Petition for Writ of Certiorari — Monick v. United States

- Supreme m}Y

FILED

64°

84-15

-=—t oJ

NO. FEB 26 1983

SUPREME COURT OF THE UNITED STA NOER L. STEVAS.

CLERK

OO” CEE

KERRY J. MONICK, M.D.

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Lloyd Charton

17480 East Seventeenth Street

Tustin, California

Attorney for Petitioner

Counsel of Record

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as i i ~~ ae e onl — a —— ae

NO.

SUPREME COURT OF THE UNITED STATES

KERRY J. MONICK, M.D.

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

me eee ee ee ee ee ee ee

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Lloyd Charton

17480 East Seventeenth Street

Tustin, California

Attorney for Petitioner

Counsel of Record

(ou ree)

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Il.

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QUESTIONS PRESENTED FOR REVIEW

WHETHER PETITIONER WAS DENIED DUE PROCESS

BY LAW BY THE GOVERNMENTS FAILURE TO DIS-

CLOSE TO THE DEFENSE MATERIAL EVIDENCE

FAVORABLE TO THE PETITIONER.

WHETHER PETITIONER WAS DENIED DUE PROCESS

OF LAW BY THE MISCONDUCT OF THE GOVERN-

MENT IN USING THREATS AND INTIMIDATION TO

COERCE WITNESSES TO SUPPRESS TESTIMONY

FAVORABLE TO THE PETITIONER AND EMPHASIZE

TESTIMONY DAMAGING TO THE PETITIONER.

WHETHER PETITIONER WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL, AS GUARANTEED BY

THE SIXTH AMENDMENT, BY THE FAILURE OF

PETITIONER'S TRIAL COUNSEL TO ADDUCE

FROM WITNESSES FAVORABLE TESTIMONY

CRITICAL TO THE DEFENSE.

—

———EOO

TABLE OF CONTENTS

Page

Cover

Questions Presented

Table of Contents

Table of Authorities

Prayer for Relief

Opinions Below

Grounds for Jurisdiction

Constitutional Provisions, Statutes

Statement of the Case

Argument

~ —.

I. The Court Should Grant

Certiorari as a Sound

Exercise of its Power of

Review

II. Petitioner was Denied Due 8

Process of Law by the

Government's Failure to

Disclose to the Defendant

Material Evidence Favorable to

the Petitioner

A. The Suppressed Evidence 11

Was Material

Iil.

Iv.

Vv.

B. The Non-Disclosed

Evidence Was Favorable to

Petitioner

C. The Exculpatory Evidence

Was Not Only Undisclosed

In Any Other Document To

Be Given To Petitioner, But

Instead, Purposely Kept

From Petitioner Through The

Coercive Tactics Of The

Government Prosecutor

D. Due Process Requires

Reversal

Petitioner's Right to Due

Process Under The Law Was

Violated By Prosecutorial

Misconduct

Petitioner was Denied

Effective Assistance of

Counsel

Conclusion

14

21

22

24

35

38

el

ate

TABLE OF AUTHORITIES

Rice v. Sioux City Memorial Park

Cemetary 349 US 70 (1955)

Brady v. Maryland 373 US 83 (1963)

United States v. Goldberg 582 F.2d

483 (1978)

United States v. Van Brandy 726 F.2d

548 (1984) ©

United States v. Hibler 463 F.2d

455 (1972)

Hilliard v. Spaulding 719 F.2d

1443 (1983)

United States v. Goss 650 F.2d

1136 (1981)

United States v. Freeman 619 F.2d

1112 (1981)

United States v. Kent 446 US 936

(1981)

United States v. Froshee 578 F.2d

629 (1978)

United States v. Curry 681 F.2d

406 (1982)

12

13

Bagley v. Lumpkin 719 F.2d 1462 (1983)17

United States v. Augurs 427 US 97

(1976)

United States v. Ramirez 710 F.2d

535 (1983)

United States v. Ryan 548 F.2d 82

(1976)

United States v. Castillo-Felix

539 F.2d 9 (1976)

United States v. Hollywood Motor Car

Co., Inc., 646 F.2d 384 (1979)

United States v. Wong 553 F.2d

756 (1974)

22

25

25

26

26

27

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

United States v. Peskin 527 F.2d

71 (1975)

Jackson v. Walker 585 F.2d 137

(1978)

Plesher v. United States 720 F.2d

340 (1983)

United States v. Winnie Mae Mfg.

Co., 451 F.Supp. 642 (1978)

Washington v. Texas 338 US 14

(1967)

United States v. Blackwell 694 F.2d

1325 (1982)

United States v. Morrison 535 F.2d

223 (1976)

United States v. Hammond 598 F.2d

1008 (1979)

United States v. Mac Closkey

682 F.2d 468 (1982)

Giglio v. US 405 US 150 (1972)

Beck v. Washington 369 US 541

(1962) |

United States v. Monick, 9th Cir.

Nos 83-1225 and 84-1189)

Strickland v. Washington 104 S.Ct.

2052 (1984)

STATUTES

ks

38 USC 1254 (1)

—— Bf}

3. US Sup. Ct. Rule 17

CONSTITUTION

1. 5th Amendment of United States

i

Constitution

6th Amendment of United States

Constitution

32

“JI ~J tb

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NO.

SUPREME COURT OF THE UNITED STATES

KERRY J. MONICK, M.D.,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

ee ee eee ee ee ee ee ee

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

_APPEALS FOR THE NINTH CIRCUIT

Petitioner, KERRY J. MONICK, M.D.,

respectfully prays that a writ of certiorari

issue to review the opinion of the United

States Court of Appeals for the Ninth Circuit

which affirmed Petitioner's conviction by the

United States District Court and the denial

of the United States District Court of

Petitioner's motion for new trial based on

newly discovered evidence.

1

OPINIONS BELOW

The United States Court of Appeals for

the Ninth Circuit issued a Memorandum

Opinion on December 27, 1984, under Court of

Appeals case numbers 83-1225 and 84-1189

(D.C. No. CR 82-1009-1-HMF).

JURISDICTION

Petitioner invokes the jurisdiction of

this Court under 38 U.S.C. Section 1254(1) on

the grounds that her rights under the Fifth

and Sixth Amendments to the United States

Constitution were Violated.

The United States Court of Appeals for

the Ninth Circuit entered its order rejecting

petitioner's Fifth and Sixth Amendments

claim on December 27, 1984.

The instant Petition for Writ of

Certiorari is filed within sixty days of

the order.

CONSTITUTIONAL PROVISION

AND STATUTES

AMENDMENT V

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

naval forces, or in the Militia, when in

actual service in time of War or public

danger; nor shall any person be subject for

the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in

any criminal case to be a witness against

himself, nor be deprived of life, liberty,

or property, without due process of law;

nor shall private property be taken for

public use, without just compensation.

AMENDMENT VI

In all criminal prosecutions, the

accused shall enjoy the right to a speedy

and public trial, by an impartial jury of

3

the State and district wherein the crime

shall have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses

in his favor; and to have the Assistance

of Counsel for his defense.

STATEMENT OF THE CASE

Petitioner was charged in the

District Court of the District of Hawaii

with 80 counts of mail fraud, 18 U.S.C.

Section 1396(h) based upon allegations

that she committed those criminal acts

in the State of Hawaii while she lived

and practiced there as a psychiatrist.

Petitioner was convicted of a total

of 160 counts of Medicaid and mail fraud

in the United States District Court for

the District of Hawaii on April 12, 1983.

After denial of her Motion for New

Trial, Petitioner appealed to the Ninth

Circuit Court of Appeals, Case No. 83-1225.

While said appeal was pending, Petitioner

filed a further Motion for New Trial on

the basis of newly discovered evidence,

consisting of affidavits of three

prosecution witnesses stating that they

had made statements exculpatory to

5

Petitioner prior to trial which were not

repeated at trial due to coercion by the

prosecution or ineffectiveness of

petitioner's counsel. Denial of this

Motion was appealed to the Ninth Circuit

Court on Case No. 84-1189.

The two appeals before the Ninth

Circuit were consolidated, and that

Court on December 27, 1984 affirmed the

judgment of the District Court,

whereupon follows this Petition.

a tbe Nat i, ted aE ae

ARGUMENT

I. THE COURT SHOULD GRANT CERTIO-

RARI AS A SOUND EXERCISE OF

IT OWER OF EW.

U.S. Sup. Ct. Rule 17, 28 U.S.C.,

underscores the discretionary nature of

the writ of certiorari, limiting grant

thereof to such occasions, “when there

are special and important reasons

therefore." Sanction by the Court of

Appeals of a District Court decision

which departs from "the accepted and

usual course of judicial proceedings,"

calling for exercise of the Court's

supervisory power, is specifically

designated as a consideration favoring

certiorari, (Id., Rule 17.1(2)).

The Court amplified upon the mean-

ing of “special and important reasons"

in the case of Rice v. Sioux City

Memorial Park Cemetary, 349 U.S. 70 (1955)

Sar. ace! at illic einai webal.

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holding that the issues involved must

relate to problems beyond the academic

or episodic, but rather reaching

constitutional dimensions.

The several violations of Petitioner's

Fifth and Sixth Amendment rights in the

case at bar cry out for an exercise of

the Court's power of supervision.

Petitioner's liberty, professional career

and good name are in eminent jeopardy

because of a conviction tainted by

prosecutorial misconduct and failure to

disclose material exculpatory evidence,

and by ineffective assistance of counsel,

as is more particularly set forth herein.

II. PETITIONER WAS DENIED DUE

PROCESS OF LAW BY THE

GOVERNMENT'S FAILURE TO DIS-

CLOSE TO THE DEFENSE MATERIAL

EVIDENCE FAVORABLE TO THE

PETITIONER.

The leading case defining the obliga-

tion of the prosecution to disclose

8

material, exculpatory evidence remains

Brady v. Maryland, 373 U.S. 83 (1963).

In Brady, the defendant was convicted

of murder during a robbery and sentenced

to death. His companion, Boblit, was

tried separately, and after Brady.

Subsequent to Brady's conviction, and the

affirmance of that conviction on appeal,

it was discovered that an extrajudicial

statement of Boblit existed wherein he

admitted that it was he who actually

committed the murder, not Brady. This

statement however, had been suppressed

by the prosecution. Brady then moved

for a new trial based on the newly dis-

covered evidence. Although the trial

court denied relief, the Supreme Court

affirmed the Court of Appeal's reversal,

finding a denial of due process in the

9

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suppression of the evidence by the

prosecution. (Id. at 84, 86.)

While a specific defense request

for the information is unnecessary to

find a Brady violation (United States

v. Goldberg, 582 F.2d 483,485 (9th Cir.

1978)), three factors must be present:

1) the nondisclosed evidence must be

material; 2) its contents must be favor-

able to the defendant; and 3) the excul-

patory evidence must not have been

included in any other report provided to

the defendant. U.S. v. Van Brandy, 726

F.2d 548,551 (9th Cir. 1984). Further,

the test to be used is whether the non-

disclosed evidence creates a reasonable

doubt which otherwise failed to exist.

All doubts should be resolved in favor

of full disclosure. (Id.) As will be

discussed below, each of these factors

is present in the instant case.

10

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A. The Suppressed Evidence Was

Material.

Whether an item of undisclosed

evidence is material to the defense of

the accused depends on "whether the

‘undisclosed evidence was so important

that its absence prevented the accused

from receiving his constitutionally-

guaranteed fair trial.” United States v.

Hibler, 463 F.2d 455, 459 (9th Cir. 1972).

The fact that trial counsel may not

have specifically requested the informa-

tion which was not divulged or that a

diligent defense attorney might have

discovered the information, or that the

prosecution did not suppress the evid-

ence in bad faith are not conclusive;

"due process can be denied by the failure

to disclose alone.” (Id.) See also

Hilliard v. Spaulding, 719 F.2d 1443

(9th Cir. 1983).

11

In the instant case, the undisclosed

evidence went to an essential element of

the charged offenses, the mens rea. As

part of its case in chief the government

must prove beyond a reasonable doubt

that the defendant acted with an intent

to defraud. United States v. Goss (5th

Cir. 1981) 650 F.2d 1136,1344-1345;

United States v. Freeman (5th Cir. 19380)

619 F.2d 1112,1117, cert. den. 450 U.S.

910 (1981); United States v. Kent, (5th

Cir. 1979), cert. den. 446 U.S. 936 (1981).

Accordingly, defendant's good faith

is a defense to charges of mail fraud,

and, by analogy, to charges of medicaid

fraud. United States v. Goss, supra at

1344-45. United States v. Foshee, 578

F.2d 629, 634 (5th Cir. 1978). Failure

by the Trial Court to instruct the jury

as to the good faith defense where there

is some evidence to support the defense

12

is reversible error. United States v.

Curry, 681 F.2d 406; (Sth Cir. 1982).

In the case at bar, Dr. Monick

submitted affidavits of three witnesses

familiar with the operation of her

office to the District Court and the

Court of Appeals, showing that each of

these witnesses had insisted to govern-

mental prosecutors that Petitioner had

acted in good faith and without intent

to defraud the Medicaid agency. These

affidavits are attached hereto as

Exhibits "A," "B," and "C" for the

Court's convenience.

Had the defense been apprised of

these statements before trial, evidence

of the Petitioner's good faith could

have been presented at trial, entitling

the Petitioner to an instruction on the

good faith defense under Curry, supra.

13

Nondisclosure of the witnesses statements

deprived the Petitioner of a critical

defense, and thus denied her "constitu-

tionally guaranteed fair trial." The

withheld evidence meets the Hibler stan-

dard of materiality.

B. The Non-Disclosed Evidence

Was Favorable to Petitioner.

The fact that the evidence which

was undisclosed below meets this aspect

of the Van Brandy standard can hardly be

disputed. As noted above, the good faith

of Dr. Monick would be a complete defense

to a criminal prosecution which requires

the government to prove beyond a reason-

able doubt that there was an intent to

defraud. United States v. Curry, supra.

In his affidavit, Mr. Clarence G.

Steadman states:

14

I explained to Mr. Vierra amd

Mr. George Yamamoto, who was the

special prosecutor for the Medic-

aid Fraud Unit in Hawaii, that at

no time did Dr. Monick or any

member of the tic team

Eran oF in a 3

, or in way in bad

any patient or

insurance or the Medicaid

that billed for

our services, in my Opinion. In

, 1. stated in my conversation

with Mr. Vierra ard/or Mr. Yamamoto

that at no time did any member of

our therapeutic team act in any

other manner that would have been

Sr Se

as a team ard that t y

understand what this intense inves-

tigation was all about. It should

also be noted that I objected to

the prosecution of Dr. Monick to

Mr. Vierra and Mr. Yamamoto before

I testified in front of the Oahu

grand jury amd at her trial. I also

stated to Mr. Vierra amd Mr. Yamamoto

that I didn't really umerstam how

they could particularly pinpoint any

of the billing since our secretarial

staff left much to be desired ard

that I was sure the billing process

would more than likely reflect the

chaotic state our secretarial staff

seaned to be in most of the time.

It should also be noted that at the

time of the trial while I was a

witness for the prosecution, I was

very surprised that the goverrment

decided to prosecute Dr. Monick,

15

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and I was particularly surprised

when it was not brought out by

either side that I was always of

the opinion that Dr. Monick always

acted in good faith since I had

told this to the prosecution on

several occasions.

Affidavit of Clarence G. Steadman, Exhibit "A"

at 3-4 (Emph. added.)

In addition, the affidavit of Pat

McClain (attached hereto as Exhibit "B")

indicates that Ms. McClain also disclosed

the fact that Dr. Monick acted in good

faith in her dealings with Medicaid and

attributed mistakes in billing to the

chaotic state of bookkeeping at the clinic.

(See pp. 2 and 3 of that affidavit.)

She express..y notes that the idea for the

two appojatment books was a suggestion

of Mr. Ho of the HMSA rather than a scheme

to cover fraud. (See p. 2 of that

affidavit.)

Finally, the affidavit of Mr. Carl

Weisbrod discloses further facts which

can lead only to a finding of faulty

16

bookkeeping procedures rather than an

intent to defraud. (See Exhibit "C"

hereto: “He [referring to Mr. Ho from the

HMSA] suggested to me several times we

needed to ‘clean up our record-keeping

act'.") Also, Mr. Weisbrod's affidavit

supports the earlier affidavit of Ms.

McClain as to the suggestion by Mr. Ho to

keep two appointment books to avoid having

personal notes appear in those records.

(See p. 1 of the Weisbrod affidavit.)

It is not necessary that the

challenged evidence be material to the

extent that an acquittal is certain to

result from its introduction into the

trigi. Rather it is only necessary that

such evidence could have raised a reason-

able doubt in the mind of the jury.

In Bagley v. Lumpkin, 719 F.2d 1462,

1463 (9th Cir. 1983), the defendant appeal-

ed from the District Court's order denying

17

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his motion to vacate, set aside or cor-

rect his sentence. His contention was

ee word

that the government willfully failed to

disclose impeachment evidence that he

requested prior to trial and that that

failure to disclose effectively denied

him his right to cross-examine and con-

front two key government witnesses.

In Bagley, two police officers,

O'Connor and Mitchell, testified against

defendant at trial. Prior to trial the

. defense attorneys requested that the

prosecutor disclose various items of

information including whether or not

' any of its witnesses were going to be

paid for their testimony. The govern-

ment responded that neither O'Connor

7 nor Mitchell were expected to receive

‘compensation for their services. In

mid-1980, under the Freedom of Information

Act, Bagley finally discovered that

18

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O'Connor and Mitchell did in fact re-

ceive compensation from the government

before and after the trial in 1977.

However, during a hearing on his motion,

the District Court determined that the

failure of the prosecution to divulge

this information in a nonjury trial was

harmless beyond a reasonable doubt.

The Ninth Circuit determined that in

a Brady violation, the harmless error

rule should apply. Goldberg, supra,

582 F.2d at 448-490).

Determining that the government's

failure to produce the requested inform-

ation was a serious due process violation,

the Court reversed. Citing Hibler and

Goldberg, the Court noted that a new

trial is required whenever there is a

reasonable possibility that the error

materially affected the verdict and that

19

the failure to disclose Brady information

which the defendant could have used to

conduct an effective cross-examination

of the adverse witness seriously threat-

ened the defendants confrontation right

and therefore his right to a fair trial.

Bagley, supra, 719 F.2d at 1464.

Both aspects of the Bagley decision

are present here. First, given that an

intent to defraud is a necessary element

of the offense, and that the good faith

of petitioner would be a defense to the

charges herein, a reasonable possibility

exists that such information would raise

a reasonable doubt in the minds of the

jurors. Secondly, the nondisclosure and

the coercive tactics of the prosecutor,

described infra, have effectively deprived

20

Petitioner of the ability and right

to cross-examine the witness who tes-

tified under pressure from Mr. Yamamoto

and thus deprived her of her constitu-

tional right to confront those witnesses.

It is respectfully submitted that the

second prong of the Van Brandy test has

been met.

C. The Exculpato Evidence Was Not

Only Undisclosed in Any Other

Document to be Given to Petitioner,

but Instead, Purposely Kept From

Petitioner bisccah the Coercive

Tactics of the Government Prosecutor.

While the government does not contend

that the exculpatory statements were provi-

ded in any report or other document, it

is the position of Petitioner that the

actions of the government went beyond mere

non-disclosure to reach the level of sup-

pression through coercion.

The attached affidavits disclose that

certain pressures were brought to bear on

the witnesses who testified for the

prosecution.

21

In light of the fact that these witnesses who

testified are still under a great deal of

pressure from the prosecutor, it is a testa-

ment to the courage of these witnesses that

they come forward even now.

It is now well settled that a prosecutor

is presumed to recognize evidence in his files

which is highly probative of the innocence of

the accused. United States v. Agurs, 427 U.S.

97, 110 (1976). Further, “there are situations

in which evidence is obviously of such sub-

stantial value to the defense that elementary

fairness requires it to be disclosed even

without a specific request." Id.

This critical evidence, however, was

suppressed, not disclosed.

D. Due Process Requires Reversal.

Contrary to the trial court's ruling

denying the motion for a new trial, there is

no requirement that the newly discovered

evidence be of a degree that requires acquittal.

22

(Order Denying Motion for a New Trial, p. 2,

filed May 21, 1984.) The only requirements

are that the evidence be material, favorable

and likely to raise a reasonable doubt which

did not otherwise exist. Van Brandy, supra,

726, F.2d at p. 551. Further, this Court

has expressly stated where the evidence was

available to the prosecutor and not submitted

to the defense, the "defendant should not

have to satisfy the severe burden of demon-

strating that newly discovered evidence

probably would have resulted in acquittal."

Agurs, supra, 427 U.S. at lll.

It is respectfully submitted that the

government's failure to disclose material,

favorable evidence to the defense deprived

Petitioner of her right to due process under

the law. Brady v. Maryland, supra, United

States v. Goldberg, supra, United States v.

Van Brandy, supra, Certiorari should issue,

and the conviction must be reversed.

23

III. PETITIONER'S RIGHT TO DUE

PROCESS UNDER THE LAW WAS

VIOLATED BY PROSECUTORIAL

MISCONDUCT.

In both the District Court and the Court

of Appeals, the Government has argued that

even if the exculpatory statements of the

three witnesses were improperly withheld,

the favorable evidence of Dr. Monick's good

faith could have been adduced at trial by

proper cross examination. This argument

fails on two grounds. First, the question

of whether or not the favorable testimony

could or should have been brought out on

cross-examination is irrelevant to the find-

ing of a Brady violation. United States v.

Van Brandy, 726 F.2d 548,551 (9th Cir. 1984).

Secondly, the failure of the defense to

bring out the favorable evidence of Petition-

er's good faith at trial can only be explained

by one of two possibilities: Either the

government's threats, intimidation and

bullying effectively coerced the witnesses

24

into altering their testimony on that point,

amounting to prosecutorial misconduct in

violation of Petitioner's Fifth Amendment

Rights; or the absence of the good faith

evidence at trial resulted from her Counsel's

failure to exercise the skill, judgment or

diligence of a reasonably competent attorney,

amount to denial of Petitioner's right to

effective assistance of counsel under the

Sixth Amendment (discussed infra, Section

Iv).

It is well settled that for prosecutor-

ial misconduct to constitute a due process

violation, the government's acts must be so

shocking and outrageous as to "violate the

universal sense of justice." United States

v. Ramirez, 710 F.2d 535 (9th Cir. 1983).

United States v. Ryan, 548 F.2d 82, 789

(9th Circ. 1976); cert. den., 430 U.S. 965

(1977). Federal Courts have found

25

prosecutorial misconduct to meet this

standard, inter alia, in the following

situations:

(1) Where the government dismisses a

previous indictment to deprive the

the defendant of witnesses on a

subsequent prosecution. United

States v. Castillo-Felix, 539 F.2d

9 (9th Cir. 1976).

(2) Where the government increases the

severity of alleged charges in res-

ponse to exercise of constitutional

or statutory rights. United States

v. Hollywood Motor Car Co., Inc.,

646 F.2d, 384 (9th Cir. 1979), cert.

granted, reversed, 458 U.S. 263

(1980), on remand 682 F.2d 1352

(9th Cir. 1981);

(3) Where the prosecutor uses previcus

knowledge of a witness' criminal

involvement to produce perjurous

26

(4)

(5)

(6)

(7)

testimony. U.S. v. Wong, 553 F.2d

756 (9th Cir. 1974), reversed 431

U.S. 174 (1975);

Selective prosecution, United

States v. Peskin, 527 F.2d 71

(Sth Cir. 1975) cert. den. 426 U.S.

818 (1976);

Vindictive prosecution. Jackson

v. Walker, 585 F.2d 137 (3d Cir.

1978);

Breach of the government's enfor-

ceable agreement with a defendant.

Plesher v. United States, 720 F.2d

340 (6thCir. 1983); and

Deportation of witnesses favorable

to the defense before the defense

has an opportunity to interview

them. United States v. Winnie

Mae Mfg. Co., 451 F.Supp 642

C.D. Cal 1978).

27

In the instant case, the affidavits

submitted by Petitioner in support of her

motion for a new trial are also significant

in their disclosure of prosecutorial mis-

conduct. While not entirely precise and

glaring, the affidavits must be read with

the understanding that these witnesses have

been threatened by the prosecution and were

therefore afraid to divulge the testimony

contained in the affidavits or the fact that

coercion was present. As a result of this

very effective coercion, the evidence of

misconduct was merely brushed aside by the

District Court; it alluded only to "vague

allegations of 'pressure' to change testi-

mony." (Order Denying Motion for a New

Trial, p. 6).

In fact, the allegations were not vague,

considering the circumstances, but rather

were specifically and emphatically descrip-

tive of the prosecution's heavy-handed

tactics. It is for this reason the Petition-

er will make the suggestion, infra, that if

28

this Court determines a new evidentiary

hearing is required, that it be held ina

different locale than Hawaii and under the

supervision of prosecutors other than Mr.

Yamamoto. Consider, for example, the

statement of witness Pat McClain:

Assistant U.S. Attorney)

threatened me and intimi-

j

é

g

E

z

attorney

was a conspiracy to commit fraud amongst the

four of us and I was number two on the list,

that there was no possible way he would con-

sider granting me inmmity and he would throw

(McClain Declaration, Exhibit ", p.3.)

his is certainly not “vague,” but rather

a heartfelt and substantial indictment of the

prosecutor's deplorable behavior. It is one

thing to advise a person of being a potential

29

suspect but quite another to say that if the

right to counsel is exercised, that person

Smust be guilty. It has been said time and

again that it is often the completely in-

Jnocent person who is most in need of an

@ attorney. Consider also, Carl Weisbrod's

) statement:

When it was clear. . . that my testimony

would not be in favor of the prosecution, I

was pressured by threat to change my story.

I refused. I later heard from Pat McClain

and Clarence Steadman that they also received

similar treatment. I am sure other witnesses

were treated in a like manner... The

prosecution started with an incorrect premise

and pressured witnesses to testify to this

premise requiring them to lie under oath.

(Affidavit of Carl Weisbrod, Exhibit "C p.J).

While Weisbrod may have had the strength

Hnot to alter his testimony, it cannot be said

Jthat other witnesses withstood the threats

of Mr. Yamamoto. Clearly the above state-

Sment indicates that Mr. Weisbrod had personal

i knowledge of other threats which should be

J explored in a hearing out of the presence of

}the offending prosecutor.

The importance of a defendant's right to

30

Whave unfettered testimony of favorable

itnesses has often been acknowledged by

Sthe courts. As the Court stated in

Gwashington v. Texas, 338 U.S. 14, 19 (1967):

The right to offer the testimony of witnesses,

and to compel their attendance, if necessary,

is in plain terms the right to present a

defense, the right to present the defendant's

version of the facts as well as the prosecu-

tion's to the jury so it may decide where the

truth lies. Just as an accused has the right

to confront the prosecution's witnesses for

the purpose of challenging their testimony,

he has the right to present his own witnesses

to establish a defense. This right is a

fundamental element of due process of law.

The Court of Appeals, following Washington,

supra, stated the proposition as follows:

"The constitutional right of a criminal

defendant to call witnesses in his defense

mandates they be free to testify without

fear of government retaliation."

Junited States v. Blackwell, 694 F.2d 1325,

M1334 (D.C. Cir. 1982).

Prosecutorial threats of criminal prosecu-

Htion to prevent favorable witnesses from

Jtestitying on a defendant's behalf, such as

Tthe threats used upon Pat McClain, have

Jrepeatedly supported findings of violations

31

of due process rights. See e.g., United

states v. Morrison, 535 F.2d 223 (3rd Cir.

M976); United States v. Hammond, 598 F.2d

3008, 1012 (5th Cir. 1979); {prosecutor

hreatened "nothing but trouble" for

itness if he testified); United States v.

BMac Closkey, 682 F.2d 468 (4th Cir. 1982);

FP (prosecutor telephoned witness' attorney

ith the reminder that if she testified

he would be reindicted on dropped charges).

In Giglio v. U.S., 405 U.S. 150, 154-

iss (1972), the prosecution's misconduct

Fhegatively affected the credibility of a

itness' testimony; the Court reversed the

onviction based on this denial of due

Mrocess. The same problem is presented by

‘the case at bar, since the intimidation

of witnesses by the prosecution's threats

Brust raise doubts as to the reliability

foe their testimony incriminating Petitioner.

@As co-workers of Petitioner who presumably

32

ere well-acquainted with her methods of

business, their testimony undoubtedly

carried substantial weight with the jury.

Therefore, their credibility is an

essential issue, and evidence relating

to that issue must be considered material.

The Ninth Circuit, citing Beck v.

Washington, 369 U.S. 541 (1962), found that

WDr. Monick had not provided evidence that

@say witness changed his or her testimony

as a result of the prosecutor's threats.

nited States v. Monick, 9th Cir. (Nos. 83-

225 & 84-1189, decided December 27, 1984,

mem at 3). The affidavits submitted, how-

Bever, do indicate tangible effects of the

hreats. Take, for instance, the affidavit

@of witness Pat McClain:

Mr. Yamamoto told me at the time of the

Grand Jury hearing in 1982 that what we had

done was illegal and I could be prosecuted

i.e., "there was a conspiracy to commit

fraud". Since that time, I have believed

him but now I see again how the regulations

can be interpreted as allowing the therapeutic

33

|

be

z

:

j

E

were the worst sort of criminal.

At the time I felt very threatened for

something I didn't do, and I was afraid

and became angry with Dr. Monick for appar-

ently putting me in that spot. Neither

Mr. Yamamoto nor Mr. Vierra were interested

in what was really going on, they were only

because I had never been in a courtroom before

he would throw me in jail if I took the

Fifth Anendment.

@ And, so witness Carl Weisbrod declared:

(Weisbrod Affidavit, Exhibit "C", at p.2.)

The foregoing, together with the absence of

the witnesses testimony at trial regarding

34

Dr. Monick's good faith, raises a strong

inference that testimony was changed.

In short, it is respectfully submitted

that the outrageous misconduct of the

prosecutor. in intimidating and threatening

witnesses denied Petitioner her right to

due process.

IV. PETITIONER WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL.

On possible explanation for the absence

of the critical good faith evidence at trial

is ineffective assistance of counsel. In

order to establish an ineffective assistance

of counsel claim, the defendant must show

that counsel's errors or omissions reflect

a failure to exercise the skill, judgment,

or diligence of a reasonably competent

attorney. In addition, the defendant must

affirmatively establish prejudice as a

result of the attorney's conduct. Strickland

v. Washington, 104 S.Ct. 2052, 2063, 2065

35

1984); United States v. Schaflander, 743

.24 714, 717-18 (9th Cir. 1984). Prejudice

s established if the defendant shows that

ere is a reasonable probability that, but

or counsel's unprofessional error, the

esult of the proceedings would have been

ifferent. Strickland, supra, 104 S. Ct.

t 2068.

For the case at bar, the affidavits

ttached hereto reveal that witnesses

xisted who were willing to testify to

etitioner's good faith and lack of specif-

c intent to defraud, but defense counsel

ever asked them any questions about this

ritical issue. As stated by witness

larence Steadman:

larence Steadman Affidavit, Exhibit "A"

4.

36

Bre point is made even more strongly by

@itness Carl Weisbrod:

I know it could easily be proven that

witnesses lied under oath.

d later:

1.) The prosecution started with an innocent

premise and pressured witnesses to testify

to this premise requiring them to lie under

oath . }

2) The defense did almost nothing to

counteract these tactics.

These statements suffice to indicate

®hat these witnesses were ready and willing

© give favorable testimony on this critical

Gssue, but the defense counsel never asked

@bout these issues. It is the position of

Petitioner that the conduct of her counsel

ell far short of the skill, judgment, or

@iligence of a reasonably competent attorney.

37

hese failings were to defendant's prejudice

An that counsel failed to adduce available

i estinony which would have entitled Petitioner

—&§ a good faith instruction under United

‘tates v. Curry, supra. She prays the Court

“Brant certiorari to remedy this denial of

er Sixth Amendment Right to effective

Assistance of counsel.

V. CONCLUSION

For the foregoing reasons, it is respect-

Fully submitted that certiorari should issue

Yas a sound exercise of the Court's power of

Treview. Only this Court can remedy the

hreatened deprivation of Dr. Monick's

Vtreedom, profession and good name occasioned

Wy the grevious violations of her Fifth and

Psixth Amendment Rights.

Qoatep: 2-/9-F5 Respectfully submitted

APPENDIX

39

EXHIBIT "A"

Court of Appeal's Memorandum

Affirming Lower Court

Al

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Nos. 83-1225

84-1189

)

)

Plaintiff-Appellee, )

)

Vv. )

) D.C. No.

KERRY J. MONICK, M.D., )CR 82-1009-1-HMF

)

Defendant-Appellant. )

)

MEMORANDUM

Appeal from the United States District Court

For the District of Hawaii

The Honorable Harold M. Fong, Presiding

Argued and Submitted November 7, 1984

Before: HUG, TANG, and SCHROEDER,

Circuit Judges

Kerry J. Monick, M.D., (the "“appellant”)

appeals her conviction of 80 counts of

Medicaid fraud under 42 U.S.C. § 1396h (1983)

and 80 counts of mail fraud under 18 U.S.C.

§ 1341 (Supp. 1984). We affirm the judgment

of the district court.

FACTS

The appellant was charged with making

A2

. Medicaid claims for personally rendered

psychiatric services when she, in fact, had

not provided such services. At trial,

Bernard Ho, Vice President ofthe Hawaii

Medical Service Association, ("HMSA"),

testified that, on June 15, 1977, he

informed the appellant that she must

personally render claimed-for services.

Thereafter, the appellant made numerous

Medicaid claims for services that she had

not personally provided. Testimony from

the appellant's clerical staff tended to

establish that the appellant initiated a

system of duplicate appointment books in

order to substantiate her false claims.

Judgment was entered against the

appellant on September 6, 1983.

DISCUSSION

ae Motion for a New Trial.

A3

A. Nondisclosure of Exculpatory

Evidence

The appellant claims that the

district court abused its discretion by

refusing to grant her motion for a new trial

based on the prosecutor's failure to disclose

exculpatory evidence. Nondisclosure of

q exculpatory evidence violates due process if

(a) the nondisclosed evidence is material,

(b) its content is favorable to the defendant,

and (c) such exculpatory evidence has not been

included in any report provided to the

defencant. United States v. Van Brandy,

726 F.2d 548, 551 (9th Cir. 1984).

In the present case, the alleged

nondisclosed evidence amounted to statements

made by witnesses to the prosecutor that the

appellant had submitted the Medicaid claims

in "good faith." The district court held that

this nondisclosed evidence was immaterial. It

A4

found that the combined adverse testimony of

eleven witnesses contained sufficient evidence

for a jury to find the defendant guilty beyond

a reasonable doubt. In addition, this "new

evidence" did not contradict the witnesses'

trial testimony, but merely consisted of legal

conclusions that the appellant had acted in

good faith. The district court did not abuse

its discretion in refusing to grant the

appellant's motion for a new trial on the

basis of nondisclosure of exculpatory evidence.

B. Prosecutorial Misconduct

The appellant claims that a new

trial is warranted because of prosecutorial

misconduct. In order to constitute a due

process violation, prosecutorial misconduct

must be "so shocking and so outrageous as to

violate the universal sense of justice... .

United States v. Ryan, 548 F.2d 782, 789

ee en A é

a ch, wae ha

emcee Le ;

A5

(9th Cir. 1976), cert. denied, 430 U.S. 965

(1977)).

The alleged misconduct consists of

the above-discussed failure to disclose

exculpatory evidence and the prosecutor's

threats directed to prospective witnesses.

The prosecutor's failure to disclose

exculpatory evidence was not sufficiently

flagrant to amount to a due process

violation. In addition, the appellant has not

provided evidence that any witness changed his

or her testimony as a result of the

prosecutor's threats. See Beck v.

Washington, 369 U.S. 541, 555 (1962)

(although the prosecutor threatened a grand

jury witness, there was no constitutional

violation where it appears that the threats

had no effect on the witness's testimony).

The district court properly held that the

7 a

ne

A6

prosecutor's conduct did not amount to a due

process violation.

II. Introduction of Prejudicial and

Irrelevant Testimony

The appellant claims that the prosecution

elicited prejudicial and irrelevant opinion

testimony from the appellant's clerical staff.

Since the appellant's attorney did not object

to the admission of this testimony, we must

determine whether the district court committed

such plain error so as to justify review. If

the court plainly erred, we must then determine

whether the error was harmless. Fed. R. Crim.

P. 52(b); United States v. Halbert, 712 F.2d

388, 389 (9th Cir. 1983), cert. denied, U.S.

__, 104 S. Ct. 997 (1984).

At trial, some members of the appellant's

staff stated their opinions that they were

uncomfortable with the appellant's billing

practices. However, they also described the

A7

billing practices in some detail. Given the

factual foundations for these opinions, their

admission did not constitute plain error.

See United States v. Thompson, 708 F.2d 1294,

1299 (8th Cir. 1983). Even if the introduction

of this testimony were plain error, there was

independent evidence, including the appellant's

office practices and other testimony, that

rendered any error harmless beyond a reasonable

doubt.

III. Good Faith Instruction

The appellant claims that, although a

request for an instruction on the defense of

good faith was not made by her counsel, the

district court plainly erred in failing to

issue such an instruction. Other circuits

have held in mail fraud cases that an

instruction that the defendant must act with

specific intent to defraud need not be

A8

supplemented with an instruction that the

defendant acted in good faith. See United

States v. Wilkinson, 460 F.2d 725, 729 (5th

Cir. 1972); United States v. Hamlin, 43?

F.2d 905, 909 (8th Cir. 1970); New England

Enterprises, Inc. v. United States, 400 F.2d

58, 71 (lst Cir. 1968), cert. denied, 393 U.S.

1036 (1969). No circuit has held that a court

must give a good faith instruction when none

is proffered by the defendant. In this case,

the appellant has provided neither the trial

court nor this court with the language of the

instruction he argues the district court

should have given. The district court's

failure to instruct the jury in the defense of

good faith did not constitute plain error.

Iv. Ineffective Assistance of Counsel

The appellant claims that she was denied

effective assistance of counsel. In order to

A9

establish an ineffective assistance of counsel

claim, the defendant must show that counsel's

errors or omissions reflect a failure to

exercise the skill, judgment, or diligence of

a reasonably competent attorney. In addition,

the defendant must affirmatively establish

prejudice as a result of the attorney's conduct.

Strickland v. Washington, 104 S. Ct. 2052, 2063,

2065 (1984); United States v. Schaflander, 743

F.2d 714, 717-18 (9th Cir. 1984). Prejudice

is established if the defendant shows that

there is a reasonable probability that, but

for counsel's unprofessional errors, the

result of the proceedings would have been

different. Strickland, 104 S. Ct. at 2068.

The appellant sets forth several alleged

errors by her defense counsel at trial.

First, the appellant claims that the defense

counsel failed to interview the Government's

A10

primary witnesses. Failure to interview

potential witnesses can constitute ineffective

assistance of counsel. Hines v. Enomoto, 658

F.2d 667, 676 (9th Cir. 1981). However, the

defense counsel was provided with statements

of all government witnesses at least 10 days

prior to the commencement of the trial.

Therefore, the appellant has not established

any prejudice that resulted from this

omission.

Second, the appellant claims that the

defense counsel failed to object to the

admission of considerable irrelevant and

prejudicial testimony. However, the trial

record is replete with instances where the

defense counsel made evidentiary objections.

In each instance where the defense counsel

did not raise any objection, he could have

legitimately thought that an objection would

All

draw further attention to the irrelevant

testimony. See United States v. Eaglin, 571

F.2d 1069, 1087 (9th Cir. 1977), cert. denied,

435 U.S. 906 (1978). In addition, the

appellant has not shown how the defense

counsel's errors prejudiced the defense. See

United States v. Gibson, 690 F.2d 697, 704

(9th Cir. 1982), cert. denied, 460 U.S. 1046

(1983).

Finally, the appellant claims that the

defense counsel erred in failing to impeach

Bernard Ho's testimony that he had informed

the appellant that her billing practices were

unacceptable. The appellant claims that a

memorandum written by Ho several days after

he met with the appellant contradicts this

testimony. However, the memorandum did not

directly contradict Ho's testimony, but

merely reflected uncertainty about HMSA

Al2

policy concerning Medicaid claims for services

rendered by allied personnel. Therefore, the

defense counsel's failure to impeach Ho's

testimony was not wholly unreasonable.

The defense counsel's conduct at trial

did not reflect a failure to exercise the

skill of a reasonably competent attorney.

Even if the defense counsel's conduct were

unreasonable, it is not reasonably probable

that, but for the defense counsel's errors,

the outcome of the case would have been

different.

Vv. Pre-indictment Delay

Delay prior to the issuance of the

indictment may give rise to a due process

claim. United States v. Lovasco, 431 U.S.

783, 788-89 (1977). In order to establish

a due process violation, the defendant must

show that the delay caused actual prejudice.

Al3

If prejudice is shown, the court must

consider the length of and reason for the

delay. United States v. Kidd, 734 F.2d 409,

412-13 (9th Cir. 1984).

In the present case, the indictment was

issued one month before the 5-year statute of

limitations would have expired. The

appellant's primary basis for claiming

prejudice is the death of a potential witness,

Dr. R. W. Millar, in March of 1981. A

showing that a witness has been lost due to

pre-indictment delay can suggest actual

prejudice; however, a defendant must identify

the witness and relate the substance of his

or her testimony and how the absence of the

evidence prejudiced the defense. United

States v. Mills, 641 F.2d 785, 788 (9th Cir.),

cert. denied, 454 U.S. 902 (1981).

| Dr. Millar was the Director of Medical

Al4

Care Administration Services in Hawaii. The

appellant claims that Dr. Millar's testimony

was crucial because he authored Memo 79-02,

dated February 5, 1979, which informed

psychiatrists that they could not bill

Medicaid for services rendered by allied

personnel. According to the appellant, Dr.

Millar would have testified about HMSA

policies and regulations during the period

in which the appellant had billed Medicaid

for services that she had not personally

provided.

In United States v. Mays, 549 F.2d 670

(9th Cir. 1977), three potential witnesses

who were intimately involved with the mail

| fraud scheme at issue died prior to the

issuance of the indictment. We recognized

the defendant's difficult task of demonstrating

how the witnesses would have contributed to the

A15

defense. Id. at 677 n.12. Nonetheless, we

held that the potential witnesses' “general

involvement in the case was insufficient to

show actual prejudice." Id. at 679-80. The

same is true with respect to Dr. Millar's

potential testimony. We can only speculate

whether the content of Dr. Millar's testimony

would have been favorable to the appellant's

case. The content of his memo suggests

otherwise. The appellant has failed to

establish actual prejudice as a result of

Dr. Millar's death.

The appellant claims that witnesses'

memories have been dimmed and that certain of

her files have been destroyed because of the

delay. A claim that witnesses’ memories

have dimmed without proof of impairment does

not constitute actual prejudice. Mills, 641

F.2d at 789. Likewise, the appellant has

Al16

failed to support her claim that the loss of

her files resulted in actual prejudice. See

Mays, 549 F.2d at 673 n.l.

Because the appellant has failed to

establish actual prejudice from the pre-

indictment delay, we must deny her due

process claim.

VI. Taint Hearing

Finally, the appellant claims that the

district court improperly denied her motion

for a taint hearing. The appellant claims

that the testimony of two witnesses, James

Alexander and Mark Kokobun, was the fruit of

files which were illegally seized from the

appellant's office. In order to obtain a

taint hearing, a defendant has the initial

burden of establishing a factual nexus

between the illegal search and the challenged

evidence. United States v. Kandik, 633 F.2d

Al7

1334, 1335 (9th Cir. 1980). The appellant

has failed to offer any facts that establish

a connection between the illegally seized files

and the challenged testimony. The appellant's

1/

claim is without merit.

The judgment of the district court is

AFFIRMED. *

1/ The appellant claims that her conviction

was not supported by substantial evidence. This

claim is without merit.

*The panel has concluded that the issues presented by

this appeal do not meet the standards set by Rule 21

of the Rules of this Court for disposition by written

opinion. Accordingly, it is ordered that disposition

be by memorandum, forgoing publication in the Federal

Reporter, and that this memorandum may not be cited to

or by the courts of this circuit, save as provided in

Rule 21l(c).

EXHIBIT "B"

Order Denying Motion

For a New Trial

Bl

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA,

Plaintiff,

CR. NO. 82-01009

KERRY J. MONICK,

)

)

)

)

Ve )

)

)

)

Defendant. )

)

ORDER DENYING MOTION FOR A NEW TRIAL

The court having considered defendant's

Motion for a New Trial, having reviewed the

memoranda filed in support and in opposition

thereto, and being fully apprised of the

premises therein, finds as follows:

Pursuant to the stay of appeal filed on

April 6, 1984 by the United States Court of

Appeals for the Ninth Circuit, this court has

jurisdiction over the defendant's Motion for

a New Trial filed on April 3, 1984.

The defendant moves for a new trial on

B2

the basis of prosecutorial misconduct and

newly discovered evidence. The defendant

argues that the statements she presents of

three witnesses called by the prosecution at

trial, Clarence Steadman, Pat McClain, and

Carl Weisbrod, constitute newly discovered

evidence which requires that she be granted

a new trial. Further, the defendant argues

that the prosecution failed to disclose the

substance of those statements, thereby

suppressing exculpatory evidence and

depriving the defendant of a fair trial.

NEWLY DISCOVERED EVIDENCE

In order to prevail on a motion for a

new trial based on newly discovered evidence,

the movant must meet five requirements: the

evidence must in fact be newly discovered;

the motion must allege facts from which the

court can infer diligence on the part of the

;

4

B3

movant in attempting to secure the evidence;

the evidence must be more than merely

cumulative or impeaching; it must be

material to the issues involved; and it must

be evidence which would probably produce an

acquittal at a new trial. See United States

v. Kenny, 645 F.2d 1323, 1343 (9th Cir.),

cert. denied, 452 U.S. 920 (1981), cert.

denied, 454 U.S. 828 (1981). Further, the

decision whether to grant a motion for a new

trial falls within the sound discretion of

the trial judge. See id.; United States v.

Brasher, 607 F.2d 840 (9th Cir. 1979), cert.

denied, 445 U.S. 942 (198X).

The defendant argues that the affidavits

of Clarence Steadman, Pat McClain, and Carl

Weisbrod constitute newly discovered evidence.

Mr. Steadman's affidavit discusses a “team

concept" wherein the defendant supervised

B4

Steadman. These statements contradict

Steadman's testimony at trial that he is a

superior therapist to the defendant, that

defendant did not attend group therapy

sessions on a regular basis, and that

defendant signed Medicaid forms for patients

treated by Steadman solely because Steadman

could not make claims for payment on the

Hawaii Medicaid Program. Thus, Steadman's

present testimony is merely evidence which

could have been produced at trial through

cross-examination. Further, Steadman's

affidavit presents his opinion that defendant

did not intend to commit fraud, and Steadman's

objections to the prosecution of defendant.

Those statements are irrelevant to the issue

of defendant's guilt, and would not be

admissible at trial.

The court finds that, even if the

B5

information contained in Steadman's affidavit

were presented at trial, there would still be

sufficient evidence to find the defendant

guilty beyond a reasonable doubt.

Ms. McClain's affidavit also presents

evidence which could have been brought out in

cross-examination. She states that, as she

now reads the governing state and federal

regulations, defendant's actions were in

compliance with those regulations. This

conflicts with McClain's testimony at trial

that a Medicaid claim cannot be submitted

unless the physician submitting the claim

has personally seen the patient. McClain’s

affidavit also attempts to enlarge her

testimony at trial, by justifying defendant's

practice of concealment of the actual treating

therapist's name, with falsified notes and

appointment books. Finally, McClain's

B6

affidavit presents her opinion that defendant

did not intend to commit fraud, which is not

relevant and would not be admissible at trial.

Again, the court finds that, even if the

information contained in McClain's affidavit

were presented at trial, there would still be

sufficient evidence to find the defendant

guilty beyond a reasonable doubt.

Mr. Weisbrod's affidavit discusses the

origin of the duplicate appointment books,

and the possibility of prosecutorial

misconduct (see infra). The affidavit merely

reiterates Weisbrod's testimony at trial;

thus it constitutes mere cumulative evidence.

Further, Weisbrod's affidavit presents his

personal opinions about defendant's intent,

which is not relevant and would not be

admissible at trial.

The court finds, once again, that, even

B7

if the information contained in Weisbrod's

affidavit were presented at trial, there

would still be sufficient evidence to find

the defendant guilty beyond a reasonable

doubt.

The evidence presented by defendant is

not newly discovered. Further, the evidence

presented could have been elicited in cross-

examination at trial. It appears that defense

counsel was not sufficiently diligent in

obtaining the evidence.

The three effidavits attempt to show

defendant's lac of criminal intent. However,

insofar as the affidavits present affiants'

opinions, they would be inadmissible at trial,

pursuant +o Rule 701 of the Federal Rules of

Evidence. Because the affidavits present

opirions, they are not material to the issues

involved in determination of defendant's guilt.

B8

Further, because the opinions presented

in the affidavits would not be admissible at

trial, they probably would not produce an

acquittal at a new trial. Even if the

prosecution had not presented the testimony

of Steadman, McClain, and Weisbrod at trial,

the combined testimony of Mr. Bernard Ho, Ms.

Karen Rillo, Ms. Myra Hirobara, Ms. Lyrio

Tiburcio, Ms. Cindy Quén, Ms. Loretta Ware,

Mr. Daniel Monick, Ms. Bess Phillips, Lt.

James Isobe of the Honolulu Police Department,

Mr. Henry Pikini of the Halawa High Security

Facility, and Mr. Mark Kokubun clearly

contained sufficient evidence for a jury to

find tic defendant guilty beyond a reasonable

doubt.

PROSECUTORIAL MISCONDUCT

Defendant argues that the prosecutor

intentionally suppressed exculpatory evidence,

B9

thereby depriving the defendant of a fair

trial. Specifically, she argues that the

prosecution failed to disclose the contents

of the affidavits of Steadman, McClain, and

Weisbrod, which show their personal opinions

as to defendant's intent.

In addition to the affiants' opinions

about defendant's intent to commit fraud, Mr.

Weisbrod's affidavit states further that,

despite prosecution pressure to change his

testimony to make it more favorable to the

prosecution, he refused to do so. Mr.

Weisbrod's affidavit does not detail this

alleged misconduct.

The United States Supreme Court held, in

United States v. Agurs, 427 U.S. 97 (1976)

that the government's failure to disclose

evidence constitutes constitutional error

only if the undisclosed evidence creates

B10

reasonable doubt as to the defendant's guilt

which did not otherwise exist. The allegation

of misconduct consists of the prosecution's

failure to disclose personal opinions of

witnesses called by the prosecution at trial,

and vague allegations of "pressure" to change

test*mony, which did not cause the witness to

change his testimony. Absent any more

specific or substantial allegations of

suppression, the court finds that the alleged

nondisclosure does not meet the materiality

requirement of United States v. Agurs.

CONCLUSION

For the foregoing reasons, IT IS HEREBY

ORDERED that defendant's Motion for a New Trial

be, and the same is, DENIED.

DATED: Honolulu, Hawaii, May 21, 1984

Bll

/s/ Harold M. Fong

UNITED STATES DISTRICT JUDGE

UNITED STATES OF AMERICA vs. KERRY J. MONICK

CR. NO. 6862-01009

ORDER DENYING MOTION FOR A NEW TRIAL

EXHIBIT "C"

Affidavit of Clarence Steadman

Ca

DECLARATION OF CLARENCE STEADMAN

I, Clarence Steadman, do hereby declare:

I was a witness in a criminal proceeding

against Dr. Kerry Monick with regards to an

alleged Medicaid Fraud case.

I joined Dr. Monick's therapeutic

team in 1977. My initial duties consisted

of seeing private patients on a one-to-one

basis and some vsychological testing.

Shortly after joining the therapeutic team,

group therapy was initiated as one of our

approaches of helping people with psycho-

logical problems. For the services I

rendered I was paid by various insurance

companies (i.e., CHAMPUS, MEDICAID, etc.),

through the clinic and at no time did I ever

receive a set salary.

I was aware of the billing process to

the extent that I knew I had to submit

progress notes on each patient after I

C2

evaluated them. My patient progress notes

were then turned over to our billing

secretary, Pat McClain, for typing and then

were brought to Dr. Monick for review.

After review by Dr. Monick, the progress

notes were then turned over to the billing

secretary and the appropriate insurance

company would be billed according to time

spent with the patient as reflected in the

progress notes. When I saw patients as

their primary therapist under Dr. Monick's

supervision, I would receive between 70-75%

of the monies paid by the insurance comvanies

or by the patients themselves, and the clinic

would receive approximately 25-30%, or the

remainder. Group therapy started sometime

within the first year of my joining the

clinic for which I would receive 50% of the

monies paid from either the insurance

c3

companies or the patients. Dr. Monick

would receive the remaining 50% as she was

my supervisor.

In January of 1980 I left the clinic

when Dr. Monick was my supervisor for the

following reasons:

Le My parents who reside back east

wanted me to spend some time with them, and

my father was hospitalized.

re Dr. Monick stated she could no

longer supervise me as a therapist.

After visiting my parents I took a

job as administrator of a program in San

Diego assisting the mentally retarded.

After my arrival in San Diego I was visited

at my home at around 10:30 p.m. by a Mr.

Clyde Vierra of the Medicaid Fraud Unit from

Hawaii. He explained to me that he had

concern over the billing practices of the

C4

clinic, where I was a former therapist, and

that my supervisor, Dr. Kerry Monick, was

their (the Medicaid Fraud Unit) primary target

of this investigation. He also stated to me

that their biggest area of concern was when

she was absent from the office due to a

vacation in Egypt and another period of time

due to an automobile accident. I would like

to say that I stated to Mr. Vierra and Mr.

Yamamoto that even when Dr. Monick was absent

from work (whether from vacation or illness)

that she always left a covering physician

in her place in case of an emergency or in

the case hospitalization was required. I

was never left unsupervised. In fact, as I

recall, during Dr. Monick's vacation to Egypt,

Dr. Tony Dee of Honolulu, Hawaii and another

physician from Queen's Hospital could be

reached through the physician's exchange at

c5

all times. Also, during the time she was

supposedly out of the office after her

accident and surgical operation, I only

recall her missing one or two full days of

work. I might add that she stayed in

constant communication by phone or by

merely dropping in the office. As I stated

before, there would always be a covering

physician which any member of the therapeutic

team would be able to reach simply by

contacting the physician's exchange. I felt

that no member of the therapeutic team had

done anything illegal with regard to our

patient billing procedure. With the

tremendous amount of good response the

therapeutic team received from the patients’,

without a doubt, I knew we were giving the

absolute best of care to our patients.

I explained to Mr. Vierra and Mr.

C6

George Yamamoto, who was the special

prosecutor for the Medicaid Fraud Unit in

Hawaii, that at no time did Dr. Monick or

any member of the therapeutic team attempt

to defraud, rip-off, steal from, or in any

way act in bad faith towards any patient or

insurance company or the Medicaid system

that had been billed for our services, in

my ovinion. In fact, I stated in my

conversation with Mr. Vierra and/or Mr.

Yamamoto that at no time did any member of

our therapeutic team act in any other manner

that would have been contrary to our good

faith approach as a team and that I didn't

really understand what this intense

investigation was all about. It should also

be noted that I objected to the prosecution

of Dr. Monick to Mr. Vierra and Mr.

Yamamoto before I testified in front of the

C7

Oahu grand jury and at her trial. I also

stated to Mr. Vierra and Mr. Yamamoto that I

didn't really understand how they could

particularly pinpoint any of the billing

since our secretarial staff left much to be

desired and that I was sure the billing

process would more than likely reflect the

chaotic state our secretarial staff seemed

to be in most of the time.

It should also be noted that at the

time of the trial while I was a witness for

the prosecution, I was very surprised that

the government decided to prosecute Dr.

Monick, and I was particularly surprised

when it was not brought out by either side

that I was always of the opinion that Dr.

Monick always acted in good faith since I

had told this to the prosecution on several

occasions.

c8

I declare under penalty of perjury that

the forgoing declaration is true and correct.

/s/ Clarence G. Steadman

Clarence Steadman

State of California

County of San Diego

March 9th, 1984

Marie Dominguez-Notary

(seal)

EXHIBIT "D"

Affidavit of Pat McClain

D1

March 19, 1984

I worked at Psychiatric and Counseling

Associates with Dr. Monick and other doctors

and psychotherapists from 1976 to about the

middle of 1978. Originally I was the only

clerical staff and the office members

consisted of Carl Weisbrod and Dr. Monick,

with another part-time psychotherapist

(Vince O'Neill).

The practice grew very quickly and my

workload easily doubled within the first

year. This was somewhat stressful to me

because of the many demands being made of

me by all of the therapists and I just

didn't have as much time for personal

contact with the patients as I had

previously - and the personal contact was

the area that I enjoyed most. Nevertheless,

I felt -- and still do -- that this was one

of the most satisfying and personally

D2

rewarding periods of my life. The

atmosphere was very positive and I felt a

great satisfaction in my work which

contributed to the patients' improvement

and recovery. At one point we had to make

a policy that the patients could not come

in until one hour before their appointment

and they would have to leave immediately

afterwards -- this was mainly because the

caseload of indigents rose after we began

treating more and more patients who were

discharged from the Salvation Army Alcohol

Treatment Facility. Although this

affiliation began with Dr. Monick and Vince

O'Neil, it grew much bigger after Clarence

Steadman joined the group. He worked at

ATF which was a residential treatment

facility and was in charge of aftercare.

In this capacity he referred many patients

D3

to our office for treatment. Those for

whom he had been primary therapist at ATF

were often able to take the opportunity of

continuing to see Clarence Steadman after

they were discharged. This helped with

continuity of care and maybe improved our

recovery rate which was unusually high,

especially for alcohol and drug-addicted

patients. There was no group therapy

during the time I worked at the clinic.

The main problems we had with these

patients and the reason many other

physicians would not treat them was their

unreliability. This included their

Medicaid eligibility requirements and

also regularly keeping appointments. The

office was totally patient oriented and

money was never the primary motivation.

Thus, there was no quota or other policy

D4

discrimination against Medicaid even though

the payment from Medicaid was only about

1/2 to 1/3 of the doctors' fees.

The regulations are important in this

case. There is some confusion in

interpreting them as Dr. Monick and the

therapeutic team were following the written

State and Federal regulations as I now read

them. Mr. Yamamoto told me at the time of

the Grand Jury hearing in 1982 that what we

had done was illegal and I could be

prosecuted, i.e., "there was a conspiracy

to commit fraud." Since that time, I have

believed him but now I see again how the

regulations can be interpreted as allowing

the therapeutic team concept. I felt very

pressured by Mr. Yamamoto, and he made me

feel very guilty, as if I were the worst

sort of criminal. At the time I felt very

D5

threatened for something I didn't do, and

I was afraid and became angry with Dr.

Monick for apparently putting me in that

spot. Neither Mr. Yamamoto nor Mr. Vierra

were interested in what was really going on,

they were only interested in a conviction.

I don't think the thought ever occurred to

any of us that there was any sort of "fraud"

involved -- we were just too involved and

busy with taking care of patients and

paperwork. I think the ‘coverup’ alluded

to by the two appointment books was a

transient and naive idea to comply with

Mr. Ho's requests while still taking care

of our’ patients.

As the staff grew, so did the personnel

problems. One was Dr. Wright, he tended

to take up all of our time with his different

problems and it made my work very difficult.

D6

He seemed anxious and hostile and unable

to adjust harmoniously even though we all

tried to work with him. Dr. Wright's

philosophy simply didn't fit in with the

rest of the clinic -- he was very money

oriented, he did not at all like to be

involved with Medicaid patients. After

a group decision, Dr. Monick asked him to

leave.

Regarding Karen Rillo, I have just

read her testimony at trial and I disagree

with it completely -- quite frankly, I

believe most of it is an out and out lie.

Karen was very unhappy at the clinic,

patients were “weird” -- she just didn't

fit in. She lied when she was working

there, that was the main reason that the

Gecision had been made to fire her at

about the same time that she quit.

D7

As far as office procedures were

concerned, I really don't recall why the

system was developed for typing the

handwritten notes, I think it was the same

sort of thing as the appointment books --

just to meet Mr. Ho's requirements and still

treat the patients -- again, I don't think

the thought of "fraud" ever occurred to any

of us. I do not recall being instructed to

destroy the notes nor do I recall instructing

anyone else to do so; as I recall the stack

of handwritten notes was kept in the bottom

drawer of the file cabinet.

As far as supervision is concerned, I

know Dr. Monick saw a great deal of both

Clarence and Carl, during which time she

would tell me of her discussions about

patients. She was almost never away from

the office and when she was, she was always

~..

D8

in touch by phone. On the rare occasions

when she was away, there was another

physician covering for her through the

Physician's Exchange. As I mentioned at

the trial, I received psychiatric services

from Dr. Monick and other psychiatrists,

and I have also worked for other

psychiatrists. I know by the nature of the

therapy and customary practice that it

would be inappropriate to have a third

person sit in all the time ona

confidential one-to-one therapy basis.

Maybe this is the problem with "direction

of a physician" in the Federal Rules as

opposed to "direct supervision" which Mr.

Ho proposed in his memo. When Mr. Ho

came to audit the charts in our office,

in my opinion it was the first time he

had ever seen psychiatrists' notes.

D9

All this trial and conviction has been

started on the wrong premise. I told Mr.

Vierra and Mr. Yamamoto from the beginning

that I knew Dr. Monick was acting in good

faith. I know I was, and I know the

community really appreciated our services.

I believe that Dr. Monick lost more money

by being a Medicaid provider and accepting

Medicaid payments than she gained by

supervising.

Regarding Mr. Yamamoto specifically,

when I went to Hawaii for the Grand Jury,

I feel that he was very rude to me, he

threatened me and intimidated me. I had

seen an attorney briefly before leaving

the mainland, primarily because I had

never been in a courtroom before and I

just wanted to know what the procedures

were. He "held this against me", saying

D10

things such as if I weren't guilty, I

wouldn't have needed to see an attorney.

He said there was a conspiracy to commit

fraud amongst the four of us and I was

number two on the list, that there was no

possible way he would consider granting

me immunity and he would throw me in jail

if I took the Fifth Amendment. A 15

minute interview with him truly destroyed

my idea of American justice and the rights

I always thought everyone had.

I declare under penalty of perjury the

foregoing to be true and correct.

/s/ Pat McClain

Pat McClain

State of California )

) ss.

County of Sonoma )

On March 20, 1984 before me, the undersigned, a

Notary Public in and for said State, versonally

appeared PAT McCLAIN, personally known to me (or

.

»

D1l

proved to me on the basis of satisfactory evidence)

to be the person whose name is subscribed to the

within instrument and acknowledged to me that she

executed the same.

WITNESS my hand and official seal.

/s/ Linda Galarneaux

Linda Galarneaux

Notary Public - California

Principal Office in Sonoma County

My Commission Expires May 31, 1984

(seal) t

EXHIBIT "E"

Affidavit of Carl Weisbrod

El

October 31, 1983

TO WHOM IT MAY CONCERN:

RE: United States of America, Plaintiff

Kerry J. anid, &.D., Defendant

CR # 82-01009

I am Carl Weisbrod.

I am willing (and have testified) to

swear to the accuracy of the following

facts to the best of my recollection.

I was the originator of Psychiatric

and Counseling Associates. I was completely

involved in all aspects of the clinic from

its inception until I separated in 1979. I

was involved in all decisions along with

other partners/therapists especially Kerry

Monick, Clarence Steadman and Peter Bianchi,

our paid administrator during a period from

1978-1979. I also spent several hours in

meetings with members of the Medicaid Fraud

Unit and was informed in detail of their

E2

contentions. These contentions were largely

inaccurate or completely false. When it was

clear to these officials that my testimony

would not be in favor of the prosecution, I

was pressured by threat to change my story.

I refused. I later heard from Pat McClain

and Clarence Steadman that they also received

similar treatment. I am sure other witnesses

were treated in a like manner. I was called

late in the trial and testified for several

hours but was not asked by either side to

bring out many important issues. My

testimony was still damaging to the

Prosecution's case but Dr. Monick's defense

was wholly inadequate and she had no chance

against a string of witnesses who lied under

pressure or for vindictive purposes. I know

it could easily be proven that witnesses

lied under oath.

E3

For example: Here are the facts

surrounding the TWO APPOINTMENT BOOKS

ISSUE. When Mr. Ho did the HMSA audit in

our office in 6/77, we had one appointment

book for the clinic. I was the major

contact with him during the audit and

received his criticisms and policy

instructions. He suggested to me several

times we needed to “clean up our record-

keeping act". He made as a major point

that he did not like our appointment book

because it was filled with personal notes

and illegible scribbling made by

individual therapists. He informed me

that an insurance company audit considered

the appointment book to be a major source

of information and must be accurate. Our

book was not accurate because therapists

E4

kept personal notes on appointments, change

of appointments, and rescheduled appointments

in their offices. I decided that, based on

Mr. Ho's instructions, we needed an accurate

schedule of appointments in an appointment

book format. Hence the second appointment

book. Dr. Monick was not involved except to

agree with my recommendation along with the

other therapists. To this day in my private

practice, I keep two appointment books for

reasons of accurate record keeping, not as

an attempt to defraud.

As I read the complete trial transcript

I could hardly believe that the appointment

book issue could have been so manipulated

into evidence of fraud when the original idea

was actually suggested by HMSA's own

representative. This is, however, an example

of the way many issues were manipulated to

ES

falsely indicate guilt. The fraud unit was

aware of the actual facts surrounding the

appointment book issue but chose to ignore

the information I gave them. Of course, Mr.

Ho and other witnesses lied in their

testimony. I understand his memos, which

were not brought into evidence at the trial,

but were in the motion for a new trial,

strongly suggest he made a perjurious

statement at trial.

In summary:

1) The prosecution started with an

incorrect premise and pressured witnesses to

testify to this premise requiring them to

lie under oath.

2) The defense did almost nothing to

counteract these tactics.

Signed,

/s/ Carl Weisbrod

Carl Weisbrod