Case 2:10-cr SRB Document 303 Filed 03/21/12 Page 1 of 11

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1 Case :-cr-0-srb Document 0 Filed 0// Page of 0 ANN BIRMINGHAM SCHEEL Acting United States Attorney District of Arizona MONICA B. KLAPPER Assistant U.S. Attorney Arizona State Bar No.0 Monica.Klapper@usdoj.gov RAYMOND WOO Assistant U.S. Attorney Arizona State Bar No. 000 Raymond.Woo@usdoj.gov PETER SEXTON Assistant U.S. Attorney Arizona State Bar No. 0 Peter.Sexton@usdoj.gov Two Renaissance Square 0 N. Central Avenue, Suite 0 Phoenix, Arizona 00 Telephone: (0) -00 United States of America, v. Plaintiff, Rhonda M. Liddle (00), Defendant. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA CR---00-PHX-SRB UNITED STATES OPPOSITION TO DEFENDANT RHONDA LIDDLE S MOTION FOR NEW TRIAL The United States opposes Defendant Rhonda Liddle s request for a new trial under Rule, Federal Rules of Criminal Procedure. This Court should summarily deny Defendant s motion because: ) e motion is based on statements made by e prosecutor during e rebuttal closing argument, and Defendant waived her claim of error by failing to timely object and/or move for a mistrial; ) e statements at issue were factually accurate and not prohibited by e Nin Circuit s recent decision in United States v. Lopez-Avila or e cases upon which at decision relies; and ) e statements at issue were not an indirect comment on Defendant s failure to testify at trial. This opposition is supported by e following Memorandum of Points and Auorities.

2 Case :-cr-0-srb Document 0 Filed 0// Page of 0 MEMORANDUM OF POINTS AND AUTHORITIES I. Factual and Procedural Background Pre-trial Interview of Defendant Rhonda Liddle. On December, 0, a federal grand jury indicted Defendants William and Rhonda Liddle as co-conspirators in defrauding AEA Federal Credit Union. On November, 0, a mon prior to e indictment, FBI Special Agent Joseph Montoya attempted to interview Defendant Rhonda Liddle about her involvement in e conspiracy. According to e interview report, attached as Exhibit A to e defense motion, Special Agent Montoya and anoer agent approached Rhonda Liddle in e parking lot of her children s school after she dropped e children off for e day. (Docket, Motion for New Trial, Exhibit A at.) Special Agent Montoya identified himself and told Rhonda Liddle at e FBI was conducting an investigation of her husband, Frank Ruiz, and Dan Thelen. (Id.) He stated at e investigative evidence strongly suggested e ree men had committed financial wrongdoing, and at e evidence also suggested she had aided in e financial wrongdoing by handling e financial proceeds. (Id.) Special Agent Montoya en advised Rhonda Liddle at she could make is mess less messier by speaking wi e FBI and explaining her actions. (Id.) Rhonda Liddle responded by asking wheer she was being asked to choose between my husband of years or talking to e FBI. (Id.) Special Agent Montoya urged Rhonda Liddle to ink about herself and her children and advised her at future meetings could be held when and where she felt comfortable and safe. (Id.) Rhonda Liddle en questioned Special Agent Montoya about wheer he had followed her to e school to question her apart from her husband, and wheer she would be questioned apart from her husband in an interview. (Id.) occurred: The interview report reflects at, after ese topics were discussed, e following [Rhonda Liddle] stated at she did not understand how she partook in e wrongdoing. [Special Agent Montoya] explained at it was a conspiracy, her role in e conspiracy was e depositor of e financial proceeds, and her actions allowed e wrongdoing to continue. [Rhonda Liddle] stated at she deposited cash, and at e cash belonged to e Liddles. [Rhonda Liddle] asked if e FBI was also going after e wives of Ruiz and Thelen. [Special Agent Montoya]

3 Case :-cr-0-srb Document 0 Filed 0// Page of 0 answered negatively and explained at ere was not evidence of wrongdoing by e oer wives. (Id.) Referring to e statements Rhonda Liddle had made in conjunction wi e bankruptcy proceedings, Special Agent Montoya en indicated he was aware of her prior explanation at e cash deposits were personal funds. / (Id. at.) He provided Rhonda Liddle wi his business card, told her to contact him e following day if she wanted to speak furer, and ended e encounter. (Id.) Evidence of Interview Presented at Trial. During e trial, Special Agent Montoya was briefly questioned by e prosecutor about his November, 0, interaction wi Defendant Rhonda Liddle and testified as follows: [Mr. Woo] And where were you at? [Agent Montoya] At e Immaculate Conception parking lot. [Mr. Woo] Did you make contact wi e defendant Rhonda Liddle? [Agent Montoya] Yes. [Mr. Woo] And what did you tell her? [Agent Montoya]. I told her I was an FBI agent and at e FBI was conducting an investigation involving her husband, Frank Ruiz, and Dan Thelen. I told her at e evidence rough at investigation showed at she I m sorry at e ree men had committed financial wrongdoing and e consequence for at wrongdoing was prison. I told her at e investigation also showed she had handled all e financial or she had handled e financial proceeds from at wrongdoing and e consequences for her actions were also serious. MR. PAIGE: Objection, Your Honor. Legal conclusion. Irrelevant. THE COURT: On bo bases e objection is overruled. Please continue. [Agent Montoya]: I told her at e only way to make is mess less messier was Shortly before e indictment, in October of 0, bo William and Rhonda Liddle underwent examinations under oa in eir bankruptcy proceeding and were questioned at leng about many of e facts at formed e basis for e indictment. This Court will recall at attorney Andy Chambers testified about portions of Rhonda Liddle s interview. In eir examinations, bo Defendants pointed to e contrived cash-filled safe from Japan as e source of e $M or so in cash at ey had spent in e preceding few years ese statements were not presented at trial.

4 Case :-cr-0-srb Document 0 Filed 0// Page of 0 for her to sit down wi e FBI and explain her actions..... [Mr. Woo] How did she respond to your statements? What did she say? [Agent Montoya] She said, Are you asking me to choose between my husband of years or talk to e FBI? [Mr. Woo] Were ose her exact words? [Agent Montoya] Yes. (Docket, R.T. Feb., 0, at -.) Neier e prosecutor nor Special Agent Montoya suggested at is represented e entirety of e interview. Defense counsel did not object to is line of questioning as inaccurate or oerwise misleading or attempt to elicit additional statements from e interview. During e rebuttal closing argument, e United States addressed e defense claim at Rhonda Liddle was simply a housewife. Takes care of e kids. That she is basically clueless about what s happening around her. (Docket, R.T. Feb., 0, at.) The prosecutor detailed e evidence of Defendant Rhonda Liddle s involvement in e conspiracy to defraud AEA, including her involvement in e Liddles household finances, her frequent and large cash deposits of funds obtained via e fraud, her participation in e rental, remodel and cash purchase of e Parkway residence wi proceeds of e fraud, her participation in e cash purchase of e Toyota Sequoia wi proceeds of e fraud, and her participation in backdating e fraudulent promissory note between e Liddles and Dan Thelen to conceal e fraud. (Id. at -.) Just prior to concluding e rebuttal argument, e prosecutor pointed to e following: Let s talk about e interview Rhonda Liddle had wi e FBI. November of 0 comes. Rhonda Liddle is approached by Agent Montoya. He talks to her. He tells her at her husband, Dan Thelen, and Frank Ruiz are involved in serious criminal conduct. He tells her at you too are involved in serious criminal conduct and at you should come talk to e FBI to make is mess less messy. How does she respond? Did she say, What? Did she say, That s a lie. She didn t say any of ose ings. Her initial response was, Are you asking me to choose between my husband of years or to talk to e FBI? (Id. at -.) Defense counsel did not object to is argument.

5 Case :-cr-0-srb Document 0 Filed 0// Page of 0 II. Defendant failed to timely object to what she now claims was misconduct committed by e prosecutor. Having twice failed to object at trial, Defendant belatedly claims at e prosecutor engaged in misconduct by misleading e jury about e content and context of her encounter wi Special Agent Montoya. She claims at a portion of e interview at was not admitted into evidence reflects at she did in fact deny participating in any financial wrongdoing, us negating e inference suggested by e United States at her failure to do so was a tacit admission of guilt. Defendant s claim of error comes too late. During e questioning of Agent Montoya, Defendant failed to object to e omission of is portion of Agent Montoya s interview and never sought to augment e record in is regard. E.g., Fed. R. Evid. 0. Similarly, Defendant failed to object and/or move for a mistrial during e rebuttal closing argument itself. (Docket at -.) Alough Defendant s motion is styled as one for a mistrial, Federal Rule of Criminal Procedure. contemplates at a mistrial motion must be made during trial, when alternatives to such an extreme remedy can be proffered by e parties and considered by e court: Before ordering a mistrial, e court must give each defendant and e government an opportunity to comment on e propriety of e order, to state wheer at party consents or objects, and to suggest alternatives. If any error had occurred in is case, a timely objection would have allowed is Court and e parties to address it by means oer an declaring a mistrial. Because Defendant did not timely object, any error by e prosecutor must rise to e level of plain error to be actionable. E.g., United States v. Moreland, F.d, ( Cir. 0) (finding prosecutor s statements to be misconduct, but not plain error); Fed. R. Crim. P. ( A plain error at affects substantial rights may be considered even ough it was not brought to e court s attention. ). To satisfy e plain error standard, a defendant must show: () error, () at is plain, () at affected substantial rights, and () at seriously affected e fairness, integrity or public reputation of e judicial proceedings. United States v. Benz, F.d, ( Cir. 00).

6 Case :-cr-0-srb Document 0 Filed 0// Page of A defendant bears e burden of proving at a prosecutor committed misconduct. United States v. Daychild, F.d, ( Cir. 00). As set for below, Defendant cannot demonstrate any error by e prosecutor at all, and certainly not plain error. III. The prosecutor s statements were not error at all, much less plain error. A review of Special Agent Montoya s report of Defendant Rhonda Liddle s interview and of his testimony concerning at interview reveal at e statement made by e prosecutor in e rebuttal closing argument fairly and accurately characterized bo e content and e inference to be drawn from e statements made and e statements not made in at portion of e interview. / When Special Agent Montoya confronted Rhonda Liddle wi e accusation 0 at she had assisted her husband and oers in committing serious financial wrongdoing and invited her to talk to e FBI to explain her actions, she directly responded wi a statement revealing her knowledge of e wrongdoing: Are you asking me to choose between my husband of years and talking to e FBI? She failed to directly respond to Special Agent Montoya s accusation wi any sort of denial. The prosecutor s statements in e closing argument explicitly focus on e accusation and e immediate response, and do not purport to represent e entirety of e encounter: He tells her at you too are involved in serious criminal conduct and at you should come talk to e FBI to make is mess less messy. How does she respond? Did she say, What? Did she say, That s a lie. She didn t say any of ose ings. Her initial response was, Are you asking me to choose between my husband of years or to talk to e FBI? (Docket, R.T. Feb., 0, at -.) As reflected in e interview report, Rhonda Liddle later said to Special Agent Montoya at she did not understand how she partook in e wrongdoing. (Docket, Motion for New Trial, Exhibit A at.) In response to at statement, Special Agent Montoya explained at it was a conspiracy, her role in e conspiracy was e depositor of e financial proceeds, and her Remarkably, Defendant brought is claim of serious misconduct wiout having first obtained and reviewed e transcript of e relevant proceedings. Now at e record contains ose transcripts, e United States believes it appropriate for Defendant to reconsider e propriety of pursuing a clearly meritless claim of misconduct.

7 Case :-cr-0-srb Document 0 Filed 0// Page of 0 actions allowed e wrongdoing to continue. (Id.) This exchange was subsequent to e initial portion of e interview and does not change e content or context of e initial portion of e interview highlighted by e prosecutor in e direct examination of Special Agent Montoya and in e rebuttal closing argument. Contrary to Defendant s summary conclusion in e motion, Rhonda Liddle s statement claiming not to understand how her actions amounted to participation in financial wrongdoing is not a denial of wrongdoing. Special Agent Montoya s response, in which he explains e concept of conspiracy liability, reflects as much. That defense counsel failed to object on is point during Special Agent Montoya s testimony or attempt to elicit at information on cross-examination and failed to object during e rebuttal closing argument supports is conclusion. The case law relied on in e defense motion highlights why Defendant s argument to e contrary fails. In e recent case of United States v. Lopez-Avila, for example, e prosecutor erred by cross-examining a defendant wi an exchange at e prosecutor factually misrepresented. 0 WL 0 ( Cir. Jan., 0). The defendant was charged wi transporting illegal drugs and had originally entered a guilty plea but later widrew from e plea agreement. Id. at *-*. The defendant testified at trial at she had been reatened by oers and forced to transport drugs in her car. Id. at *. On cross-examination, e prosecutor impeached her testimony wi what e prosecutor purported was an exact exchange from e change of plea colloquy in which she was asked by e court, Ms. Lopez, has anyone reatened you? and responded, No. Id. The defense attorney quickly discovered at e question by e court in e change of plea proceeding was actually, Ms. Lopez, has anyone reatened you or forced you to plead guilty? Id. at * (emphasis in original). The defense ereafter objected and successfully moved for a mistrial, and e Nin Circuit characterized e prosecutor s actions on appeal as follows: [The prosecutor] represented to e trial court an altered version of e dialogue between e court and a witness at a hearing which had taken place in at same federal court. He presented a falsified version of an exchange as e true recitation of e transcript, until caught out by defense counsel. He did so to make it seem to e jury as if Lopez-Avila had lied under oa about being reatened to commit e cocaine possession crime, when she had plainly responded to a

8 Case :-cr-0-srb Document 0 Filed 0// Page of 0 magistrate judge s question about wheer she had been reatened to enter a plea of guilty. Id. at * (emphasis in original). Unlike Lopez-Avila, in e instant case, ere was no claim at trial and ere is no claim now at e testimony elicited from Special Agent Montoya concerning his interview of Defendant Rhonda Liddle was factually inaccurate. Nor was e prosecutor s carefully-worded and brief statement in closing argument referencing Rhonda Liddles initial response to Special Agent Montoya s accusation factually inaccurate or oerwise misleading to e jury. / United States v. Blueford, also relied on by Defendant, is similarly distinguishable. F.d ( Cir. 00). In at case, e prosecutor disclosed during trial dozens of audio tapes of a defendant s prison calls and, knowing at e defense had not reviewed e calls, implied on cross examination of e defendant s alibi witnesses at e prison calls wi ose witnesses revealed at e alibi was fabricated. F.d at -. The prosecutor did not enter e calls into evidence but argued in closing at e calls confirmed at e defendant s alibi was false. Id. at. In actuality, e calls did not contain statements about a falsified alibi, and in at least one call e defendant was heard to say at e witness need only testify to e tru. Id. noted, The Nin Circuit found misconduct and reversed e conviction. In so doing, e Court It is certainly wiin e bounds of fair advocacy for a prosecutor, like any oer lawyer, to ask e jury to draw inferences from e evidence at e prosecutor believes in good fai might be true. But it is decidedly improper for e government to propound inferences at it knows to be false, or has a very strong reason to doubt.... Id. at. In contrast to e conduct of e prosecutor in Blueford, e prosecutor in e present case acted well wiin e bounds of fair advocacy contemplated by e Nin Circuit. The The issue on appeal in Lopez-Avila was wheer a retrial should be barred by double jeopardy. 0 WL 0at *. Bo e district court and e Nin Circuit held at double jeopardy posed no bar to retrial based on e prosecutor s misconduct because e misconduct was not designed to purposefully cause a mistrial. Id. at * -*. To e extent at Defendant Rhonda Liddle raises a double jeopardy claim, it is clear from Lopez-Avila at, even if ere had been an error in is case, a double jeopardy bar to retrial would not be appropriate because ere is no suggestion in e motion or e record of any action taken to purposefully cause a mistrial.

9 Case :-cr-0-srb Document 0 Filed 0// Page of 0 prosecutor elicited accurate testimony from Special Agent Montoya about his interview of Defendant Rhonda Liddle and fairly argued her guilt based on what she did say and did not say when confronted wi e accusation at she assisted her husband and oers in committing financial wrongdoing. / See United States v. Atcheson, F.d, ( Cir. ) (no prosecutorial misconduct in arguing inference from defendant s failure to deny participation in crime during discussion wi friend: in a non-custodial atmosphere prior to indictment, most people would deny accusations of having participated in federal offenses ; internal quotes omitted). The oer cases cited by Defendant in her motion are likewise patently different from e instant case. See United States v. Reyes, F.d, -( Cir. 00) (reversing conviction based on prosecutorial misconduct when prosecutor knowingly argued facts prosecutor knew were false, facts were on critical point, and defense timely objected); United States v. Kojayan, F.d, - ( Cir. ) (reversing conviction based on prosecutorial misconduct when prosecutor argued at witness who was not called to testify had invoked Amendment rights, witness had actually entered into cooperation agreement wi United States, and defense timely objected). Additionally, examined in e context of e entire trial record, any error at could have occurred does not rise to e level of seriously affecting e fairness, integrity or public reputation of e judicial proceedings, as required by e plain error standard. See Moreland, F.d at - (any error at may have occurred as a result of prosecutor s statements in closing argument did not rise to e level of plain error because defendant failed to show it affected outcome of trial, in light of strong independent evidence of guilt and instruction to This Court also twice instructed e jury at e statements of counsel are not evidence. (Docket at, at.) This Court specifically instructed: Questions, statements, objections and arguments by e lawyers are not evidence. The lawyers are not witnesses.... Similarly, what e lawyers have said in eir opening statements, will say in eir closing arguments and at oer times is intended to help you interpret e evidence, but it is not evidence. If e facts as you remember em differ from e way e lawyers state em, your memory of em controls. (Docket at.) Thus, e jury was reminded to rely directly on e testimony of Special Agent Montoya concerning his interview of Defendant Rhonda Liddle and was free to reject e arguments of counsel at were unsupported by at testimony.

10 Case :-cr-0-srb Document 0 Filed 0// Page of 0 jury at argument of counsel is not evidence). This Court heard e overwhelming evidence e United States presented at trial, showing e conspiracy to defraud AEA directed by Defendant William Liddle and showing Defendant Rhonda Liddle s participation in it. Finally, to e extent at Defendant argues e prosecutor s statement in e rebuttal closing argument was an impermissible reference to her failure to testify at trial, at claim fails for many of e same reasons. To constitute an impermissible comment on e failure of a defendant to testify at trial, e test is wheer e comment is manifestly intended to call attention to e defendant s failure to testify, and is... of such a character at e jury would naturally and necessarily take to be a comment on e failure to testify. Atcheson, F.d at. And again, because Defendant failed to object on is basis, e review is only for plain error. Given e prosecutor s express reference to Defendant Rhonda Liddle s pretrial, noncustodial encounter wi Special Agent Montoya in e statement at issue, ere is no basis for finding at e comment was intended to highlight e fact at Defendant Rhonda Liddle failed to testify at trial or for assuming at e jury would necessarily interpret e prosecutor s statements as doing so. IV. Conclusion / There is simply no credible basis for Defendant to argue oerwise. The United States respectfully requests is Court to summarily deny Defendant Rhonda Liddle s request for a new trial. The error at Defendant belatedly argues occurred is not error at all, and even if it could be characterized as error, it is not of e type at so infected e fairness of e proceeding or integrity of e verdict at it justifies a new trial despite e fact at it was waived by Defendant. Defense counsel s failure to object is itself indicative of e absence of error. / / This Court, of course, also instructed e jury at bo defendants had e constitutional right not to testify and did not have e burden of proving eir innocence or presenting any evidence at trial. (Docket at, at.)

11 Case :-cr-0-srb Document 0 Filed 0// Page of st Respectfully submitted is day of March, 0. Certificate of Service: ANN BIRMINGHAM SCHEEL Acting United States Attorney District of Arizona s/ Monica B. Klapper MONICA B. KLAPPER RAYMOND WOO PETER SEXTON Assistant U.S. Attorneys I hereby certify at on March, 0, I electronically transmitted e attached document to e Clerk s office using e CM/ECF System to e following registrant: Mark Paige. 0