In U.S. v. Ermoian, No. 11-10124, the Ninth Circuit reversed and remanded for judgments of acquittal on the conspiracy to obstruct justice convictions under 18 U.S.C. ยง1512 for defendants Gary Ermoian and Stephen Johnson arising out of the Road Dog Cycle/Robert Holloway prosecution in Fresno. See Modesto Bee's coverage of the Ninth Circuit's decision and verdicts; see also my Robert Holloway case posts. The Court held the convictions were improper because the statute only applies to conduct intended to obstruct federal court and grand jury proceedings--not mere criminal investigations, such as the FBI investigation in this case. This was the only charge against Mr. Ermoian. (Mr. Johnson was convicted of other offenses at trial). See Amended Opinion, 8/28/13. On appeal, Mr. Johnson was represented by LA attorney Jerald Brainin and I represented Mr. Ermoian. Both were granted bail pending appeal and are not in custody.
I've represented Gary for more than five years since he first called me after receiving a grand jury subpoena--through pretrial motions, trial, and appeal. While the Ninth Circuit did not reach the issue because it reversed his conviction on another ground, I've always believed that Gary acted properly as a private investigator in this case and that he did not violate any law. That is not only my opinion, but also that of the California Association of Licensed Investigators (CALI), the former U.S. Attorney for the Middle District of Pennsylvania and author of the "Private Investigator's Legal Manual," David Queen, and Sacramento attorney Mark Reichel. I thank each of them for providing declarations or testimony, as well as everyone else who provided assistance or support on the case.
