Embattled Defense Attorney's Own Legal Woes Likely Not Over

Scott Graham

The Recorder

02-12-2013

PALO ALTO — A San Jose criminal defense attorney may be back on the hook for laundering a client's money.

Three judges of the U.S. Court of Appeals for the Ninth Circuit on Tuesday hinted strongly that, while former U.S. District Judge James Ware may have acted commendably in granting Jamie Harmon a new trial on his own motion, his reasons for doing so were at best unclear and at worst unnecessary.

It's "unusual" for a district judge to say, "I'm going to correct myself before the Ninth Circuit does," Judge Sidney Thomas noted. It may have been "a laudable thing to do" given that Ware had failed to instruct the jury on an element of the statute. But Thomas and Judges Jerome Farris and N. Randy Smith seemed to believe Ware had analyzed the error under the wrong standard — and failed to consider whether it prejudiced Harmon.

"If this was so important at trial, why didn't counsel object?" Thomas said during a special argument session at Stanford University. "Nobody seemed to care about this issue."

Harmon, who also goes by the married name Harley, is a veteran of the Santa Clara County district attorney's office who switched to defense work about a decade before she was indicted in 2008. She was convicted on five counts of money laundering in 2010 after depositing checks worth $127,500, payable to a client's company, into her own client trust account. She kept about $25,000 for her client's bail and her retainer and paid the rest back to her client's wife.

Client Christian Pantages, who pleaded guilty to buying stolen property and money laundering, testified that he told Harmon the checks were payments for the sale of stolen computer equipment, and that he had no other way to pay her retainer because law enforcement had frozen his bank accounts.

Harmon says Pantages told her the money had been legitimately earned by his company and a business partner who was under indictment. Pantages was concerned that if he delivered the checks to his business partner he wouldn't have money to pay his legal fees, she has said.

The jury hung on one count and convicted on five others. But Ware granted a new trial on his own motion, saying he failed to instruct jurors about the "specified unlawful activity" committed by Pantages that rendered the funds dirty.

"Without identifying the 'specified unlawful activity,' it is impossible for a fact-finder to determine if the government has met its burden to prove that one of the enumerated felonies actually took place and that the defendant was conducting a financial transaction with proceeds of that felony," Ware wrote.

On Tuesday, Assistant U.S. Attorney Anne Voigts argued Ware should have analyzed his mistake under the exacting "plain error" standard, and that Harmon wasn't prejudiced because jurors were correctly instructed that Harmon had to know the funds were dirty for her to be guilty.

Underscoring the unusual posture of the case, Voigts mistakenly told the court it should affirm the judgment before quickly clarifying she meant reverse. Harmon's lawyer, Edward Swanson of Swanson & McNamara, meanwhile, took a quick glance at his notes before announcing that he was representing the appellee in the case.

Smith said "everyone seems to agree" that Ware did not perform a proper plain error review — for one thing, he didn't use the phrase "plain error."

The judges quickly moved to the question of whether they should remand to a district judge for a new hearing, or whether they should decide the outcome themselves.

Voigts encouraged the Ninth Circuit to make the call, pointing out that with Ware retired, the case would go to another district judge with no memory of the case.

Like most appellate judges, Tuesday's panel sounded wary of making a decision in the first instance. "Let's just hope they don't start relying on their independent memories," Farris told Voigts. "That's why we have a record."

"We usually send it back," said Thomas, though he noted that both Voigts and Swanson said they'd be OK with the panel taking the lead should it decide Ware erred.

"I think we'd all like you to cut to the chase, your honor," Voigts said.

There could still be one more wrinkle, though. Thomas suggested that Harmon, who was represented at trial by other lawyers, may have a good ineffective assistance of counsel claim for failure to object to the missing jury instruction.

Following Ware's retirement from the Northern District Harmon's case was reassigned to U.S. District Judge Lucy Koh in San Jose.