Reply Brief — James Robert Miller, Petitioner v. United States

No. 20-5840

IN THE SUPREME COURT OF THE UNITED STATES

JAMES ROBERT MILLER,

PETITIONER,

vs.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONER

KATHERINE KIMBALL WINDSOR

Law Office of Katherine Kimball Windsor

65 N. Raymond Avenue, Suite 320

Pasadena, California 91103

(213) 663-9219

katy@windsorlaw.us

Attorney for Petitioner

TABLE OF CONTENTS

REPLY BRIEF FOR PETITIONER ………………………………… 1

CONCLUSION ………………………………………………………. 6

i

TABLE OF AUTHORITIES

United States v. Luger,

837 F.3d 870, 877 (8th Cir. 2016) ……………………………

1

United States v. Miller,

953 F.3d 1095, 1098 (9th Cir. 2020) ………………………….. 3

United States v. Olsen,

737 F.3d 625, 632 (9th Cir. 2013) ……………………………. 2

United States v. Russell,

411 U.S. 423, 431-32 (1973) ………………………………… 1

United States v. Scrushy,

721 F.3d 1288, 1307-1308 (11th Cir. 2013) ………………….. 1

Young v. United States,

481 U.S. 787 (1987) …………………………………………… 1

ii

REPLY BRIEF FOR PETITIONER

The government’s Opposition seeks to avoid review of a flawed federal

prosecution, initiated by a prosecutor with direct personal and financial interests in

the case who remained involved in it even after his supervisor recused him and his

entire office. Characterizing the case as a “factbound determination” that is not

worthy of this Court’s attention, the government asks this Court to turn a blind eye

to prosecutorial misconduct. See Br. in Opp. 9-10. It notes that appellate courts

around the country rarely, if ever, find that such misconduct meets the

requirements for the outrageous government conduct claim, a standard derived

from United States v. Russell, 411 U.S. 423, 431-32 (1973), requiring conduct “so

grossly shocking and so outrageous as to violate the universal sense of justice.” See

id. at 7-8 (collecting cases showing that the claim based on is routinely rejected).

Acknowledging that the prosecutor’s actions were “ill-advised,” it urges this Court

to allow them to stand. See id. at 12.

The government is correct that appellate courts routinely reject outrageous

government misconduct claims, and that slowly, the lower courts are carving out

exceptions to this Court’s holding in Young v. United States, 481 U.S. 787 (1987)

which reversed convictions where the prosecutor had a financial interest in the

case. See Br. In Opp. 11-12, citing inter alia United States v. Luger, 837 F.3d 870,

877 (8th Cir. 2016); United States v. Scrushy, 721 F.3d 1288, 1307-1308 (11th Cir.

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2013). But that fact does not lead to the conclusion the government desires.

Specifically, if this case does not meet the outrageous government conduct

standard – indeed, if there is no case that appellate courts find meets the standard -the claim is meaningless. Given the well-recognized need to root out prosecutorial

misconduct, see, e.g. United States v. Olsen, 737 F.3d 625, 632 (9th Cir. 2013)

(Kozinski, C.J., et al., dissenting from denial of rehearing en banc), it is untenable

to lack a means of enforcement. This Court’s intervention is badly needed to

consider the exceptionally important federal question of whether a prosecutor’s

initiation of an investigation in a case in which he has a personal and financial

interest, and subsequent continued involvement in the case even after his office is

recused, warrants dismissal of the indictment.

The government first mischaracterizes James Miller’s case as a gardenvariety embezzlement case which the FBI would have pursued regardless of

whether Assistant United States Attorney (“AUSA”) Greg Lesser had used a back

channel reporting method. Nothing could be further from the truth. The loan

checks were written in the context of a casual and friendly company culture in

which loans were frequently made and paid back by the company’s managing

members, accurately documented by the checks themselves and duly recorded in

the company’s bank records. The way these particular loans initially were revealed

was Miller’s routine reporting of them to the prosecutor’s father, Russell Lesser, a

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Certified Public Accountant, during the company’s annual tax preparation meeting,

certainly not the action of an embezzler. Indeed, at all times when Miller was

writing himself checks, he was engaged in another loan transaction that had greatly

benefited Russell Lesser and one of Lesser’s other companies named Body Glove.

Miller held a note from Body Glove on a loan orchestrated by Russell Lesser,

worth $300,000, which Miller could, and eventually did, transfer to make the

company from which Miller had taken loans whole (in fact, overpaying the debt by

$80,000). In conjunction with that transaction, the prosecutor’s father Russell

Lesser resolved all disagreements with Miller over the various intertwined loan

transactions. This was a business dispute, resulting in no financial loss to anyone.

But when AUSA Greg Lesser jump-started an investigation by the FBI,

Miller had a strong defense that he did not intend to deprive the company of

something of value, a defense which ultimately was undercut by the jury being

misinstructed that wire fraud under 18 U.S.C. § 1343 requires only the intent to

“deceive or cheat” rather than “deceive and cheat.” See United States v. Miller, 953

F.3d 1095, 1098 (9th Cir. 2020) (holding instruction erroneous but error harmless).

In short, this was a low-value, no-loss case which would never have been

considered for prosecution without the involvement of AUSA Greg Lesser, whose

initial outreach to a friend in the FBI was critical.

The government then argues that the lower courts “correctly determined that

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the three weeks that passed between AUSA Greg Lesser’s call to the FBI and his

reporting of the conflict to his office likewise did not necessitate dismissal.” Br. In

Opp. 10. Again, this minimizes the importance of those 22 days of whirlwind

investigation, culminating with a wired confrontation between Russell Lesser and

Miller which became the heart of the government’s case. The government

improperly makes light of AUSA Lesser’s continued involvement in the case after

recusal because there was no direct contact made with the prosecutor from the

Southern District. Id. at 11. This ignores AUSA Lesser’s role in passing

information along either directly or indirectly to FBI Agent Swanson through his

father. In particular, the government rejects the proposition that AUSA Lesser was

involved in advice on strategy. Br. In Opp. 9, n.1. The source for this information

is a FBI 302 report dated 7/29/2014, almost two years after the recusal, which

states:

Lesser recently spoke with his son, Greg Lesser (Greg), who told

Lesser that when the United States Attorney’s Office (USAO) makes

a plea offer to a subject, the offer is typically the best offer the subject

will receive, i.e., any subsequent offers are usually worse for the

subject. Lesser suggested that the FBI interview JAMES MILLER’s

son, Jeff Miller (Jeff), regarding Miller’s embezzlement from MWRC.

Jeff is aware that MILLER embezzled money from MWRC and told

MILLER to sell MILLER’s house in order to repay MWRC. Lesser

thought that if the FBI interviewed Jeff, MILLER would become

aware of the interview and the fact that Jeff might be required to

testify against MILLER if the matter went to trial. Consequently,

MILLER might accept the plea offer that was previously extended to

Miller by the USAO. Lesser’s idea of interviewing Jeff arose after the

Independence Day holiday weekend, when Lesser attended a

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gathering of friends and family at the beach. Jeff was at the gathering,

and Miller also showed up to the gathering. MILLER’s presence made

Lesser feel very uncomfortable.

See Ninth Circuit Case Nos. 17-50338, 18-50449, Excerpts of Record Volume

Four at page 831. This is typical of the type of influence AUSA Lesser continued

to have on the case – inside information of how federal investigations and

prosecutions work, conveyed through his father to the FBI Agent, who was not

walled off from the Central District of California United States Attorney’s Office.

The government insists that this Court should wave aside the misconduct

that occurred in this case. The fact remains, however, that even the Southern

District prosecutor acknowledges that AUSA Lesser’s participation in Miller’s

case would likely constitute a felony violation of 18 U.S.C. § 208, stating at oral

argument in the Ninth Circuit that an evidentiary hearing would have been fruitless

because AUSA Lesser may well have invoked his Fifth Amendment right against

self-incrimination. This is an astonishing juxtaposition: the government on the one

hand acknowledges that AUSA Lesser would not testify at an evidentiary hearing

in a case brought by his own Department of Justice given his felony exposure

based on his role in that very case, while at the same time asking the Court to

forgive this felony behavior and affirm a conviction stemming from the

misconduct.

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Miller acknowledges that lower courts have side-lined this Court’s holding

in Young that the involvement of an interested prosecutor constitutes structural

error. See Br. in Opp. at 11. It wants outrageous governmental misconduct to

remain a fruitless claim, often raised but never granted. Id. at 8-9. To do so, claims

must be dismissed as “factbound arguments” which do not warrant attention. Such

claims are always based on facts – in this case, outrageous facts so grossly

shocking as to violate the universal sense of justice – which should not be swept

under the rug. Miller urges this Court to grant certiorari to reinstate teeth into a test

which has been diminished by the lower courts, but which is crucial to restoring

faith in the criminal justice system.

CONCLUSION

On the basis of the foregoing, the Court should grant the petition for writ of

certiorari to resolve this important federal question.

Respectfully Submitted,

Date: December 14, 2020

Katherine Kimball Windsor

Law Office of Katherine Kimball Windsor

65 N. Raymond Avenue, Suite 320

Pasadena, California 91103

Attorney for Petitioner

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