# Petition for Writ of Certiorari — Monick v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 817

## Text

- 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

eee

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0048%3A1. Public record. Not legal advice.