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Name: United States v. Harmon
Case #: 15-10034
Court: US Court of Appeals
District 9 Cir
Opinion Date: 08/18/2016

Prosecutor’s failure to correct false testimony that affected a witness’ credibility and was presented to a grand jury was not structural error. Harmon was an attorney who laundered money for her client, Pantages, who had been charged with receiving stolen property in state court (he ran a computer business that resold stolen computer equipment as legitimate). His business partner, Ebyam, pleaded guilty and, as part of his plea, was required to testify against Harmon before a grand jury or face additional charges. However, Ebyam told the grand jury that he was voluntarily testifying and the prosecutor did not correct this false statement. The grand jury indicted Harmon. At trial, the prosecution failed to disclose to the defense the fact that Ebyam was currently working as a paid informant. The jury convicted Harmon of money laundering. Thereafter, she made a motion to dismiss the indictment, arguing that the prosecutor’s failure to correct Ebyam’s false grand jury testimony amounted to structural error. The trial court denied the motion. Harmon appealed. Held: Affirmed. “[E]rrors concerning evidence presented to the grand jury cannot trigger dismissal of charges or a new trial when a subsequent petit jury returns a verdict of guilty.” The appellate court disagreed with Harmon’s argument that the prosecutor’s errors here were so grave that they were structural and required reversal. The errors were subject to quantitative assessment to determine their effect and therefore were not structural. Under United States v. Mechanik (1986) 475 U.S. 66, “presenting false information to the grand jury affecting a witness’s credibility and withholding impeachment information—even if done intentionally, which we assume but do not decide—are harmless as a matter of law after a petit jury returns a guilty verdict.” Something other than a dismissal, such as a state bar inquiry or an investigation by the Office of Professional Responsibility, “is the proper recourse under these facts.”

Prosecutor’s failure to disclose impeachment evidence about hostile defense witness did not warrant new trial. Harmon also moved for a new trial on Brady v. Maryland (1963) 373 U.S. 83 grounds based on the prosecutor’s failure to disclose Ebyam’s status as a paid informant prior to trial. The trial court denied the motion. The appellate court concluded there was no error. The prosecutor had submitted the impeachment material to the judge ex parte for in camera review, and the Ninth Circuit has previously held that this satisfies the duty to disclose. (See United States v. Dupuy (9th Cir. 1985) 760 F.2d 1492.) However, the trial court never ruled on the application and the prosecutor should have reminded the district court about the motion and asked for a ruling. Nevertheless, the impeachment value of the fact Ebyam was a paid informant was immaterial because Ebyam had already been thoroughly impeached by the defense and the evidence of Harmon’s guilt was overwhelming even in the absence of Ebyam’s testimony.

The full opinion is on the court’s website here: