Preview
Edward Swanson, SBN 159859
ed@smllp.law
Britt Evangelist, SBN 260457
britt@smllp.law
SWANSON & McNAMARA LLP
300 Montgomery Street, Suite 1100
San Francisco, California 94104
Telephone: (415) 477-3800
Facsimile: (415) 477-9010
Attorneys for Defendant
ELECTRONICALLY
FILED
Superior Court of Catifornia,
County of San Francisco
11/08/2017
Clerk of the Court
BY:GARY FELICIANO
Deputy Clerk
SHANE CLARIDGE KELLEY, as Executor of the Thomas F. White Estate
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PATRICK KELLY
Plaintiff,
Vv.
SHANE CLARIDGE KELLEY, as Executor
of the Thomas F. White Estate
Defendant.
Hil
iif
CASE NO. CGC-13-535823
DEFENDANT’S OPPOSITION TO
PLAINTIFF’S MOTION IN LIMINE #3
Action Filed: December 2, 2013
Court: Honorable Lynn O’Malley Taylor
Dept.: 514I. INTRODUCTION
The Court heard and denied in limine Mr. Kelly’s motion to exclude evidence in support of
the Estate’s illegality defense. The Court properly denied that motion then and should not revisit
its decision now.
Plaintiff is attempting to revisit this issue by claiming that evidence in support of the
Estate’s defense is inadmissible because in some instances illegal contracts are enforceable. This
argument is also without merit. The law cited by Plaintiff does not apply to actions to enforce
illegal contracts (as opposed to actions in where an illegal contract has been repudiated and
restitution is sought). And even if the law cited by Plaintiff did apply to this case, it would not
render the Estate’s illegality defense invalid, because unlike the party in the case cited in
Plaintiff's brief, Plaintiff was not an innocent actor, and the illegal nature of the alleged
Citizenship Contract involves a high degree of moral turpitude.
Ti. ARGUMENT
A. The Court Should Not Revisit Its /n Limine Ruling that Allowed the Estate to
Present its Public Policy Defense
1. Evidence Admitted at Trial Supports the Estate’s Public Policy Defense
Prior to trial the Court heard and denied Plaintiff's motion in limine to exclude evidence of
the Estate’s illegality defense. The Court rightfully denied Plaintiff's motion then. (Declaration
of Britt Evangelist In Support of Opposition to Plaintiff's Motion In Limine Trial Motion #3
(“Evangelist Decl.”), Ex. A.) The evidence admitted at trial confirms the Court’s ruling was
correct.
The Estate contends the Citizenship Contract violates public policy in two manners: (1)
one purpose of the alleged Citizenship Contract was to thwart, delay, or obstruct federal law
enforcement’s attempts to prosecute White for federal crimes, in violation of both federal criminal
statutes and express California public policy; and (2) the Citizenship Contract was performed in an
Kelly v. Kelley, CGC 13-535823
Defendant’s Opposition to Plaintiff's Motion in Limine #3illegal manner, to wit, bribery.! The evidence admitted at trial supports both such defenses.
With regards to the obstruction of justice public policy defense, Plaintiff testified that after
indicting White, the U.S. government employed two means to bring him back to California for
trial: (1) canceling his passport to ensure his deportation; and (2) extradition. Plaintiff also
testified that after White’s passport was canceled, Plaintiff and White understood there were legal
means available to contest that cancellation, namely an administrative hearing. Upon losing that
hearing, Plaintiff and Mr. White, rather than acknowledge they had used the legal means available
to them and failed, decided to embark on the project to secure the Cambodia citizenship in order to
prevent Mr. White’s deportation.2. The evidence admitted at trial also proves that the purpose of
the second citizenship was prevent Mr. White’s extradition to the United States. In other words,
they were trying to get him citizenship in Cambodia so he would be outside of the U.S.
government’s reach. Plaintiff admitted, consistent with his discovery responses, that he told Mr.
White “it would be difficult for the US to extradite White from Cambodia since he would be a
Cambodian citizen who would also likely have friends in high places who could balance out any
extrajudicial US influence.”* And the jury heard deposition testimony from Plaintiff and saw
emails written by Plaintiff that prove preventing extradition was another purpose of the
Citizenship Contract. (Evangelist Decl., Ex. B [P. Kelly TX, 159:13-159:24] [played to the jury
on 11/1/17); /d. at Ex. C [Trial Ex. 576: Plaintiff writing that White “would not be extraditable
' To be clear, the Estate does not contend the Citizenship Contract is void because the passport or
citizenship obtained by Mr. Kelly is itself illegitimate or illegal. While that issue may be
probative of whether Mr. Kelly completed his performance under the alleged Citizenship Contract,
it is not the basis of the Estate’s public policy defense.
? Plaintiff's testimony in this regard is consistent with the allegations in his complaint and his
deposition testimony. (Evangelist Decl., Ex. A [P. Kelly TX, 149:21-151:05] [“And then the
initial need for the passport, I mean, this was what was in our minds at the time we entered the
agreement to try and obtain a passport for him, legal passport, was to prevent him from being
deported for lack of travel documents.”]; FAC, J] 72 [acquiring the Cambodian citizenship “peace
of mind of knowing that when he was released from prison he would not be deported to the United
States to face a sex tourism indictment”].)
5 Evangelist Decl., Ex. E (P. Kelly Response to Special Interrogatories from Defendant to
Plaintiff, Set Three, No. 239(t)).
Kelly v. Kelley, CGC 13-535823
Defendant’s Opposition to Plaintiff's Motion in Limine #3from your new country in any case due to the status your citizenship grants you.”)]; id at Ex. D
[Trial Ex. 154] [Plaintiff informing White that he spoke with Dr. Kao about “the possibility of a
US attempt to have you extradited to the US and Dr. Kao did not seem to feel this would meet
with much success”].) Whether this conduct constitutes obstruction of justice is an issue for the
jury to decide. The jury instructions the defense has offered track the statutory requirements for
obstruction of justice and give the jury the guidance necessary to make its factual determination.
The same is true of the bribery public policy defense. The jury heard evidence that
Plaintiff made a payment of $187,000 to Cambodians to introduce him to the Cambodian Attorney
General, whom he described as instrumental in securing White’s passport, and to take other
undisclosed actions in support of White’s citizenship application. (Evangelist Decl., Ex. B [P.
Kelly TX, 141:17-146:04] [played to jury on 11/1/17].) The jury also learned that Plaintiff gave
money and other benefits to the Cambodian Attorney General by purchasing him meals, providing
limousine rides and “all expenses paid” trips for him and his son, giving him “pocket money,” and
allowing him to live in a home rented by and partially paid for by White. (Evangelist Decl., Ex. F
[Trial Ex. 555]; id. at Ex. G [Trial Ex. 566].) The jury also learned that Plaintiff facilitated the
making of “donations” and the payment of fees to the Cambodian government, at least one of
which went directly to the Cambodian Attorney General’s bank account. (Evangelist Decl., Ex. B
[P. Kelly TX, 118:09-119:02] [played to jury on 11/1/17]; id. at Ex. H [Trial Ex. 564].) Again,
whether this constitutes bribery and thus renders the contract in violation of public policy is a
factual issue for the jury to decide, and the instructions will provide them with the framework for
that factual determination.
2. The Law Supports the Estate’s Requested Jury Instructions
A contract is unenforceable on public policy grounds when its purpose or performance is
illegal, contrary to public policy or contrary to good morals. (Civ. Code § 1596 [The object of a
contract must be lawful when the contract is made[.]”]; Civ. Code § 1667 [That is not lawful
which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law,
though not expressly prohibited; or, 3. Otherwise contrary to good morals.”]; Civ. Code § 1598
[“Where a contract has but a single object, and such object is unlawful, whether in whole or in part
Kelly v. Kelley, CGC 13-535823
Defendant’s Opposition to Plaintiff's Motion in Limine #3... the entire contract is void.”]; Kashani v. Tsann Kuen China Enter. Co. (2004) 118 Cal. App.
Ath 531, 542-43 (“A bargain may be illegal because the performance that is bargained for is
illegal; and the performance may be illegal because governmental authority has declared it to be a
‘crime,’ in any one of the multiplicity of degrees[.]”)
As discussed above, the Estate’s evidence proves that one purpose of the alleged
Citizenship Contract was to thwart, delay, or obstruct federal law enforcement’s attempts to
prosecute White for federal crimes — either by preventing his deportation or preventing his
extradition, or both. This conduct violates federal obstruction of justice statutes where it is
performed with the intent to obstruct justice. (See 18 U.S.C. § 1503 [“Whoever ... corruptly...
influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due
administration of justice, shall be punished[.]”]; United States v. Rasheed (9th Cir. 1981) 663 F.2d
843, 851 [the term “corruptly” as used in the obstruction statutes means an act done with the
purpose of obstructing justice].)* Courts have had little trouble finding that such conduct
constitutes obstruction of justice. (United States v. Rudisill (11th Cir. 1999) 187 F.3d 1260, 1264
[obstruction of justice where defendant advised co-defendant to avoid prosecution by, among
other means, encouraging co-defendant to flee to countries without extradition treaties with the
United States]; United States v. Tever (S.D.N.Y. 2004) 322 F.Supp.2d 359, 365-67 [sentencing
enhancement for obstruction of justice warranted where defendant attempted to bribe foreign
officials to avoid extradition to the United States or obtain release from prison, which “would have
obstructed the investigation . . . by United States authorities and, indeed, this prosecution”].) If
the jury agrees with the Estate on this issue, the law dictates that they find the Citizenship Contract
unenforceable. (See, e.g., Vitek, Inc. v. Alvarado Ice Palace, Inc. (1983) 34 Cal. App. 3d 586, 593
[contract unenforceable on public policy grounds if it is “opposed to sound public policy or
designed to further a crime or obstruct justice.”]; Von Kesler v. Baker (1933) 131 Cal. App. 654,
“It does not matter that as a general matter the act of obtaining a second citizenship would not be unlawful.
Obstruction of justice occurs when a lawful act is done “corruptly,” i-e., with the intent to obstruct justice.
(United States v. Cintolo (1st Cir, 1987) 818 F.2d 980, 991 [“Thus, any act by any party—whether lawful
or unlawful on its face—may abridge § 1503 if performed with a corrupt motive.”].)
4
Kelly v. Kelley, CGC 13-535823
Defendant’s Opposition to Plaintiff's Motion in Limine #3658 [“The agreement was void as tending to obstruct and impair the administration of justice, and
therefore as contrary to public policy.”].)
As discussed above, the evidence also heard by the jury proves that Plaintiff performed the
Citizenship Contract through bribery. Again, if the jury agrees with the Estate on this issue, the
law dictates that they find the Citizenship Contract unenforceable. (M/cCowen v. Pew (1908) 153
Cal. 735, 743-44 [contract performed through bribery void as against public policy]; Bankers
Trust Co. v. Litton Sys., Inc. (2d Cir. 1979) 599 F.2d 488, 491 [even a legitimate contract may be
rendered unenforceable by its “direct connection” with an illegal transaction such as a bribe];
Teyer, supra.)
3. Contrary to Plaintiff's Argument, [legal Contracts Such as the Citizenship Contract
are not Enforceable in California
Plaintiff cites Johnson v. Johnson (1987) 192 Cal.App.3d 551 for the proposition that at
times illegal contracts can be enforced by the Courts where the party seeking enforcement is not in
pari delicto with the party asserting an illegality defense, where no serious moral turpitude is
involved, where the transaction is completed, and where the party asserting the illegality defense
would be unjustly enriched. This is not one those times.
First, in Severance v. Knight-Counihan Co. (1947) 29 Cal. 2d 561, the Supreme Court
squarely rejected Plaintiffs argument that a less culpable party may sue to enforce an illegal
contract. In Severance, defendant, a printer experiencing financial difficulties, made a contract
with plaintiff, his employee, that gave plaintiff an option to purchase certain printing plates at
about one-fourth their value. Later plaintiff left his employment, gave notice of exercise of the
option, and, on defendant’s refusal to perform, sued. Defendant testified, and the court found, that
the purpose of the agreement was to safeguard materials for later operation of the business in the
event that creditors liquidated the company. (/d. at 563-65.) The Severance court held plaintiff
could not recover, because the agreement was made for the purpose of defrauding creditors, and,
assuming that plaintiff's fault was less than defendant’s, this did not justify enforcement of the
contract: “A court will not enforce an illegal contract merely because one party’s fault was slighter
than the other’s.” (/d. at 569 [Even if it be assumed that plaintiff was less at fault than defendant
5
Kelly v. Kelley, CGC 13-535823
Defendant’s Opposition to Plaintiff's Motion in Limine #3it would not follow that this contract is valid and enforceable in a court of equity.”].) Instead, a
party “whose fault is slight” and who repudiates the illegal contract can recover only those monies
he paid under the illegal contract. (/d. [“If the parties are not in pari delicto the party who is only
slightly at fault can also recover money paid under an executory contract.”].) Here, Mr. Kelly is
not seeking restitution of monies paid to White, but instead is seeking to enforce the Citizenship
Contract. As in Severance, it does not matter whether Mr. Kelly was less culpable in the
transaction than White (and he wasn’t); he cannot enforce the Citizenship Contract if it was illegal.
Second, Johnson, 192 Cal.App.3d 551, is readily distinguishable. The illegality in
Johnson was the defendant’s son applying for and obtaining a GI loan in his own name to buy a
house intended for his parents. (/d. at 554-56.) Following his father’s death, the son tried to evict
the mother, and she sued to quiet title and argued there was a resulting trust in her favor. (Id. at
555.) The mother, therefore, did not sue her son to enforce the illegal agreement, and the court
was not called upon to do so. Here, however, Mr. Kelly is suing the Estate to do just that —
enforce the illegal agreement at issue, the alleged Citizenship Contract.
Johnson is further distinguishable on its facts. In that case, the defendant (the son)
persuaded the plaintiff (his mother) to use a GI loan to finance her purchase of a home, to put his
name on title, to make the payments on the GI loan, and to give him an interest-free loan of the
money she had saved but not used for a down payment on the home. (/d. at 554.) Although the
plaintiff's use of the defendant as a “‘straw” purchaser to obtain the loan was against public policy
and illegal because the defendant did not intend to occupy the residence as required under the
terms of the GI loan, the court held the defendant (son) was guilty of the greatest moral fault by
instigating the arrangement. (/d. at 557.) In addition, the contract there involved no serious moral
turpitude on the part of the plaintiff, the transaction was already completed, not executory, and
thus the public would not be protected by holding the contract unenforceable, and the defendant
would be unjustly enriched if he were allowed to evict the plaintiff, maintain his name on title, and
reap the benefit of appreciation in the value of the home. (/d.) The court therefore affirmed the
trial court’s declaration of a resulting trust that the plaintiff was the actual and beneficial owner of
the property per the agreement entered into between defendant and plaintiff.
Kelly v. Kelley, CGC 13-535823
Defendant’s Opposition to Plaintiff's Motion in Limine #3Here, unlike the mother and son in Johnson, Mr. Kelly and White were in pari delicto and
the illegal acts at issue involved serious moral turpitude. The evidence admitted at trial establishes
that both Mr. Kelly and White understood and agreed the purpose of the alleged contract was to
thwart, delay, or obstruct federal law enforcement’s attempts to prosecute White for federal
crimes, either by preventing his deportation or extradition. In addition, the evidence before the
jury proves that Mr. Kelly fully and voluntarily participated in the payments the Estate contends
were bribes to Cambodian officials. Indeed, by virtue of Mr. White’s incarceration, only Mr.
Kelly was in a position to regularly interface with the Cambodian officials and arrange for the
payment of those bribes. Obstruction of justice and bribery are much more serious offenses than
false statements on a loan application at issue in Johnson. (See Kashani v. Tsann Kuen China
Enter. Co. (2004) 118 Cal. App. 4th 531, 557 (where plaintiff sued to enforce an agreement that
violated the executive orders and implementing regulations prohibiting dealings with Iran, court
held contract unenforceable on public policy grounds and explained “[a]n agreement in violation
of trade restrictions promulgated for national security reasons and therefore for the purposes of
protecting the public should be unenforceable. The penalty is not disproportionate to the severity
of the offense, and any ‘forfeiture’ is not unfair.”].) Moreover, the alleged agreement here, unlike
the one in Johnson, is not completed. According to Plaintiff, Mr. White is still obliged to pay him
$325,000, and thus the public interest would be served by refusing to enforce a contract, the
purpose and performance of which violated the law. Finally, unlike in Johnson, the Estate would
not be unjustly enriched if the contract is not enforced. Mr. Kelly was paid $2,000 per month and
a $25,000 bonus for work in acquiring Mr. White a second citizenship.
B. The Evidence Plaintiff Seeks to Exclude is Not Character Evidence are
Excludable under Evidence Code § 352
As he did in his pre-trial motion in /imine, Plaintiff argues that the Estate’s evidence is
inadmissible character evidence under Evidence Code § 1101(b) and should be excluded under
Evidence Code § 352. Just as these arguments failed before trial, they should fail now.
The evidence is not character evidence. The Estate did not submit “evidence of specific
instances of [Plaintiff's] conduct” in order “to prove his . . . conduct” on the occasion in question.
7
Kelly v. Kelley, CGC 13-535823
Defendant’s Opposition to Plaintiff's Motion in Limine #3Instead, the Estate submitted evidence of Plaintiff's statements and conduct directly related to the
alleged formation of the Citizenship Contract and his performance thereof. Evidence Code §
1101(b) has no application and cannot be used to exclude the Estate’s evidence. (See Hub City
Solid Waste Services, Inc. v. City of Compton (2010) 186 Cal.App.4th 1114, 1133 [evidence of
bad acts is not character evidence excludable under § 1101(b) where the evidence is probative of
the dispute between the parties].)
Nor should it be excluded under § 352. Here, the evidence Plaintiff seeks to exclude is
highly probative of a number of issues central to the case. First, it explains what Plaintiff did
under the alleged Citizenship Contract and why he did it. The jury cannot evaluate the veracity (or
lack thereof) of Plaintiffs breach of contract claims without first being told about the purpose of
the alleged contract and what Plaintiff did to execute it. Second, Plaintiff is seeking quantum
meruit damages, and the jury will be asked to determine the reasonable or market value of his
services. The jury cannot make that decision without first hearing evidence of what Plaintiff did
and why he did it. Finally, as discussed above, the evidence is directly probative of the Estate’s
illegality defense. Where, as here, “the evidence relates to a critical issue, directly supports an
inference relevant to that issue, and other evidence does not as directly support the same inference,
the testimony must be received over a section 352 objection absent highly unusual circumstances.”
(Kessler v. Gray (1978) 77 Cal.App.3d 284, 292.)
fff
Kelly v. Kelley, CGC 13-535823
Defendant’s Opposition to Plaintiff's Motion in Limine #3Ii. CONCLUSION
Based on the foregoing, the Estate respectfully requests that the Court deny Plaintiff's
Motion in Limine #3.
Dated: November 3, 2017
Respectfully submitted,
/s/ Britt Evangelist
Edward W. Swanson
Britt Evangelist
SWANSON & McNAMARA LLP
Attorneys for Defendant, Shane Claridge
White, as Executor of the Thomas F. White
Estate
Kelly v. Kelley, CGC 13-535823
Defendant’s Opposition to Plaintiff's Motion in Limine #3
Preview
Edward Swanson, SBN 159859 ed@smllp.law Britt Evangelist, SBN 260457 britt@smllp.law SWANSON & McNAMARA LLP 300 Montgomery Street, Suite 1100 San Francisco, California 94104 Telephone: (415) 477-3800 Facsimile: (415) 477-9010 Attorneys for Defendant ELECTRONICALLY FILED Superior Court of Catifornia, County of San Francisco 11/08/2017 Clerk of the Court BY:GARY FELICIANO Deputy Clerk SHANE CLARIDGE KELLEY, as Executor of the Thomas F. White Estate SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PATRICK KELLY Plaintiff, Vv. SHANE CLARIDGE KELLEY, as Executor of the Thomas F. White Estate Defendant. Hil iif CASE NO. CGC-13-535823 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION IN LIMINE #3 Action Filed: December 2, 2013 Court: Honorable Lynn O’Malley Taylor Dept.: 514I. INTRODUCTION The Court heard and denied in limine Mr. Kelly’s motion to exclude evidence in support of the Estate’s illegality defense. The Court properly denied that motion then and should not revisit its decision now. Plaintiff is attempting to revisit this issue by claiming that evidence in support of the Estate’s defense is inadmissible because in some instances illegal contracts are enforceable. This argument is also without merit. The law cited by Plaintiff does not apply to actions to enforce illegal contracts (as opposed to actions in where an illegal contract has been repudiated and restitution is sought). And even if the law cited by Plaintiff did apply to this case, it would not render the Estate’s illegality defense invalid, because unlike the party in the case cited in Plaintiff's brief, Plaintiff was not an innocent actor, and the illegal nature of the alleged Citizenship Contract involves a high degree of moral turpitude. Ti. ARGUMENT A. The Court Should Not Revisit Its /n Limine Ruling that Allowed the Estate to Present its Public Policy Defense 1. Evidence Admitted at Trial Supports the Estate’s Public Policy Defense Prior to trial the Court heard and denied Plaintiff's motion in limine to exclude evidence of the Estate’s illegality defense. The Court rightfully denied Plaintiff's motion then. (Declaration of Britt Evangelist In Support of Opposition to Plaintiff's Motion In Limine Trial Motion #3 (“Evangelist Decl.”), Ex. A.) The evidence admitted at trial confirms the Court’s ruling was correct. The Estate contends the Citizenship Contract violates public policy in two manners: (1) one purpose of the alleged Citizenship Contract was to thwart, delay, or obstruct federal law enforcement’s attempts to prosecute White for federal crimes, in violation of both federal criminal statutes and express California public policy; and (2) the Citizenship Contract was performed in an Kelly v. Kelley, CGC 13-535823 Defendant’s Opposition to Plaintiff's Motion in Limine #3illegal manner, to wit, bribery.! The evidence admitted at trial supports both such defenses. With regards to the obstruction of justice public policy defense, Plaintiff testified that after indicting White, the U.S. government employed two means to bring him back to California for trial: (1) canceling his passport to ensure his deportation; and (2) extradition. Plaintiff also testified that after White’s passport was canceled, Plaintiff and White understood there were legal means available to contest that cancellation, namely an administrative hearing. Upon losing that hearing, Plaintiff and Mr. White, rather than acknowledge they had used the legal means available to them and failed, decided to embark on the project to secure the Cambodia citizenship in order to prevent Mr. White’s deportation.2. The evidence admitted at trial also proves that the purpose of the second citizenship was prevent Mr. White’s extradition to the United States. In other words, they were trying to get him citizenship in Cambodia so he would be outside of the U.S. government’s reach. Plaintiff admitted, consistent with his discovery responses, that he told Mr. White “it would be difficult for the US to extradite White from Cambodia since he would be a Cambodian citizen who would also likely have friends in high places who could balance out any extrajudicial US influence.”* And the jury heard deposition testimony from Plaintiff and saw emails written by Plaintiff that prove preventing extradition was another purpose of the Citizenship Contract. (Evangelist Decl., Ex. B [P. Kelly TX, 159:13-159:24] [played to the jury on 11/1/17); /d. at Ex. C [Trial Ex. 576: Plaintiff writing that White “would not be extraditable ' To be clear, the Estate does not contend the Citizenship Contract is void because the passport or citizenship obtained by Mr. Kelly is itself illegitimate or illegal. While that issue may be probative of whether Mr. Kelly completed his performance under the alleged Citizenship Contract, it is not the basis of the Estate’s public policy defense. ? Plaintiff's testimony in this regard is consistent with the allegations in his complaint and his deposition testimony. (Evangelist Decl., Ex. A [P. Kelly TX, 149:21-151:05] [“And then the initial need for the passport, I mean, this was what was in our minds at the time we entered the agreement to try and obtain a passport for him, legal passport, was to prevent him from being deported for lack of travel documents.”]; FAC, J] 72 [acquiring the Cambodian citizenship “peace of mind of knowing that when he was released from prison he would not be deported to the United States to face a sex tourism indictment”].) 5 Evangelist Decl., Ex. E (P. Kelly Response to Special Interrogatories from Defendant to Plaintiff, Set Three, No. 239(t)). Kelly v. Kelley, CGC 13-535823 Defendant’s Opposition to Plaintiff's Motion in Limine #3from your new country in any case due to the status your citizenship grants you.”)]; id at Ex. D [Trial Ex. 154] [Plaintiff informing White that he spoke with Dr. Kao about “the possibility of a US attempt to have you extradited to the US and Dr. Kao did not seem to feel this would meet with much success”].) Whether this conduct constitutes obstruction of justice is an issue for the jury to decide. The jury instructions the defense has offered track the statutory requirements for obstruction of justice and give the jury the guidance necessary to make its factual determination. The same is true of the bribery public policy defense. The jury heard evidence that Plaintiff made a payment of $187,000 to Cambodians to introduce him to the Cambodian Attorney General, whom he described as instrumental in securing White’s passport, and to take other undisclosed actions in support of White’s citizenship application. (Evangelist Decl., Ex. B [P. Kelly TX, 141:17-146:04] [played to jury on 11/1/17].) The jury also learned that Plaintiff gave money and other benefits to the Cambodian Attorney General by purchasing him meals, providing limousine rides and “all expenses paid” trips for him and his son, giving him “pocket money,” and allowing him to live in a home rented by and partially paid for by White. (Evangelist Decl., Ex. F [Trial Ex. 555]; id. at Ex. G [Trial Ex. 566].) The jury also learned that Plaintiff facilitated the making of “donations” and the payment of fees to the Cambodian government, at least one of which went directly to the Cambodian Attorney General’s bank account. (Evangelist Decl., Ex. B [P. Kelly TX, 118:09-119:02] [played to jury on 11/1/17]; id. at Ex. H [Trial Ex. 564].) Again, whether this constitutes bribery and thus renders the contract in violation of public policy is a factual issue for the jury to decide, and the instructions will provide them with the framework for that factual determination. 2. The Law Supports the Estate’s Requested Jury Instructions A contract is unenforceable on public policy grounds when its purpose or performance is illegal, contrary to public policy or contrary to good morals. (Civ. Code § 1596 [The object of a contract must be lawful when the contract is made[.]”]; Civ. Code § 1667 [That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or, 3. Otherwise contrary to good morals.”]; Civ. Code § 1598 [“Where a contract has but a single object, and such object is unlawful, whether in whole or in part Kelly v. Kelley, CGC 13-535823 Defendant’s Opposition to Plaintiff's Motion in Limine #3... the entire contract is void.”]; Kashani v. Tsann Kuen China Enter. Co. (2004) 118 Cal. App. Ath 531, 542-43 (“A bargain may be illegal because the performance that is bargained for is illegal; and the performance may be illegal because governmental authority has declared it to be a ‘crime,’ in any one of the multiplicity of degrees[.]”) As discussed above, the Estate’s evidence proves that one purpose of the alleged Citizenship Contract was to thwart, delay, or obstruct federal law enforcement’s attempts to prosecute White for federal crimes — either by preventing his deportation or preventing his extradition, or both. This conduct violates federal obstruction of justice statutes where it is performed with the intent to obstruct justice. (See 18 U.S.C. § 1503 [“Whoever ... corruptly... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be punished[.]”]; United States v. Rasheed (9th Cir. 1981) 663 F.2d 843, 851 [the term “corruptly” as used in the obstruction statutes means an act done with the purpose of obstructing justice].)* Courts have had little trouble finding that such conduct constitutes obstruction of justice. (United States v. Rudisill (11th Cir. 1999) 187 F.3d 1260, 1264 [obstruction of justice where defendant advised co-defendant to avoid prosecution by, among other means, encouraging co-defendant to flee to countries without extradition treaties with the United States]; United States v. Tever (S.D.N.Y. 2004) 322 F.Supp.2d 359, 365-67 [sentencing enhancement for obstruction of justice warranted where defendant attempted to bribe foreign officials to avoid extradition to the United States or obtain release from prison, which “would have obstructed the investigation . . . by United States authorities and, indeed, this prosecution”].) If the jury agrees with the Estate on this issue, the law dictates that they find the Citizenship Contract unenforceable. (See, e.g., Vitek, Inc. v. Alvarado Ice Palace, Inc. (1983) 34 Cal. App. 3d 586, 593 [contract unenforceable on public policy grounds if it is “opposed to sound public policy or designed to further a crime or obstruct justice.”]; Von Kesler v. Baker (1933) 131 Cal. App. 654, “It does not matter that as a general matter the act of obtaining a second citizenship would not be unlawful. Obstruction of justice occurs when a lawful act is done “corruptly,” i-e., with the intent to obstruct justice. (United States v. Cintolo (1st Cir, 1987) 818 F.2d 980, 991 [“Thus, any act by any party—whether lawful or unlawful on its face—may abridge § 1503 if performed with a corrupt motive.”].) 4 Kelly v. Kelley, CGC 13-535823 Defendant’s Opposition to Plaintiff's Motion in Limine #3658 [“The agreement was void as tending to obstruct and impair the administration of justice, and therefore as contrary to public policy.”].) As discussed above, the evidence also heard by the jury proves that Plaintiff performed the Citizenship Contract through bribery. Again, if the jury agrees with the Estate on this issue, the law dictates that they find the Citizenship Contract unenforceable. (M/cCowen v. Pew (1908) 153 Cal. 735, 743-44 [contract performed through bribery void as against public policy]; Bankers Trust Co. v. Litton Sys., Inc. (2d Cir. 1979) 599 F.2d 488, 491 [even a legitimate contract may be rendered unenforceable by its “direct connection” with an illegal transaction such as a bribe]; Teyer, supra.) 3. Contrary to Plaintiff's Argument, [legal Contracts Such as the Citizenship Contract are not Enforceable in California Plaintiff cites Johnson v. Johnson (1987) 192 Cal.App.3d 551 for the proposition that at times illegal contracts can be enforced by the Courts where the party seeking enforcement is not in pari delicto with the party asserting an illegality defense, where no serious moral turpitude is involved, where the transaction is completed, and where the party asserting the illegality defense would be unjustly enriched. This is not one those times. First, in Severance v. Knight-Counihan Co. (1947) 29 Cal. 2d 561, the Supreme Court squarely rejected Plaintiffs argument that a less culpable party may sue to enforce an illegal contract. In Severance, defendant, a printer experiencing financial difficulties, made a contract with plaintiff, his employee, that gave plaintiff an option to purchase certain printing plates at about one-fourth their value. Later plaintiff left his employment, gave notice of exercise of the option, and, on defendant’s refusal to perform, sued. Defendant testified, and the court found, that the purpose of the agreement was to safeguard materials for later operation of the business in the event that creditors liquidated the company. (/d. at 563-65.) The Severance court held plaintiff could not recover, because the agreement was made for the purpose of defrauding creditors, and, assuming that plaintiff's fault was less than defendant’s, this did not justify enforcement of the contract: “A court will not enforce an illegal contract merely because one party’s fault was slighter than the other’s.” (/d. at 569 [Even if it be assumed that plaintiff was less at fault than defendant 5 Kelly v. Kelley, CGC 13-535823 Defendant’s Opposition to Plaintiff's Motion in Limine #3it would not follow that this contract is valid and enforceable in a court of equity.”].) Instead, a party “whose fault is slight” and who repudiates the illegal contract can recover only those monies he paid under the illegal contract. (/d. [“If the parties are not in pari delicto the party who is only slightly at fault can also recover money paid under an executory contract.”].) Here, Mr. Kelly is not seeking restitution of monies paid to White, but instead is seeking to enforce the Citizenship Contract. As in Severance, it does not matter whether Mr. Kelly was less culpable in the transaction than White (and he wasn’t); he cannot enforce the Citizenship Contract if it was illegal. Second, Johnson, 192 Cal.App.3d 551, is readily distinguishable. The illegality in Johnson was the defendant’s son applying for and obtaining a GI loan in his own name to buy a house intended for his parents. (/d. at 554-56.) Following his father’s death, the son tried to evict the mother, and she sued to quiet title and argued there was a resulting trust in her favor. (Id. at 555.) The mother, therefore, did not sue her son to enforce the illegal agreement, and the court was not called upon to do so. Here, however, Mr. Kelly is suing the Estate to do just that — enforce the illegal agreement at issue, the alleged Citizenship Contract. Johnson is further distinguishable on its facts. In that case, the defendant (the son) persuaded the plaintiff (his mother) to use a GI loan to finance her purchase of a home, to put his name on title, to make the payments on the GI loan, and to give him an interest-free loan of the money she had saved but not used for a down payment on the home. (/d. at 554.) Although the plaintiff's use of the defendant as a “‘straw” purchaser to obtain the loan was against public policy and illegal because the defendant did not intend to occupy the residence as required under the terms of the GI loan, the court held the defendant (son) was guilty of the greatest moral fault by instigating the arrangement. (/d. at 557.) In addition, the contract there involved no serious moral turpitude on the part of the plaintiff, the transaction was already completed, not executory, and thus the public would not be protected by holding the contract unenforceable, and the defendant would be unjustly enriched if he were allowed to evict the plaintiff, maintain his name on title, and reap the benefit of appreciation in the value of the home. (/d.) The court therefore affirmed the trial court’s declaration of a resulting trust that the plaintiff was the actual and beneficial owner of the property per the agreement entered into between defendant and plaintiff. Kelly v. Kelley, CGC 13-535823 Defendant’s Opposition to Plaintiff's Motion in Limine #3Here, unlike the mother and son in Johnson, Mr. Kelly and White were in pari delicto and the illegal acts at issue involved serious moral turpitude. The evidence admitted at trial establishes that both Mr. Kelly and White understood and agreed the purpose of the alleged contract was to thwart, delay, or obstruct federal law enforcement’s attempts to prosecute White for federal crimes, either by preventing his deportation or extradition. In addition, the evidence before the jury proves that Mr. Kelly fully and voluntarily participated in the payments the Estate contends were bribes to Cambodian officials. Indeed, by virtue of Mr. White’s incarceration, only Mr. Kelly was in a position to regularly interface with the Cambodian officials and arrange for the payment of those bribes. Obstruction of justice and bribery are much more serious offenses than false statements on a loan application at issue in Johnson. (See Kashani v. Tsann Kuen China Enter. Co. (2004) 118 Cal. App. 4th 531, 557 (where plaintiff sued to enforce an agreement that violated the executive orders and implementing regulations prohibiting dealings with Iran, court held contract unenforceable on public policy grounds and explained “[a]n agreement in violation of trade restrictions promulgated for national security reasons and therefore for the purposes of protecting the public should be unenforceable. The penalty is not disproportionate to the severity of the offense, and any ‘forfeiture’ is not unfair.”].) Moreover, the alleged agreement here, unlike the one in Johnson, is not completed. According to Plaintiff, Mr. White is still obliged to pay him $325,000, and thus the public interest would be served by refusing to enforce a contract, the purpose and performance of which violated the law. Finally, unlike in Johnson, the Estate would not be unjustly enriched if the contract is not enforced. Mr. Kelly was paid $2,000 per month and a $25,000 bonus for work in acquiring Mr. White a second citizenship. B. The Evidence Plaintiff Seeks to Exclude is Not Character Evidence are Excludable under Evidence Code § 352 As he did in his pre-trial motion in /imine, Plaintiff argues that the Estate’s evidence is inadmissible character evidence under Evidence Code § 1101(b) and should be excluded under Evidence Code § 352. Just as these arguments failed before trial, they should fail now. The evidence is not character evidence. The Estate did not submit “evidence of specific instances of [Plaintiff's] conduct” in order “to prove his . . . conduct” on the occasion in question. 7 Kelly v. Kelley, CGC 13-535823 Defendant’s Opposition to Plaintiff's Motion in Limine #3Instead, the Estate submitted evidence of Plaintiff's statements and conduct directly related to the alleged formation of the Citizenship Contract and his performance thereof. Evidence Code § 1101(b) has no application and cannot be used to exclude the Estate’s evidence. (See Hub City Solid Waste Services, Inc. v. City of Compton (2010) 186 Cal.App.4th 1114, 1133 [evidence of bad acts is not character evidence excludable under § 1101(b) where the evidence is probative of the dispute between the parties].) Nor should it be excluded under § 352. Here, the evidence Plaintiff seeks to exclude is highly probative of a number of issues central to the case. First, it explains what Plaintiff did under the alleged Citizenship Contract and why he did it. The jury cannot evaluate the veracity (or lack thereof) of Plaintiffs breach of contract claims without first being told about the purpose of the alleged contract and what Plaintiff did to execute it. Second, Plaintiff is seeking quantum meruit damages, and the jury will be asked to determine the reasonable or market value of his services. The jury cannot make that decision without first hearing evidence of what Plaintiff did and why he did it. Finally, as discussed above, the evidence is directly probative of the Estate’s illegality defense. Where, as here, “the evidence relates to a critical issue, directly supports an inference relevant to that issue, and other evidence does not as directly support the same inference, the testimony must be received over a section 352 objection absent highly unusual circumstances.” (Kessler v. Gray (1978) 77 Cal.App.3d 284, 292.) fff Kelly v. Kelley, CGC 13-535823 Defendant’s Opposition to Plaintiff's Motion in Limine #3Ii. CONCLUSION Based on the foregoing, the Estate respectfully requests that the Court deny Plaintiff's Motion in Limine #3. Dated: November 3, 2017 Respectfully submitted, /s/ Britt Evangelist Edward W. Swanson Britt Evangelist SWANSON & McNAMARA LLP Attorneys for Defendant, Shane Claridge White, as Executor of the Thomas F. White Estate Kelly v. Kelley, CGC 13-535823 Defendant’s Opposition to Plaintiff's Motion in Limine #3