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U.S.
Department of Justice United
States Attorney Northern District
o/California 150 Almaden Boulevard,
Suite 900 San Jose, California 95113
(408) 535·5061 FAX'(408) 535·5066 August 26, 2010 Hon. James Ware, United States District Judge Northern District of California 280 South
First Street San Jose, California 95113
Re: United States v. Jamie Harmon, CR 08-00938 JW
Dear Judge Ware, Pursuant to this Court's order of August 24,2010 listed as Docket Entry No. 160, this
Court ordered the parties to obtain the transcript ofthe
jury voir dire and confirm the identities of jurors
who stated during questioning that they had previously sustained felony convictions, which may have precluded their ability to serve as a trial juror. This Court further
ordered the Government to obtain the criminal
history of such seated jurors, if any, in an attempt to verifY whether those jurors obtained the restoration of their rights. On today's date, the Government received and reviewed the transcripts comprising the
first day oftrial, including the jury voir dire in its
entirety. On page 78 ofthe July 6, 2010 transcript,
prospective juror Santos stated that he had been convicted oftwo felonies. On page 79 ofthe transcript, Mr. Santos stated that he had his rights restored. No questions
regarding Mr. Santos' criminal convictions
were posed to Mr. Santos by either party during the subsequent jury voir dire. Later, in pages 109 through 111,
Mr. Santos informed the Court that he was obligated to care for his ninety-six year old mother on the Thursday of the second week of trial and asked
to be excused. According to page 113 ofthe transcript,
this Court excused Mr. Santos from the jury
on that basis. Review ofthe July 6, 2010 transcript
evidences only one other prospective juror possessed
a criminal conviction. Page 79 ofthe transcript shows the following: COURT: LET'S SEE. MR. PORTER PROSPECTIVE JUROR: IT WAS ME. I HAD A I GUESS IT WAS WELFARE FRAUD. I GOT FOOD STAMPS OVER THE AMOUNT I WAS SUPPOSED TO RECEIVE. IT WAS 25 YEARS AGO. AND THAT'S WHAT HAPPENED. COURT: THOSE
ARE THE KINDS OF MISTAKES WE LIVE TO REGRET, BUT
YOU'VE MOVED AHEAD. THANK YOU VERY MUCH, Case5:08-cr-00938-JW
Document162 Filed08/27/10 Page1 of 9 Au~ust 26,2010 Letter to Hon. James Ware,
U.S. v. Jamie Harmon, CR 08-00938 JW MR. PORTER. The transcript further reflects that neither party made any subsequent inquires into Mr. Porter'sl criminal conviction. Mr. Porter did not state whether the
conviction was a misdemeanor or a felony, nor
did he affirmatively state whether his rights were subsequently restored. Based upon the
above, it is evident that prospective juror Santos,
who stated he had "two felonies"
and subsequently had his rights restored, was not seated
as a juror. Further, prospective juror Porter,
who was seated as a juror and subsequently became the presiding juror, stated he was convicted of welfare fraud over twenty-five years ago. As such, Presiding Juror Porter
could not have committed misconduct by lying
to the Court because he was not the juror that indicated his rights were restored, even if the conviction was for a felony. Ifthis Court believes further inquiry must be made of Presiding Juror Mark Porter's
twenty-five year old criminal history, and given that
Mark Porter is a common name, additional identifying
information to include Mr. Porter's date ofbirth, or area ofresidence and Social Security Number will be necessary in order for the Government to obtain an accurate criminal
history ofthe correct person. We await further instructions and/or additional information from this
Court. Very truly yours, MELINDA HAAG United States Attorney /s/
RICHARD C. CHENG Assistant United States Attorney /s/ GRANT P. FONDa
Assistant United States Attorney RCC:rc cc: Defense Counsel Attachments:
July 6, 2010 transcript pages 78-79; 109-113 lThe
Government believes that Mr. Porter's first name is Mark. Case5:08-cr-00938-JW Document162 Filed08/27/10 Page2 of 9 1 2 3 4 5
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROSPECTIVE JUROR: NO. THE COURT: ALL RIGHT. PASS IT DOWN TO NUMBER 8, I BELIEVE. MR. PROSPECTIVE JUROR: YEAH. IT WAS DOMESTIC - IT WAS ME. I WAS BROUGHT IN DOMESTIC
AGAINST MY DAUGHTER WHO WAS VERBALLY ABUSING MY
WIFE, WHICH THE WHOLE THING GOT DISMISSED AND WE
WERE HELPED, SO THAT WAS GOOD. BUT THERE WAS
CHARGES BROUGHT UP. THE COURT: ALL RIGHT. THANK YOU FOR THAT MR. DOUGHTY. ANYTHING ABOUT THAT THAT MAKES YOU FEEL YOU WOULDN'T BE A FAIR JUROR IN THIS CASE? PROSPECTIVE JUROR: NO. THE COURT: ALL RIGHT. LET'S
SEE. MR. SANTOS? PROSPECTIVE JUROR: YES. I
WAS CONVICTED OF TWO FELONIES. THE COURT: ALL RIGHT. AND HOW LONG AGO WAS THAT? PROSPECTIVE JUROR: ABOUT TEN YEARS AGO. THE COURT: TEN YEARS. THAT DOES RAISE A QUESTION AS TO WHETHER OR NOT YOUR CIVIL RIGHTS WERE AFFECTED BY THAT. ONE OF THE RIGHTS YOU CAN LOSE BY BEING CONVICTED OF A FELONY IS THE RIGHT TO VOTE OR THE RIGHT TO SERVE AS A TRIAL JUROR. 78 Case5:08-cr-00938-JW
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5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I TAKE IT THAT THOSE RIGHTS WERE NOT TAKEN AWAY FROM YOU AS A RESULT OF THOSE ACTIVITIES? PROSPECTIVE JUROR: THEY WERE
TAKEN, BUT THEY HAVE BEEN RESTORED.
THE COURT: EXCELLENT. I'M A BIG BELIEVER IN REHABILITATION, SO THANK YOU, SIR. LET'S SEE. MR. PORTER. PROSPECTIVE JUROR: IT WAS ME. I HAD A -- I GUESS IT WAS WELFARE FRAUD.
I GOT FOOD STAMPS OVER THE AMOUNT I WAS SUPPOSED
TO RECEIVE. IT WAS 25 YEARS AGO. AND THAT'S
WHAT HAPPENED. THE COURT: THOSE ARE THE KINDS
OF MISTAKES WE LIVE TO REGRET, BUT YOU'VE MOVED
AHEAD. THANK YOU VERY MUCH, MR. PORTER.
LET'S SEE, NUMBER 16, MR. TOLENTINO. PROSPECTIVE JUROR: SO I HAVE A BROTHER WHO WAS CONVICTED OF DRUG CHARGES, AND THEN I HAVE A COUSIN WHO WAS CONVICTED OF FRAUD. THE COURT: ALL RIGHT. AND ANYTHING ABOUT THAT THAT MAKES YOU FEEL YOU WOULDN'T BE A FAIR JUROR HERE? PROSPECTIVE JUROR: I DON'T BELIEVE SO. THE
COURT: WERE THEY TREATED FAIRLY IN THE PROCESS
AS FAR AS YOU WERE CONCERNED? 79
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7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THAT THERE'S NO REASON WHY YOU WOULD NOT SERVE FOR THE
PERIOD OF TIME. I KNOW THAT MS. AYALA, DURING
THE COURSE OF THE QUESTIONING, TALKED ABOUT
HER BACK, BUT WE'LL BE ABLE TO TAKE BREAKS
AND WE CAN ACCOMMODATE THAT. I WASN'T PAYING ATTENTION TO HOW THE M X OF JURORS WENT WITH RESPECT TO SOME OF THE THINGS THAT WERE HAPPENING, AND SO THAT'S WHY I ASK THIS QUESTION, BECAUSE I'M GOING TO LET EVERYBODY ELSE GO AND ADMINISTER AN OATH, BUT BEFORE I DO THAT, NEED TO MAKE SURE THAT ALL 14 OF YOU ARE ABLE TO SERVE. ANYONE WANT TO BRING ANYTHING TO MY ATTENTION? OKAY. NUMBER -- LET'S SEE. I SAW MR. SANTOS, WHO'S NUMBER 6 AT THIS POINT. WHAT IS THE NATURE OF YOUR INQUIRY? PROSPECTIVE JUROR: AFTER LOOKING AT THIS CALENDAR, ON THURSDAY, THE 13TH, OR THE 15TH, I GO OUT OF TOWN TO GO TAKE CARE OF MY MOTHER BECAUSE SHE'S 96 AND I'VE BEEN DOING THIS FOR THE LAST YEAR. THE COURT: SO IT'S
JUST THE ONE DAY EVENT? I 109 Case5:08-cr-00938-JW Document162
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2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROSPECTIVE JUROR: YES. IT'S FOR THURSDAY NIGHT AND FRIDAY
NIGHT AND THEN I COME BACK ON SATURDAY.
THE COURT: AH. SO IT'S FOR TWO DAYS? PROSPECTIVE JUROR: YES. THE COURT: ALL RIGHT. WELL, ONE OF THE THINGS THAT I DID INDICATE IS THAT I WOULD EXCUSE JURORS IF YOU WERE INVOLVED IN THE CARE OF AN AGED OR INFIRM PERSON. I WISH YOU HAD TOLD ME ABOUT THAT WHEN WE WERE GOING THROUGH THAT PROCESS, BUT AND SO YOU'RE ASKING
-- YOU KNOW, I LEFT MY NOTEBOOK ON THE CASE SITTING RIGHT THERE. CAN YOU GRAB THAT? YOU'RE ASKING TO BE EXCUSED BECAUSE OF THAT? PROSPECTIVE JUROR: IF THE TRIAL
GOES THAT LONG, I MAY HAVE TO BE.
THE COURT: WELL, I NEED TO GET THE SCHEDULE IN FRONT OF ME. I LEFT MY NOTEBOOK. I'LL HAVE IT IN A MOMENT. SO IT'S THE 13TH? PROSPECTIVE JUROR: THE 15TH.
THE COURT: SO IT'S THE 15TH AND 16TH? PROSPECTIVE JUROR: YES, SIR. 110 Case5:08-cr-00938-JW Document162 Filed08/27/10
Page6 of 9 1 2 3 4 5 6
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: YEAH, ACCORDING TO OUR SCHEDULE,
YOU WILL BE STARTING YOUR JURY DELIBERATIONS
ON THOSE DAYS. THAT'S THE SCHEDULE THAT I OUTLINED.
SO WE WILL GO THAT FAR. SO YOU'RE ASKING TO
BE EXCUSED MR. SANTOS? PROSPECTIVE JUROR: YES, YOUR HONOR. THE COURT: ALL RIGHT. LET'S SEE. I ALSO SAW A HAND RAISED FOR NUMBER 9. LET'S SEE. SO THAT WAS MR. KOMAR. PROSPECTIVE JUROR: NO. I'M MR. KOMAR. THE
COURT: I'M SORRY. I'VE GOT MY NUMBERS MIXED
UP. SO IT'S JUROR NUMBER 8, MR. PETRALIA.
PROSPECTIVE JUROR: YES. I'M A SOLE PROPRIETOR. I'M A BARBER AND I WORK ALONE, AND FOR ME TO BE OUT THAT LONG A TIME WOULD BE A FINANCIAL BURDEN FOR ME, SIR. THE COURT: ALL RIGHT. SO THAT WAS ANOTHER REASON I ASKED PEOPLE TO RAISE THEIR NUMBER CARD. SO YOU'RE NOW TELLING ME YOU NEED TO BE EXCUSED FOR FINANCIAL HARDSHIP? PROSPECTIVE
JUROR: YES, SIR. I'M THE ONLY ONE THAT - IF I'M NOT THERE, I'M OUT OF BUSINESS. 111 Case5:08-cr-00938-JW
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5 6 7
8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: OKAY. ALL RIGHT. SO LET ME EXCUSE MR. SANTOS AND MR. PETRALIA. TAKE A SEAT. SO THAT MAKES SEATS NUMBER 9 -- I
MEAN NUMBER 6 AND NUMBER 8 VACANT.
PROSPECTIVE JUROR: THANK YOU, YOUR HONOR. THE COURT: AND, LET'S SEE, I WILL MOVE THOSE JURORS WHO WERE IN SEATS 13 AND 14 UP. SO, LET'S SEE, MS. GORDON, YOU GO TO SEAT NUMBER
6. YES, THAT'S CORRECT. AND THEN I WILL HAVE
NUMBER 14, WHICH IS MS. AYALA, GO TO SEAT NUMBER
8. AND THEN CALL THE NAME OF THE NEXT
UNSTRICKEN PROSPECTIVE JUROR. THE CLERK: JUDGE, NUMBER 4 IS ALSO PROSPECTIVE JUROR: I'M SORRY. I HESITATED TO SPEAK. IT'S NOT QUITE A FINANCIAL, BUT IT'S AN EDUCATIONAL HARDSHIP FOR ME. I'M A PROFESSOR AT SAN JOSE. THIS IS MY SUMMER VACATION. I ONLY HAVE EIGHT WEEKS OFF. AND I'M ALSO TRYING TO WRITE A DISSERTATION
AT STANFORD. IT'S MY ONLY TIME TO WRITE. IT'S
LIKE A - THE COURT: THE PERFECT STORM. I OFTEN SET PROFESSORS AND TEACHERS DURING THE SUMMER, BUT 112 Case5:08-cr-00938-JW
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8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IT SOUNDS LIKE -- WHAT DO YOU TEACH? PROSPECTIVE JUROR: WOMEN'S STUDIES AND SOCIAL
SCIENCE. I DEFERRED DURING THE SEMESTER SO I
WOULDN'T IMPACT MY STUDENTS. THE COURT: IT'S
SORT OF LIKE WINNING THE LOTTO. EVERYBODY WANTS
TO WIN, BUT ONCE YOU WIN, YOU SAY SO WHAT AM
I GOING TO DO WITH ALL THIS MONEY?
SO THAT'S JUROR NUMBER 4, MS. GALLARDO. AND SO YOU'RE ASKING TO BE EXCUSED JUST BECAUSE OF
THE EDUCATIONAL DISTRACTIONS THAT YOU BRING.
ALL RIGHT. SO MS. GALLARDO, YOU MAY BE EXCUSED. SO CALL THE NAME OF THE NEXT UNSTRICKEN JUROR TO SEAT NUMBER 4. THE CLERK: EDSHIR
GALINATO. THE COURT: MR. GALINATO, YES, COME
TO SEAT NUMBER 4. NOW, I DO NEED TO HOLD YOU JUST FOR A LITTLE BIT LONGER BECAUSE THESE LATER RE STS TO BE EXCUSED HAVE DEPRIVED ME OF WHAT I THOUGHT I HAD AS A TIME QUALIFIED PANEL. I. WAS TRYING
TO MAKE THE POINT THAT ANYONE WHO NEEDED TO
BE EXCUSED FOR THE PERIOD OF TIME OF THE CASE
SHOULD RAISE THEIR CARDS, AND I CAN 113
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