1 BILL BOYD

Texas Bar No. 0278000

2 bill@boyd-veigel.com
3
RUSS A. BAKER
4 Texas Bar No. 24045440
russ@boyd-veigel.com
5
BOYD-VEIGEL, P.C.
6 P.O. Box 1179
McKinney, Texas 75070
7 Telephone: 972-562-9700
8 Telecopier: 972-562-9600

9 Attorneys for Armstrong

10
UNITED STATES DISTRICT COURT
11
NORTHERN DISTRICT OF CALIFORNIA
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13 SAN FRANCISCO DIVISION

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UNITED STATES OF AMERICA
15
Plaintiff No. CR 94 276 PJH
16
DEFENDANT ARMSTRONG’S MOTION
v.
17 FOR DISCOVERY IN SUPPORT OF 28
U.S.C. § 2255 MOTION
18 CONNIE C. ARMSTRONG, JR.

19 Defendant

20
Armstrong requests an order from this court permitting limited discovery in support of
21
his pending 28 U.S.C. § 2255 motion.
22

23 ARGUMENT

24 A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to

25 discovery as a matter of ordinary course. See Harris v. Nelson, 394 U.S. 286, 295 (1969). In
26 Harris, The Supreme Court held that “where specific allegations before the court show reason to
27

ARMSTRONG’S MOTION FOR DISCOVERY PAGE 1

 1 believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is
2 ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures
3
for an adequate inquiry.” 394 U.S., at 300. Habeas Corpus Rule 6 is meant to be “consistent”
4
with Harris. See ADVISORY COMMITTEE’S NOTE ON HABEAS CORPUS RULE 6, 28 U.S.C., p. 479.
5
Leave of court is required to invoke discovery in a § 2255 proceeding and may be granted only
6
for “good cause.” See RULES GOVERNING § 2255 CASES, Rule 6(a). Petitioner bears the burden
7

8 of demonstrating good cause and must allege some material fact to trigger the court’s discretion

9 to grant leave for discovery. See Bracy v. Gramley, 520 U.S. 899, 908-09 (1997). Discovery is

10 not required if the habeas petition plainly warrants dismissal. See Mayle v. Felix, 545 U.S. 644
11 (2005). Here, Armstrong suggests that the Mayle v. Felix threshold has been met because this
12
Court has issued a show cause order.
13
At the onset, Armstrong notes that the government’s response to this Court’s show cause
14
order failed to address almost all of the Brady violations raised in his 2255 motion. These
15
violations include:
16

17
a) Failure to produce documents showing that the operation of Armstrong’s

18 company was the subject of a prior, exculpatory investigation;

19 b) Failure to produce documents showing that the 36 audio tapes produced at the
20 close of trial were actually prepared at the request of the prosecution of this case, contrary to the
21
express oral representations of AUSA Yamaguchi and the affidavit of SA Hatcher that the tapes
22
concerned an unrelated investigation; 1 and
23
1
24 In its response, the government seems to misconstrue this point as a re-litigation of the
judge’s evidentiary and continuance rulings on this topic. Armstrong apologizes for any
25 confusion. To the contrary, the issue is not whether the judge abused his discretion in ruling on
the record before him. Rather, the issue is would the judge have ruled differently if he knew the
26
tapes in question actually concerned Armstrong’s prosecution in this case and were obtained at
27 the express instruction of AUSA Yamaguchi.

ARMSTRONG’S MOTION FOR DISCOVERY PAGE 2

 1 c) Failure to produce documents concerning the alignment between the bankruptcy
2 trustee for Hamilton Taft and the government’s prosecution team.
3
Armstrong requests discovery on these matters as detailed and particularized below.
4
However, should the Court, having reviewed the evidence already in the record and having
5
considered the lack of response from the government, be prepared to grant the relief requested
6
under section 2255, Armstrong withdraws this discovery request as moot.
7

8 Concerning item (a), the prior investigation, Armstrong received documents through

9 FOIA referencing this investigation. [Exhibits p, 1-6, 7]. The documents show that the

10 investigation closed without a finding of wrongdoing. [Exhibits p, 8-9]. Although this prior
11 investigation occurred before Armstrong’s ownership, a partial FBI 302 shows that cash flow
12
patterns analyzed in the prior investigation were the same as those occurring while Armstrong
13
controlled the company. [Exhibits pp. 10-12]. Fortunately, the failure to disclose a prior
14
favorable investigation is an oddity, but the Fifth Circuit nonetheless had the recent opportunity
15
to consider the matter in U.S. v. Fernandez. 2 There, a unanimous panel analyzed an undisclosed
16

17
investigation under the three familiar factors of Brady. The panel found that the fact of the

18 investigation was actually well-known during trial with only the results of the investigation

19 remaining undisclosed. The panel further found that the district judge conducted an in camera
20 review of the results and found no exculpatory material. Based upon these findings, the panel
21
held that no Brady violation occurred. Here, of course, the prior Hamilton Taft investigation was
22
clearly exculpatory yet was never disclosed to Armstrong. Further, the instant situation is more
23
troubling from a policy perspective because, unlike the Fernandez investigation that looked for
24
conduct which violated a known law, the inquiry here turned on whether known conduct could
25

26
2
559 F.3d 303 (5th Cir. 2009).
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ARMSTRONG’S MOTION FOR DISCOVERY PAGE 3

 1 be interpreted as violating a yet-unknown law. [Exhibits p. 13-17; opinion letter stating at page
2 16 that no “case law, regulation, or statute” addressed this situation]. Accordingly, Armstrong
3
requests un-redacted copies of all memoranda, reports, transcripts of oral statements, financial
4
statements, and other such similar documents which concern the instigation, scope, conduct and
5
results of the investigation referenced in the letter shown on Exhibit pages 8 and 9.
6
Concerning item (b), the audio tapes, an FBI memo received years after conclusion of the
7

8 trial shows that AUSA Yamaguchi authorized SA Hatcher to conduct the undercover recording

9 operation. [Exhibits, p. 18.] This directly contradicts both the sworn affidavit of Hatcher

10 [Exhibits, p. 19-22] and the express assurances of AUSA Yamaguchi, both oral and written, to
11 the trial judge and to the Ninth Circuit. Additional documents reveal that the Dallas FBI office
12
provided significant investigatory support to its San Francisco colleagues. [Exhibits, pp. 23-24;
13
25; 26].
14
When the state, through an act of flagrant prosecutorial misconduct,
15 precludes the introduction of evidence that, had it been admitted, would
undermine the court’s confidence in the outcome of a criminal proceeding, it
16 substantially increases the possibility that a fundamental miscarriage of justice—
17
the conviction of an innocent individual—has occurred. Even more so if the state
by that egregious misconduct precludes the holding of the evidentiary hearing
18 itself.

19 Smith v. Baldwin, 510 F.3d 1127, 1156 (9th Cir. 2007)( Reinhardt, J., in dissent). Here,
20 the trial court relied upon the false representation of the AUSA and the FBI on this important
21
evidentiary matter. Absent a stipulation from the government that this conduct occurred and was
22
materially harmful to the defense, Armstrong requires the discovery of certain documents to
23
expand the 2255 record. Accordingly, Armstrong requests un-redacted copies of all memoranda,
24
reports, transcripts of oral statements, telephone logs and summary reports, and other such
25

26
similar documents flowing between the San Francisco and Dallas offices of the FBI (including

27

ARMSTRONG’S MOTION FOR DISCOVERY PAGE 4

 1 responsive documents sent by or to the prosecuting AUSA) where the subject of the document
2 was Armstrong or the company Hamilton Taft.
3
Concerning item (c), the alignment between the prosecution and the bankruptcy trustee,
4
Armstrong requires documents to prove the facts that are suggested by documents in his
5
possession. As shown by the record in the trial court and the pleadings on file in this habeas
6
matter, the “law of the case” issue was significant to all parties. Armstrong certainly argued for
7

8 the instruction and the government conceded its materiality with the statement that the requested

9 instruction would amount to a “gutting of the government’s case.” [Exhibits, pp. 28-30 at 29.]

10 While the parties utilized the term “law of the case” in describing the requested instruction, that
11 doctrine is not fully on point.
12
In an odd procedural conundrum, the trial judge hearing—and the appellate court
13
reviewing—both Armstrong’s criminal matter and the Hamilton Taft bankruptcy case were the
14
same. Even so, they were two different causes, thus making a law of the case application
15
difficult if not impossible. In short, Armstrong had no standing to contest the actions in the
16

17
bankruptcy case or its appellate proceedings, even though these proceedings directly impacted

18 his criminal prosecution.

19 Armstrong respectfully requests that this Court remain mindful that the Ninth Circuit
20 reversed the trial court and entered a ruling supporting Armstrong’s contention in the criminal
21
matter. While a petition for rehearing was pending, the parties settled their dispute. 3 In response
22
to motions by the parties, the Ninth Circuit vacated its opinion, thus reinstating the trial court’s
23
order—an order that had been held erroneous. This vacatur is expressly prohibited by Supreme
24

25 3
As additional evidence of the materiality of the bankruptcy proceeding to the criminal
26 prosecution, AUSA Yamaguchi actually authored an amicus brief urging rehearing by the Ninth
Circuit. [Exhibits, pp. 38-39].
27

ARMSTRONG’S MOTION FOR DISCOVERY PAGE 5

 1 Court precedent barring vacatur by reason of settlement. But Armstrong had no direct
2 mechanism to address this issue because he was not a party and lacked standing. 4
3
The documents received by Armstrong after trial reveal that the doctrine of collateral
4
estoppel was available to him in the trial court. “Under collateral estoppel, once a court has
5
decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation
6
of the issue in a suit on a different cause of action involving a party to the first case.” San Remo
7

8 Hotel, L.P. v. City and County of San Francisco, Cal., 545 U.S. 323, 336 (2005). In briefing to

9 the trial court, the government argued that it was not a party to the bankruptcy case and should

10 not be bound by its holding. However, the government did not reveal its close alignment with
11 the bankruptcy trustee.
12
Evidence delivered to Armstrong after trial shows that the government and the
13
bankruptcy trustee were in privity, thus opening the door for a collateral estoppel argument that
14
was otherwise unavailable. [Exhibit, p. 31, showing that counsel for the trustee met with AUSA
15
Yamaguchi to “discuss prosecution strategy;” pp. 33-35, detailing an FBI meeting at the offices
16

17
of the trustee; and pp. 36-37, containing a partial FBI 302 where a witness told the FBI

18 interviewer that the trustee was “doing your work.”] “Courts are no longer bound by rigid

19 definitions of parties or their privies for purposes of applying collateral estoppel or res judicata.”
20 Tahoe Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 322 F.3d 1064,
21
1082 (9th Cir. 2003). In light of documentation showing the trustee’s participation in the
22
government’s prosecution strategy and assertions that the trustee was doing the work of the FBI,
23
Armstrong asserts a particularized need for documentation concerning the linkage between the
24

25 4
He did, however, try. [Exhibit, pp. 40-41, docket sheet in the bankruptcy matter; and
26 pp. 42-47, Armstrong’s Motion to Recall Mandate to the Ninth Circuit.] The recall motion
overviews the Supreme Court precedent prohibiting vacatur under these circumstances.
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ARMSTRONG’S MOTION FOR DISCOVERY PAGE 6

 1 trustee and the prosecution team to conduct a privity analysis for collateral estoppel purposes.
2 Accordingly, Armstrong requests un-redacted copies of all memoranda, reports, transcripts of
3
statements, telephone logs and summary reports, and other such similar documents that touch on
4
the topic of meetings between the FBI, the AUSA, and the Hamilton Taft bankruptcy trustee
5
where the topic of the meeting was either Armstrong or Hamilton Taft.
6
Finally, Armstrong requests discovery on whether his prosecution was improperly
7

8 instigated. In its response, the government calls Armstrong’s arguments conclusory. The

9 remedy for a conclusory statement is the discovery of facts sufficient to plead with particularity,

10 and Armstrong shows good cause for the Court to order this discovery. It is axiomatic that most
11 of the relevant proof in such situations will be in the government’s hands. See Wayte v. U.S.,
12
470 U.S. 598 (1985) (Marshall, J., dissenting); see also Alderman v. United States, 394 U.S. 165
13
(1969) (“[D]isclosure must be made even though attended by potential danger to the reputation
14
or safety of third parties or to the national security—unless the United States would prefer
15
dismissal of the case to disclosure of the information”).
16

17
Here, documents delivered to Armstrong after trial disclose the involvement of

18 Representative Pelosi in his prosecution. [Exhibits, pp. 48-51.] Shortly after the prosecution

19 launched its investigation, FBI Deputy Director Larry Potts sends a status report to Howard
20 Baker, then a director of Federal Express, 5 and copies the report to staff members of Pelosi and
21
Senator Boxer. [Exhibits, p. 52]. This memo is the only communiqué produced which reveals
22
contact between Mssrs. Baker and Potts. All documents initiating the involvement of Mr. Potts
23
were withheld from Armstrong’s FOIA production, as were the follow-up reports promised in
24
5
25 While the memo was sent to Baker, no corporate officer of Federal Express was on the
distribution. As a Delaware corporation, a Federal Express director is very different from a
26 corporate officer who would actual run the company. See generally In re Bridgeport Holdings,
Inc., 388 B.R. 548 (Bankr. D. Del. 2008)
27

ARMSTRONG’S MOTION FOR DISCOVERY PAGE 7

 1 the Potts’ memo. Armstrong is entitled to discovery on the question of whether pressure from
2 political leaders deprived him of his right to a disinterested prosecutor. See Clearwater-
3
Thompson v. Michael A. Grassmueck, Inc., 160 F.3d 1236, 1237 (9th Cir. 1998)(“It is
4
fundamental that the prosecutor of a criminal charge be disinterested. Where that is not the case,
5
a judgment of conviction is to be reversed without the need of showing prejudice.”)
6
Accordingly, Armstrong requests un-redacted copies of all memoranda, reports, transcripts of
7

8 oral statements, telephone logs and summary reports, and other such similar documents flowing

9 between the San Francisco office of the FBI, main justice, Howard Baker, and any elected

10 official or staff member of an elected official (including without limitation the persons copied on
11 the April 3 Potts memo) where the subject of the evidence is Hamilton Taft or Armstrong.
12
SUMMARY
13
“[W]here specific allegations before the court show reason to believe that the petitioner
14
may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the
15
duty of the court to provide the necessary facilities and procedures for an adequate inquiry.”
16

17
Harris v. Nelson, 394 U.S. 286, 300 (1969); see also RULES GOVERNING § 2255 CASES, Rule

18 6(a)(adopting the Harris standard as the test for “good cause.”) Armstrong therefore requests an

19 order from this Court compelling the government to produce:

20 a) un-redacted copies of all memoranda, reports, transcripts of oral
statements, financial statements, and other such similar documents which concern
21
the instigation, scope, conduct and results of the prior Hamilton Taft
22 investigation;

23 b) un-redacted copies of all memoranda, reports, transcripts of oral

statements, telephone logs and summary reports, and other such similar
24 documents flowing between the San Francisco and Dallas offices of the FBI
(including responsive documents sent by or to the prosecuting AUSA) where the
25 subject of the document was Armstrong or the company Hamilton Taft;
26
c) un-redacted copies of all memoranda, reports, transcripts of
27

ARMSTRONG’S MOTION FOR DISCOVERY PAGE 8

 1 statements, telephone logs and summary reports, and other such similar
documents that touch on the topic of meetings between the FBI, the AUSA, and
2 the Hamilton Taft bankruptcy trustee where the topic of the meeting was either
Armstrong or Hamilton Taft; and
3

4 d) un-redacted copies of all memoranda, reports, transcripts of oral

statements, telephone logs and summary reports, and other such similar
5 documents flowing between the San Francisco office of the FBI, main justice,
Howard Baker, and any elected official or staff member of an elected official
6 (including without limitation the persons copied on the April 3 Potts memo)
where the subject of the evidence is Hamilton Taft or Armstrong.
7

8 Armstrong respectfully requests that this Court order production of the requested

9 discovery items.

10 DATED: August 13, 2009

11 Respectfully submitted,
12
/s/ Bill Boyd
13 BILL BOYD

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