Preview
KELSEY C. LINNETT (Cal. Bar No. 274547)
JENNIFER HANE (Cal. Bar No. 275729)
Trial Attorneys
United States Department 0f Justice
Antitrust Division
450 Golden Gate Ave., Room 10-0101
San Francisco, California 94102-3478
Telephone:
KOOO‘JQU‘I-ADJNH
(415) 934—5300
Facsimile: (415) 934-5399
Email: Kelsey.Linnett@usdoj.gov
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
IN AND FOR THE COUNTY OF STANISLAUS
CAPITAL EQUITY MANAGEMENT No.2 20235 I 9
GROUP, INC., \
UNITED STATES’ NOTICE OF
Plaintiff, MOTION, CONIPLAINT IN
INTERVENTION AND MOTION
VS.
TO STAY DISCOVERY
STEVEN A. SWANGER; KENNETH A.
SWANGER; BRENDA GILLUM; RICK LA-‘j-L’]
dale,
CLEMENTS; SWAN CONSTRUCTION;
SWAN INVESTMENTS, INC; SWANGER fiwk %‘J%O
VVVVVVVVVVVVVVVVVVV
aU/M
PROPERTIES, LLC; NORTHERN ’Dgfi 94
CALIFORNIA INVESTMENTS, L.P.;
MNNNNNNNNb—Ib—‘Hr—‘Hn—Av—IHHH
NORCAL REDEVELOPMENT CORR;
RICHARD CASTLEBERRY; GEORGE
CASTLEBERRY; JAMIE LYNN
CLEMENTS; MARY ROSE CARTER;
WILLIAM KEITH CARTER; MARK
TILLOTSON; RICHARD NORTHCUTT;
AND DOES 1TO 100, inclusive,
Defendants.
T0 plaintiff and attorney, Michael Dyer of Dyer Law Firm, and t0 defendants and their
attorneys, Dana Suntag of Herum Crabtree Suntag and William Parish 0f Parish Guy Castillo
PLC:
UNITED STATES’ COMPLAINT IN INTERVENTION AND MOTION TO STAY DISCOVERY
NOTICE IS HEREBY GIVEN that 0n March 7, 2017, in the Superior Court 0f California
for the County 0f Stanislaus, the United States hereby moves for an order granting the United
States’ Complaint in Intervention and Motion t0 Stay Discovery. The Complaint and Motion is
made pursuant to Code ofCivil Procedure section 387(a) 0n the grounds that the United States
has an interest in intervening because civil discovery will adversely affect a closely related
\OOO‘QQLJIAUJNH
criminal case. The Complaint and Motion is based on this Notice of Motion, the proposed
Complaint in Intervention, the Declaration of Jennifer Hane (“Hane DecI.”), the supporting
memorandum served and filed herewith, 0n the records and file herein, and 0n such evidence as
may be presented at the hearing 0n the motion. A hearing on the Complaint and Motion is
scheduled for April 7, 2017, at 8:30 am. in Department 21.
I. INTRODUCTION
The United States moves to (a) intervene in this civil action under California Rule 0f
Civil Procedure 387 and (b) stay discovery for a period of six months. At that time, the
government requests that the Court revisit the stay to determine whether it should be modified.
The requested stay is necessary to avoid interference with a closely related federal
criminal case. On March 11, 2014, Andrew Katakis, President 0f plaintiff Capital Equity
Management Group, Inc. (“CEMG”),1 was convicted 0f conspiracy to rig bids at home
foreclosure auctions in San Joaquin County, California, in violation 0f 15 U.S.C. § 1. United
NNNNNNNNNp—Ip—np—np—tp—Ap—‘HHHH
States Katakz's, United States District Court, Eastern District of California,
W‘dONUi-PUJND—‘OOOO‘JONUI-bUJNV—‘O
v. Case No: 2:1 1-CR-
511 WBS. Katakis’s motion for a new trial is stillpending.
Plaintiff’s lawsuit involves the same conspiracy to rig bids for which Katakis was
convicted, and discovery will undoubtedly center on the same evidence as the criminal
investigation. Allowing the discovery t0 proceed while the criminal trial is stillpending risks
violating the criminal protective order and the integrity 0f the criminal process.
//
l
At the time 0fthe criminal Katakis’s
trial, company was called California Equity Management Group, Inc. Ithas
since changed itsname to CapitalEquity Management Group, Inc. See State 0f California Secretary of State
Certificate 0f Status, Articles of Incorporation, Statement of Information, and Business Entity Detail (ExhibitA t0
Hane Decl.).
2
UNITED STATES’ COMPLAINT IN INTERVENTION AND MOTION TO STAY DISCOVERY
H. BACKGROUND
A. The Criminal Case
On December 7, 201 1, a federal grand jury indicted Andrew Katakis and others for
rigging bids in violation 0f 15 U.S.C. § 1 and conspiring t0 commit mail fraud in Violation of
18 U.S.C. §
\OOO‘NJONUI-bmmr—I
1349. See Indictment (Exhibit B t0 Hane Decl.). On May 8, 2013, the grand jury
superseded t0 add a count of obstruction ofjustice, 18 U.S.C. 15 I 9,” for deleting electronic
records related to the cgnspiraoy. See Superseding Indictment (Exhibit C t0 Hans Decl.).
Following a four-week jury trial,0n March 11, 2014, Katakis was convicted 0f bid rigging and
obstruction ofjustice. The jury was unable t0 reach a verdict 0n the mail—fraud charge. See Jury
O Verdict Form (Exhibit D to Hane Decl.). After trial, Katakis moved for a judgment of acquittal
’—‘
0n the obstruction count. The District Court granted that motion, and on August 31, 201 5, the
N Ninth Circuit affirmed. See United States vA Katakis, Case N0. 14-10283.
U)
Ka{aldS also moved in the District Court for a new trial pursuant to Federal Rule of
-h Criminal Procedure 33. According t0 the District Court’s scheduling order, briefing on the new
L71
trial motion will be completed shortly, by March 20, 2017. See Order (Exhibit E to Hane Decl.).
O\
At trial, the evidence showed that Katakjs participated 'm a conspiracy to rig bids at
fl public home foreclosure auctions in San Joaquin County between September 2008 and October
00
2009. Katakis and his co-conspirators were real estate investors who purchased foreclosed
\O homes, refurbished them, and sold them for a profit. Trial Tr. at 71 6 (Exhibit F to Hana Decl.).
O Instead of competing at the auction, the “Group,” as the conspirators referred to themselves,
'—‘
agreed not to bid against each other. Id. at 768-69. In exchange for not competing, they paid
N each other off. Id. at 755-61, 763-64.
DJ
Katakis was one ofthe key players in the conspiracy. Id. at 1029—30. He participated
M‘-P~
primarily through his companies, CEMG and Lenders Financial Group; his employees and co-
conspirators, Steve and Ken Swanger; as well as with other co—conspirators, including Richard
ON (“Rick”) Northcutt. Id. at 1010, 1024, 1030. The Swangers and Northcutt testified at trial. A
\J
forensic accountant traced more than a million dollars 'm payoffs from Katakis and his companies
00
t0 the co-conspirators through Steve Swanger and Swan Construction. Id. at 2368-69, 23 79.
3
UNITED STATES’ COWLAINT m INTERVENTION AND MOTION TO STAY DISCOVERY
The Katakis prosecution was the result 0f an ongoing, multi-year investigation in which
eleven real estate investors pleaded guilty. See Dept. of Justice Press Release, December 30,
2013 (Exhibit G to Hane Decl.).
B. The Civil Lawsuits in Stanislaus County
On February
KOOONJQLhfiLHNr—n
3,2017, CEMG filed the instant lawsuit against Steve and Ken Swanger,
Swan Construction, Swan Investments, Rick Northcutt, and other defendants, including unnamed
parties. The lawsuit alleges, among other things, that the defendants engaged in fraud,
conspiracy t0 commit fraud, breach of fiduciary duties, intentional interference with prospective
economic advantage, and similar claims arising out ofthe same bid—rigging conduét for which
Katakjs was convicted. Complaint fl 14-47.
On November 10, 2014, CEMG filed a lawsuit similar t0 the instant action, also in
Stanislaus County Superior Court, against several of the same defendant; See Complaint,
CEMG v‘Swanger (Super. Ct. Stanislaus County, 2014, N0. 2009158) (Exhibit H t0 Hane
Decl.). Like the instant lawsuit, the 2014 complaint alleges claims related to bid—rigg'mg conduct
for which Katakis was convicted. In order to avoid interference with the criminal investigation,
the Stanislaus County Court initially stayed discovery until November 2, 2015. See Order
Granting United States” Motion to Stay Discovery in CEMG v. Swanger (Exhibit It0 Hane
Decl.). In subsequent orders, the Court has extended thg stay,
NMNNNNNNNr—‘t—tn—nv—tHh—IHHHH
most recently through April 15,
2016, by stipulation 0f the United States and the parties. See Stipulation t0 Extend Discovery
CEMG
OONJONUl-DUJNHOQWQONUI-RUJNHO
Stay in v. Swanger (Exhibit J to Hane Decl.). While that stipulation has expired, the
United States is currently unaware 0f discovery in that matter.
Instead, 0p March 1, 2017, the United States spoke with plaintiff’s counsel and confirmed
that plaintiff intends t0 move forward with civil discovery in the instant case. Accordingly, the
United States respectfully requests that this Court also enter a temporary stay of discovery.
//
//
//
//
4
UNITED STATES’ COWLAINT IN INTERVENTION AND MOTION TO STAY DISCOVERY
HI. LEGAL FRAlVIEWORK
Under both Federal and California law, the government may intervene when itseeks t0
stay proceedings pending completion 0f a related criminal investigation. See Federal Rule 0f
Civil Procedure 24(b)(1)(B); Cal. Civ. Proc. Code § 387. “Numerous courts have allowed the
United States government t0 intervene in a civil case for the purpose 0f moving to stay discovery
\OOOQG‘NU‘I-hUJNH
and other proceedings until the resolution of a related criminal case.” S.E.C. v.Nicholas, 569 F.
Supp. 2d 1065, 1068 (CD. Cal. 2008) (citations omitted).
This Court may also stay proceedings in an action pursuant to itsinherent power to
control its docket. Landis v. North American C0,, 299 U.S. 248, 254—55 (1936). “[A] court may
decide in itsdiscretion to stay civil proceedings .. .‘when the interests ofjustice seem [ ]t0
require such action?” Keating v. Oflice ofThrzfi Supervision, 45 F.3d 322, 324 (9th Cir. 1995),
citing Division v. Kordel, 397 U.S. 1, 12 n.27 (1970).
In determining whether to stay a civil proceeding, a court considers the “particular
circumstances and competing interests involved in the case,” as well as the following factors:
(1) the public interest in the pending civil and criminal litigation; (2) the private interests of the
plaintiff in proceeding expeditiously with this litigation, and the potential prejudice to the
plaintiff 0f a delay; (3) the
NNNNNNNNNb—‘i—‘b—‘HI—AHp—Ip—nr—Ay—A
burden Which any particular aspect 0f the proceedings may impose on
defendants; (4) the convenience of the coun in the management 0f its case, and the efficient use
ofjudicial resources; and (5) the interests 0f persons 0r entities not parties t0 the civil litigation.
OOHONM-hUJNHOKOOOflQLh-PWNHO
Federal Savings and Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902-04 (9th Cir. 1989).
“[W]hen both civil and criminal proceedings arise out 0f the same or related transactions
an obj ecting party is generally entitled to a stay of discovery in the civil action until disposition
of the criminal matter.” Pacers, Inc. v.Superior Court, 162 Cal. App. 3d 686, 690, 208 Cal. _
Rptr. 743, 745-46 (Ct. App. 1984).
IV. ARGUMENT
Considering the five factors set forth in Molinaro, the balance weighs in favor of a
temporary stay 0f discovery.
//
5
UNITED STATES’ COWLAINT IN INTERVENTION AND MOTION TO STAY DISCOVERY
A. The Public Interest in Criminal Enforcement
Of the five factors identified in Molinaro, the most important is the public interest in
criminal enforcement. See Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962)
(“[a]dministrative policy gives prion'ty t0 the public interest in law enforcement. This seems so
necessary and wise that a trialjudge should give substantial weight t0 itin balancing the policy
\DOOQONUI-PUJNH
against the right of a civil litigant to a reasonably prompt determination 0f his civil claims or
liabilities”); Bureerong v. Uvawas, 167 F.R.D. 83, 87 (C.D. Cal. 1996) (“the interests 0f the
government in protecting itscriminal investigation are clearly the paramount concern .. ..”).
Here, there is significant overlap between the criminal and the civil cases and Katakis’s
motion for a new criminal trial ispending. Given the similarities between the two cases,
proceeding with civil discovery could compromise the integrity 0f the criminal process.
1. The Similarities Bptween the Cases
First, the core conduct is the same. The civil case offers several causes 0f action, but they
all stem from one central allegation: the defendants “entered into a criminal conspiracy to rig the
bidding process 0f properties.” Complaint 1112;see also id. 1120. The complaint alleges that the
defendants carried out their bid-figging scheme at “auctions/private sales” where they were
supposed t0 be bidding 0n behalf 0f CEMG.
NNNNNNNNNHHa—Ap—Ap—ap—tr—It—‘Ha—t
Id. 1112. These allegations mirror the bid-rigging
charges in the Superseding Indictment. See Superseding Indictment, Count One W18, 10.
Second, the same parties are involved. Katakis was a defendant in the criminal matter.
As owner and president of CEMG, he
OO‘JQLh-PWNHOQWNJQm-DWNHO
is,for all practical purposes, the plaintiff in the civil
matter. Civil defendants Steve and Ken Swanger, and Rick Northcutt, were key witnesses at trial
in the criminal case. If there is a retrial in the criminal matter, they would likely testify again.
Tillotson did not testify at trial,but was mentioned in the criminal trial and could be a witness at
a retrial. Trial Tr. at 3283. Other civil defendants, including Norcal Redevelopment Corp.
(“Norcal”) and the Castleberrys were the subjects of extensive discussion at trial. Specifically,
Katakis’s counsel questioned government witnesses Steve and Ken Swanger about a $600,000
//
//
6
UNITED STATES’ COMPLAINT IN INTERVENTION AND MOTION TO STAY DISCOVERY
investment in Norcal and their business relationship with the Castleberrys. Id. at 1921-23, 1942-
47, 1956-57, 2164-66.
Third, the time periods and locations overlap. The criminal case involves bid rigging that
occurred between September 2008 and October 2009 in San Joaquin County, California. In the
civil matter, plaintiffs causes 0f action relate t0 real estate foreclosure auctions “[i]n 0r about
\DOOQONU‘I-bUJNH
January 2009 through December 201 1, in various counties throughout California.” Complaint
119. For example, Count Two refers t0 a specific time period at the heart of the criminal
conspiracy: “In or about January 2009, DEFENDANTS and each 0f them entered into an illegal
scheme t0 rig the bidding process at the auctions/private sales. ..
.” Id.
1]20.
Finally, at trial,Katakis’s defense was that he was being swindled by the Swangers and
Northcutt, among others. At closing, Katakis’s lawyer argued that Northcutt had worked out a
deal to drive up prices 0n certain properties and funnel money to Norcal. Trial Tr. at 3283. They
kept the deal secret from Andrew Katakis. Id. Katakis has continued to air his defense theory in
the post-conviction proceedings. The allegations in the civil suit mirror this defense.
2. The Resulting Concerns
Allowing discovery t0 proceed here could significantly compromise the integrity 0f the
criminal process. First, protected material could be used inappropriately.
MNNNNNNNNP—‘I—Ap—IHu—An—r—tr—a—Ap—A
During the course 0f
the criminal case, the government provided Katakis with voluminous discovery. The discovery
was produced pursuant to a protective order. The protective order provided that the discovery
was
OO‘JONL/‘IvPUJNHOWm‘JONm-bUJN—‘O
entrusted t0 defense counsel “only for the purposes 0f representing their respective
defendants in this criminal case.” Protective Order at 2 (Exhibit K t0 Hane Decl.). The criminal
case is ongoing, and therefore the protective order remains in effect.
Allowing civil discovery t0 move forward while Katakis has access to protected material
would invite the Plaintiff to violate the protective order by using information from the criminal
case for the civil lawsuit. This isparticularly worrisome because the allegations in the
Complaint track Katakis’s defense at trial. With n0 other enforcement mechanism, without a
//
//
7
UNITED STATES’ COMPLAINT IN INTERVENTION AND MOTION TO STAY DISCOVERY
stay of discovery until after the criminal proceedings have finished the United States has no way
t0 prevent the inappropriate use 0f protected material.
Second, criminal defendants ordinarily are not entitled t0 depose prosecution witnesses.
Defendants in the instant civil action, Steve Swanger, Ken Swanger, and Richard Northcutt,
testified for the government at
\OOONJO‘xk/l-AUJNp—u
trial. Allowing Katakis to compel potential prosecution
witnesses, including pleading cooperators, in civil discovery would thwart the rules of criminal
procedure and could harass or intimidate the witnesses. See Fed. R. Crim. Proc. 15(a) and Fed.
R. Civ. Proc. 30(3); Nicholas, 569 F. Supp. 2d at 1071-72 (holding that criminal discovery rules
are “purposefully limited so as t0 prevent perjury and manufactured evidence, to protect potential
witness fiom harassment and intimidation, and t0 level the playing field between the government
and the defendant, who would be shielded from certain discovery by the Fifth Amendment.” See
Bureerong v. Uvawas, 167 F.R.D. 83, 86 (CD. Cal. 1996) (“A stay of discovery Will protect the
integn'ty of the Government‘s investigation and ensure that the Defendants Will not use the civil
discovery processes to obtain discovery that isnot authorized in a cn'minal case.”) (internal
citations omitted). Again, this concern isheightened because the Complaint reflects Katakis’s
theory of defense in the criminal trial.
B. The Private Interests
NNNNNNNNNHb—Ip—Ir—Ar—Au—ir—‘y—nl—IH
in Proceeding Expedifiously
The United States is sensitive t0 the need to move the civil case forward. At this time,
however, the United States sees no alternative to a temporary stay of discovery to protect the
WNQU‘l-PUJNHowmflONLh-DWMHO
criminal investigation. After six months, we propose reevaluating the stay based 0n the status of
the criminal investigation.
C. The Burden 0f Discovery 011 the Defendants
The United States does not know the scope of plaintiff s intended discovery requests.
D. The Convenience of the Court in the Management of Its Case, and the
Efficient Use 0f Judicial Resources
The result of the criminal matter may bear on the merits 0f this civil case. The complaint
alleges one 0f Katakis’s defense theories. If,when the criminal proceedings conclude, Katakis’s
bid—rigging conviction stands, itcould prove fatal to the civil lawsuit. Itcould also have
8
UNITED STATES’ COMPLAINT IN INTERVENTION AND MOTION TO STAY DISCOVERY
collateral estoppel implications and affect witness credibility. See United States v. Mendoza, 464
U.S. 154, 158 (1984) (“[O]nce an issue is actually and necessarily determined by a court 0f
competent jurisdiction, that determination is conclusive in subsequent suits based on a different
cause of action involving a party to the prior litigation”); see also Cal. Evid. Code § 788 (firior
felony conviction pennissible evidence to attack witness credibility).
\OWNO’NUi-PUJNH
E. The Interests 0f Persons 0r Entities Not Parties to the Civil Litigation
In criminal antitrust investigations, it iscommon for the government to call as witnesses
at trial current and former employees regarding their employer’s criminal conduct, some who
may have potential criminal exposure. Without immunity from prosecution and if they are
required to testify in a civil deposition, those individuals will be placed in the untenable position
of having to choose between asserting their Fifth Amendment right against self—incn'mination,
With the attendant adverse inference against parties t0 civil actions, see Baxter v. Palmigiano,
425 U.S. 308, 318 (1976), or testifying and running the risk of self—incrimination in the criminal
matger. To the extent that Plaintiff seeks to depose such non-party witnesses, granting the
proposed stay would eliminate that dilemma.
V. CONCLUSION
The overlap between the civil complaint and the criminal matter is significant. Absent a
NNNNNMNNMHb—‘b—‘v—‘b—‘HHHHr—A
stay, itwould be difficult, if not impossible, to fashion adequiate relief that would protect the
WQONUI-PWNHOKOOO‘JQLh-hUJNF—‘O
integrity of the criminal investigation. As a result, the United States respectfully requests that
the Court grant its motion, permit it t0 intervene in this civil action, and order a stay of discovery
for six months.
Dated: March 7, 2017 Respectfully Submitted,
(LN £43m
JenniE/r Hane
Kelsey C. Linnett
Trial Attorneys
Antitrust Division
United States Department ofJustice
9
UNITED STATES’ COMPLAINT IN INTERVENTION AND MOTION TO STAY DISCOVERY