Preliminary Hearing Brief — United States v. Middlebrook (Dkt. 15, C.D. Cal.)

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The government's preliminary hearing brief in United States of America v. Keith Lawrence Middlebrook, No. 20-MJ-1343, in the U.S. District Court for the Central District of California, dated April 2, 2020, for a preliminary hearing set for April 9, 2020 before Hon. Charles Eick. Filed by Assistant United States Attorneys Valerie L. Makarewicz and James C. Hughes of the Major Frauds Section, the brief is offered to assist the Court in conducting the anticipated preliminary hearing. It gives an overview of the case law governing preliminary hearings, including the probable cause standard, and asks leave to submit further memoranda as needed.

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Case 2:20-mj-01341-DUTY Document 15 Filed 04/02/20 Page 1 of 8 Page ID #:52



 1 NICOLA T. HANNA
   United States Attorney
 2 BRANDON D. FOX
   Assistant United States Attorney
 3 Chief, Criminal Division
   VALERIE L. MAKAREWICZ (Cal. Bar No. 229637)
 4 JAMES C. HUGHES (Cal. Bar No. 263878)
   Assistant United States Attorney
 5 Major Frauds Section
        1100 United States Courthouse
 6      312 North Spring Street
        Los Angeles, California 90012
 7      Telephone: (213) 894-0756
        Facsimile: (213) 894-6265
 8      E-mail:     Valerie.makarewicz@usdoj.gov

 9 Attorneys for Plaintiff
   UNITED STATES OF AMERICA
10

11                           UNITED STATES DISTRICT COURT

12                     FOR THE CENTRAL DISTRICT OF CALIFORNIA

13
     UNITED STATES OF AMERICA,              No. 20-MJ-1343
14
                Plaintiff,                  PRELIMINARY HEARING BRIEF
15
                      v.                    Date: April 9, 2020
16                                          Time: 4:30 p.m.
     KEITH LAWRENCE MIDDLEBROOK,            Court: Hon. Charles Eick
17
                Defendant.
18

19
          Plaintiff United States of America, by and through its counsel
20
     of record, the United States Attorney for the Central District of
21
     California and Assistant United States Attorneys Valerie L.
22
     Makarewicz and James C. Hughes, hereby submits this brief to assist
23
     the Court in conducting the anticipated preliminary hearing in this
24
     matter.   The brief provides an overview of the case law governing
25
     preliminary hearings, including the probable cause standard,
26
     evidentiary matters, and disclosures.
27

28

     Case 2:20-mj-01341-DUTY Document 15 Filed 04/02/20 Page 2 of 8 Page ID #:53



 1                       MEMORANDUM OF POINTS AND AUTHORITIES

 2         I.     INTRODUCTION

 3        On March 25, 2020, defendant KEITH LAWRENCE MIDDLEBROOK

 4 (“defendant”) was charged by criminal complaint with a violation of

 5 18 U.S.C. § 1349, attempted wire fraud. As alleged in the complaint,

 6 up until the time of his arrest, defendant was engaging in a scheme

 7 to defraud victim-investors by falsely promising enormous returns on

 8 the monetary investments he was soliciting in his company, Quantum

 9 Prevention CV Inc. (hereinafter “QP20”), which defendant falsely

10 claimed had developed a patent-pending cure for the COVID-19 virus

11 and a treatment that prevents a person from being infected by the

12 COVID-19 virus.      Defendant promoted his “cure” and his preventative

13 treatment on the Internet and communicating with potential victim-

14 investors through interstate e-mails.

15        Defendant was arrested on March 25, 2020 and made his initial

16 appearance on March 26, 2020.        On April 9, 2020, the Court will hold

17 a preliminary hearing to determine if the charge is supported by

18 probable cause.

19         II.    THE PURPOSE OF A PRELIMINARY HEARING IS TO DETERMINE

20                WHETHER THERE IS PROBABLE CAUSE

21        At a preliminary hearing, the court’s sole task is to determine

22 whether there is “probable cause to believe an offense has been

23 committed and the defendant committed it.”          Fed. R. Crim. P. 5.1(e).

24 In other words, “the purpose of a preliminary hearing . . . is to

25 require the government to show probable cause to hold a suspect

26 pending trial.”      Hooker v. Klein, 573 F.2d 1360, 1367 n.7 (9th Cir.

27 1978).       Courts routinely apply this same probable cause standard when

28 reviewing complaints and search warrants.          Probable cause requires

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 1 “knowledge or reasonably trustworthy information sufficient to lead a

 2 person of reasonable caution to believe that an offense has been or

 3 is being committed by the person being arrested.”            United States v.

 4 Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007); see also Coleman v.

 5 Burnett, 477 F.2d 1187, 1202 (D.C. Cir. 1973) (“Probable cause

 6 signifies evidence sufficient to cause a person of ordinary prudence

 7 and caution to conscientiously entertain a reasonable belief of the

 8 accused’s guilt.”); United States v. Bishop, 264 F.3d 919, 924 (9th

 9 Cir. 2001) (“Probable cause exists when there is a fair probability

10 or substantial chance of criminal activity.”).           “[C]onclusive

11 evidence of guilt is of course not necessary . . . to establish

12 probable cause,” Lopez, 482 F.3d at 1072, which means “[f]inely tuned

13 standards such as proof beyond a reasonable doubt or by a

14 preponderance of the evidence . . . have no place in the probable-

15 cause decision. . . .       All we have required is the kind of ‘fair

16 probability’ on which ‘reasonable and prudent people, not legal

17 technicians, act.’”       Florida v. Harris, 133 S. Ct. 1050, 1055 (2013)

18 (citations omitted).

19        In evaluating probable cause, courts consider the totality of

20 the circumstances.      Illinois v. Gates, 462 U.S. 213, 238 (1983).

21 Under this standard, courts must consider “the whole picture,” rather

22 than viewing individual facts “in isolation.”           District of Columbia

23 v. Wesby, 138 S. Ct. 577, 588 (2018).          Accordingly, “[i]t is not

24 uncommon for seemingly innocent conduct to provide the basis for

25 probable cause.”      United States v. Rodriguez, 869 F.2d 479, 483 (9th

26 Cir. 1989); see also United States v. Gil, 58 F.3d 1414, 1418 (9th

27 Cir. 1995) (“[O]bservations of conduct consistent with drug

28 trafficking, even though apparently innocuous, can give rise to

                                            3

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 1 probable cause.”).      A magistrate judge presiding over a preliminary

 2 hearing can “legitimately find probable cause while personally

 3 entertaining some reservations.”         Coleman, 477 F.2d at 1202.

 4         III. EVIDENTIARY MATTERS
 5        A.     The Federal Rules of Evidence do not apply.
 6        The Federal Rules of Evidence “do not apply to . . . a

 7 preliminary examination in a criminal case.”           Fed. R. Evid.

 8 1101(d)(3).      The only exception is that the rules on privilege still

 9 apply.      Fed. R. Evid. 1101(c).    As described below, the evidence that

10 may be presented at preliminary hearings differs in important

11 respects from the typical rules of evidence.

12        B.     Hearsay is admissible.
13        Because the normal rules of evidence do not apply, hearsay is

14 admissible at preliminary hearings.          See, e.g., Santos v. Thomas, 830

15 F.3d 987, 991 (9th Cir. 2016) (“In probable cause hearings under

16 American law, the evidence taken need not meet the standards for

17 admissibility at trial.       Indeed, at a preliminary hearing in federal

18 court a finding of probable cause may be based upon hearsay in whole

19 or in part.” (internal quotation marks omitted)); Peterson v.

20 California, 604 F.3d 1166, 1171 n.4 (9th Cir. 2010) (the Fourth
21 Amendment permits a determination of probable cause at a preliminary

22 hearing based on hearsay testimony).         This concept has deep roots.

23 Rule 5.1, the rule governing preliminary hearings, previously

24 contained an explicit statement that “[t]he finding of probable cause

25 may be based upon hearsay evidence in whole or in part.”             The

26 Advisory Committee omitted that language in the 2002 amendments,

27 deeming it unnecessary because federal law had become clear that it

28 is appropriate to rely on hearsay at the preliminary hearing and the

                                            4

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 1 Federal Rules of Evidence explicitly state that they do not apply at

 2 this stage.     Fed. R. Crim. P. 5.1 Advisory Committee Notes on 2002

 3 Amendments; Fed. R. Evid. 1101.         Presentation of hearsay at a

 4 preliminary hearing also poses no Confrontation Clause problem,

 5 because the Confrontation Clause is a trial right.            Peterson, 604

 6 F.3d at 1169-70.

 7        C.    Suppression arguments are premature.
 8        At a preliminary hearing, the defendant “may not object to

 9 evidence on the ground that it was unlawfully acquired.”             Fed. R.

10 Crim. P. 5.1(e).      Thus, a defendant may not raise arguments that

11 evidence should be suppressed.        See, e.g., Giordenello v. United

12 States, 357 U.S. 480, 484 (1958); United States v. Olender, 2000 WL

13 977295, at *3 (E.D. Mich. May 26, 2000).

14        D.    Cross-examination is limited.
15        Because the only purpose of the preliminary hearing is to

16 determine probable cause, the scope of cross-examination of

17 government witnesses is limited.         “Cross-examination at a preliminary

18 hearing, like the hearing itself, is confined by the principle that a

19 probe into probable cause is the end and aim of the proceeding[.]”

20 Coleman, 477 F.2d at 1201.        Defense counsel may not use cross-

21 examination to go “on an impermissible quest for discovery.”             Id.

22 For example, the Fifth Circuit upheld a magistrate judge’s decision

23 to prevent cross-examination about the identity of an informant.

24 United States v. Hart, 526 F.2d 344, 344 (5th Cir. 1976).             Indeed,

25 informant identity is generally privileged, Roviaro v. United States,

26 353 U.S. 53, 59 (1957), and any such disclosure would be particularly

27 inappropriate at this preliminary stage.          McCray v. State of Ill.,

28 386 U.S. 300, 311 (1967) (upholding state’s refusal to compel police

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 1 officers to divulge informant’s identity at preliminary hearing,

 2 noting, “we have repeatedly made clear that federal officers need not

 3 disclose an informer’s identity in applying for an arrest or search

 4 warrant”).

 5        Likewise, cross-examination questions directed to potential

 6 suppression arguments would be outside the scope of the preliminary

 7 hearing.     In addition to the special limitations for preliminary

 8 hearings, “cross-examination is properly to be limited at preliminary

 9 hearing, as at trial, to the scope of the witness’ direct

10 examination.”      Coleman, 477 F.2d at 1201.

11        E.    Defense subpoenas
12        The defendant is entitled to subpoena witnesses “whose testimony

13 promises appreciable assistance on the issue of probable cause,”

14 unless there is “good cause for not requiring [the witness’s]

15 presence.”     Coleman, 477 F.2d at 1205.       Good cause for not requiring

16 a witness’s presence may include “physiological or psychological

17 reasons” that make appearance unreasonable.           United States v. King,

18 482 F.2d 768, 773 (D.C. Cir. 1973).          Subpoenas must comply with Rule

19 17, including the requirement that the defense obtain a court order

20 for any subpoena requiring production of personal or confidential
21 information about a victim and that the court give the victim an

22 opportunity to move to quash the subpoena.          Fed. R. Crim. P. 17.

23 Subpoenas may not seek privileged information.           See Fed. R. Evid.

24 1101(c), (d) (stating that rules on privilege apply to preliminary

25 examinations in criminal cases).         Subpoenas are not “a means of

26 discovery for criminal cases,” and, as always, they must be limited

27 to relevant, admissible, and specific information.            United States v.

28 Nixon, 418 U.S. 683, 698-99 (1974); see also United States v.

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 1 Komisaruk, 885 F.2d 490, 494-95 (9th Cir. 1989) (courts may quash

 2 subpoenas if the information sought would be immaterial,

 3 unreasonable, oppressive, or irrelevant).

 4      IV.   DISCLOSURES REQUIRED INCIDENT TO PRELIMINARY HEARINGS
 5        Disclosure is a natural, but collateral, effect of any

 6 preliminary hearing.       A preliminary hearing “does not include

 7 discovery for the sake of discovery.”          Coleman, 477 F.2d at 1199–200;

 8 see also Robbins v. United States, 476 F.2d 26, 32 (10th Cir. 1973)

 9 (“[A] preliminary hearing is not designed for the purpose of

10 affording discovery for an accused.”); United States v. Begaye, 236

11 F.R.D. 448, 454 (D. Ariz. 2006) (“[T]he rules of discovery found in

12 Rule 16, Federal Rules of Criminal Procedure, are not applicable to

13 preliminary hearings.”).       Rather, Rule 5.1 directs the parties to

14 make certain limited disclosures.         Specifically, the parties are

15 required to produce the statements of the witnesses whom they call to

16 testify at the preliminary hearing.          Fed. R. Crim. P. 5.1(h), 26.2.

17        Statements must be produced only if they “relate[] to the

18 subject matter of the witness’s testimony” and also fall into one of

19 the following categories:

20              (1) a written statement that the witness makes
                and signs, or otherwise adopts or approves;
21
                (2) a substantially verbatim, contemporaneously
22              recorded recital of the witness’s oral statement
                that is contained in any recording or any
23              transcription of a recording; or
24              (3) the witness’s statement to a grand jury,
                however taken or recorded, or a transcription of
25              such a statement.
26 Fed. R. Crim. P. 26.2(f).        As to the first category, a report or

27 notes on a witness interview cannot be adopted by the witness unless

28 the witness read them or heard them read back.           Goldberg v. United

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 1 States, 425 U.S. 94, 110 n.19 (1976); United States v. Traylor, 656

 2 F.2d 1326, 1336 (9th Cir. 1981).         As to the second category, records

 3 only qualify if they “reflect the witness’ own words” and constitute

 4 a “complete recital.”       United States v. Bobadilla-Lopez, 954 F.2d

 5 519, 522 (9th Cir. 1992).        Thus, Rule 26.2 generally does not require

 6 disclosure of interview reports unless the report author is a

 7 testifying witness and testifies about the interview.            See United

 8 States v. Moore, 651 F.3d 30, 75 (D.C. Cir. 2011).            If material does

 9 qualify as witness statements, it must be turned over “[a]fter a

10 witness . . . has testified on direct examination.”            Fed. R. Crim. P.

11 26.2(a); see United States v. Mills, 641 F.2d 785, 789-90 (9th Cir.

12 1981) (holding that “no statement of a government witness is

13 discoverable until the witness has testified on direct examination”).

14         V.    CONCLUSION
15        The foregoing provides an overview of legal issues relating to

16 preliminary hearings.       Should any issue arise that has not been

17 covered in this brief, the government respectfully requests leave to

18 submit such further memoranda as may be necessary.

19   Dated: April 2, 2020                 Respectfully submitted,
20                                        NICOLA T. HANNA
                                          United States Attorney
21
                                          BRANDON D. FOX
22                                        Assistant United States Attorney
                                          Chief, Criminal Division
23

24                                          /s/
                                          VALERIE L. MAKAREWICZ
25                                        JAMES C. HUGHES
                                          Assistant United States Attorney
26
                                          Attorneys for Plaintiff
27                                        UNITED STATES OF AMERICA
28

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