CHICAGO – Filipino-American Cook County Judge Jessica Arong O’Brien, who was indicted on two counts of loan mortgage and mail frauds involving $1.4 million, has asked the United States Northern District Court of Illinois in Chicago to dismiss the indictment against her if government prosecutors could not provide her the “grand jury material, the (Federal Bureau of Investigation) agent’s rough notes and any evidence not previously produced as well as mortgage or loan documents and financial statements of government witnesses, including any federal agents.”
Invoking the Brady V. Maryland (373 U.S. 83 (1963) ruling, O’Brien is seeking production of two documents – the March 21, 2017 transcript of Maria Bartko and the April 11, 2017 transcript of Special Agent Robert Batz.
She made these pre-trial requests in order to determine whether a basis exists that may support the filing of a motion to dismiss. In addition, O’Brien seeks copies of the grand jury subpoenas issued in the case in order to determine whether proper procedures were followed.
Judge Thomas M. Durkin was expected to rule soon on the motion during oral arguments on whether to grant or deny her requests ahead of her Aug. 7, 2017 trial.
If the court denies production of Batz’s grand jury testimony, O’Brien wants the court to review testimony in camera (in private) in order to determine whether during Agent Batz’s grand-jury appearance, he:
- described the alleged scheme as one involving Ms. O’Brien and Bartko being at its center as opposed to how the scheme is described in the government’s response to Ms. O’Brien’s motion to dismiss on duplicity grounds, wherein Ms. O’Brien and her properties are at its center (as opposed to Ms. O’Brien and Bartko, (or in some other manner);
- made reference to any “concealment activity” relating to the funds Ms. O’Brien provided to Bartko, and if so, how he characterized the funds
or alleged concealment activity (e.g., as a kick back payment);
- made any reference to the condition of the properties Ms. O’Brien sold and in particular whether he testified that the funds Bartko received from Ms. O’Brien were not related to the condition of either of the two properties Ms. O’Brien sold;
- corrected any testimony Bartko provided to the grand jury, which he knew or should have known was false based upon the government’s March 28, 2017 receipt of the Acknowledgement, and if so, how Special Agent Batz corrected any testimony;
- was asked any question by the grand jury regarding the indictment scheme, what it meant, why it was alleged to have started in 2004 and, what, if anything, Special Agent Batz stated in response to the questions, which would reveal grand jury confusion; and
- whether Special Agent Batz testified on anything, which was false, incorrect or inconsistent with allegations set forth in the indictment presented to the grand jury, or including but not limited to Citibank, N.A.’s funding or non-funding of the $73,000 mortgage loan and with regard to the 2007 sale of 625 West 46th St. property.
Ms. O’Brien said if the transcript testimony reveal that Special Agent Batz intentionally or unintentionally misled the grand jury and further reveal whether or not he corrected Bartko’s earlier and likely false testimony, she would move for the dismissal of the case. The questioned testimony prompted Circuit Court Cook County Executive Committee headed by Chief Judge Timothy Evans to remove Judge O’Brien from duties as judge pending resolution of her case.
O’brien, a Cebu (Philippines) native, said that based on the government information provided to her, Bartko’s grand jury testimony reveals that Bartko informed the government (before testifying before the grand jury) that payments she received from O’Brien were “not related” to condition of the property the latter had sold.
This very specific information was subsequently incorporated into a written statement the government prepared for Bartko which she then initialed and read to the federal grand jury.The money Bartko received from Ms. O’Brien, as well as its basis or purpose is a critical fact to the alleged concealment and the government knows it, she said. That is why the government asked Bartko about this information multiple times and why the government included reference to it in her prepared statement.
The money Bartko received from Ms. O’Brien, as well as its basis or purpose is a critical fact to the alleged concealment and the government knows it, she said. That is why the government asked Bartko about this information multiple times and why the government included reference to it in her prepared statement.
Because Bartko is the government’s key witness against O’Brien, everything she told the grand jury and, in particular, what she said about the funds she received and the purpose or reason she was given or received those funds was critical to the grand jury’s decision to indict or not indict O’Brien.
The production of Bartko’s testimony is not only potentially exculpatory because it would reveal no concealment was made of Bartko as a buyer, this would allow O’Brien to demonstrate prejudice she is required to establish prior to filing any motion or claim that the grand jury’s decision to indict was substantially influenced or that there is “grave doubt” that the decision to indict was substantially influenced by false testimony.
While the government told the court that it has taken and will “continue to take a liberal approach to discovery,” it continues to oppose her requests and to keep information a secret, O’Brien argues.
O’Brien said, “When a person’s liberty is at stake, the government should (not) be permitted to engage in this (secretive) conduct.”