Judge Denies Plea to Dismiss Hunter Fraud Indictment

U.S. District Judge Earl B. Gilliam on Thursday denied a motion to dismiss the indictment against Nancy Hoover Hunter, the former mayor of Del Mar who is on trial for charges stemming from the collapse of the J. David & Co. investment firm.

Gilliam turned down the motion after listening to arguments by one of Hunter’s lawyers, who accused prosecutors of “rampant, persistent misconduct” related to their failure to turn over documents to the defense until after the trial began last April 18.

“I think the U.S. attorney’s office is out of control and I think it’s your responsibility to do something about it,” Richard Marmaro, who represents Hunter, told Gilliam.

Marmaro contended that prosecutors suppressed “key exculpatory evidence” and then lied about it.

Send a Message

“One of the reasons you should dismiss this indictment is to send a message to all those junior prosecutors not to embark on this kind of misconduct,” Marmaro said.

Marmaro contended that if he had been given the documents sooner he would have used them to help prepare his opening statement to the jury and to sharpen his cross-examination of some prosecution witnesses.

“Those moments are lost forever,” Marmaro said.

At issue were six documents dated from Feb. 15, 1984, to Jan. 28, 1988, in which J. David (Jerry) Dominelli, the former head of J. David & Co., makes statements exonerating Hunter. Prosecutors turned the documents over to the defense about three weeks ago.

234 Fraud Charges

Hunter, who was second-in-command at J. David, is charged with 234 counts of fraud, conspiracy, income-tax evasion and making false statements to a federal agent. Dominelli pleaded guilty to federal charges stemming from the J. David & Co. investment scam and is serving a 20-year prison sentence.

Nancy Worthington, senior appellate litigation counsel for the U.S. attorney’s office, on Thursday defended the actions of the prosecutors in the case and accused the defense attorneys of failing to inform Gilliam that they gotten similar exculpatory statements from Dominelli on their own long before the trial began.

Worthington said prosecutors did not violate a federal court’s Brady Rule, which requires prosecutors to give the defense any information favorable to the defendant.

“A Brady violation does not occur where there is equal access to the source of the material. They clearly had access to Mr. Dominelli,” Worthington said.

Worthington also said that Hunter’s lawyers have indicated they will not call Dominelli to the witness stand and added: “If they’re not going to call Mr. Dominelli, it must not be all that material to the case.”

The key test of whether to dismiss the indictment would be “whether the result (of the trial) would have been different if this information had been in the hands of the defense,” Gilliam said in explaining his ruling.

Because the trial is expected to last for several more months, there is time to remedy any problems created by the late disclosure of the documents, he said, adding that he may allow Marmaro to make another opening statement to the jury.