosecutors the 2012, On31, May Defendants opposed the motion as being contrary to motionasbeingto contrary the opposed Defendants Having received the parties’ briefing, the Court en Court the parties’briefing, the Havingreceived The Court’s ruling prohibiting Defendants from“eli Defendants ruling prohibiting TheCourt’s 126 as a substantial factor in forcing Defendants to inforcing to Defendants factor substantial asa in its Final Pretrial Order. Specifically, FinalCou in its the Order. Pretrial
and that it was within the province of the juryitwaswithin province of the to the that and tive theory regarding the Bauers to arson,and Bauersto the regardingtheory tive dence tending to show that one or moreshow or of the that one tendingto dence udice, confusing the issues, misleading the jury,misleadingissues, the confusing the udice, , with a chainsaw, spilled gasoline, or through or through spilled withgasoline, chainsaw, , a ting to the Bauers away from the jury.InfromBauersaway the the tingto
ched the federal trial with the intent offederal the chedwith trial the a consequence, during the June 26, 2012, Final 2012, June the duringconsequence,26, a e an alternative potential cause of the fire. Infire. ane alternative of the potential cause argue that someone else started the fire.” the someone argue that else started alancing of the evidence under FederalRule under evidence of the alancing uers may have caused the firemay haveeither caused the uers ranted the United States’ motionregarding United States’ ranted the facts known to andthem time, argued knownto factsthat at doing so, relied upon the United reliedStates’ the upon so, doing have caused the fire, and asked the court court to the fire,and the have asked caused presented to the Court that there was not a wasnot Court that there the to presented n if relevant, whose probative value isprobativewhose value if nrelevant, gaged inof the carefulbalancing agaged citing evidence to argue that someoneargue that to evidence citing law and evidence. With respect to Withto lawrespect and evidence. rious motions in limine inmotionsinliminea rious FRAUDCOURT ONTHE rt rt
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Brand or Sierra Pacific. Brand or millioninand that amount of$2 Ryan the sontheir th Ryanhad stated parents tellinghimthat Bauer’s manwoma individuals, a thesetwo aand that stated by f statedhebeen hadthat contacted two Chittock claim madeto Bauershadthat of the apparently one heChittock hadsaid “abso Mr. that Bauer’sstory. trial. Edwin Bauer said he filed a police report, filedreport, he saidpolice Bauera Edwintrial. personallyt prosecutors a two delivered when those R Prosecutors Taylor and lead hadMoonlight hetold heM had the that if started would Ryanbribestate DowneySierr or Brand himthat haddeposition, told hadlawyer heret the EugeneChittock, claimedthat s immediatelyWhenPacific’scounsel Sierra bribe. ma Bauer call,Edwin Duringtelephone action.that fromharddrivehis had Defendants copieddocuments Edwinosten Bauer Bauer. Edwin telephonefrom call cou state Fire’sCalled termination to that the of Chittock. Chittock. contradicted their misrepresentation to the Court Court t the misrepresentationto contradicted their careful Court’s the to which relevant wasdirectly i Bauers’ demonstrate the potential to whichtended part of the illegalscheme on anregarding evidence disc failedintentionallyhadto and of,possession motionfiled Prosecutors their Moonlight the before
DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The next day, Sierra Pacific’s counsel contacted Mr Pacific’scontacted counselday,Sierra The next Specifically, in November of 2013, whileDefendants in of2013, Specifically, November Long after the settlement and dismissal of the fede the and settlement dismissalof the after Long 127 and that the FBI had interviewedhim FBI hadMr. the and and that rt action, counsel for Sierra Pacific received a rtPacificreceived Sierra forcounselaction, lose to the Court and Defendants, criticalCourt and the Defendants, to lose hat there was not a “shred”wasnot hat there ofevidence. balancing under Rule 403, and whichdirectly 403, Rule balancing under at Mr. Chittock conveyed the offer of a bribe to ChittockMr.conveyed offer bribeto ofa the at oonlight Fire. Edwin Bauer also revealed EdwinFire.also Bauerthat oonlight lutely not” conveyed any bribe offer, but that conveyedbut bribethat offer, lutelynot” any
Edwin Bauer and/or his Bauer, RyanEdwinson and/or Bauer ederal investigators or lawyers. Mr. Chittocklawyers. Mr. or investigators ederal the money would be coming frommoneybeDowney coming would the nvolvement in the ignition of the fire,ignitioninand of the the nvolvement s in limine in the federal action, they were intheyfederalin were inaction, limine the s rial subpoena to him in advance of the federalhim rialinof the advanceto subpoena his represent ainedRyan’s during Ryan son to moreinformation,Bauer Edwin ought n, came to his in springof2012, to office the camen, de a surprise comment about a $2 million $2 a about surprise acomment de federal employees working on this case. Mr. Mr. this case.on workingfederal employees a Pacific had offered his son a $2 millionPacifichis $2 a a son had offered ichard Elias that hisbeenichardhad sonbribed Elias that sibly called to requestreturn the of siblyto called pursuant to a court order issued in the state a issued court inorder state to the pursuant ral action, Defendants learned that learnedthat ralDefendants action, . Chittock to ask him about Mr. himask Chittock . to about were working on various motionsworkingvarious were on FRAUDCOURT ONTHE
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U.S.C. § 1001 by making a false report to a federala to 1001byfalse § making a report U.S.C. Edinformed Defendantsbelieve and that are result, Bauer’s claimconcluded that Prosecutors Moonlight ever interviewed or investigated about the alleged about investigatedthe interviewedeveror single call, the federal employees left. federal the singleemployees call, beganfederal the search. beforetheiragents event Chittockdescribe Mr. policeassaultingaofficer. facidetention adult withinBauer Ryan Susanville’s wasin who proc the Pacific’sWarne, counsel Sierra allfind of record wasa that employeeswould they an hissearchallowrecords phone to agreed them to
investigation revealed the falsity charges. of the the investigation revealed the existence of a federal investigation into the m federalinto the investigationexistenceofa the Prosecutor TheMoonlight claim.Bauer’s supporting Chittockdenied an Mr. allegation fact that the the millionhisBauRyan $2 bribeto son a communicated madef Edwin fact had the that Bauer the Defendants started the fire. Bauer’s falseBauer’sfire.numerclaim raised the started deflect attentiona to partyeffort aninnocent and part ofth willingness the athings, on among other isfalse the re not ittrue, Since federal action. itwouldhave Obviously,be true, it been had son. Sierr claimsgovernment’s strengthen the against to p itwouldhaveto astended government’s the case, DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING The Moonlight Prosecutors knowingly f willfullyProsecutors and The Moonlight becausen informedbelieve and that, are Defendants Mr. Chittock told the investigators charge that the Chittock told the Mr. Revealing such information to Defendants or to Defendants the informationor suchto Revealing port of such a crime is also serious,demonstratingis also crimeaof suchport 128 way from someone who mayhave actuallyfromwho way someone ous questions, including whether the Bauershadincluding the whether questions, ous atter concerning the Bauers, even after the after concerningeven Bauers, the atter d this single call as a predictable and normaland callpredictable single asathis d d that they were unable to evidence obtain unableanythey to were that d After finding nothing beyond a record of that ofthat beyondrecord findinga After nothing e Bauers to manufacture evidence harmful to an harmfulevidencemanufactureto Bauersto e en more serious than the charges set forth inforth the set charges thanmoreserious the en bribe, the federal investigators and federalinvestigators the the bribe,
agent, which is a felony.whichis agent, a a single phone call he had received fromsinglehad a hephone received call a Pacific while diverting attention fromhisPacificattention adiverting while win Bauer violated, at a bareminimum,a at 18 violated, winBauer lity, as Bauer was there serving a term for servingterma lity, wasthere asBauer rove that Edwin Bauer madefalse aEdwin assertion rove that Bauer d files. Mr. Chittock informed the federalinformed Chittock Mr. files. the d ess of scheduling the continued deposition ofcontinued deposition the essofscheduling alse claim that Mr. Chittockhad Mr. alseclaimthat was false, which of course itwas.As a false, whichofcourse was s knowingly and willfully failed to reveal sfailedto knowingly willfully and er, nor did the Moonlight Prosecutors Prosecutors reveal didnor Moonlight the er, was “absolutely false,” and heandreadily false,” was“absolutely Court would have been damaging to wouldhave damagingCourt to been either they nor Sierra Pacificnor they were either ailed to reveal to the Court and revealCourt the to to ailed FRAUDCOURT ONTHE , ,
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the fire by striking a rock with his dozer. with his rock dozer. firea the bystriking op bulldozer bystatement ofHowell’s different one androck,”hit whena“a Ry bulldozer toldhimthat in told wheninBauer Edwin engagedsimilarconduct 67 government’sinvestigatory filesits concerning inv concerningMoonlightthe Fire investigation, andal instances of the government purposefully withholdin government instances of the a and heard Defendants Court the case,government’s insteadBut Fire.ofreceiving this Moonlight the fromdeflectfocused th to attention failed attempt t insteadeffect, tendinghas opposite actually the fal in to madeeffort havean been only Pacificcan settlement from settlement Defendants. bydefraud Court Court the abusingthe stratagem to manner in Court were this the mislead purposefully fire.potential of the other causes trial regarding have foreclosedarg inlimine, not and motion would would Court Bauers, the the informationconcerning yearmorethanafter a in of2013, comment November to the Court. Court. to the processrightsdue violated the that actionstheir undertakenintention were Prosecutors Moonlight the ign namely,federalFire – who Moonlight action the Defendants hadearlier casein the requested, unde DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Edwin Bauer’s false allegation of a multi-milliond offalsea Bauer’s Edwinallegation Defendants are informed and believe that had the Cohadinformed the believeand that are Defendants The Bauer evidence concealed by the Moonlight Prose byMoonlight concealedevidence the The Bauer Only through a chance telephone call during which E callwhich chancetelephone during Onlya through estigation ofallegedthe bribe havebeen ever prod lcommunications with Bauers.the To date, of none r Rule 34, r productionof interview all a statements 12 The Moonlight Prosecutors’ successful efforts to to successfulProsecutors’ efforts The Moonlight of Defendants, and violated their duty of candor dutytheirofcandor and violated ofDefendants, o incriminate Mr. Bauer andBauer hisas aRyan o son Mr. incriminate 9 information, which is harmful to the harmfulinformation,iswhich to inhadrole theystarting whatever and emselves sely inculpate Sierra Pacific, and thus it Pacific,thus Sierra and inculpate sely
an Bauer claimed that he too hadhea overheard too that claimed Bauer an erators supposedly admitting to having started supposedlyhavingstarted to erators admitting also an important component of their broader component broader oftheirimportant analso ’s processes on numerous fronts to coerce acoerce fronts ’s processesnumerous to on ument or evidenceduring fromDefendants ument or ited the fire. All of the foregoingbyfire.Allactions the ited the of g harmfulevidence. g not have granted the Moonlight Prosecutors’ have Moonlight not the granted ally and with malice, withmalice,actual with knowledge allyand nd received nothing in just one of manyinjust ofone nothingnd received vestigators that a manain had silver pickup a that vestigators the conclusion of the federal action, didfederal conclusionaction, the of the ollar bribe by Downey Brand or Sierraor Brand bribebyollarDowney urt been apprised of all the relevant beenurtrelevant ofall the apprised dwin Bauer madecuffdwin an off-the- Bauer cutors goes to the central issue inissuegoes cutors central to the FRAUDCOURT ONTHE 67
uced. nd nd documents the
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Court is sufficient to establish fraud on the Courtestablish the on isfraud to sufficient Court Ci NinthAlthoughundercontrolling adjudication.” impartialitsperformin mannerusual ta cannot the by of officers in “perpetrated andscheme engageda imprope scheme”“designedto or plan unconscionable important component of the Court’s assessment. Court’sassessment. component of the important ofcritical Court pieces the intentionally deprived ofEvi FederalRule under evidencebalancing of the Prosecutor Moonlight In the regard, judgment. this constitutes fraud upon the Court and warrants relieand warrants Court fraud the upon constitutes were intentionally evidence concealing Prosecutors potentialregarding other caus Defendants’argument tainted the Moonlight Firewhile prejud Moonlight prosecution tainted the judicialhinderth the process, to criminal attempt anotherreason for fraud a Court on the constitutes Court. Court. learn aspectparticular ofthisbegin Defendantsto Byfrom the intentionallypublic”). concealing the agains[is].. justice wrong a. of administration f existswherefraud the court on the (statingthat insucceeded Prosecutors their Moonlight the 1131, judicial process”); see also Chambers, 501 U.S. at U.S. 501 Chambers, seejudicialalso process”); settle in action. forcing to the Defendants factor favorableae procured and misconduct theirthrough DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING By engaging in the foregoing conduct, the Moonlight the foregoinginconduct, By the engaging Standing alone, the Moonlight Prosecutors’ successf Prosecutors’ Moonlight alone, the Standing The failure by the federal prosecutors to comply federal failureto wi byThe the prosecutors Analysis Analysis 130 t the institutions set up to protect and safeguardprotect institutions up to set the t raudulent conduct “harm[ed] the integrity“harm[ed] the conduct of the raudulent under Rule 60(d)(3), Pumphrey,at F.3d under 62 60(d)(3), Rule of evidence that necessarilybeenhave an that of would evidence e subsequent suppression of which further further suppressionofwhich subsequent e of the Moonlight Prosecutors’ fraudProsecutors’ the on Moonlight of the : this conduct was a knowingwasa potentially and conduct : this Court information concerning the Bauers’ information the Court concerning 44 (stating that “tampering the (stating with 44 that sk of adjudging cases that are present forare present that ofadjudgingcasessk f under Rule 60(d)(3), setting aside the 60(d)(3), fRule under
s persuaded the Court to engage inengage Court to careful the a persuaded s icing Defendants. Stonehill, 660 F.3d at 445at F.3d Stonehill,icing 660 Defendants. rcuit authority mere “attempts” to defraud mereto “attempts” the authority rcuit the court so that the judicialso machinerythat court the the material to the Court’s ruling,materialseparately Court’s the to attempt by actually misleading the Court, and Court, attemptmisleadingby the actually dence 403, knowing that theyhad knowingthat 403, dence rroneous legal ruling that was a substantialwasa legal rroneous that ruling es of the fire, made fire,Moonlight while the esof the rly influence the court in its decisions,” inits rly decisions,” court influence the th these obligations and rules theseobligations th ul motion inlimineprecluding motion ul Prosecutors engaged inengaged “anProsecutors an FRAUDCOURT ONTHE
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Edwin Bauer first reported the alleged bribe to reportedthe firstalleged the bribeto Bauer Edwin isquestion th no because there moreegregious much underFederalinterests balancing RuCourt’s the of representatio Defendants)by making that Ruleto 26 dutytheirofca violated theyDemjanjuk,obviously injustMoreover, as Pumphrey, misrepresentation. there Court representationthat to the Prosecutors’ the discoveryeven after persists update responses discoveryRuleduring 26 under supplement responses Defendan favorablemaybe to disclosethat evidence Moonligh Bauers, the the claimagainst asupporting i incriticalofmotiontheir context Court the the millionitselfbribe,was which $2 falsea claimof another itselfis yet false no evidence”presented “the Uni Report to that Status thisJoint Court the violated their duty of candor Court, to the theyofcandor kn violated duty their bribe, regardingt an alleged federalinvestigators the level of a fraud on the court. See Stonehill,See fraud court. on level the athe of when misconduct togethe that, takenof various acts analysis most certainly would not end there. Fraudend certainlythere. not most would analysis const sequencewasto sufficient discrete ofevents underRulefraud 60(d)(3). court on the constitute each foundo haveVarious courts that Prosecutors. IV. THE MOONLIGHT PROSECUTORS’ MULTIPLE PROSECUTORS’ INSTANCES THE MOONLIGHT IV. DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Moreover, by concealing the evidence that BauEdwinbythat evidence the Moreover, concealing In view of these circumstances, the Moonlight Prose Moonlight the circumstances, Inview of these Defendants’ brief describes intypes briefdetail certain Defendants’ describes COLLECTIVELY CONSTITUTE FRAUD ON THE COURT. COURT. THE ON FRAUD CONSTITUTE COLLECTIVELY 131 660 F.3d at 446-52 (analyzing seven separate (analyzing446-52 at F.3dseven separate 660 n limine that there was not a “shred”a wasnot limine there ofevidencen that misrepresentation. Certainly Moonlight misrepresentation. the he Moonlight Prosecutors not Prosecutors he onlyknowinglyMoonlight ted States made no misrepresentationsmadeStates no and ted a felony, while simultaneously representing to to felony, awhilerepresenting simultaneously owingly violated their duties under Brady to Bradydutiestheirto under violated owingly was not a “shred” wasaofevidence wasnot But even if the Court were to conclude that noconcludewere even that ifto Court But the lead Moonlight Prosecutors personally. personally. Prosecutors lead Moonlight close of formal discovery under Rule 26. 26. formalRule closeofunder discovery itute on its own a fraud on the Court, fraud the itsa Court, ituteon own the on
le of Evidence 403. Here, facts that the are 403. le ofEvidence on the court may also be foundmaybe by court assessing also the on f these types of misconduct can independentlycanmisconductf of thesetypes ndor to the Court Court (and obligationstheir under the to ndor r over the entire course of litigation, rise to litigation,entirerise the to of course r over Schaffer, Levander, Hazel-Atlas,and Levander, Schaffer, t Prosecutors clearly defrauded the Court. Id. clearly Prosecutors Court. the defrauded t n while concealing contrary facts critical to factscriticaln whilecontrary to concealing ts, and they violated their ongoing duty to to violated andongoingtheirduty they ts, at this fraud was intentional inasmuchintentionalfraudaswasat this the pendency of the case. That duty That case. to the pendency the of of misconduct bymisconduct Moonlight the of cutors’ statement in ofportionstatement their cutors’ er had made false statements to to false madestatements had er FRAUDCOURT ONTHE OF MISCONDUCT MISCONDUCT OF
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expert notes and expert work product; theadvocated work and notes expert expert wouldUnited States; data the harmful beto correct a corre produce not anto expert instructed origin; fireeffort inan newdiagramcreation ofspreada inl Court false the a declarationto and presented adv Prosecutors: Moonlight the frauddeception, and demanding answers, the federal stewards of justice federalof the stewards demandinganswers, WhenInvest Moonlight Defendants. the case against liedwitnessesrepeate hands on star astheirtheir r advancedfraudulent Prosecutors the Moonlight the filed,lawsuitand the was certainly Shortly after fraa intoextendedrealm the Court ofthis conduct casewell the before started long-running deception and substan Court bystory” heard the “changed this des – all byperverted acts a interconnected driven fromcase.” the analyzing [court] by the preventing conduc that alternatively,court,”when or district initsconsidered totalitconduct, whenalleged the AsNinth Circuitrecogniz the court). fraud the on 1133undertaken(listingby ge seriesof steps a at fr to amounted whole” asa“allegations whether the answe fraudandacourt, after upon the constituted inisolationto malfeasancelitigation instances of
such as was the case in Hazel-Atlas, the prosecutor the in caseaswassuch the Hazel-Atlas, beyondjudicialIndeed,c our system. integrity of far but threshol evidentiaryexceeds anystandards, DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Unfortunately, the fraudulent conduct does notdoesend conduct fraudulent the Unfortunately, Considered as a whole, the Moonlight Prosecutors’ c Prosecutors’ Moonlight the whole,asa Considered 132 after Shelledy removed Wright from Shelledyaction, Wright the removed after dly under oath regarding the centerpiece oftheirregardingcenterpiecedly oath the under determine whether each of those instances determinethose each whether of aw and motion practice; participated in motionand the practice; participated aw t “substantially undermine[s] the judicial the t “substantially process undermine[s] neral counsel which, taken together, constituted taken together, neralwhich, counsel y, “changes the story . . . presented to the “changes. . storyy, . the cted when the report theyusing discovered to obfuscate the truth about the location about the of the truth the to obfuscate ommitting a single act of fraud on the court, fraud the on of act single a ommitting ed in Stonehill, a fraud on the court occurs court occurs infraud the on Stonehill,ed a ire to win at anydramaticallywin – irethat at cost to ud that began before the litigation was filed.beganlitigation the beforewas ud that ring that inquiry in the negative, analyzing inquirynegative, inthat ring the d associated with showing grave damage to the to withdamage associated grave d showing
s here conceived of and engaged in seriesof engageda here sofand conceived failed to produce defenseproduce to the failedexculpatory to 660 F.3d at 452, 454.452, at 660 F.3d was filed, as the Moonlight Prosecutors’ Moonlightfiled,Prosecutors’ as the was told the investigators that it was a non-issue. non-issue.it wasa investigators that told the aud on the court); see also Pumphrey, 62 F.3d see Pumphrey,62 alsocourt); the aud on tially undermined the judicial process. judicialThis process. the tiallyundermined existence of three other fraudulent firefraudulent other ofthree existence anced a false “confession” byfalseprepared Bush;a anced eport into this Court’s purview and then sat sat purviewandeportinto this then Court’s igators’ deception was exposed, insteadof deceptionigators’was exposed, there. Among the numerous acts acts ofAmong numerous the there. onduct not applicablenot only the meets onduct FRAUDCOURT ONTHE
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description. anbroad tap mistake, unintentional the incident to cou intentionally. government While the misconduct doubt bethat can no for truth, there the disregard b intentionalparticipation“knowing and showing of whether certain affirmative defenses barred reliefbarred defenses whether certainaffirmative legally were fundamentally,Defendants morewhether orcontended governmentwhere the fire the started issueeveryimportant to andwaspervasive directed hadin inherent ofthesedocuments eachcorruption misrepitsand all Report, Joint of declaration the credibilitydestroyedkey the ofathat witnesses; financialmo White’sandbias of evidence regarding admissions;madefor r and interrogatories requests lie witnessesun to various Rock Redallowed Tower; regardinggovernment the egr harmful informationto help into De blamepin on the investigations order 68
numerous, relate to too many critical issues, andmany a relate issues, to too criticalnumerous, litigation. litigation. improperlyinfluen scheme or to plan unconscionable inknowingly engagedeach willfullyProsecutors and isincompetence. There of onlyon been product the outclearly.” a thread or threads ina tapestryhuge looking a or Court’spainstaking review entireconsidered the re tosomepoint individual orpointpoints, and argue order andorder in addressingthe issuesset as forth, it JudgeNichols also viewedfraud the awhole. as I DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Moreover, although finding fraud upon the court court mosfraud the althoughfinding upon Moreover, Indeed, the Moonlight Prosecutors engaged in what c inengaged Prosecutors what Moonlight the Indeed, 68 The transgressions and instancesofprosecutorial The transgressionsand is alwayspossibleaparty that sees that itselfa tscuff a misplacedstroke or inamural. The bigp lengthatthat the Court’sdetermination wrong. is cord ofcord the proceedings,the viewsCourt exerc this n his twenty-six n his Order,page His found, Honor “In m 133 resentations and material the after and omissions resentations and presented to the Court through a false aCourt through the to presented and the Moonlight Prosecutors engaged inengaged Prosecutors thethis Moonlight by the United States. UnitedbyStates. the re so pervasive throughout the litigation to have litigation pervasive the to so throughout re estry of misconduct insuchdefiesthis misconduct case estryof fendants; attempted to conceal up cover to and fendants; attempted
eckless misrepresentations to the Court Court the to misrepresentations eckless in the manner the government contended, and contended, government manner the in the in the case, includingin aswhether issues case, such the been exposed through discovery. Thisfraud discovery.through been exposed e inescapable conclusion: the Moonlight Moonlight the inescapableconclusion: e y counsel,” and can be satisfied bybe canreckless satisfiedandya counsel,” tivation; failed to disclosebribe failedalleged an to tivation; of the acts described herein as part hereinpart ofdescribedan as acts of the egious conduct at the Red Rock Lookout Rock Redat the conduct egious der oath; falsified verified responses to responsesfalsifiedverifiedto oath; der ce the Court andoutcome of the affect the Court the ce ld perhaps try to chalk up a single, isolated chalk single,lda up to try perhaps responsible for the Moonlight Fire or Fire forMoonlight or the responsible an only be described as a pattern and pattern be anasa describedonly t certainly does not requirecertainlynot a does t misconduct here are simply too simplyhere are misconduct too FRAUDCOURT ONTHE s aggrieved might icturestillstands Because this isepulling as at aking this
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inconcealing facts, all-an critical to testimony, Instead, wh they omitted). did citationsmarks and winfair win,to just jobto but isn’t prosecutor’s United States. the harmful to Prosec Moonlight litigation the Fire that Moonlight aftercan coincidencebeIt no that UnitedStates. succumb inrefused,to fireto cases, other Wright Shelledy hisfor work, receivingDespite accolades fo and Overby, two Wright beenhas bywhat revealed willful, were theseacts additional that conclusion Whi litigation. infraudMoonlight practiceof the confirms thatfederal prosecutors are bu not in the 69 expense o pursued the goaltheir – at UnitedStates natur systemjustice our highoflevel the oftrust through avarietythrough ofSupreme decisions,Court telli States,and telling truththe about corruption isa disloyaltosupervisor, Wrighthis does notowed a Moreover,while Wright’sown discussion of trutthe contextthe of is litigationalways tot beneficial decidedlynot fundamentallyflawedsomething mindset, thatanimat when when heleftthem indisgust, “we ifjustice win wi Moonlight Prosecutors was not a mere mistake, but i mere mistake,abut wasnot Prosecutors Moonlight Hisjustice.also experience pursuit of toward the within work hisran at inability the exasperated to lawy inasengagea unethical conduct to “pressured but that justice shall be done.” Berger, 295 U.S. 295 Berger, justice be done.” but that shall in “interest sovereigntywhose ofa representatives not forgot Prosecutors onlyobligat their Moonlight Fire litigation. See United States v. Maloney,Unitedv.States See litigation. 755 Fire Of course,describing information which might help DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING In sum, the Moonlight Prosecutors did not staydid not “wel Prosecutors Moonlight Insum, the
harmfultothe United States, regardlessof whether 69 But Wright was not the only government prosecutor wasnot Wrightthe But onlygovernment heUnited States, even whendoing so is helpful to n actof n loyalty client. towards Indeed,his inli sinessofbutofwinning furtheringjustice, disclo ns.” ns.”If information truthful, is disclosing it to ng ng truththe asaprosecutor defines loyalty. utysupervisor.ofto loyaltyhis He owesto hi it h regarding what h regarding happenedto mighthimbe some on l ed this casethroughout.As Overby certaintold pr the defensethe “harmful as Unitedtothe States,” rev 134 out effort to win. By engaging in this conduct, th inwin. Byconduct, effort to this engaging out ly, staying well within the rules.”) (quotation rules.”) stayingwithin the ly, well ally places in them as representatives of the ally inasrepresentatives them places at 88. The Moonlight Prosecutors –shielded byTheMoonlightatProsecutors 88. the government removed Wright fromremovedWright the thegovernment corroborating evidence is abundant, including is abundant, corroboratingevidence serves to confirm that the conduct of the confirmconduct serves the that to steercase Prosecutors the to Moonlight of the ks le the facts of malfeasance certainly support the malfeasancesupport facts the ofcertainlyle pressure to withhold information harmful to the informationpressurewithholdharmfulto to F.3d 1044, 1046 (9th Cir. 2014) (“The2014)1046Cir.(9th 1044, F.3d a . . . prosecution is not that it shallprosecution isthat cas a. not . . a win f justice. Instead of ofserving as stewards fjustice. atever necessary, from allowing perjurious fromnecessary, allowing atever
ions as attorneys, but alsoions asbut obligationtheir asattorneys, utors did, in fact, withhold informationwithholddid, infact, utors removed Wright fromFire Moonlight after removedWright the er.” Overby left the case in caseOverby the leftdisgust, er.” ntentionally effectuated. effectuated. ntentionally rmer prosecutors assigned to the case. assignedcase. the to prosecutors rmer it aidsDefendants. Since Supreme the Court l within the rules” in Moonlight the rules” l within the FRAUDCOURT ONTHE ghtof iswhattaught Defendants is most thedefense. sing sing the intruth s clients the United whofelt eals a osecutors evel e, e, e
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Supreme Court’s direction in Hazel-Atlas and movinginanddirection Court’s SupremeHazel-Atlas systemjustice,the our ofhas to damagewhich done situat Inthose entities. private disputesbetween by employed withprivatelyconduct associated facts findingwarrantsa mannerinthat judicialsystema fraud on the court involving government actors, Sha actors, involving government court fraud the on colossalfraudultimatelyatw on way a that worked AttorneysAttorn Deputy UnitedandStates Assistant condu officers lawwho enforcement justice by the – byindividuals itwascarried andabout pervasive, judicialNo integrity system. on attack the ofour Fire legal TheMoonlight our integritysystem. of deniallessrelief.” complete a nothingof than for at F.3ditself.” Stonehill, 660 adversary process fundamentso ] nondisclosure [ “involved perjury or funjudicialfromprevent the to process government asa clewhole, inparts isolatedviewedor whether ultwhich approach ancharged with were preventing, dishonorbyofficetheir a to brought justice,they levelsensitivity heighteneda of have acknowledged earlier settlement. settlement. earlier restorejustic this Court that respectfully request itis legalintegrity system, protect the ofour to cases. wasIfcaseever state dese a there related Judprotectjustice.sworn to are by who out those DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING Those courts that have assessed whether litigationhave whether courts that assessed Those Thus, the pervasive and coordinated misconductof t pervasivecoordinated the and Thus, V. CONCLUSION V. the Moonlight Fire matter. Defendants matter. Fire Moonlight the 135 e by terminating this action and setting aside itsaside settingaction thisandby e terminating rving of the full measure of this Court’s powers fullCourt’s ofthis measure of the rving ions, where the conduct amounts to a schemeamounts conduct ions,to the where 445. “The total effect of all this fraud . . . cal . . fraud445. “The . effect of all this total iding and abetting the very type of conduct theyofconduct very abetting the idingand type Hazel-Atlas, 322 U.S. at250. U.S. 322 Hazel-Atlas, t only was the misconduct shockinglymisconduct t egregious only the was sworn to protect the public and to preserveprotect public the to to and sworn ge Nichols did as well with respect to the to respect asNicholswell gewith did matter, however, presents a far moresignificantpresents however, far a matter, by “an the effort arly convincinglyreflects and of fraud on the court arefrequently court fraud the reviewing on of
o courts. Those courts that have courts courts. that Those addressed o ctioning ‘in the usual manner,’” and that that manner,’”and ‘in usual the ctioning al that itundermined workingsof the the al that and concern when such conduct is carried conduct suchconcernwhen and courts are not shy about following notshy are the courts about ffer, Demjanjuk, and Dixon, for instance,for Demjanjuk,ffer,Dixon, and officers of the court who are dealingwho are with court of the officers cted aby shamcertainand cted investigation eys General who co-prosecuted this action in co-prosecuted this action who Generaleys imately led to a fraud upon two courts. fraud aimately upon two ledto forcefully to protect and restore the protect forcefully to conduct has harmed the integrityhas harmed the of the conduct he Moonlight Fire Prosecutors, Firehe Moonlight Prosecutors, FRAUDCOURT ONTHE ls
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2015 January DATED: 15, January 2015 DATED: 15, January 2015 DATED: 15, January2015 DATED: 15, DEFENDANTS’REVISEDSUPPLEMENTAL BRIEFING REGARDING
By: By: LLP &GIULIANI BRACEWELL By: LLP DOWNEYBRAND By: &LINKERT JAIME SEARS MATHENY By: &BONOTTO, RUSHFORD 136 HATCH, as Trustee of the Hatch 1987 Revocable 1987 Hatch of the asTrustee HATCH, Attorneys for Defendant, EUNICE E. HOWELL, E. EUNICE Defendant, for Attorneys /s/ Richard Linkert as auth’d onauth’d1/15/15)as Linkert Richard /s/ /s/ Phillip Bonotto Phillip /s/ ASSOCIATES, INC. AND ANN INC. MCKEEVER ASSOCIATES, Attorneys For Defendants W.M. BEATY &BEATYW.M. Defendants AttorneysFor
INDIVIDUALLY and d/b/a HOWELL’S HOWELL’S and INDIVIDUALLY d/b/a Attorney for Defendant/Cross-Defendant Defendant/Cross-Defendant for Attorney Defendant/Cross-Defendant for Attorney SIERRA PACIFIC INDUSTRIESPACIFICSIERRA INDUSTRIESPACIFICSIERRA RICHARD W.BECKLER RICHARD /s/ Richard W.Beckler /s/Richard Warne R. /s/William FOREST HARVESTING HARVESTING FOREST WILLIAM R. WARNE WARNE WILLIAMR. RICHARD LINKERT RICHARDLINKERT PHILLIP BONOTTO PHILLIP
Trust, etal. Trust, (as authorized on 1/15/15)(as on authorized FRAUDCOURT ONTHE LLP