1 MARILYN E.

BEDNARSKI (SBN 105322)

KAYE, McLANE & BEDNARSKI, LLP
2 128 North Fair Oaks Avenue
Pasadena, California 91103
3 Telephone: (626) 844-7660
Facsimile: (626) 844-7670
4 mbednarski_kmb@earthlink.net
5 Attorneys for Defendant P. Green
6 JEROME H. MOONEY III (SBN 199542)
WESTON, GARROU, WALTERS & MOONEY
7 12121 Wilshire Blvd. Ste. 900
Los Angeles, Ca. 90025
8 (310) 442-0072
(310) 442-0899
9 jerrym@mooneylaw.com
10 Attorneys for Defendant G. Green
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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UNITED STATES OF AMERICA, ) NO. CR 08-59(B)-GW
16 )
Plaintiff, ) DEFENDANTS’ JOINT MOTION IN
17 ) LIMINE TO PRECLUDE THE
) PROSECUTORS’S USE OF THE
18 v. ) TERM “BRIBE” OR ITS
) SYNONYMS AT TRIAL EXCEPT
19 ) DURING OPENING STATEMENT,
) CLOSING ARGUMENT;
20 GERALD GREEN AND PATRICIA ) DECLARATION OF MARILYN E.
GREEN, ) BEDNARSKI
21 )
Defendants. ) Hearing Date: July 23, 2009
22 ) Hearing Time: 8: 00 a.m.
)
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24 Defendants, Patricia Green and Gerald Green, jointly and by and through
25 their respective attorneys of record, hereby move this Honorable Court for an order
26 precluding the prosecutors from using the term “bribe,” “bribery, kickback or their
27 synonyms at trial except during opening statement (with limitations), closing
28 argument and instructions. This motion is made pursuant to the Fifth Amendment’s
 1 Due Process Clause, Rules 701 and 403 of the Federal Rules of Evidence. This

2 motion is based upon the attached memorandum of points and authorities,

3 Declaration of Marilyn E. Bednarski, all files and records in this case, and any
4 further evidence as may be adduced at the hearing on this motion.

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6 Respectfully submitted,

7 KAYE, McLANE & BEDNARSKI, LLP

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9 DATED: July 12, 2009 By_______/S/____________________
MARILYN E. BEDNARSKI
10 Attorneys for Patricia Green
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Respectfully submitted,
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WESTON, GARROU, WALTERS & MOONEY
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DATED: July 12, 2009 By__________/S/__________________
15 JEROME H. MOONEY III
Attorneys for Gerald Green
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 1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I.
3 SUMMARY OF ARGUMENT
4 The twenty-eight count Second Superceding Indictment, upon which the
5 defendants Gerald and Patricia Green will be tried alleges that the defendants
6 conspired to violate the Foreign Corrupt Practices Act-Bribery (hereinafter
7 “FCPA”), 18 U.S.C. 371 and 15 U.S.C. § 78dd-2(a)(1); Transported Funds to
8 Promote Bribery and Transacted In Criminally Derived Funds, 18 U.S.C. §§
9 1956(a)(2)(A) and 1957; Obstructed Justice (only Gerald Green), 18 U.S.C. § 1519;
10 Subscribed to False Tax Returns (only Patricia Green), 26 U.S.C. § 7206(1); and
11 Forfeiture, 18 U.S.C. 981.
12 The essential issue at trial for the bribery, money laundering and false tax
13 filing counts is whether there is credible proof that the defendants had a “corrupt
14 purpose” in sending the monies they sent to Thailand. The FCPA prohibits U.S.
15 persons and businesses from "corruptly" making use of the mails or any means or
16 instrumentality of interstate commerce so as to offer, pay, promise, or authorize to
17 pay, either directly or indirectly, money or anything of value to any foreign official
18 or political party "in order to assist . . . in obtaining or retaining business for or with,
19 or directing business to, any person." 15 U.S.C. §§ 78dd-1, et. seq.
20 The FCPA, money laundering and conspiracy counts require the
21 government to prove the underlying crime alleged i.e., bribery under the FCPA and
22 the false tax filing counts require the government to prove that Patricia Green knew
23 that the returns she subscribed to which took commissions paid by SASO and FFM
24 as deductions included bribes and were not legitimate deductions.
25 Thus, corrupt intent –the mental state that is a prerequisite to a bribe is a
26 necessary element of all these counts. Because “bribery” within the context of the
27 FCPA has a specific legal meaning, and that specific legal meaning must be met by
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 1 proof beyond a reasonable doubt, it is central to the fairness of this trial that the
2 prosecutors do not assume the very issue to be proven in this case by inserting the
3 highly provocative words “bribe,” “bribery” or “kickbacks” or their synonyms into
4 its questioning of witnesses during trial. 1
5 As this motion sets forth, “bribery” – as applied to the relevant statutes in
6 this case – has a legal definition that requires a finding of the defendants’ “corrupt
7 purpose” in making payments. Any government questions which include the word
8 bribe or lay witness(es)’ testimony2 using such term is improper as it is assumes the
9 mental state of the defendants in violation of Federal Rule of Evidence 701.
10 Witnesses appropriately can testify concerning their personal knowledge of the
11 details of monetary payments made by the Greens to various entities and
12 individuals. To go further and characterize any such payments as “bribes,” presents
13 inadmissible and improper testimony to the jury concerning the defendants’ state of
14 mind - i.e. that the defendants made the payments with a corrupt purpose. This is an
15 issue for the jury to decide.
16 Additionally, any relevance the term “bribe” may have is clearly
17 outweighed by the substantial risk of prejudice to the defendants. Specifically, lay
18 persons between themselves and even the Federal Criminal Code hold different
19 definitions of the term “bribe.” It is likely that the term “bribe” posed in a question
20 by the government, may have a completely separate subjective meaning to the lay
21 witness than intended, and it will be impossible for the jury to discern if the
22 testimony given is consistent with the legal definition of the term in the charging
23 statutes. The use of the term “bribe” at trial therefore can lead to gross injustice in
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25 For brevity purposes instead of listing a string of synonyms each time, the
undersigned intend bribe in this motion to include all synonymous provocative terms.
26 2
The subject of “expert” testimony in this area is set forth in detail in a separate
27 motion in limine regarding the government’s proposed expert witness Johnson on tax
law and regulations “expert witnesses is on file and set for hearing July 23.
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 1 this case in the absence of an order precluding it and its synonyms during
2 questioning of witnesses and with limitation during opening statement.
3
4 II.
5 ARGUMENT
6 A. THE TERM “BRIBE” WILL CONSTITUTE IMPROPER TESTIMONY
7 REGARDING THE DEFENDANTS’ MENTAL STATE
8 While prosecutors are entitled to “prosecute with earnestness and vigor,”
9 they must “refrain from improper methods calculated to produce a wrongful
10 conviction.” United States v. Young, 470 U.S. 1, 7 (1985). It is error for a
11 prosecutor to engage in a deliberate attempt to put inadmissible evidence before the
12 jury. People v. Bell (1989) 49 Cal.3d 502, 532. In this case, it is likely the
13 government will attempt to use the loaded and prejudicial term “bribe” as much as
14 possible in questions posed to lay witnesses in an attempt to improperly sway the
15 jury. This tactic is not without heinous precedent in this case and in other cases.
16 See, United States v. Matthews, 787 F.2d 38 (2nd Cir. 1986)(noting that “Although
17 the prosecutor managed to incorporate the words ‘bribe’, ‘bribery’, and ‘slush fund’
18 into every possible question, and prominently displayed one or more of these words
19 in his blown-up summary charts, [the witness] testified that he neither heard nor
20 used any of these words until they were spoken to him in the United States
21 Attorneys Office in 1980, some two to three years after his alleged conversations
22 with [the defendant.]”)
23 The discovery reveals the government used this form of questioning
24 witnesses during its investigation of this case. The term “bribe” and kickback is
25 repeatedly suggested in questioning not only by agents but also by prosecutors in
26 the Grand Jury proceedings. Declaration of Bednarski, at ¶2. Examples from the
27 investigation include:
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 1 IRS case agent Berryman posed to witness Eli Boyer (a financial advisor to
2 the Greens) a hypothetical situation that was a bribe and asked Mr. Boyer if he knew
3 bribes were illegal. Berryman MOI 7/28/08 bate stamp 29837.
4 IRS case agent Berryman asked IRS auditor Sutton if he had suspicions
5 whether the wire transfers to Jittisopa could be involved in foreign bribery, or if he
6 had discovered the payments to Jittisopa were bribes to her mother, would he have
7 disallowed the deductions. Berryman MOI 7/28/08 bate stamp 29840. The same
8 agent asked cooperating witness /book keeper Susan Shore if she heard discussions
9 between the Greens and the CPAs who prepared the tax returns about deducting
10 commissions if bribery was involved. MOI 7/16/08 bate stamp 29847.
11 The FBI case agents also used the word bribery in their questioning of
12 witnesses. FBI case agents Rivas and Binder asked Yanichnat “Oom”
13 Chalermtiarana about bribes and she said it would not surprise her if the governor
14 received bribes and that she heard rumors in relation to Green and others about
15 Juthamas receiving bribes or gifts in exchange for preference (FBI 302 6/4/08 bate
16 stamp 40420). These same agents interviewed Jocelyn McCormick ( a subcontractor
17 who worked for the Greens) who said Thailand was corrupt and that business in
18 Thailand was done through commissions or kickbacks. FBI 302 3/20/08 bate stamp
19 40490.
20 Prosecutors questioned at least three witnesses (out of ten whose transcripts
21 were provided) using the word bribery, bribe or kickbacks in their questions to
22 witnesses. (Counsel is prepared to give examples to this Court at the hearing, but
23 not here so that this pleading need not take on Grand Jury confidentiality issues.)
24 Bednarski Decl. at ¶3.
25 Under the FCPA the term “bribery” has a specific statutory definition that
26 necessarily includes the requirement that payments be made with a “corrupt
27 purpose.” See, 15 U.S.C. §§ 78dd-1, et. seq. Implicit in the legal term “bribery” is
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 1 that the briber had a specific mental state, i.e. a corrupt purpose, in making the
2 payment to the bribee.
3 Federal Rule of Evidence, Rule 701 states:
4 If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences is limited to those opinions or inferences
5 which are (a) rationally based on the perception of the witness, (b) helpful to
a clear understanding of the witness’ testimony or the determination of a fact
6 in issue, and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
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Here, none of the three permitted basis under 701 for lay opinion testimony
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exist. First, the witnesses will have no personal knowledge or perception of
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whether or not the defendants’ mental state embodied “corrupt purpose”
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contemporaneous with payments made. Witnesses Prater and Kelly, both of whom
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were directors of the Film Festival and worked closely and full time with the Greens
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and cooperating witness book keeper Susan Shore, have all affirmatively told the
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investigators that they never heard the Greens use the term bribe or kickback and
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that the Greens have never stated they were bribing anyone.
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Witnesses without personal knowledge may not testify to the defendants’
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mental state(s). The witnesses may properly testify to all other aspects of these
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transactions for which they had personal knowledge, not otherwise inadmissible on
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other grounds, i.e. who made payments, where, why and how? However it is for the
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jury to determine what the defendants’ mental state was, i.e., whether the alleged
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payments were made with the requisite corrupt intent to constitute a bribe.
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Second, as set forth thoroughly in the Rule 403 section below, using the
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term “bribe” will not clarify the testimony or aid in the determination of a fact at
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issue. In fact, allowing lay witness testimony regarding the witness’ subjective
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interpretation of the word “bribe” will only serve to muddy the water in this crucial
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area and prejudice the defendants.
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Finally, while expecting a witness to be familiar with the precise legal
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 1 definition of “bribery” would likely require some specialized knowledge, even a
2 properly admitted expert witness may not “state an opinion or inference as to
3 whether the defendant did or did not have the mental state or condition constituting
4 an element of the crime charged or defense thereto. Such ultimate issues are matters
5 for the trier of fact alone.” See, FRE 704(b). Using the term “bribe” during
6 questioning of witnesses at trial, however, will do exactly that.
7 The term “bribe” will obviously be used in instructions and is fair game for
8 argument and opening statement with respect to what the government believes it
9 will be able to prove (although not attributed to witnesses). Prosecutors should be
10 precluded from using the word and other provocative synonyms during questioning
11 of witnesses, however, as it constitutes improper lay witness opinion under FRE
12 701.
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14 B. THE PROBATIVE VALUE OF USING THE TERM “BRIBE” DURING
15 TRIAL IS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF
16 UNFAIR PREJUDICE
17 The use of the word during questioning should also be precluded as more
18 prejudicial than probative pursuant to Rule 403 of the Federal Rules of Evidence.
19 Rule 403 provides:
20 Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
21 issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
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23 While all inculpatory evidence is prejudicial, unfair prejudice arises:
24 ...from an aspect of the evidence other than its tendency to make the
existence of a material fact more or less probable, e.g., that aspect of
25 the evidence which makes conviction more likely because it
provokes an emotional response in the jury or otherwise tends to
26 affect adversely the jury’s attitude toward the defendant wholly apart
from its judgment as to his guilt or innocence of the crime charged.
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 1 United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir. 1993), citing, United States v.
2 Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982).
3 Any relevance of the use of the term “bribe” is substantially outweighed by its
4 risk of unfair prejudice, and the term will confuse the jury and draw its attention away
5 from the main issue in the case - the state of mind of the defendants in making the
6 payments to Thailand.
7 Examples of how insidious the use of the word can be include, for example, if
8 the government poses a question to a witness “on what dates were these bribes
9 made?” The witness’ probable answer, a date such as October 23, 2003, would
10 improperly contain an improper assumption of the witness that a bribe was paid. The
11 witness can testify to the date, but not to mental intent. Simply inserting the word
12 bribe into the question, the prosecutor thereby leads the witness to testify implicitly
13 that the payment was made with a corrupt purpose. The logical inference for the jury
14 to draw from this testimony is clear: the defendants had corrupt intent in making the
15 October 23, 2003 payment referred to.
16 In a back door way, the prosecutor would be using lay opinion testimony to
17 prove the defendants’ mental state. Rather than properly considering evidence of the
18 Greens’ specific intent, the jury will find the requisite intent per se based on the lay
19 opinion of a former director, book keeper, etc. See United States v. Vallejo, 237 F.3d
20 1008 (9th Cir. 2001) (Testimony of government agent should have been excluded
21 pursuant to Rules of Evidence 403 where he testified to the different roles played by
22 various members of a drug trafficking organizations, and although he did not cast the
23 defendant in a particular role, the implication of his testimony was that the defendant
24 had knowledge of how the entire organization operated, and thus had specific
25 knowledge, the only issue in the case, that he was carrying drugs).
26 The probative value of this testimony (which is minimal in light of the other
27 evidence available) is thus substantially outweighed by the risk of prejudice suffered
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 1 by the defendants. The government’s own witnesses have said that the Greens never
2 used the word bribe or kickback or grease payments and never admitted having
3 bribed the governor.
4 To use the same example as above, if this Motion is granted, the government
5 will simply have to ask the witness “On what dates were these payments made?” This
6 will assure that the answer contains only the witnesses personal observations and
7 doesn’t improperly delve into the defendants’ mental state. Given the agents and
8 prosecutor’s history of using these provocative terms in witness interviews and grand
9 jury, it is a very real problem we face.
10 Use of the term “bribe” by lay witnesses also risks not only the substantial
11 confusion of the jury but of the lay witnesses themselves. The law requires that
12 something extra is needed to transform a payment into a bribe. A lay witness may not
13 know that. A payment to a person with status or position to be able to do an at is not a
14 bribe if the payment is not made with corrupt purpose to influence an act. A lay
15 witness may not make that distinction. Additionally, a payment must be made to
16 influence an official act, not a private act and a lay witness may not understand that.
17 The word corrupt is capable of different legal meanings in different contexts. United
18 States v. Cohen, 202 F.Supp. 587, 588 (D.Conn. 1962).
19 There are multiple definitions of the term “bribe” found just in the federal
20 criminal code, let alone the numerous subjective meanings the term may have to a lay
21 witness. See, United States v. Zacher, 586 F.2d 912, 915 fn. 7 (2d Cir. 1978)(in this
22 medicaid fraud case the panel stated “[o]ur examination of this and other federal
23 statutes, however, has failed to uncover any uniform definition of the term “bribe” as
24 used in the federal code.” ) Thus, questions and answers that contain the term “bribe”
25 will present the jury with three possible definitions of the term to reconcile during
26 deliberations: the possible meaning to the government questioner, the possible
27 meaning to the witness, and the actual legal definition given by this Court that they
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 1 are to apply.
2 Given the grave risks of prejudice to the defendant the pejorative term “bribe”
3 presents and the fact that it is so easily substituted with the term “payment” for the
4 purposes of the trial, the prosecutors should be precluded from using the word or its
5 synonyms during questioning of witnesses and should be limited in opening statement
6 to stating what it expects to be able to prove and not attribute these words to
7 witnesses.
8 III.
9 CONCLUSION
10 For the foregoing reasons, and pursuant to the Fifth Amendment’s Due Process
11 clause, Rule 701 and 403, the defendants respectfully requests that this Court
12 preclude the use of the term “bribe” and synonyms at trial during the questioning of
13 witnesses and with limitations as suggested during opening statement.
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15 Respectfully submitted,
16 KAYE, McLANE & BEDNARSKI, LLP
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DATED: July 12, 2009 By_________/S/___________________
18 MARILYN E. BEDNARSKI
Attorneys for Patricia Green
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20 Respectfully submitted,
21 WESTON, GARROU, WALTERS & MOONEY
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DATED: July 12, 2009 By_________/S/___________________
23 JEROME H. MOONEY III
Attorneys for Gerald Green
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 1 DECLARATION OF MARILYN E. BEDNARSKI
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3 I, MARILYN E. BEDNARSKI, hereby state and declare as follows:
4 1. I am counsel of record for Patricia Green in the above entitled matter.
5 By agreement of Jerome Mooney as counsel for defendant Gerald Green, I have been
6 authorized to file this motion jointly on behalf of our respective clients.
7 2. During my review of government interviews with percipient
8 witnesses contained in FBI 302 forms produced in discovery, I observed a pattern
9 where the government would repeatedly suggest the terms “bribe” or “kickbacks”
10 during their questioning. My citations in this pleading to such reports are based on
11 my review of the discovery and are true and correct to the best of my knowledge.
12 3. I have reviewed grand jury transcripts provided regarding ten
13 witnesses called to the Grand Jury. Those transcripts reflect that prosecutors with at
14 least three of the ten witnesses used the word bribery, bribe or kickbacks in their
15 questions to witnesses. I am prepared to give these examples to this Court at the
16 hearing on this motion, but have not done so here so as not to risk infecting this
17 pleading with Grand Jury confidentiality issues and to avoid having to file it under
18 seal in order to avoid such risk.
19 I declare under penalty of perjury that the foregoing is true and correct to the
20 best of my knowledge. Executed this 12th day of July, 2009 at Pasadena, Ca.
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22 _____/S/___________________________
MARILYN E. BEDNARSKI
23 Attorney for Patricia Green
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