Appendix — George v. Ohio (No. 08-141)

la

Entered May 7, 2008

THE SUPREME COURT OF OHIO

State of Ohio Case No. 2008-0124

v. ENTRY

Philip F. George

Upon consideration of the jurisdictional

memoranda filed in this case, the Court declines

jurisdiction to hear the case and dismisses the

appeal as not involving any — substantial

constitutional question.

(Hamilton County Court of Appeals; No.

C060293)

/s/Thomas J. Moyer

Thomas J. Moyer

Chief Justice

2a

Entered December 19, 2007

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, APPEAL NO.

C-060293

Plaintiff-Appellee, TRIAL NO.

B-0107787(B)

Vs.

JUDGMENT

PHILIP F. GEORGE ENTRY

Defendant-Appellant.

We consider this appeal on the accelerated

calendar, and this judgment entry is not an opinion

of the court.!

Defendant-appellant Philip F. George appeals

his convictions, following a second trial before the

court, for two conats of money laundering in

violation of R.C. 1315.55(A)(1) and 1315.55(A)(3).

The trial court found George not guilty of the

remaining gambling-related charges. The trial court

sentenced George to a one-year term of

imprisonment for each of the money-laundering

counts, to be served concurrently, and gave George

credit for time served. George now appeals, raising a

sole assignment of error in which he challenges the

trial court’s refusal, following this court’s remand in

his prior appeal, to dismiss the indictment against

1 See S. Ct. R. Rep. Op. 3(A), App. R. 11.1(£), and Loc.

R. 12.

3a

him for violation of his Sixth Amendment right to

counsel.

In his prior appeal,? George had argued that

the trial court had erred in failing to dismiss the

state’s indictment against him, where “state agents

[had] violated his [Sixth Amendment] right to

counsel by unlawfully seizing attorney-client

communications” during two separate searches of his

home in February 2002 and December 2002.3 But

neither George nor the state had included any of the

allegedly privileged materials seized in the

December 2002 search in the record on appeal.4

Consequently, we concluded that, in the absence of

those documents, we could not determine whether

George’s constitutional rights had been violated.®

We, therefore, remanded his case to the trial tourt

for a new trial and for consideration of his motion to

dismiss the indictment against him in light of the

Ohio Supreme Court’s decision in State v. Milligan.®

Following our remand, the parties arranged

for the disputed materials, which had been seized by

state and federal agents during the second post-

indictment search of George’s home and had

remained in the possession of a federal prosecutor, to

be transferred to the trial court. The trial court then

2 Ist Dist. No. C-030216, 2004-Ohio-2868

31d. at 914-916 and 26.

4Id. at 430932.

5 Id. at 932.

6 Id. at 432 and 455-458. 2

4a

reviewed the materials in camera and held an

evidentiary hearing on George’s motion to dismiss

the indictment. During the hearing, the state

presented testimony from Ohio Department of Public

Safety Agents Aaron Reese and Harold Torrens,

Jeffrey Gilker, an agent with the organized-crime

division of the Hamilton County Sheriffs Office, and

Assistant United States Attorneys Robert Bulford

and Benita Pearson. George presented testimony

from himself and two of: his attorneys, Charles

Quinn, who had been present during both searches

of his home, and Robert Gutzwiller, as well as from

Peter Kacarab, a special agent with the criminal

division of the Internal Revenue Service, and

Lieutenant Jennifer Limbert of the Summit County

Sheriffs Office.

After listening to the testimony of the

witnesses, and counsels’ arguments, and reviewing

the exhibits admitted at the hearing, the trial court

issued a lengthy written decision in which it

articulated the four factors set forth in the United

States Supreme Court’s decision in Weatherford v.

Bursey,’ as adopted by the Ohio Supreme Court in

State v. Milligan,’ and applied those factors to the

evidence before it. The trial court concluded that

while both searches had resulted in the seizure of

confidential attorney-client information, the main

thrust of which was trial strategy and not hard

evidence, there was no evidence that the state and

federal agents had acted deliberately to obtain this

information, given their testimony that they were

7 (1977), 429 U.S. 54, 97S. Ct. 837.

8 (1988), 40 Ohio St.3d 341, 533 N.E.2d 724.

5a

never instructed to search for these materials and

that they had not knowingly read any of the

disputed materials or communicated any of their

contents to the assistant Hamilton County

prosecuting attorney. The trial court further noted

that both searches had been conducted’ by

governmental agencies other than Hamilton County,

and that, in the case of the second search, the federal

prosecuting attorney had adopted a procedure to

segregate any potentially confidential documents

and to preserve them behind a Chinese Wall until

their status could be determined by the federal

magistrate who had issued the search warrant.

The trial court also relied on the testimony of

the assistant Hamilton County prosecuting attorney

that he had not personally seen or read any of the

documents containing the confidential information.

The trial court held that while it was certainly

possible that some government agents testifying in

Hamilton County may have’ gleaned some

information from the confidential documents, it was

impossible to determine whether or to what extent

that information had been used by the state in the

prior trial. The trial court further found that the

good-faith effort of the prosecuting attorneys to

protect George’s privileged information was certainly

not the type of “outrageous conduct” that warranted

dismissal of the charges. Consequently, it denied

George’s motion to dismiss the indictment.

The trial court concluded, however, that

because a Sixth Amendment violation had occurred,

a sanction was warranted in the form a new trial.

The trial court then stated that because this court

6a

had already ordered a new trial in George’s prior

appeal, no additional sanctions were warranted. A

new trial was then held before the court, and the

court found George guilty of the two counts of money

laundering and sentenced him to time served.

In this appeal, George raises a_ sole

assignment of error, in which he contends that the

trial court erred in denying his motion to dismiss the

indictment against him on Sixth Amendment

grounds, “where the state’s agents twice seized

defense communications in violation of the terms of

judicial warrants post-indictment, and the state

failed to show that the seizures did not prejudice the

defendant's right to counsel,” and where “dismissal

was the necessary and appropriate remedy.”

George raises two main issues for our review.

He first contends that the trial court failed to follow

this court’s instructions to apply the reasoning in

Milligan and Weatherford. We disagree.

In Milligan, the Ohio Supreme Court

addressed the state’s interference with the attorney-

client privilege, setting forth the procedure to

determine if a Sixth Amendment violation had

occurred and the appropriate relief. In that case, jail

authorities had _ secretly taped a_ telephone

conversation between the defendant and his

attorney.!° The supreme court remanded the case for

consideration of the four factors set forth in

Weatherford and directed the trial court to

9 Milligan, supra, at 344-345. 4

10 Td. at 342.

7a

determine if the unauthorized intrusion had resulted

in substantial prejudice to the defendant and, if it

had, to take the appropriate action, including

dismissal, if necessary.'! The court, further held that

“* * * the burden is upon the state, after a prima

facie showing of prejudice by the defendant, to

demonstrate that the information gained was not

prejudicial to the defendant.”!2

Here, the trial court, in a _ well-reasoned

decision, reviewed all four factors set forth in

Milligan in detail and applied those factors to the

evidence before it. The trial court found that the

state had demonstrated that the seizure of attorney-

client communications by Ohio Department of Safety

gents, IRS agents, and Lorain County authorities

had not prejudiced George in his prior trial in

Hamilton County. Consequently, George’s first issue

is meritless.

George next argues that the trial court erred

in ordering a new trial. He contends that dismissal

of the indictment was the only appropriate remedy

for the state’s violation of his Sixth Amendment

rights. “But the current state of the decisional law on

this subject does not permit dismissal except in

situations where the government misconduct is

found to be ‘outrageous.’ ”!3

11 Td. at 345.

12 Td

13 United States v. Horn (D.N.H. 1992), 811 F.Supp.

739, 751.

8a

For example, in United States v. Morrison, the

Supreme Court addressed an unjustified invasion

into the attorney-client relationship.!* In that case,

DEA agents who knew that the defendant, was

represented by an attorney met, “with Morrison

without defense counsel’s knowledge or permission.

The court of appeals held that the defendant’s right

to counsel had been violated, irrespective of the lack

of proof of prejudice to her case. The Supreme Court

said that even if there was prejudice, any action

taken had to be “tailored to the injury suffered.”!®

Since “respondent has demonstrated no prejudice of

any kind, either transitory or permanent, to the

ability of her counsel to provide adequate

representation in these criminal proceedings,” there

was “no justification” for such “drastic relief as a

dismissal with prejudice. '¢

Likewise, in State v. Milligan, the Ohio

Supreme Court rejected an automatic dismissal rule,

adopting instead, based on Weatherford, a case-by-

case approach where a court must balance “the

interest of the criminal defendant to engage in free

and confidential discussion with his attorney and the

interest of the state in ensuring that a prosecution

not be jeopardized by the unauthorized acts of law

enforcement officers, which result in no prejudice to

the defendant.”!’

14 (1981), 449 U.S. 361, 101 S. Ct. 665.

IS Td. at 364.

'6 Td. at 366-67.

‘7 Milligan, supra, at 344.

9a

In this case, the trial court, after balancing

the factors set forth in Milligan, held that dismissal

of the indictment was not warranted, particularly

where (1) the state had demonstrated that it had not

deliberately sought the privileged materials in either

search, (2) there was no evidence that the state had

directly learned defense strategy or that it had

directly gained any advantage from the seized

materials, and (3) the defendant had not

demonstrated that the state’s conduct was

“outrageous.” !8

The trial court noted the unique

circumstances in this case, where both sides had

already seen the presentation of each other’s cases,

and where George had been given ample time to

revise his strategy accordingly. Thus, it concluded

that “the fact that the prosecution, cr some

prosecution witnesses may have been aware of a

strategy contemplated years ago before a trial long

since held and reversed, has no relevance to the trial

about to commence in January 2006.”

Because the record and the applicable case

law supports the trial court’s remedy of a new trial,

instead of an outright dismissal, George’s second

issue 1s feckless. Having, therefore, found no merit

in either of George’s arguments, we overrule his sole

assignment of error and affirm the judgment of the

court below.

A certified copy of this judgment entry shall

constitute the mandate, which shall be sent to the

18 See Horn, supra; see, also State v. Kimmel, 3rd Dist.

No. 9-03-53, 2004-Ohio-1207, at 412-418.

10a

trial court under App. R. 27. Costs shall be taxed

under App. R. 24.

HILDEBRANDT, P.J., SUNDERMANN and

DINKELACKER, JJ.

To the Clerk:

Enter upon the Journal of the Court on

December 19, 2007 per order of the Court.

/s/

Presiding Judge

Eatered March 1, 2006

THE STATE OF OHIO, HAMILTON COUNTY

COURT OF COMMON PLEAS

date: 03/01/2006

code: GJFI

judge: 27

/s/ Thomas H Crush

Judge: Thomas H Crush

No. B-0107787-B

STATE OF JUDGMENT ENTRY:

OHIO SENTENCE:

VS. INCARCERATION

PHILLIP *.

GEORGE JR.

Defendant as present in open Court with

Counsel MARY JANE MCFADDEN on the Ist day

of March 2006 for sentence.

The Court informed the defendant that, as the

defendant well knew, after defendant entering a plea

of not guilty and after trial by jury, the defendant

has been found guilty of the offense(s) of:

count 6: MONEY LAUNDERING,

1315-55Al//ORCN,F3

count 8: MONEY LAUNDERING,

1315-55A3/ORCN,F3

12a

The Court afforded defendant’s counsel an

opportunity to speak on behalf of the defendant. The

Court addressed the defendant personally and asked

if the defendant wished to make a statement in the

defendant’s behalf, or present any information in

mitigation of punishment.

Defendant is sentenced to be imprisoned as

follows:

count 6: CONFINEMENT: 1 Yrs

DEPARTMENT OF CORRECTIONS

count 8: CONFINEMENT: 1 Yrs

DEPARTMEN?1 OF CORRECTIONS

THE SENTENCES IN COUNTS #6 AND #8

ARE TO BE SERVED CONCURRENTLY WITH

EACH OTHER. THE DEFENDANT IS GIVEN

CREDIT FOR FOUR HUNDRED TWENTY-

FIVE (425) DAYS TIME SERVED.

Defendant was notified of the right to appeal

as required by Crim. R. 32(A)(2)

13a

Entered December 15, 2005

COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

STATE ]F OHIO, : CASE NO: B-01-07787

rlaintiff

: DECISION RE: MOTION

-VS- : TO DISMISS

INDICTMENT

PHILLIP F. GEORGE, JR.:

Defendant.

Crush, J

This matter is again before the Court upon

Motion filed on behalf of defendant Phillip F. George,

Jr., upon Sixth Amendment grounds, to Dismiss the

Indictment. The Court has presided over an

evidentiary hearing involving two-and-a-half days of

testimony, and heard the arguments of counsel.

It is apparent from the evidence, and

undisputed by both counsel, that constitutionally

protected materials were taken from the defendant's

home upon the occasion of each search involved

herein; specifically, on February 11, 2002, and on

December 20, 2002. The prosecution attempts to

justify the taking by contending that the documents

and other matter seized could not at first glance be

determined to be protected material, although the

general appearance of the documents raised that

possibility; that, in such circumstances, it was

prudent and proper for the government to segregate

the possibly protected material, without perusing it,

l4a

from other seized items; that it was proper for a

government attorney, not working on the particular

case, to inspect the segregated items to determine if

there were protected materials, and, if so, to return

them to the defendant; or, if it was not certain

whether the materials were protected, to submit

them to an impartial magistrate for such

determination.

The defendant argues that the appropriate

procedure was to segregate the materials on the

spot; to place them in safekeeping with a court; and

then to a have an impartial magistrate inspect the

materials to determine whether they were protected

or not.

It is clear, therefore, that neither prosecution

or defense, objects to the seizure of the items in

question, but that the defense objects to the method

of seizure and the handling of the objects after their

seizure. Defense points out that the chain of custody

of the documents has not been established in

complete detail, and that there was the opportunity,

whether taken or not, for prosecution attorneys and

witnesses to inspect the materials.

The prosecution asserts, and defendant does

not dispute, that the prosecutor assigned for the trial

of this case has scrupulously avoided contact with

the materials in question and has not read their

contents. In fact, the scrupulous avoidance of contact

with the disputed material by both prosecution and

defense counsel has caused considerable delay, and

come confusion, in this matter.

15a

The first and second searches were both

pursuant to warrant. The first search was conducted

by State authorities; the second by federal

authorities; although both searches involved some of

the same State agents. The first search was

conducted without any prior planning with regard to

possible privileged attorney-client documents; the

second search was conducted with a plan in place for

handling such documents. Counsel for the

defendant was present, part of the time, at both

searches. Documents seized in the first search,

which were constitutionally protected, were returned

within a few days to defense counsel. Documents

‘seized in the second search, which were

constitutionally protected, were held behind a so-

called “Chinese Wall” and eventually offered to be

returned to the defendant.

The prosecution witnesses have stated that

they did not read the protected documents beyond

the absolute minimum required to determine their

nossible status as protected documents. On the other

hand, an attorney who formerly represented the

defendant stated that he saw a State agent reading

one of the protected documents at some length

during the first search. The defendant testified that

he saw an agent reading some protected documents

at some length during the second search.

The defense claims that the prosecution used

information from the protected documents in the

first trial of this case. The only evidence of such

alleged was the statement of defendant that a

witness testified at trial that the witness gave

money to the defendant, whereas on a protected tape

—

Abie. 1

sie

16a

the same witness stated that be had given money to

a charity.

The defendant argues that the prosecution

should be sanctioned for the agents’ seizure of

protected materials by dismissal of all charges

against the defendant. The criteria for determining

this issue have been spelled out by the Court of

Appeals, First Appellate District, in its reversal and

remand of this case:

“Both the Sixth Amendment to the United

States Constitution and Section 10, Article I of

the Ohio guarantee a criminal defendant the

right to counsel.... (A)n accused does not

received effective assistance of counsel if he is

denied private consultation with his counsel.

“When examining government intrusion into

the attorney-client privilege, we must strike a

balance between the Sixth-Amendment

interests of a criminal defendant and the

state’s interests in ensuring that a prosecution

is not jeopardized by the unauthorized acts of

overzealous officers, by applying’ the

Waterford test. The test is applied on a case-

by-case basis, analyzing the following four

factors: (1) whether the government

deliberately intruded in order to obtain

confidential and privileged information; (2)

whether the government obtained directly or

indirectly any evidence that was or could have

been used at trial as a result of the intrusion;

(3) whether any information obtained was or

could have been used in any manner

17a

detrimental to the defendant: and (4) whether

details about trial preparation were learned

by the government.”

The criteria for sanctions delineated by the Court of

Appeals are taken from State v. Milligan (1988), 44

Ohio St. 3d 341, 344, 533 N.E. 2d 724; which, in

turn, followed Weatherford v. Bursey (1977), 429

U.S. 545, 97 S.Ct. 837, 51 L.Ed. 2d 30.

The Court of Appeals also made the following

comments:

kK

“..(T)his is an unusual case. Never before

have we heard of a situation where state

agents purposefully seized attorney-client

communications twice in the same

case...Surely if state agents were allowed to

seize attorney-clhent communications at any

time under the guise of another investigation,

this right would be meaningless.”

“Because nobody has had access to the

documents in the _ federal prosecutor’s

possession, we cannot say whether there was

any privileged attorney-client information

seized in December 2002. And we cannot say

whether the prosecutor in this case had access

to any of the supposedly’ confidential

information. We cannot determine whether

the motion to dismiss should have been

granted or denied.”

18a

It is now evident, and not disputed, that

confidential information was seized in both searches.

It is undisputed that the Hamilton County

prosecutor assigned to try this case has not

personally seen or read any of the documents

containing the confidential information.

The first criterion delineated by the Court of

Appeals is “whether the government deliberately

intruded in order to obtain confidential and

privileged information.”

The Court finds that there was no deliberate

intrusion in order to obtain confidential and

privileged information in the December search. This

is evident because a procedure was adopted

beforehand to segregate, without perusal, any

materials even suspected of being confidential

materials; and to preserve them behind a “Chinese

Wall” until, if necessary, their privilege status was

determined by a magistrate. Whether or not the

procedure was perfectly followed, and whether or not

the “Chinese Wall” was totally effective, the fact

remains that it was clearly the intention of those

planning the search to avoid obtaining confidential

and privileged information.

With regard to the February search, there was

no plan in place for the special handling of

confidential materials. However, there is no evidence

to indicate that the government deliberately

intended the search process as an intrusion to obtain

privileged documents. Thus, although there is some

evidence that at least one agent perused one

privileged document, the fact is that all privileged

TER

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19a

documents were quickly returned to the defense,

indicating that it had not been the prosecutor's

intent to obtain privileged documents.

The second criterion is “whether the

government obtained directly or indirectly any

evidence that was or could have been used at trial as

a result of the intrusion.”

This question is complicated by the fact that

the “government” involved in both searches was not

the government involved in prosecuting this case, to-

wit, Hamilton County. The governments involved in

the first search were certain northern counties of

this State and, arguably, the State of Ohio. The

government involved in the second search was the

federal government. The searches were conducted to

acquire evidence for cases other than the one

pending in Hamilton County. Thus, whether the

governments involved in the search fortuitously

obtained evidence that might be used at trial in

Hamilton County does not reflect adversely upon

Hamilton County’s prosecution unless such evidence

is shared with Hamilton County. It is undisputed

that the Hamilton County prosecutor did not directly

come into contact with any of the privileged

documents. Thus, the only way that Hamilton

County could obtain evidence from the searches in

question arises from the possibility that some agent

testifying in Hamilton County would have had read

one or more of the privileged documents and could

use information therefrom in his testimony here.

This Court has had access to and has re2d the

privileged documents in dispute. The main thrust of

20a

these documents is trial strategy and not hard

evidence. It is obviously impossible for the Court to

know whether any agent has read any of these, or

shared their contents with any other witness; and

equally impossible for the Court to know whether

such information will be used at trial. It is at least

interesting to note that this matter has been

previously tried for a period of several weeks; and

the defense has provided virtually no evidence that

confidential information was used by the witnesses

at trial.

Recently, one prosecution witness forwarded

to the Hamilton County prosecutor, upon request for

a list of witnesses, a copy of a letter from Benita Y.

Pearson, Assistant United States Attorney, to Mary

Jane McFadden. This letter (Def. Ex. 13) includes an

attachment listing 62 items found by a magistrate to

be privileged. Thus, it is clear that both the defense

counsel and prosecutor in this matter know the list

of seized confidential items, but the prosecutor has

not seen their contents.

In summary, the government of Hamilton

County, represented by the prosecutor, does not have

directly have any evidence that was or could be used

at trial as a result of the searches. Of course, certain

witnesses may or may not have knowledge of this

evidence; and, in this respect, the government might

indirectly possess such evidence.

The third criterion is: “whether any

information obtained was or could have been used in

any manner detrimental to the defendant.”

Zla

The situation here is similar to that discussed

regarding the second criterion. Hamilton County, the

prosecuting government entity, acting through the

prosecutor, does not have information which has

been or can be used in any manner detrimental to

the defendant. However, witnesses may or may not

have information gleaned from privileged documents

that might or might not be used in a manner

detrimental to the defendant.

The fourth criterion is: “Whether details about

trial preparation were learned by the government.”

Once again, no detail regarding trial

preparation have been learned by the government of

Hamilton County, represented by its prosecutor.

However, witnesses mayor may not have information

gleaned from privileged documents that might or

might not reflect details regarding trial preparation.

In the instant matter, the searches in question

were conducted by government agencies other than

that which is_ prosecuting this action. The

prosecutors, from other jurisdictions, who were

responsible for the searches, showed an

understanding of the privileged nature of attorney-

client communications. The prosecutor in the first

search unfortunately did not plan a procedure for

handling suspected privileged materials, but

promptly returned such materials when their true

nature was demonstrated. The prosecutor in the

second search made plans for handling materials

suspected of being privileged, and followed the plan.

There is some evidence that agents on the scene of

the searches may have read more than a bare

Bt Fa

eg

22a

minimum of some documents that were allegedly

privileged. In any case, because the documents

suspected of being privileged were retained in the

custody of the prosecutors for at least some time,

there is at least a theoretical possibility that the

documents could have been viewed by prosecution

attorneys and witnesses in the jurisdictions where

the searches occurred. The Hamilton County

prosecutor has admirably segregated himself from

any access to the privileged documents. It is his need

to use witnesses who may be tainted with knowledge

of some of the privileged material which presents the

problem here.

The problem must be solved by a process of

weighing. The Court must consider the Sixth

Amendment rights of the defendant as well as the

state’s interests in ensuring that a prosecution is not

jeopardized by the unauthorized acts of overzealous

officers. Although the factors to be weighed have

been established by appellate courts, the process of

weighing and the criteria for determining the

relative weight of each factor has not been

elucidated.

The first criterion must be found favorably to

the prosecution in this case. The second, third and

fourth criteria must be found favorably to the

prosecution, as it pertains to the actual knowledge of

the prosecutor; but unfavorably as to the possibility

of nescient indirect use by means of the testimony of

witnesses who themselves may have knowledge of

privileged information.

23a

It is undisputed that the Hamilton County

prosecutor has acted resolutely to avoid contact with

any privileged material; and, for that matter, that

the prosecutors in the other jurisdictions attempted

to avoid and/or remedy any 6th Amendment

violation. privileged information. It is also important

to note that the materials seized could not, upon a

cursory glance, be determined with certainty to be,

or not to be, privileged. This uncertainty was

magnified by the fact that previously an apparent

attorney communication was widely use to further

the alleged criminal actions of the defendant. Thus,

we are presented here with a good faith effort of

prosecuting attorneys to protect privileged

information, complicated by agents who may have

overzealously read more of certain documents than

they should have, in a situation where facially

privileged communications had been used in the past

to further alleged criminal activity. The conduct of

the prosecutors involved in this matter is certainly

not outrageous, but at worst reflections lack of

foresight and sufficient preparation. The activities of

some of the agents is subject to serious criticism, but

was not outrageous under the circumstances.

Defense counsel argues that dismissal is the

only possible solution, citing a case decided by the

New Jersey Supreme Court:

“To accept the State’s contention that it has

diverted the flow of illicit information away

from a group of prosecutors, we would be

required to engage in groundless speculation.

We could not, of course, ask the assertedly

‘untainted’ prosecutors what they do not know

K*kx*

24a

about this case and obtain a useful answer. To

inquire whether they had learned of the

illicitly acquired admissions would run the

risk of informing them indirectly. Thus, any

examination of the adequacy of the State’s

procedures must confine itself to questioning

of those already in possession of ‘tainted’

information. Yet after learning of the

elaborate procedures for preventing further

disclosure...we would still be left to speculate

about their success...While the State’s

procedures demonstrate the good faith of its

supervisory officers, and while those

procedures may be useful in demonstrating

that the evidence to be used a trial is free from

any taint..., they may not transform any

knowledge of trial strategy by certain State

officials into a harmless infringement of

defendant’s Sixth Amendment rights.”

“Premature disclosure of trial strategy upsets

the presumed balance of advocacy that lies at

the heart of a fair trial...Because these more

egregious violations do not involve the

disclosure of evidence, an exclusionary remedy

would be insufficient to vindicate defendant’s

right, deter official misconduct or maintain

judicial integrity. A dismissal of _ the

prosecution would thus be necessary as the

only means to avoid the denial of one of the

fundamental requirements of due process of

law.”

25a

[New Jersey v. Sugar (1980), 84 N.J. 1, 18, 21;

417 A.2d 474,480,483; 1980 LEXIS 1389}

The sabove-cited New Jersey case does not

permit the weighing of factors, but, on the contrary,

holds in effect that weighing is impossible. As a

result, this Court finds New Jersey v. Sugar (supra)

inapplicable in Ohio where weighing is specifically

required. Rather, the following federal case, cited by

the prosecution, appears to this Court to contain a

rationale applicable to Ohio:

“..[T]he court finds that there was serious

misconduct on the part of the lead prosecutor.

The court further finds that the defendants

have shown actual prejudice resulting from

the government’s misconduct.... Regardless of

the prior general knowledge which the

government had about defense strategy, the

court finds based on the evidence before

it...that the defendants have been an will

continue to be prejudiced by the government's

misconduct in improperly copying and

reviewing the documents in question because

they provided an important insight into

defense tactics, strategy, and problems. The

government has thus failed to meet its burden

of showing that there has been and will be no

prejudice to the defendants as a result of the

government's conduct...

“The defendants argue that dismissal is the

only appropriate remedy under _ the

circumstances of this case..

26a

“The Supreme Court has held that although

courts must be responsive to proven claims

that governmental misconduct has rendered

counsel’ assistance to the defendant

ineffective, at the same time and without

detracting from the fundamental importance

of the right to counsel in criminal cases, we

have implicitly recognized the necessity for

preserving societys interest in the

administration of criminal justice. Cases

involving Sixth Amendment deprivations are

subject to the general rule that remedies

should be tailored to the injury suffered from

the constitutional violation and should not

unnecessarily infringe on competing interests.

United States v. Morrison, 449 U.S. 361, 364

(1981); see, also, United States v. Davis, 646

F.2d 1298, 1303, cert. Denied, 454 U.S. 868

(1981); United States v. LaRouche Campaign,

695 F. Supp. 1290..... “

“The current state of the decisional law on this

subject does not permit dismissal except in

situations where the government misconduct

is found to be ‘outrageous. While the

misconduct of the government in this case

must be viewed as very serious, it does not fall

into that category of cases in which

government conduct has been found to be

outrageous...

“Courts faced with prosecutorial misconduct

or violations of discovery rules have

considered sanctions including granting a

continuance, granting a new trial,

27a

disqualifying the prosecutor, imposing

disciplinary sanctions on the offender, holding

the offender in contempt, publicly chastising

the offender and excluding evidence...The

Morrison court noted that the proper approach

to a Sixth Amendment violation is to ‘identify

and then neutralize the taint by tailoring

relief appropriate in the circumstances to

assure the defendant the effective assistance

of counsel and a fair trial”

[United States v. Horn (1992), 811 F. Supp,

739, 751; 1992 U.S. Dis. LEXIS 19587]

Because this Court has found the conduct of

the prosecution side of the instant matter not to

have been outrageous, but because it is clear that a

6th Amendment violation has occurred, some

sanction is appropriate. Of the sanctions suggested

in United States v. Horn (supra), the Court believes

that a continuance and/or new trial would be the

appropriate sanctions. Such sanctions would permit

the defense to revamp its strategy so that the

prosecution could not be aware of it, and thus

allowing the resetting of the balance of advocacy

discussed in New Jersey v. Sugar (supra). However,

there is no need to impose these sanctions because

they have already been imposed, albeit for other

reasons. The Court of Appeals granted a new trial in

this case for the reason that the trial court had

abused its discretion in not granting a continuance.

Thus, both a continuance and a new trial have been

granted. The defense has had ample time to revise

its strategy. In fact, it is obvious that after a trial of

several weeks that led to a conviction the defense

having been given the opportunity to readjust its

28a

strategy, will perforce do so. The fact that the

prosecution, or some prosecution witnesses may

have been aware of a defense strategy contemplated

years ago before a trial long since held and reversed,

has no relevance to the trial about to commence in

January, 2006. Both sides have seen in full the

actual presentation of the other side’s case, and each

side has undoubtedly revisited its strategy

accordingly. Although the continuance and new trial

granted by the Court of appeals was not awarded as

a sanction, it has the same effect as a sanction .[“A

rose by any other name _ smells as_ sweet.”

Shakespeare; Romeo and Juliet]

For the foregoing reasons, the motion to

dismiss is denied. Counsel shall present an entry

denying the motion on the first date of trial.

Phillip R. Cummings

Assisting Prosecuting Attorney

Suite 4000

Cincinnati, Ohio 45202

FAX: 946-3021

Mary Jane McFadden

Attorney at Law

Suite 210

175 South Third Street

Columbus, Ohio 43215-5134

FAX: 614-221-3985

Entered June 28, 2004

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: MAITER OF ) CASE NO. 5:02 MC 120

SEARCHES OF ) SEARCH WARRANT

) CASE NO. 5:02-05174M

326 OAK CREST, )

COPLEY TWP, OH ) MEMORANDUM

) OPINION

and )

) Magistrate Judge

316 BOYLE STREET, ) James C. Gallas

)

AKRON, OH

Philip F. George, Jr. has filed a counseled

emergency motion for return of materials seized

from his office and residence on December 23, 2002

claiming that they are attorney-client privileged or

work product protected.1 The searches were in

1 The motion is based on former Rule 41(e) of the

Federal Rules of Criminal Procedure. However, presently and

at that time the amended and recodified Rule 41(g) is in effect,

which provides:

Motion to Return Property. A _ person

aggrieved by an unlawful search and seizure of

property or by the deprivation of property may

move for the property's return. The motion

must be filed in the district where the property

was seized. The court must receive evidence on

any factual issue mecessary to decide the

motion. If it grants the motion, the court mut

return the property to the movant, but may

impose reasonable conditions to protect access

to the property and its use in later proceedings.

18 U.S.C. Federal Rules of Crim. Pro. 41(g).

30a

relation to two pending state criminal gambling

prosecutions in Hamilton and Lorain Counties, Ohio.

Mr. George had been indicted in October 2001 on 11

counts related to gambling activities in Hamilton,

County. The case involved a tip-ticket scheme which

is similar to a scratch-off lottery ticket. See State v.

George, 2004 WL 1231572 (Ohio App. 1 Dist. June 4,

2004). Mr. George was convicted on a portion of the

charges. However, as summarized by the state

appellate court in reversing and remanding:

The basic allegations were that George

and a number of co-conspirators ran

a gambling ring under the guise

of charitable gambling for United

Saghbeen, Child Care, and other

charities. The state argued that George

was in charge of everything from the

distribution to the accounting. The

state further argued that George gave

only a small percentage of the actual

profits from the tip-tickets to the

charities, split profits with the bars

that sold the tickets, paid so-called

‘volunteer’ workers, and_ laundered

money. The state claimed that George

and his cohorts swindled the charities

out of nearly $60 million.

State v. George, supra at *2.

The searches conducted pursuant to the

December 2002 warrants were not the first invasion

of Mr. George’s privacy; prior seizures were made:

under judicial supervision:

3la

In February 2002, Ohio Department of

Public Safety agents searched George’s

home in relation to another case.

George called an attorney, Charles

Quinn, to come to the house and to

observe the search. The agents seized

numerous communications between

George and his counsel relating to the

current case. The state later returned

these in a box because they were

wrongfully taken. On the advice of

his counsel, George preserved the

documents in the box. He then moved to

dismiss the case for violations of his

due-process rights. George also moved

to dismiss the indictment for vagueness.

Before the trial court heard arguments

on the motions to dismiss, the Ohio

Department of Public Safety again

searched George’s home in December

2002 on yet another investigation. They

again seized the same documents (now

in a box) that had been returned to

George, along with other documents

allegedly relating to this case. George

claimed that the documents seized

included various trial-preparation

materials that neither he nor his

counsel could reproduce before his trial

was set to begin in February 2003. He

also insisted that the documents

revealed important trial strategies.

State v. George, supra at *2.

3Za

The December 2002 search mentioned in the

opinion was conducted pursuant to this Court’s

authorization. The affiant was IRS agent, Robert M.

Thatcher, but the return came from the Ohio agency

task force not the IRS. Agent Thatcher had related

that the seizure was for potential use of evidence in

the prosecution of gambling in violation of 18 U.S.C.

§1955, Racketeer Influenced Corrupt Organization

(RICO) in violation of 18 U.S.C. §1961, money

laundering in violation of 18 U.S.C. §1956, tax

evasion in violation of 26 U.S.C. §7201, willful

failure to file federal income tax returns in violation

of 26 U.S.C. §7203, filing false tax returns in

violation of 26 U.S.C. §7206(1), aiding and abetting

the filing of false federal tax returns in violation of

26 U.S.C. §7206(2) and a conspiracy to commit a

substantive offense and impair the Internal Revenue

Service in violation of 18 U.S.C. §371. In the

description of property taken, the return lists a box

of miscellaneous documents sealed by Agent

Kasarab. No federal tax proceeding against Philip F.

George, Jr. has yet to be initiated following nearly 16

months since the execution of the federal warrant.

Rather it appears that the purpose of the search was

in relation to the prosecutions in Hamilton and

Lorain Counties.

The government in its response to Mr.

George’s emergency motion for return of property

explains that Special Agent Kasarab of the Internal

Revenue Service was involved in a search of the

office area of the home and noticed mixed with the

documents and records that were subject to seizure

were items that potentially involved attorney-client

privilege. He segregated these items and sealed

33a

them in envelopes and boxes for review by the

“privilege team.” (Docket No. 2). Mr. George points

out that Special Agent Robert Thatcher, who is in

charge of the investigation, was aware of the

pending indictments in Hamilton and _ Lorain

Counties at the time of the search. Further, prior to

the search Special Agent Kasarab gave a briefing to

the search team to be certain that the agents

observed a protocol with regard to items to be seized

in the event docuinents were discovered that were

not delineated in the warrant. Special Agent

Thatcher testified at a hearing in Lorain County, “As

I recall, it was basically stated that if you come

across anything you feel shouldn’t be viewed, stick it

in an envelope, seal it up, and we'll deal with the

issues later.” (Lorain TR. 8/25/03, pg. 21, Reply

Brief, Docket No. 8, Exhibit B). With the plan to

segregate and seal seized materials in place,

recovery of privileged materials was clearly

anticipated in the December 2002 searches.

The Lorain County testimony further shows

that Special Agent Kasarab worked jcintly with

Special Agent Thatcher and the documents were

taken to their shared Akron office. (Lorain TR.

8/25/03, pg. 60). Mr. George focuses on testimony

that Special Agent Kasarab could not vouch in court

whether or not privileged materials may have been

taken but not sealed (Lorain TR. 8/25/03, pg. 73,

Reply, Docket No. 8, Exhibit B). Nonetheless, there

was a legitimate law enforcement purpose to the

December 2002 searches. The searches were not as

Mr. George insinuates merely a ruse to gain an

advantage of a peek at the progression of Mr.

George’s legal defense. This contention ultimately

34a

fails Mr. George because he has produced nothing to

demonstrate that law enforcement efforts to

segregate the ostensibly privileged materials were

anything but successful.

The government stressed in its response that

it had created a “privilege team” to segregate and

protect the materials from disclosure to itself and

that the “privilege team” was a well-established

procedure (Docket No. 7). The Court has some

reservation about the claim that this review and

segregation format is well-established procedure

especially given that the “privilege team” turned out

to be a sole Assistant United States Attorney, Benita

Y. Pearson. Nevertheless, it is possible to build

“chinese walls” for ethical purposes and the use of

one individual lessens the chance of improper

disclosure?

AUSA Pearson relates that she has reviewed

the materials that were sealed and has been in

communication with Mr. George’s counsel, Mr. John

Ricotta and Ms. Mary Jane McFadden. Initially her

primary review of the materials took place at the

office of the Internal Revenue Service in Akron, Ohio

and on completion of review, the materials were

removed from the IRS office and transported to the

Cleveland office of the United States Attorney

pursuant to an agreement with Attorney Ricotta.

AUSA Pearson states that as a result of her review,

she discerned that some documents seized were

2 Under somewhat similar circumstances, a “taint

team” was set up to review documents scized from a law office

in U.S. vu. Search of Law Office, Residence and Storage Unit

Alan Brown, 341 F.3d 404, 407 (5th Cir. 2003)

35a

privileged and should be given to defense counsel

and requests that the Court determine whether the

remaining items, attorney bills and _ certain

audiotapes are privileged, or covered under work

product protection.

According to Mr. George, the current status of

the documents is that they are in the possession of

Attorney Ricotta who has kept the documents in the

condition they were sent to him by AUSA Pearson. It

is anticipated that Attorney Ricotta will be a witness

if the government chooses to deny that its agents

sought to obtain defense counsel’s strategy. Attorney

Ricotta is no longer acting as counsel in this matter

(See Reply, Docket No. 8). Regardless of defense

counsel’s current theory to challenge the criminal

proceedings against Mr. George, the Court orders

the return of the materials primarily because their

seizure exceeded the scope of the judicial warrant.

Discussion:

The government’s position from the beginning

has always been that it had “arranged a suitable

procedure to handle this situation” and that Mr.

George’s motion for return of property be denied

(Docket No. 2). It is revealing that the government

did not argue that the motion was an improper

exercise of this court's “anomalous” equitable

jurisdiction under Rule 41(g). See United States v.

Search of Law Office, Residence and Storage Unit

Alan Brown, 341 F.3d 404, 410 (5 Cir. 2003);

United States v. Calandra, 414 U.S. 338, 94 S. Ct.

613, 38 L.Ed.2d 561 (1974). Ordinarily Rule 41(g)

and predecessor 41(e) were used to seek the return of

36a

seized property post-indictment. See Ramsden v.

United States, 2 F.3d 322, 324 (9t Cir. 1993).

However, in exceptional cases the district courts

have the power to entertain such motions as civil

equitable proceedings, but the district court must

exercise “caution” and restraint before assuming

jurisdiction. Id. “Calandra clearly implied that the

target of a government investigation could not use

[former] Rule 41(e) - which extends no further than

the limits of an exclusionary rule - to prevent the

grand jury from having access to illegally obtained

evidence.” Search of Law Office, 341 F.3d at 412;

Calandra, at 354 n. 10. The Supreme Court

“noticeably omitted” the possibility that Rule 41(e)

could ever be used by the victim of an illegal search

to suppress evidence pre-indictment. See Search of

Law Office, 341 F.3d at 412 n. 37. The safeguard

against the indefinite retention of seized property by

the government is the fact that a grand jury term is

limited. See Standard Drywall, Inc. v. United States,

668 F.2d 156 (24 Cir. 1982), cert. denied, 456 U.S.

927 (1982); Church of St. Matthew v. United States,

845 F.2d 418 (274 Cir. 1988). Accordingly, the general

rule has been that a motion for return of property

should be deferred until after an indictment has

issued in the absence of showing irreparable harm.

See In Re Sentinel Government Securities, 530 F.

Supp. 793 (S.D. N.Y. 1982); In Re Searches of Semtex

Industrial Corporation, 876 F. Supp. 426, 431 (E.D.

N.Y. 1995).

When a defendant raises a claim of

irreparable harm, usually the government's

statement that the aggrieved party has access to the

seized records and that photocopies are available,

counters a claim of irreparable harm. See Standard

37a

Drywall, supra; Church of St. Matthew, supra; In Re

Searches of Semtex Industrial Corp., 876 F. Supp. at

431. Moreover a denial of a pre-indictment Rule

41(g) motion is generally appealable only if the

motion relates to return of property involving an

aggrieved party who is not the subject of criminal

investigation. See DiBella v. United States, 369 U.S.

121, 82 S. Ct. 654, 7 L.Ed.2d 614 (1962). However, it

is difficult to clearly state that this matter is clearly

pre-indictment. The search warrant was executed by

agents of the State of Ohio (as evidenced by the

return) and this material was intended to be used by

these agents in pending state prosecutions in

Hamilton and Lorain Counties. In that sense Mr.

George’s motion should be regarded as a post-

indictment.

The Court is aware that the decision in United

States v. Search of the Law Office, Residence and

Storage Unit Alan Brown, 341 F.3d 404 (5 Cir.

2003), the court held that the aggrieved party not

made a substantial showing of irreparable harm due

to vague allegations of attorney-client privilege. In

contrast, though, Mr. George has substantiating

proof for a portion of his claim by the government’s

concessions in the report from AUSA Pearson.

The “privilege team” has concluded that

attorney-client and work product protected materials

were seized. However, AUSA Pearson disputes

release of specific sets of materials. The first set

consisting of attorney fee bills and fee agreements 1s,

as the government argues, generally not protected

under attorney-client privilege. Overlooked, though,

is a key point which is that the search warrant did

not encompass these materials. The warrant was

38a

restricted to material listed in Schedule B (attached)

concerning individuals and entities listed in

Schedule A.? The warrant did not permit the state

agency to seize all of Mr. George’s papers and effects.

The attorney bills and agreements with counsel were

not books or records of operation of gambling or

charitable organizations. The seizures were intended

to be lmited in scope, and the Court did not

anticipate nor was it informed that the search team

had a plan for seizure of documents which “shouldn't

be viewed.” This is a situation of overlap of the

question of attorney-client privilege with possible

overbreadth in the execution of the warrants. The

government argues that it should nonetheless retain

these items because they are not in its view clearly

attorney-client privileged. The Court disagrees.

These were not documents intended to be seized. The

United States is ordered to return the attorney bills

and fee agreements to Mr. George and is further

ordered not to retain any copies. Nor may any state,

county or other local government agents retain

copies.

The second set of materials concerns a

transcript of a sworn statement made by an

individual at the Lakewood Police Department. The

government contends it bore no indication of

privilege and was not a confidential communication

between the client and legal representative and it

was not prepared in anticipation of litigation. The

3 Attachment B captioned “Items To Be Seized”

describes the material to be seized as essentially records

whether stored on paper or magnetic media, programmable

instruments, electronic address books, calculators or any other

storage media relating to the financial condition or operation of

the listed charitable organizations.

39a

government points out that Attorney Ricotta had no

objection to the government’s argument that the

sworn statement was not a matter protected as work

product (Response of Privilege Team, Docket No. 7,

pg. 11). Again the government loses sight of the fact

that while it may not be work product or attorney-

client privileged it was beyond the scope of the

financial records for which seizure was judicially

authorized. Accordingly, that too should be returned,

and no copies retained by any government agents.

The third set of items are legal memoranda

from Mr. George’s defense counsel. AUSA. Pearson

concedes that these clearly are work product. These

papers should be returned and no copies retained by

any government agents.

The fourth set of items consists of audio tapes

which AUSA Pearson states were witness interviews

conducted in Z001 by an investigator hired by Mr.

George’s attorney. These tapes do conform to items

to be seized under the warrant since they concern

the operation and finances of at least one

organization allegedly operated by Mr. George.

Attorney McFadden claimed that the audio tapes

were her work product and were prepared on her

behalf and that the private investigator’s identifying

statement to the interviewees was factual. AUSA

Pearson concedes that the work product doctrine

may protect disclosure of material prepared by a

private investigator working on behalf of an attorney

citing Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th

Cir. 1999). However, Ms. Pearson is reluctant to part

with these items because she vaguely contends that

they may be made for the purpose of committing or

40a

furthering a crime or fraud. Review of the

audiotapes discloses no clear improper purpose and

the Court is not concerned with any question over

admissibility. The Court finds that the audiotapes

were protected work product and must be returned

to defense counsel with no copies retained by any

government agents. All items segregated as

potentially privileged or work-product protected are

to be returned and no copies retained by any

government agents.

Motion to Unseal:

Mr. George has also moved to unseal the

affidavit submitted in support of the wezrrants

(Docket No. 3). The government opposed the motions

citing In Re Search Warrant for 2934 Anderson

Morris Road, Niles, Ohio, 48 F. Supp. 2d 1082 (N.D.

Ohio 1999). That case states, however, that the

general rule is a person aggrieved by deprivation of

property has a right to inspect and copy the affidavit

on which the warrant was issued. 7d. at 1083. Mr.

George speculates that the affidavit was sealed

because of allegations of a link to terrorist activities

due to statements made by state task force agents

concerning his Lebanese background. The

government’s expert witness has testified at Mr.

George’s trial in Hamilton County on the claim of

Mr. George’s involvement in terrorist activities, and

the state appellate court found the presentation

laughable.

There is no longer any compelling government

interest in secrecy to protect an ongoing

investigation or credible evidence of danger in

4la

exposure of the identity of potential witnesses to Mr.

George. Accordingly the motion to unseal is granted

and Mr. George and his counsel wiil be permitted to

inspect and copy the affidavit, and the Clerk of Court

is instructed to send a certified copy of the complete

affidavit and supporting schedules to Attorney Mary

Jane McFadden at McFadden, Winner and Savage,

175 South Third Street, Suite 210, Columbus, Ohio

43215-5134. This concludes this Court’s involvement

in “a series of searches and seizures too bizarre to be

fictional.” See State v. George, supra at * 1. Motions

granted.

IT IS SO ORDERED.

/s/James S. Gallas

United States Magistrate Judge

Dated: June 28, 2004

42a

ATTACHMENT B

ITEMS TO BE SEIZED

There is now being concealed certain property. for

the period of January 1,1999 to the present with

respect to the [Individuals business entities, or

charities set forth in Attachment C, to-wit:

All of the following records. whether stored on

paper, on magnetic media such as tape, cassette,

cartridge, disk, diskette or on memory storage

devices such as optical disks, programmable

instruments such as telephones, “electronic

address books”, calculators, or any other storage

media together with indicia of use, ownership,

possession, or control of such records.

Any records relating to the

financial condition or operation of

a charitable organization.

Copies of Complete or partially

complete individual, corporate or

charitable federal, state or local

returns for the _ individuals,

business entitles, orcharities set

forth in Attachment C.

Financial statements relating

to the financial position of

PHILIP F. GEORGE, JR.,

JAMES H. JACKSON, FLARE

GAME TECHNOLGY, | INC,

ACE EQUIPMENT COMPANY.

GENNCO VENDING COMPANY

Pore

ie

43a

d.b.a. GEORGE’S MUSIC. &J

TICKETS and AD-VEND.

Applications for tax-exempt

charitable status in the name of

any organization and = any

correspondence from the Internal

Revenue Service regarding such

an application or operation of a

charity.

United States Currency and

financial Instruments, but not

limited to stocks and bonds

Books, records, invoices, receipts,

records of real estate transactions,

bank statements and related

records, passbooks relating to,

money drafts, letters of credit,

money orders, bank drafts and

cashier's checks, bank checks, safe

deposit box keys, money wrappers

and other items evidencing the

obtaining, secreting, transfer, and

for expenditure of money and/or

safes

Addresses and/or telephone

books, rolodex indexes and

any papers reflecting names,

addresses, telephone numbers,

paper numbers. fax numbers

and/or telex numbers of co.-

conspirators, sources of supply,

44a

customers, financial institutions,

and other individuals or

businesses with whom a financial

relationship exists. Indicia of

occupancy, residency rental and/or

ownership of the premises

described herein, including but

not limited to utility and telephone

bills, canceled envelopes, rentals,

purchase or lease agreements

and keys.

Books, records, invoices, business

logs, and any other documentation

relative to the daily operations of

a gambling business or charity

indicating the profit and expenses.

Papers, tickets, notes, receipts

and other items relating to

domestic and international travel.

Any documentation and/or

notations referring to the

computer, the contents of the

computer the use of the computer

or any computer software and/or

communications. All information

within the above listed items

including but not limited to

machine readable data, all

previously erased data, and any

personal communications including

but not limited to e-mail,

chat capture, capture files,

45a

correspondence stored in electronic

form, and/or correspondence

exchanged in electronic form.

Computers, central processing

units, computer motherboards,

printed circuit boards, processor

chips, all data drives, floppy

drives, optica drives, tape drives,

digital audio tape drives, and/or

any other internal or external

storage devices such as magnetic

tapes and/or disks. Any terminals

and/or video display units

and/or receiving devices and/or

peripheral equipment such, as,

but not limited to printers, digital

scanning equipment, automatic

dialers, modems, acoustic couplers

and/or direct line couplers,

peripheral interface boards, and

connecting cables and/or ribbons.

Any computer software, programs

and source documentation,

computer logs, magnetic audio

tapes and recorders, digital audio

discs and/or’ recorders, any

memory devices such as, but not

limited to, memory modules,

memory chips, bubble memory.

and any other form of memory

device utilized by the computer

or its peripheral devices. (This

description constitutes the

definition of a computer system

sat

46a

as that term may be used

throughout this document.) Any

and all computer related

accessories or equipment not

specifically mentioned here in, all

equipment having been used in

violation of O.R.C. 2923.24

Possessing Criminal Tools, and/or

O.R.C. 2923.32, Corrupt Activity.

Financial and licensing

information with respect to the

computer software and hardware.

Personal communications in

electronic or written form,

including but not limited to a-

mail, chat capture, capture files,

correspondence stored in

electronic or written form as

indicative of use in obtaining,

maintenance, and/or evidence of

said offenses.

Video Game Machines to Include

but not limited to “Treasure

Quest, “Infinity” and “Pot of Gold”

machines, spare components,

game cartridges, keys to gain

entry to the machines and

moneyboxes within the machines,

manuals and/or instructions or

notes referring to the operation

of said machines, computer

programs within the machines,

If found, said items will be seized and used as

47a

access numbers, passwords.

These machines have built in

counter, both mechanical and

electronic that pertain to the

reconstruction of income based

upon usage.

Tip tickets to include but not

limited to (Stamp Tip Tickets,

Rip-off tickets, Packs and Peel-off

Tickets). Tip Ticket Dispensing

Machines, Bins that contain the

above listed Items.

Records of gambling machine

vendors, cash proceeds from

these machines being Video Slot

Machines, Tip Ticket Dispensing

Machines and Stamp Machines

(BINGO), including cash locked

within the machines, gambling

records, records of gambling

machine usage including payoff

to winners, income from

gambling machine vendors, lease

anWor foan agreements for the

gambling machines or any other

gambling devices defined in

section 2915.01 of the Ohio

Revised Code.

evidence in the prosecution of section(s)

1961

Title 18 USC 1955 (Gambling), Title 18 USC

R.1.C.O.), Tithe 18 USC 1956 (Money

48a

Laundering), Title 26 USC 7201 (Evasion), Title 26

7203 (Willful Failure to File Returns), Title 26 USC

7206(1) (Materially Filing a False Return), Title 26

USC 7206(2) (Aiding and Abetting the filing of a

False Return), and Title 18 USC Section 371,

(Conspiracy to commit a substantive offense and

conspiracy to impair and impede the Internal

Revenue Service), all violations against the United

States of America.

49a

Entered June 4, 2004

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, APPEAL NO.

C-030216

Plaintiff-Appellee, ; TRIAL NO.

B-0107787-B

Vs.

OPINION.

PHILIP F. GEORGE, JR..,

Defendant-Appellant.

Criminal! Appeal From: Hamilton County Court of

Common Pleas

Judgment Appealed From Is: Reversed, Judgment

Entered in Part, and Cause Remanded

Date of Judgment Entry on Appeal: June 4, 2004

McFadden, Winner & Savage and Mary Jane

McFadden, and Clodfelter & Gutzwiller and Robert

H. Gutzwiller, for Appellant,

Michael K. Allen, Hamilton County Prosecuting

Attorney, and Philip R. Cummings, for Appellee.

50a

MARK P. PAINTER, Judge.

{41} Defendant-appellant Philip George

appeals his convictions for gambling, operating a

gambling house, money laundering, conspiracy, and

engaging in a pattern of corrupt activity.

{92} This is one of the most bizarre cases in

recent memory. There are the usual evidentiary and

procedural issues, but also alleged _ terrorist

connections and a series of searches and seizures too

bizarre to be fictional. The trial court referred to the

defendant's counsel and their tactics as “silly,”

“adrift,” and “amazing.” We could not think of more

appropriate terms to describe this case.

{43} But the factual complexity of the case

does not obscure the legal simplicity of the outcome.

We reverse this case on a simple procedural matter-

the trial court’s refusal to grant the defendant's

requests for a continuance. And we must dismiss one

of the charges for vagueness.

{94} Before we begin our discussion of this

case, a little background information is appropriate.

I. Charities and Tip Tickets

{5} In 1997, the Ohio Supreme Court held

that bars and other liquor-permit-holding premises

could participate in charitable gambling as long as

neither the owners nor the employees’ were

compensated for their participation.! This ruling

eee

' Freedom Road Found. v. Ohio Dept. of Liquor Control,

80 Ohno St.3d 202, 1997-Ohio-346, 685 N.E.2d 522.

Sla

opened the floodgates for a large volume of untapped

charitable opportunities, as well as an equally large

opportunity for abuse.

{96} This case involved a tip-ticket scheme.

A tip ticket is similar to a scratch-off lottery ticket:

the customer purchases a ticket and pulls a tab on

the ticket, which then reveals whether the customer

is a winner or, more likely, a loser. The tickets come

in sets with predetermined payouts and profits. So if

every ticket from a particular set is sold, the charity

knows exactly how much money it should make from

each set.

{47} For example, imagine a box of 3,000

tickets. If there is a predetermined profit of $1,000

on that set, there will be $1,000 remaining after the

3,000th ticket has been sold. The order is

theoretically random, so any given ticket could be a

$100 winner or a loser.

{78} The system is not perfect because the

3,000th ticket could be a big winner or a loser. In the

former scenario, there is little incentive to sell the

final ticket because there is already a profit of more

than $1,000. In the latter, there is no incentive for a

customer to purchase the losing ticket (assuming the

customer knows that it is a loser and assuming he is

not Richard Pryor in Brewster’s Millions). Legally,

the seller must sell all the tickets. But if most of the

tickets that remain in the set are winners and the

till already has more money than the guaranteed

profit, the seller may be tempted to pocket the

difference and still give the charity its guaranteed

profit.

52a

{49} Another possible abuse of the system

comes from thé accounting practices that the

distributors of the tickets and the sellers use. A

distributor could sell the tickets to the sellers, split

the profits, or simply hide the profits from the

charity—all of which are illegal.

II. An Unusual Case from Indictment to

Sentencing

{410} The madness here started when the

state decided to crack down on these abuses.

George’s personal involvement in this case concerned

a tip-ticket scheme that supposedly benefited the

United Saghbeen Society, the Child Care

Foundation, and other charities. He was the alleged

mastermind behind a statewide charity scam.

{¥11}In October 2001, the state indicted

George on 11 counts relating to his gambling

activities in Hamilton County. Counts one and two

were gambling charges relating to two different time

periods.? Count three charged George with operating

a gambling house.2 Counts six through eight

concerned money laundering.4 Count 10 charged

2 See R.C. 2915.02(A)(2).

3 See R.C. 2915.03(A)(1).

4 See R.C. 1315.55(A)(1) through (3).

53a

George with conspiracy5; and count 11 covered

George’s engaging in a pattern of corrupt activity®.

The jury acquitted George of the other three counts,

so they are irrelevant here.

{412} The basic allegations were that George

and a number of co-conspirators ran a gambling ring

under the guise of charitable gambling for United

Saghbeen, Child Care, and other charities. The state

argued that George was in charge of everything from

the distribution to the accounting. The state further

argued that George gave only a small percentage of

the\actual profits from the tip-tickets to the charities,

split profits with the bars that sold the tickets, paid

so-called “volunteer” workers, and laundered money.

The state claimed that George and his cohorts

swindled the charities out of nearly $60 million.

{913} Reading this decision up to this point,

you probably have a much better idea of what this

case is about than you could ever glean from the

indictment or the bill of particulars. The indictment

merely repeated the appropriate statutory language

and gave some minor descriptions of the alleged

illegal activity. George requested a bill of

particulars, which again repeated the relevant

statutory language and gave only a modicum of

additional information.

{914} In February 2002, Ohio Department of

Public Safety agents searched George's home in

relation to another case. George called an attorney,

5 See R.C. 2923.01(A).

6 See R.C. 2923.32.

d4a

Charles Quinn, to come to the house and to observe

the search. The agents’ seized numerous

communications between George and his counsel

relating to the current case. The state later returned

these in a box because they were wrongfully taken.

On the advice of his counsel, George preserved the

documents in the box. He then moved to dismiss the

case for violations of his due-process rights. George

also moved to dismiss the indictment for vagueness.

{915} Before the trial court heard arguments

on the motions to dismiss, the Ohio Department of

Public Safety again searched George’s home in

December 2002 on yet another investigation. They

again seized the same documents (now in a box) that

had been returned to George, along with other

documents allegedly relating to this case. George

claimed that the documents seized included various

trial-preparation materials that neither he nor his

counsel could reproduce before his trial was set to

begin in February 2003. He also insisted that the

documents revealed important trial strategies.

{416} George again moved to dismiss, this

time, on Fourth- and Sixth-Amendment grounds.

This motion also asked that the court continue the

trial date to allow defense counsel time to recover

the materials that had been seized, returned, and

then seized again. George also moved to continue the

hearing on the motion to dismiss for the same

reasons.

{417} The trial court denied the motions to

dismiss and denied the motions to continue the trial

date because, according to the trial court, George

55a

had unclean hands and the _ attorney-client

documents were in “plain view.” The trial court also

revoked George’s bond.

{918} George then filed a _ habeas-corpus

petition to have his bond reinstated, which this court

granted. But at a bond hearing following our order,

the trial court set a new bond. This court ordered the

trial court to show cause why it should not be held in

contempt. The trial court then reinstated the bond

after a hearing on the matter. Because of all of this,

George was incarcerated for much of the time prior

to his trial.

{419} And this mess continued into the trial.

The roughly 3,000 pages of transcript suggest that

everyone was, at some point, exasperated either with

the duration of the three-week trial or with each

other. Both the prosecutor and George’s trial counsel

repeatedly objected. And the trial court repeatedly

questioned George's trial counsel’s tactics, often

telling them to “shut up” or “be quiet” and

suggesting that they did not have any sense.

{420} During testimony, the trial court

threatened a witness with contempt if she did not

comply with his order to obtain financial records

from the bar that she owned by the next morning.

The bar was in Akron. The witness was in

Cincinnati without a car. And it was the middle of

winter.

{21} And near the end of the proceedings,

the trial court admonished George’s legally blind

mother in front of the jury, threatening to find her in

56a

contempt and to put her in jail. She had evidently

been talking to George’s wife during the trial.

~ {922} As for evidentiary matters, the trial

court admitted a recorded statement where George

himself discussed the operation of a large gambling

ring. But the statement was recorded after George

had been indicted and related to a _ different

investigation. The trial court also admitted

numerous other recordings (both video and audio)

and sent unofficial transcripts of these recordings to

the jury. George claimed throughout the trial that

the state had not turned over George’s statements or

any of the unofficial transcripts in discovery.

{423} The jury found George guilty on eight of

the eleven counts. But the strangeness of this case

did not end there. At sentencing, the prosecution

introduced various banking records to show George’s

fiscal involvement. And the prosecution brought in

an investigator who testified that the United

Saghbeen Society had funneled money to certain

Middle Eastern terrorist organizations, including

Hezbollah (incorrectly spelled “Hizballah” by the

investigator) and HAMAS.

{924} George is a third-generation American

and is Catholic. George requested a continuance at

sentencing to allow him to gather evidence to rebut

the state’s accounting evidence and newfound

terrorist claims. But the trial court refused,

sentencing George to 25 years’ imprisonment and a

$50,000 fine.

57a

{425} George now appeals. He assigns four

errors, each covering a range of arguments: (1) the

trial court erred by failing to dismiss the indictment

on Sixth-Amendment grounds; (2) the trial court

erred by failing to dismiss the indictment where the

indictment failed to meet constitutional

requirements; (3) George did not receive a fair trial

and due process; and (4) the trial court improperly

imposed consecutive sentences. We will discuss the

first three assignments, but George’s fourth

assignment is moot because we are granting a new

trial.

WI. Right to Counsel

{26} In his first assignment, George argues

that the trial court should have dismissed the

indictment after the state agents violated his right to

counsel by unlawfully seizing attorney-client

communications.

{927} Both the Sixth Amendment to the

United States Constitution and Section 10, Article I

of the Ohio Constitution guarantee a criminal

defendant the right to counsel. This right does not

attach until after the initiation of formal charges.’

And an accused does not receive effective assistance

of counsel if he is denied private consultation with

his counsel.8

7 See State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-

4164, 793 N.E.2d 446.

8 Coplon v. U.S. (C.A.D.C. 1951), 191 F.2d 749

)

58a

{428} When examining government intrusion

into the attorney-client privilege, we must strike a

balance between the Sixth-Amendment interests of a

criminal defendant and the state’s interests in

ensuring that a prosecution is not jeopardized by the

unauthorized acts of overzealous officers, by

applying the Weatherford test.2 The test is applied

on a case-by-case basis, analyzing the following four

factors: (1) whether the government deliberately

intruded in order to obtain confidential and

privileged information; (2) whether the government

obtained directly or indirectly any evidence that was

or could have been used at trial as a result of the

intrusion; (3) whether any information obtained was

or could have been used in any manner detrimental

to the defendant; and (4) whether details about trial

preparation were learned by the government.

{429} As we have already noted, this is an

unusual case. Never before have we heard of a

situation where state agents purposefully seized

attorney-client communications twice in the same

case. “Free two-way communication between client

and attorney is essential if the _ professional

assistance guaranteed by the sixth amendment is to

be meaningful.”!° Surely if state agents were allowed

to seize attorney-client communications at any time

under the guise of another investigation, this right

would be meaningless.

9 State v. Milligan (1988), 40 Ohio St.3d 341, 533

N.E.2d 724, citing Weatherford v. Rursey (1977), 429 U.S. 545,

97S. Ct. 837.

10 U.S. v. Levy (C.A.3, 1978), 577 F.2d 200, 209.

‘Z

o9a

{930} The Ohio Department of Public Safety

twice searched Georges home and seized what

George claims were privileged attorney-client

communications. That some documents were

returned after the first seizure suggests that the

state seized some materials it should not have. Ina

hearing, George’s attorney testified (while being

cross-examined by ht: co-counsel-yet another

anomaly in this case) that she had sent a packet of

documents to George just before the December 2002

search that was no longer at George’s house after the

search. George and his wife also testified that

numerous legal documents relating to this case were

seized. But we have no way of determining what,

exactly, was seized in the December 2002 search.

{31} The documents are apparently

somewhere in the geographical jurisdiction of the

United States District Court for the Northern

District of Ohio. It seems that the federal prosecutor

tried to return the documents to George’s trial

counsel, but they refused because they did not want

to become part of the chain of custody.

{32} Because nobody has had access to the

documents in the federal prosecutor’s possession, we

cannot say whether there was any privileged

attorney-client information seized in December 2002.

And we cannot say whether the prosecutor in this

case had access to any of the supposedly confidential

information. We therefore cannot determine whether

the motion to dismiss should have been granted or

denied. The issue is not ripe for a decision and the

lack of these documents for purposes of this motion

is yet another reason this case should have been

60a

continued. But the motion should be considered

when this case is remanded to the trial court.

Perhaps by then, the documents will have been

found.

{33} We therefore overrule George’s first

assignment of error as premature.

IV. The Indictment

{134} In his second assignment, George

argues that the indictment failed to adequately

inform him of the charges and that the trial court

erred by not dismissing it. While the indictment was

not the state’s finest work, most of it was

constitutionally satisfactory. But count three, the

charge of operating a gambling house, should have

been dismissed.

{935} George now argues that the state

purposely drafted a vague indictment. The reason?

So it could confuse him and his trial counsel and

introduce new evidence later in the trial. We

understand George’s frustration. It is also clear that

George’s trial counsel did not need any help getting

confused.

{436} None of the 11 counts in the indictment

were particularly well written, ‘nor did the bill of

particulars add much clarity. The indictment and

the bill of particulars skirted along the fringes of

constitutionally acceptable procedure. But most of

the counts satisfied the constitutional requirements-

albeit barely. We are forced to hope that this

6la

vagueness was a result of prosecutoriai laziness

rather tian prosecutorial misconduct.

{437} The state did fail to meet its

constitutional requirements for count three,

operating a gambling house. R.C. 2915.03(A)(1)

states, “No person, being the owner or lessee, or

having custody, control, or supervision of premises,

shall: *** Use or occupy such premises for gambling

a ee

{438} The third count of the indictment

charged George with “being the owner or lessee or

having custody, control, or supervision of premises,

to wit: VARIOUS LOCATIONS IN HAMILTON

AND CLERMONT COUNTY [sic], OHIO, used or

occupied such premises for gambling * * *.” The bill

of particulars added this: “Defendants Jackson and

George, along with other individuals and entities, set

up several free standing instant bingo locations in

Hamilton County and Clermont Counties [sic], Ohio,

for purposes of engaging in charitable gambling.

Jackson and George had custody, control, or

supervision over the premises and directed how the

operations should be run.” The bill of particulars also

listed several specific activities that George allegedly

performed on the premises, including cheating,

paying “volunteer” workers, and commingling funds.

{439} But nowhere in the indictment or the

bill of particulars did the state bother to identify any

of the actual premises (instant bingo locations) over

which George allegedly had custody, control, or

supervision.

62a

{940} We have previously held that an

indictment need not contain a recitation of the

evidence supporting the charges.!! The specific

location, time, or circumstances of a conspiracy are

not generally essential in an indictment.!2 A bill of

particulars also need not give the accused specific

evidence or serve as a substitute for a discovery

demand. !3

{441} But an indictment meets constitutional

requirements only if it (1) contains the elements of

the offense charged and fairly informs the defendant

of the charges against him, and (2) enables the

defendant to plead an acquittal or conviction in bar

of future prosecutions for the same offense.'4 And

the indictment must contain “language sufficient to

alert the person named therein that certain

generally specified conduct constitutes a violation of

an existing statute.”!5

{442} Further, a trial court must consider two

questions when a defendant requests specific times,

dates, or places in a bill of particulars: (1) whether

1! State v. Gingell (1982), 7 Ohio App.3d 364, 455

N.E.2d L066.

12 Id., citing Glasser v. U.S. (1942), 315 U.S. 60, 62 S.

Ct. 457.

13 State v. Gingell (1982), 7 Ohio App.3d 364, 4155

N.E.2d 1066.

4 State v. Childs, 88 Ohio St.3d 558, 2000-Ohio-425, 728

N.E.2d 379.

18 State v. Gingell (1982), 7 Ohio App.3d 364, 366, 455

N.E.2d 1066.

63a

the state possesses such information; and (2)

whether the information is material to the

defendant's ability to prepare and present a

defense.!* If the answer to both of these questions is

yes, then the state must provide such information in

the bill of particulars.

{943} In State v. Headley,'’ the defendant was

charged with trafficking in drugs, but the indictment

failed to identify the controlled substance involved.

The Ohio Supreme Court held that because the

severity of the offense was dependent on the type of

drug involved,!® the identification of that drug was

an essential element of the crime that had to be

included in the indictment. We hold here that

identifying which premises the defendant had in his

custody, control, or supervision was essential in an

indictment for operating a gambling house.

{944} We cannot see any way that count three

informed George of the charges against him. George

was charged with operating a gambling house, but

the indictment and the bill of particulars never listed

any specific locations. A “house” must of necessity be

located somewhere. George could not possibly

prepare a defense without knowing which “verious

locations in Hamilton and Clermont” counties would

be involved in the case. The information was

‘6 State v. Lawrinson (1990), 49 Omo St.3d 238, 551

N.E.2d 1261.

'7 (1983), 6 Ohio St.3d 475,453 N.E.2d 716.

18 See id.; R.C. 2925.03.

—— soe. UO ,.lC Se? ee ee eee ee aa er eT Seo

64a

material to George’s ability to prepare and present a

defense on this count.

{945} And we have no way of knowing what

evidence the state presented to the grand jury.

Further, George has no way of showing that the

gambling houses he supposedly operated in this case

are not the same gambling houses that might be

involved in future prosecutions.

{446} Count three did not satisfy the

constitutional requirements. We must therefore

dismiss it.

{447} We therefore sustain George’s second

assignment of error as it relates to count three, but

overrule it concerning all of the other charges.

V. The Continuances Should Have Been

Granted

{748} In his third assignment, George

provides a laundry list of complaints relating to the

fairness of his trial and due process: (1) the trial

court abused its discretion by denying his requests

for a continuance to give him time to recover the

trial-preparation materials that the government had

seized; (2) George’s unlawful pretrial incarceration

damaged his trial: counsel's ability to defend the

case; (3) the trial court should not have admitted

George’s recorded statements; (4) the admission of

certain recordings and letters denied George his

right to confront the witnesses against him; (5)

transcripts of certain recordings were not the hest

evidence and should not have gone to the jury; (6)

65a

police reports of certain out-of-court statements

should not have been admitted; and (7) the trial

court was biased against George and harassed his

trial counsel. Because we agree with his first

argument, George’s other six arguments are moot.

{949} The decision to deny a continuance is

within the broad discretion of the trial court; we will

not reverse it absent an abuse of that discretion.}9

An “abuse of discretion” is a decision that is

unreasonable, arbitrary, or unconscionable.2° The

answer to whether an abuse of discretion has

occurred in the denial of a continuance must be

found in the circumstances of each individual case,

particularly the reasons presented to the trial court

at the time of the request.?!

{750} When evaluating a motion for a

continuance, a trial court should consider the

following factors: (1) the length of the requested

delay; (2) whether other continuances have been

granted; (3) the inconvenience to the litigants,

witnesses, opposing counsel, and the court; (4)

whether the requested delay is for legitimate reasons

or whether it is dilatory, purposeful, or contrived; (5)

whether the defendant contributed to the

19 State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d

20 State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d

144.

21 State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d

1078, citing Ungar v. Sarafite (1964), 376 U.S. 575, 84 S. Ct.

841.

66a

circumstance that gives rise to the request for a

continuance; and (6) other’ relevant factors,

depending on the unique facts of each case.22 Thus,

we must balance these factors to determine whether

the trial court abused its discretion in this case.

{451} While George did not ask for a specific

time, he did ask for enough time to retrieve the

documents. The trial court did not mention any

previous continuances in its decision. Perhaps a

continuance would have’ inconvenienced _ the

prosecutor, the witnesses, and the court, but the

inconvenience to George certainly outweighed any

scheduling concerns of the other parties.

{452} We cannot stress enough that the facts

of this case were unique. State agents twice seized

George’s personal communications with his

attorneys. While we cannot say what, exactly, the

government agents seized from George’s house, we

can say that George presented sufficient testimony

to warrant a continuance to allow him to retrieve the

documents or at least to re-create them.

{753} The trial court’s reasons for denying

the continuances included George’s contribution

to the circumstances necessitating the delay.

The trial court stated—and the state now

argues—that George contributed to the circumstances

22 State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d

1078.

67a

because he ostensibly engaged in illegal activity

while out on bond, causing the seizure of the

documents, and declined an offer to return the

material.

{954} Even if George had committed illegal

acts while out on bond, that did not give the state

the right to violate his constitutional rights by

seizing privileged communications with counsel. And

trial counsel should not have been forced to become

part of the chain of custody of potential evidence just

to move the current case along.

{9455} A defendant does not waive his right to

counsel merely by committing another crime—rather,

the right exists precisely so that situations like this

do not occur. And we certainly do not know about

any other crimes from this record. Unfortunately, we

cannot say what documents the state seized in

December 2002. But we can say that there was

sufficient testimony suggesting that the state had

seized—and not returned—attorney-client materials a

few weeks before trial was set to begin. The trial

court’s denials of George’s requested continuances

were arbitrary and unreasonable.

{456} The trial court therefore abused its

discretion when it refused to grant George’s motions

for a continuance. This error was not harmless

because George’s allegations, if true, severely

inhibited his ability to prepare a defense, and

possibly gave the state access to privileged

materials. We note that the partial dissent states

that the defense lawyers should have accepted the

return of the box of records. But that would open

68a

counsel up to charges that they phonied up the

contents. The doc:.ments were evidence relevant to

both the motion to dismiss and the continuance

issue. They should have been kept in the court’s

custody. Or copies should have been made and sent

to George’s counsel. And this kind of mess should not

happen again.

{457} We must note that nowhere in the

record is it suggested that the prosecutor in this case

had anything to do with the February or December

2002 searches-they were conducted in a different

county by a different prosecuting authority. But

because of the nature of the rights at stake, we must

reverse the trial court’s decision and remand this

case for a new trial.

{458} We therefore sustain George’s third

assignment as it relates to the trial court’s

overruling of his requests for continuances.

VI. Other Arguments

~ {459} Though the sentence is necessarily

vacated by our decision today, we note that a 25-year

sentence here is questionable at best. We doubt that

it could be supported under QOhio’s sentencing

guidelines. And the odd allegations of “terrorist”

activity vitiated the sentencing process. Obviously,

faced with allegations that he was sending money to

Middle-Eastern terrorist organizations, George

should have been afforded the opportunity to

respond. It would be odd indeed if George, a third-

generation American Catholic, would be involved

69a

with such groups. The failure to grant a continuance

for that purpose was obviously reversible error.

{460} The pretrial incarceration was also

questionable. But we have granted an appeal bond in

this case, and we expect that George will remain free

for his new trial, so that issue is now moot.

{461} The other evidentiary issues are moot,

and we have little expectation that they will again

arise, so we need not resolve them now.

VII. An Unbiased Trial Court

{62} While the point is now moot, we feel

compelled to comment briefly on George’s claim that

the trial court was biased and that it harassed

George’s counsel.

{(63} From the pretrial hearing throughout

the trial, the trial court often chastised George’s trial

counsel for questionable tactics or procedure. While

we might disagree with the manner and tone in

which this was done, we also believe that George’s

trial counsel made some of the trial court’s

comments necessary because they had interrupted

the trial or had taken an extremely unusual

approach to the case. A typical exchange is reflected

in the following:

Prosecutor: Okay. Is there any question

who was running this operation from

start to finish, from the start of your

involvement to the end of your

involvement?

70a

Witness: You mean Child Care?

Gutzwiller: [ll object to this. It is all

encompassing. Covers all sorts of legal

conclusions, and this guy is_ just

fantasizing.

{964} The court struck Gutzwiller’s comment,

then added, “Just make your objection, no editorial

comments. Overruled.”

{9/65} But counsel repeatedly stood to make

objections and argue the case, despite the judge’s

repeated warnings to stay seated and just make the

objection without arguing. They often didn’t even say

“objection,” but instead launched into an argument

in the middle of the prosecution’s examination.

{966} We understand the trial court’s lack of

patience with trial counsel. They made the case

unnecessarily difficult.

{9467} The control of the proceedings during a

criminal trial rests with the trial court.?3 And a trial

court must remain impartial and refrain from

comments and behavior that might influence the

jury.*4

{468} Here, most of the trial court’s

condescending comments occurred at sidebar or

outside the presence of the jury. And _ those

23 See R.C. 2945.03.

24 State ex rel. Wise v. Chand (1970), 21 Ohio St.2d 113,

256 N.E.2d 613.

Tla

comments that were in front of the jury were caused

by George’s trial counsel’s refusal to obey the trial

court’s prior warnings. But we note that the trial

court could have conducted itself with a stronger

sense of decorum and exercised greater restraint

when dealing with George’s trial counsel.

{469} The trial court told George’s mother,

who is legally blind, that it would hold her in

contempt for her comments from the audience. This

was highly unusual and unnecessarily

confrontational, but George’s mother admitted to

talking during the proceedings. And we cannot say

that the remarks demonstrated any prejudice on the

part of the trial court.

{470} The trial court instructed the jury not

to make any inferences from the rulings, statements,

or facial expressions of the trial court. This case had

obviously tried the trial court’s patience, but at no

time was there any evidence that the trial court was

doing anything but its duty to uphold the law and to

conduct the proceedings in an unbiased manner.

{471} Accordingly, we dismiss the third count

of the indictment, reverse the triaJ court’s judgment,

and remand for a new trial.

Judgment accordingly.

WINKLER, P.J., concurs.

72a

HILDEBRANDT, J., concurs in part and dissents

in part. 2

HILDEBRANDT, J., concurring in part and

dissenting in part.

{972} Because I believe that George has failed

to demonstrate that the trial court abused its

discretion in denying a continuance, I respectfully

dissent in part. First, as is conceded in the lead

opinion, there is nothing in the record to indicate

what documents or other materials had been seized

in the December 2002 search. The mere allegation

that “numerous legal documents relating to this case

were scized” was certainly not sufficient to

demonstrate either that those materials implicated

the attorney-clicnt privilege or that they were

material to George's defense. George’s-and his

attorneys ’-inability to describe the material in any

greater detail would seem to belie their significance.

{473} Moreover, the record does not indicate

that George’s counsel were prevented from retrieving

the contested material. The lead opinion accepts

without question counsel’s explanation that counsel

did not accept the material when it was offered

because “they did not want to be part of the chain of

custody.” If the defense attorneys were asserting

that the material should never have been seized, it is

inconceivable why they would treat the materials as

if they were in some manner tainted or why they

would otherwise decline the offer to have the

materials returned. Finally, in an age of digital

storage and retrieval, George’s suggestion that the

73a

materials could not be retrieved and reproduced

seems disingenuous.

{974} In any event, on the state of the record

before us, it cannot be said that the trial court’s

refusal to grant a continuance on the basis of the

contested material was unreasonable. Although |

concur in the result that was reached in the

remainder of the majority opinion, I would reject

George’s argument as it relates to the request for a

continuance. Therefore, I respectfully dissent as to

that part of the decision.

Please Note:

The court has recorded its own entry on the

date of the release of this opinion.