USA v. Talao

• Decision Date: 15 March 2000
• Docket Number: No. 99-10351,No. 99-70974,99-10351,99-70974
• Citation: 222 F.3d 1133
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, ROBIN L. HARRIS, Appellant, v. VIRGILIO TALAO, Defendant-Appellee. UNITED STATES OF AMERICA, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA; Respondent, VIRGILIO TALAO; SAN LUIS GONZAGA CONSTRUCTION CO.; GERARDINA TALAO; MARIA TALAO, Real Parties in Interest. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1133

222 F.3d 1133 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellant, ROBIN L. HARRIS, Appellant, v. VIRGILIO TALAO, Defendant-Appellee.

No. 99-10351

UNITED STATES OF AMERICA, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA; Respondent, VIRGILIO TALAO; SAN LUIS GONZAGA CONSTRUCTION CO.; GERARDINA TALAO; MARIA TALAO, Real Parties in Interest.

No. 99-70974

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 15, 2000--San Francisco, California

Filed August 23, 2000

[Copyrighted Material Omitted]

James M. Wagstaffe and Pamela Urueta, Cooper, White & Cooper, San Francisco, California, for the appellant.

Mary McNamara, Swanson and McNamara, San Francisco, California, for the defendant-appellee.

J. Douglas Wilson, United States Attorney's Office, San Francisco, California, for the petitioner.

John T. Philipsborn, San Francisco, California, for real party in interest.

Louis S. Katz, San Francisco, California, for real party in interest.

Appeals from the United States District Court for the Northern District of California and Petition for Writ of Mandamus, D.C. No. CR-97-00217-VRW; Vaughn R. Walker, District Judge, Presiding

Before: Henry A. Politz,¹ Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.

POLITZ, Circuit Judge:

AUSA Robin Harris appeals the decision of the United States District Court for the Northern District of California that she violated Rule 2-100 of the California Rules of Professional Conduct. The United States petitions this court for a writ of mandamus to prevent the district court from giving a jury instruction intended to remedy what the trial court viewed as Harris' Rule 2-100 violation. For the reasons assigned, we hold that Harris did not commit an ethical violation. Accordingly, there is no longer any basis for a remedial jury instruction and the petition for mandamus is moot.

BACKGROUND

San Luis Gonzaga Construction, Inc. (SLGC) is a corporation wholly-owned by Virgilio Talao. In February 1996, several SLGC employees filed a complaint with the United States Department of Labor, Wage and Hour Division alleging that SLGC did not pay the prevailing wage, required them to kickback a portion of their wages, and made false statements to the government regarding the wages earned and hours worked by the employees. A similar complaint was filed with the Laborers' Contract Administration Trust Fund Board of Adjustment.

On June 27, 1996, the Asian Law Caucus initiated a qui tam action against SLGC, Virgilio Talao, and Gerardina Talao,² based on the same facts as alleged in the employees' complaints.³ On October 14, 1996, the criminal division of the United States Attorney's office, acting on a referral from the civil division, initiated a criminal investigation of SLGC and the Talaos relating to these charges. SLGC and the Talaos were represented in all of these matters by attorney Christopher Brose.

The prosecutor assigned to the criminal action was Assistant United States Attorney Robin Harris. In early 1997, Brose initiated discussions with government attorneys, including AUSA Harris, regarding the possibility of settling the pending civil and criminal investigations of SLGC and the Talaos.

On April 21, 1997, Department of Labor Special Agent Alfredo Nodal served a subpoena on SLGC's bookkeeper, Lita Ferrer, directing her to testify before the grand jury on April 30, 1997. When Virgilio Talao learned of the subpoena he instructed Brose to be present for Ferrer's testimony. On April 29, 1997, Brose telephoned Ferrer and arranged to meet with her the next day, prior to her grand jury appearance.

Later that same day, however, Ferrer repaired to the federal building and asked to see Harris. Because Harris was not available, Ferrer spoke to her immediate supervisor, AUSA Sandra Teters. Ferrer asked to have the date of her grand jury appearance changed because she did not want Brose to be present before or during her grand jury testimony. She explained that she would feel pressured to give false testimony if Brose were present. She said she had received a telephone call from Talao in which he told her to "stick with the story" she had told while testifying in one of the related administrative actions. Teters told Ferrer that she would have to testify the following day, but informed her that Brose would not be present during her testimony as attorneys are not permitted to accompany witnesses before a grand jury.

On April 30, Ferrer met with Brose as scheduled to discuss her impending grand jury appearance. They made plans to continue their discussion at the federal building immediately prior thereto. Before Brose arrived at the federal building later that day, however, Ferrer encountered AUSA Harris and SA Nodal in the hallway outside the grand jury courtroom. Nodal introduced Ferrer to Harris. Ferrer then told Harris and Nodal that she did not wish to be represented by Brose. Ferrer agreed to discuss the matter further, and Harris and Nodal took her to a witness room.

Ferrer told Harris and Nodal that she was not and did not want to be represented by Brose. Harris then informed Ferrer of her right to be represented by an attorney, but Ferrer declined representation. When asked why she did not want Brose to act as her attorney, Ferrer stated that she wished to tell the truth and that she did not believe she could do so if she had to testify in his presence. She also said that the Talaos had been pressuring her to testify untruthfully. Ferrer gave Harris and Nodal information about the rates paid by SLGC, her preparation of corporate payroll records, and the possible destruction of corporate documents. During the interview, Brose knocked on the door and demanded to speak with Ferrer. Ferrer was informed of Brose's presence and desire to speak with her, but she said she did not wish to speak with him.

Uncertain whether she should continue the interview, Harris sought guidance from her superiors. The chief of the criminal division, AUSA Joel Levin, opined that Brose was wrongfully tampering with a witness and instructed Harris to continue the interview outside Brose's presence. During the remainder of the interview, Ferrer gave further instances of wrongdoing by her employers and explained how they concealed the truth from investigators and Brose. She stated that Virgilio Talao had told her to tell untruths to the grand jury and that she believed Brose had been directed there by Talao to intimidate her and to keep her from telling the truth. A few minutes later she recounted these facts in her grand jury testimony.

On July 16, 1997, the grand jury returned a 20-count indictment against the Talaos and SLGC. In February 1998, the Talaos and SLGC filed a Joint Motion to Dismiss the indictment asserting that the contact between Harris and Ferrer had violated California's ethical rule against ex parte contacts with represented parties⁴ and SLGC's constitutional rights. The court denied the motion, but found a violation of Rule 2100 and stated that it would refer AUSA Harris' conduct to the State Bar of California. The court also declared that if the case went to trial it would inform the jury of Harris' misconduct and instruct them to take it into account in assessing Ferrer's credibility. Later, the court concluded that Harris had acted in good faith and determined not to refer the matter to the state bar.

Harris appeals the finding that she acted unethically and violated Rule 2-100. The government filed a petition for a writ of mandamus to prevent the district court from giving its proposed remedial instruction at trial. The two matters were consolidated for consideration.

ANALYSIS

Jurisdiction Over Harris' Appeal

SLGC and the Talaos insist that the district court's finding that Harris violated Rule 2-100 does not constitute a sanction against her and therefore does not provide a basis for appeal. In making this assertion, they rely on the decision in Weissman v. Quail Lodge, Inc.,⁵ substantially employing the reasoning in Williams v. United States.⁶

In Williams, a bankruptcy judge levied monetary sanctions against the government and two attorneys. In his published findings of fact supporting the sanctions, the judge characterized the attorneys' conduct as obstructionist and unjustified, referring to the testimony of one as "pure baloney," and ranked the other's "performance and credibility at about the same level."⁷ The bankruptcy judge later vacated the sanction against one attorney and the sanction against the other was annulled on appeal to the district court. Neither court, however, rescinded or vacated the factual findings or the harsh language used to describe the conduct of the two attorneys.

The attorneys contended on appeal that the bankruptcy court's findings of fact "besmirch[ed] their professional reputations to such an extent that they operate[d ] as a de facto sanction."⁸ The Williams court disagreed, noting that "not every criticism by a judge that offends a lawyer's sensibilities is a sanction."⁹ The court declined to draw a line between routine judicial commentary and commentary that is inordinately injurious to a lawyer's reputation, holding that words alone may constitute a sanction only if expressly identified as such. The court recognized that this formalistic approach might exact a considerable price from some attorneys without affording them a means of redress, but chose to follow it in order to avoid line-drawing which it believed might prove exceedingly difficult and apt to chill judicial candor.

In Weissman, the district court sanctioned an attorney for what it considered to be "a serious lack of professionalism and good judgment."¹⁰ The attorney had intervened in a class action without information to substantiate that his client was a class member, and then failed to appear at a hearing at which his objections were addressed. The...