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Trial By Fire

The Silicon War Triology

Chapter 7 - Game Time

Now that all the Defendants have been officially arraigned, and each pleaded not guilty to all counts, the legal games began.  First up was the motion for "dismissal or in the alternative for a Post-Indictment Preliminary Hearing".  At question: What was presented to the grand jury that justified the charges?  Of course this motion was denied.  Something about:

 

The grand jury is not required to hear evidence for the defendant..."

 --  California Penal Code

 

The next day, the attorneys for the defendants went back to Court to seek a "writ of mandate", asserting a right under the due process and equal protection clauses of the federal and state Constitutions to the adversarial preliminary hearing.  It was also denied.  So this decision was then appealed to the Appellate Court.

As I stood around court listening to the legal talk, I kept asking everyone what was it that I was accused of?  The standard answer I got was: "in due time".  My lack of an attorney and the information he has access to, created a void of information that I needed to have so that I could understand what was going on.  This lack of understanding created real frustration in me and that created my attitude of defiance.  Everyone in law assumes you understand what's going on or what's behind the meaning of the words they were using in Court.  Hey guys...  we don't!

The most glaring point was: I was accused of Theft, Possession, and Conspiracy.  However, when I asked who it was that I took something from (i.e. the theft), I got back "ah you know, Intel".  Or "it was National" and finally "It was Ziblog".  Or my favorite response from them was:

 

"It is undeniable that there is a considerable disparity in the procedural rights afforded defendants charged by the prosecutor by means of information and defendants charged by the grand jury in an indictment". 

 

The prosecutors often have a choice between seeking "an indictment" from a grand jury or filing a "charging document" directly with the court.  Such a document is usually called "an information," "accusation," or "complaint," to distinguish it from a grand-jury indictment.  To protect the suspect's due-process rights in felony cases (where the suspect's interest in liberty is at stake), there is usually a preliminary hearing, at which a judge determines whether there was probable cause to arrest the suspect who is in custody.  If the judge finds such probable cause, he or she binds, or holds over, the suspect for trial.

The defendant accused by information immediately becomes entitled to an impressive array of procedural rights, including a preliminary hearing before a neutral and legally knowledgeable magistrate, representation by retained or appointed counsel, the confrontation and cross-examination of hostile witnesses, and the opportunity to personally appear and present exculpatory evidence. 

However, in vivid contrast, the indictment procedure omits all the above safeguards.  The defendant has no right to appear or be represented by counsel, and consequently may not confront and cross-examine the witnesses against him.  There is no ability to object to evidence introduced by the prosecutor or even make legal arguments.  But the most important one is the inability to present evidence to explain or contradict the charge.  As one observer put it,

 

"A grand jury room with no judge present to protect unrepresented witnesses or prospective defendants is a threatening physical environment; it possesses coercive characteristics that are analogous to a police interrogation room, which the court found to be inherently coercive in Miranda".

--  Federal Grand Juries:

The Plight of the Target Witness (1977)

11 U.S.F.L.Rev.  672, 685.

 

However, the real frustration started when I was lied to by my own attorney and the other defendants' attorney when I asked them "Can I at least see or read what the ADA said about me in the Grand Jury"?

They all answered "No". 

Later I found out when you are indicted, every indicted defendant is entitled to a complete transcript of the proceedings (id., §§ 938.1, 995a; People v.  Pipes (1960) 179 Cal.  App.2d 547 [3 Cal.  Rptr.  814]);

Hence the lie!  And the frustration over not knowing the details of what I was charged with.

 

**

 

Now, the reason this post-indictment preliminary hearing was so important, I was really arrested for being "in the possession of National Silicon Trade Secrets" and the ADA was using the tape Gopal brought into Transmask on the September 22nd to justify this charge as defined as "Count 10" against me.

What none of the "expert witnesses" or "victims" told the ADA was that there were two tapes given to Transmask at different times. 

Tape 1 was shipped by me to Transmask in Newport Beach, CA and it contained only the graphic data for the new part numbers, logos, and my new software utility to automatically update everything.  Nothing on this tape was a trade secret of Intel, NSC, or Ziblog.  This was my work product and therefore a trade secret of Maruman only.

Tape 2 or the other tape that Gopal took to Transmask, in Santa Clara, CA was in person on September 22nd and was the one Gopal received from George Bayling, a Director of National Silicon under the now missing "Swap Broadway for Boardwalk" contract.  It was this tape that I was now accused of making, stealing and possessing.

So my questions were simple: "Where was this done at?  When was this done?  When was I in possession of this tape?  What computer was this done on? And finally, Can I see them"? 

The answer I got back was "We'll worry about all that at the trial".

The second reason this post-indictment preliminary hearing is so important, I was charged with Theft of Trade Secrets, the "physical act" of taking the physical tape.  So who were the witnesses to this act?  We're my fingerprints on the tape?  Did someone see me with the tape?  Or was this really just Employer Retaliation by the President of NSC who was already on record for threatening my life in front of the ADA D'Alquist, Conroy, and Weinstein.  Remember, I never made this tape - I didn't exist!

Having the post-indictment preliminary hearing resolves these issues right up front in a case requires the ADA to commit to exactly what it is that he is charging the defendant(s) with.  When this is successful done, it is called "getting off on a legal technicality" but in reality it corrects any error that the ADA has made or at least brings out the basic errors or bias information that the victims are stating.  Without it, the defendant must wait up to three years before he is allowed to ask these questions at trial.  However, by then, massive and irreversible damage is done to the defendant's family and life of the defendant.  More important, the ADA can adjust his theories over time to match the new circumstances that come up during the continuing investigations.

 

**

 

Oh, did I also mention that this was an election year and D'Alquist was now behind in the polls.  And did I also say Gopal's attorney, Len Edwards was leading in the polls against the Search Warrant Judge.  Yes... their public visibility was now most important to their election campaigns and the Case was their stepping stone to the free media.

 

**

 

On November 9, 1978, the Judge's decision not to grant the ‘post-indictment preliminary hearing' was made and Edwards filed for a "very publicly discussed" appeal to the Court Of Appeal Of California, First Appellate District, Division Three.

Although the post-indictment preliminary hearing requirement of Hawkins v. Superior Court (1978) 22 Cal.3d 584 [150 Cal.  Rptr.  435, 586 P.2d 916], was held inapplicable on December 1978 (Gopal v.  Superior Court (1978) 1 Civ.  45577, petn.  Den.  Dec.  5, 1978.), Edwards did receive major publicity in both the local newspaper and on local TV and radio. 

To the voters, a major difference between D'Alquist and Edwards came out: "Secret accusations and relationships vs. fairness and the defendant's right to know what evidence is being used against them".

But the second strike this Case gave D'Alquist was from a stupid conversation he and I were having just after this hearing.  D'Alquist was truly attempting to understand what I had just said in the courtroom.

I said something like "Look Toni, I really don't know what the specifics are about… like what is it you are really saying I did.  It would be nice if you would explain to me what you said in the Grand Jury about me.  Like… you know ah… transcript or something like that".

"First," D'Alquist said.  "That indictment is stilled sealed because of the investigation is expanding to include others.  But I can say it's mostly surrounds the Transmask tape and the work you did at Transmask".

I said to him "What?  Toni, I shipped a tape to Transmask that had only part numbers and logos data on it.  There were no trade secrets on that tape except Maruman's.  This was not illegal.  It was my work product paid for by Maruman.  Later on, Gopal brought the second tape into Transmask that you are referring to.  He told everyone that he had a contract to do this".

"Ok?  So then… only this Gloria woman at Transmask was the one that combined the two tapes' data together on the Transmask computer?  Therefore you are saying that she was the only one in the possession of the trade secret data at that time".

Of course being paranoid about everything, I took his statement out of context and responded with a "Jesus, Toni, you aren't going after a pregnant women now are you"?

Well a reporter who was eavesdropping in on our conversation knew D'Alquist had stated he was "tough on crime" and was now "going after a pregnant women".  His election was doomed.  He had just lost the woman vote.

This was just like the simple statement that Gopal used to get everyone in trouble.

"Yea, It's [like] Intel's"[2]

This is how a simple statement, taken completely out of context, had cost the ADA his election.  Everyone assumes the worst and then edits it to fit their needs.  And at this time I must say that the reporter worked for a Democrat leaning newspaper and D'Alquist was a center right leaning Republican.

As for the Edwards election, he won the Judgeship by a wide margin but this would also cost me greatly down the road.  As he took over his new Judgeship, he would have to resign as Gopal's attorney and I would lose the only person that was covering my ass.

 

**

 

After a month of legal arguing, motion hearings, and the other things that occupy a court system to create delays, Gopal's new attorney finally requested a formal "Motion to Suppress Evidence".

A motion to suppress evidence is the legal proceeding phase designed to challenge evidence on some constitutional grounds.  Defense counsel initiates the motion to suppress evidence by filing papers with the court.

The prosecutor and defense counsel then submit legal arguments in an official document known as a ‘brief'.  If there has been an arrest or a search without a warrant, then the prosecutor must file the first brief.  In the prosecutor's brief, they must justify each step taken by the police.

The defendant then responds with a legal brief explaining how and why the police violated the defendant's constitutional rights.

After all of the briefs were submitted; the court will then hold a hearing with testimony and exhibits to resolve any contested issues.  In this type of hearing, the State has the burden of proof.  If the court grants the motion to suppress evidence, then the prosecutor is barred from using any of the challenged evidence against the defendant in court unless they appeal the court's decision.

All attorneys' filed their motions.  Their arguments were best summarized along the following lines:

 

For the defendant - "the court should move to suppressed evidence seized pursuant to the first warrant because the experts 'aiding' the officers executing the warrant failed to communicate to the officers the factual basis upon which their identification was made; or, in other words, they gave the police their conclusion, without imparting the rational process by which they arrived at it".

 

For the people - "during the search, the experts encountered items, which while not listed in the warrant, they believed on the basis of ‘experience' and ‘expertise' to be stolen.  For these items, they were instructed by the police to set them aside in plain view.  Nothing was told to the officers reflecting the factual basis for the belief that the items were stolen, except for Dunlap, who stated that the nine reticles described in the warrant displayed Intel's logo, and thus were probably stolen.  As in the case of the initial seized items, the officers executing the warrant accepted the experts' conclusions without exercising any independent judgment regarding the underlying factual basis".

 

Mine was more direct and looked something like this:

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

 

THE PEOPLE OF THE STATE OF                                                       CASE NO.  xxxxx

CALIFORNIA,                                                   NOTICE OF MOTION AND MOTION

PLAINTIFFS,                                                                          TO SUPPRESS EVIDENCE;

                                                                                 MEMORANDUM OF POINTS AND

     VS.                                                                                                             AUTHORITIES

 

ROBERT CONTIE,                                                                                 DATE: xxxx xx xx

DEFENDANT.                                                                                                  TIME: xx:xx

 

TO THE DISTRICT ATTORNEY OF THE COUNTY OF SANTA CLARA:

TAKE NOTE that on December 17th, 1978, defendant Robert James Contie will move under Penal Code § 1538.5 for an order suppressing the contents of his 1976 Toyota Station Wagon, specifically the car keys and the Database tape[s] found in that car.

 

Defendant also moves to suppress the contents of his clothing containing specifically the office key to the Silicon System International front door. 

 

Defendant also moves to suppress the contents of the search of the Silicon System International.

 

The motion is made on the grounds that the car and defendant's person were searched without a warrant and without probable cause, and without defendant's consent.

 

The motion is made on the basis of this notice, the attached memorandum of points and authorities and declaration of Robert James Contie, any evidence introduced at the hearing on this motion, and the entire records and proceedings on file in this action.

 

Dated: xxxx/xx/xx            Attorney for Defendant: xxxxxxxxxxxxxxxx

 

 

MEMORANDUM OF POINTS AND AUTHORITIES

The police officers in this action told defendant that, if he did not open his car door for them, they would arrest and prosecute him and take the tape[s] to the police station where they could be reviewed.  Any alleged consent he gave to opening the car door was involuntary, and its contents must be suppressed.  Because the search of the car was unlawful, so was defendant's resulting detainment, and any contraband found on his person in the incidental search(s) must also be suppressed.

 

STATEMENT OF FACTS

On September 27, 1978, Santa Clara police officers were executing an authorized search of Silicon System International facilities and were unable to enter because of not having a key for access to the facilities.  As the defendant pulled into the parking lot, defendant parked across the parking lot in front of another company.  Officer McKinner walked 147 feet to the defendant's car and ordered the defendant to get out of the car.

 

When asked by the defendant if Officer McKinner had a warrant, Officer McKinner reached into his pocket, pulled out the warrant issued to search the Silicon System International facilities and tapped it on the top of the defendant's car. 

 

Acting as a back up to Officer McKinner, Officer Geoffrey looked in the back seat and noticed a database tape[s] on the floor of the rear driver's side.  Without asking, Officer Geoffrey opened the driver's side rear door, reached in and took possession of that database tape[s].

 

Officer McKinner then demanded that the defendant open up his car door and get out which he did.  Officer McKinner then reached in to the car and removed the car keys from the ignition.

 

Both Officers then walked back to the Silicon System International facilities and attempted to open the front door with the car keys.  When this failed, Officer McKinner asked for the door key.  When defendant declined to answer, Officer McKinner conducted a body search of the defendant and reached into his right pants pocket and removed a key.  This key was then used to open the front door of the Silicon System International facility.

 

ARGUMENT

On motion, the court shall suppress evidence obtained by the People as a result of a search or seizure on the grounds that the search or seizure without a warrant was unreasonable.  Penal Code § 1538.5(a)(1)(A).  The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures.  People v.  Williams (1977) 20 Cal.4th 119, 125.  A warrantless search is presumptively unreasonable, so that the prosecution has the burden of proving some justification for a warrantless search or seizure.  Id.  At 127.  The defendant has the burden on a § 1538.5 motion to show that the search was without a warrant and that it was unreasonable under the circumstances.  Id.  At 129.  The defendant nonetheless meets the initial burden of production by showing that the police conducted a warrantless search.  Id.  At 130.

 

Because the search of the car was done without a warrant, the People have the burden of establishing justification under a recognized exception to the warrant requirement.  People v. James (1977) 19 Cal.3d 99, 106.  The defendant's consent constitutes such an exception.  Ibid.  The prosecution has the additional burden of proving that Defendant's manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority.  Ibid.  Consent is not voluntary if it merely reacts to coercion or duress.

 

Here, defendant opened the car door only because the police threatened to arrest him and to take the database[s] and car to the police station if he did not open it.  Because the police obtained his consent by threatening to arrest him without cause, they obtained his consent by the wrongful assertion of their authority.  See People v.  Shelton (1964) 60 Cal.2d 740, 746.  That consent was not voluntary, and the evidence found must be suppressed.  Ibid.

 

Because the search of the car was unlawful, all evidence obtained from exploiting it must also be suppressed.  Wong Sun v.  United States (1963) 371 U.S.  471, 487.  Thus, because defendant's consent to search his clothes for an additional key came while he was unlawfully detained following the illegal search, that second search is also involuntary.  People v. Valenzuela (1974) 28 Cal.App.4th 817, 833.  This court should suppress all evidence found as a result of the original unlawful search.

 

Because the search his clothes was unlawful, all evidence obtained from exploiting it must also be suppressed.  Wong Sun v. United States (1963) 371 U.S.  471, 487.  Thus, because defendant's consent to search his clothes for an additional key came while he was unlawfully detained following the illegal search, that third search of the Silicon System International facility is also involuntary.  People v. Valenzuela (1974) 28 Cal.App.4th 817, 833.  This court should suppress all evidence found as a result of the original unlawful search.

 

Because the search of the car was unlawful, all contraband obtained from exploiting it must also be suppressed.  Wong Sun v.  United States (1963) 371 U.S.  471, 487.  Officer Geoffrey carried that seized database tape[s] in to the Silicon System International facility to be later found and seized by the following search team.

 

CONCLUSION

Defendant consented to a search of the car only because the police told him that they would, without probable cause, take both him and car to the police station.  After seizing alleged contraband and his car keys, they detained him, at which point he was then searched again for more contraband on his person.  Then using the facility key found during the contraband search on person used it to open the Silicon System International front door.  Because all of the contraband or objects were found as a result of the original wrongful assertion of authority, this court should suppress all of it.

 

Dated: Attorney for Defendant

 

My real complaint was that it was an illegal search of my car that resulted in Officer Geoffrey ceasing and inadvertently placing the two 12 inch magnetic database tapes in the SSI facility.  Those tapes were then found and used by the ADA as grounds for my indictment. 

Eleven months later it was found that the data on the tapes contained the Maruman 2147E database design and the Maruman 2114E [SSI version] database design.  They had nothing to do with the Intel, Ziblog or NSC. 

Nevertheless, the damage was done.  I was indicted, I was arrested, and then to compound this travesty, these two tapes were then given to all the "expert" companies for review to see if it was their's.  Within 3 months, every company that received the tapes implemented the "sense amp shielding" in their new memory designs.  This was a clear-cut violation of Maruman Trade Secret rights but no one cared because "It was authorized by the police."

 

**

 

Now, I have to say the 4,200 items might seems like a lot, but after reviewing them, there were only about 20 items that Gopal really had to worry about.  The rest was nothing but theater or "over-zellis Experts".

However, for me it became that "unknown tape with NSC 8080a data on it".  The reason it was unknown was - no one had seen it!  No one could find it!  And remember, it was never made.  It was just a threat made to NSC.

Now... Judge Stone was taking his time in making his decisions.  What really impressed me about him was the fact he was doing his own verification of the expert's facts, positions and testimony. 

In one of the rare moments that I was allowed to open my mouth in court was when all the attorneys were starting to question the accuracy and integrity of the "experts," D'Alquist turned to me and asked who I would choose if I was the ADA.

"For me" I said "if I was tired of being BS by the current experts, I would talk to Dennis Beard, President of Transmask.  He has worked his way up from the ground floor, has all the equipment needed available and is the only business entity in this case that isn't pushing their own marketing needs or political agenda.  He is also DOD certified and therefore there will be no leaks of the resulting information".

At this time, I also was allowed to review Judge Stone's work product as well.  Now I have to be honest here, I tried to find something to bitch about or tare him apart on.  However, for someone not trained in the field, he learned quickly and was as accurate as I would have been if I had been asked to do it myself.  This was a man that would not let a lie get by.  And I mean nobody's lie!

So with the hearing over, and all sides putting their best arguments forward, the question became, would Judge Stone throw out the SSI Facility Search or 99% of the evidence in the case? 

It was show time, and frankly, the attorneys did a good job of stopping the ADA's use of the evidence. 

Nevertheless, in helping to doing it, I went against everyone's advice to stay low and out of the lime light.  Instead, I had stepped out there on the preverbal limb with a chain saw and a bullhorn to help Gopal.  And remember the preverbal proverb "No good deed goes unpunished".

Judge Stone read his decision using words that were extremely confusing to me on how he got to his decision.  Not being trained in the law, I would need to read it later to understand, but in short "We won".

Now, there are many turning points in life that hinge on a moment in time, this was one of them.  The courtroom was occupied with many observers when Judge Stone read his decision, some cheered, and others made some type of other noise.  But right in the middle of all this noise, Gopal new attorney stood up.

"Your honor, I request all charges against Gopal be dropped.  Any remaining items are only Contie's responsibility".

It was one of those comments that brought the people in the courtroom to dead silence.  For D'Alquist, his response was just a whisper under his breath "Shit, he just saved you ass" when the silence took place and therefore his words were heard by most in the court.

Now, the best way I can explain how irritated the "Legal Pros" were to this maneuver can best be described by the following:

Bademeister stood up and said "Your honor…"

D'Alquist stood up and said "Concur…"

And Judge Stone said "Granted!"

This quick barrage of four words was my attorney asking to sever my case away from Gopal's.  The ADA's office was in agreement.  And Judge Stone granted it.  Paper work and motions could follow at a later date. 

It seemed Gopal's attorney just pissed off everyone in the Court.  I had stuck my neck out for Gopal, made myself a target for the Police, Press, the Court and Gods knows who else.  And now Gopal tried to dump everything on me. 

Bademeister walked with me out into the hallway and said "I can't believe he attempted to screw you over like that.  Listen, I would recommend that you now just move on and get your life started over.  We will call you if and when we need you".

As a response to this major loss, on January 7, 1979, the ADA filed an appeal to the Court of Appeals of California, First Appellate District, Division One to overturn Judge Stone's decision.

 

**

 

It wasn't until April of 1979 that the Court of Appeals of California would reverse Judge Stone's decision.  People v. Superior Court (Moore), supra, 104 Cal.  App.  3d 1001 [163 Cal.  Rptr.  906] and put all the evidence back in.

 

 

***

 

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