Monday, October 5, 2015

Kelly Soo Park Fraud Case, Pretrial 2, (Uwaydah et. all & Arnold et. all) Tony Folgar Bail Hearing

LA County Sheriffs Inmate Locator Page for Tony Folgar.

 UPDATE 10/6: edited for spelling, clarity
The previous post on this case can be found HERE.

October 5, 2015
I get up on the 9th floor of the downtown Criminal Justice Center around 8:15 am. There are very few people here and I don’t recognize anyone. The courtroom opens around 8:32 am. Defense Attorney Mark Werksman comes down the hallway and goes inside Dept. 109. I don’t think he recognized me at first. A short time later, DDA’s Catherine Chon and Dayan Mathai come down the hallway. When they reach the courtroom, I decide to head inside with them. DDA Mathai held the door for me.

Inside Dept. 109
DDA’s Chon and Mathai are at the prosecution table.  I don’t see Mr. Werksman. There is another defense attorney here in the well. I miss hearing his name. [I later learn this is Ariel Neuman, who along with Benjamin Gluck is representing Paul Turley.]

Counsel in the well are having a pleasant conversation about case discovery. Mark Werksman comes out from the custody area and shakes the hand of  the other defense counsel and introduces himself to Catherine Chon. Werksman and Chon exchange phone numbers.

Werksman and the people have an off the record conversation about Werksman's rebuttal motion to continue to represent his client, Folgar. As he addresses Mr. Mathai, I try to hear how Mathai’s first name is pronounced, but I don’t get it. It could be pronounced "Dan." Over at the clerk’s desk, it is the same male clerk who was handling things at the last hearing on September 25. The clerk informs Mr. Werksman that the judge is reading his motion now.

A nicely dressed young woman enters the courtroom and sits in the well near the prosecution team. She is either an intern or a clerk. The court clerk asks if the parties are ready.  I believe DDA Mathai states he’s not ready. He appears to be reading a document.

9:03 AM
Werksman, Mathai and Chon have an off the record conversation about Werksman’s representation of Folgar, and how long he’s been representing him. The DA’s assistant leaves the room.

9:11 AM
The courtroom is very quiet. We wait for counsel to be ready and for the judge.  Werksman and DDA Mathai continue to talk about Werksman’ representation of Folgar for a bit longer. I cannot tell who might be lead on this huge case, DDA Mathai or DDA Chon or if they are equally co-counsel.

Counsel are still waiting on the court. I believe the clerk states Judge Kennedy is still reading. Werksman asks the clerk if he can take a quick look at Folgar’s court file, while pacing a little bit in the well. The bailiff tells Mr. Werksman something to the effect that wandering around won’t go over too well in this courtroom. Mr. Werksman answers, “Understood.” I’ve always liked Mr. Werksman ever since I met him when he defended James Fayed and I covered that case. Mark was friendly and kind to me then and every time I've seen him since.

 DDA's Mathai and Chon appear to be reading a document. It could be Werksman’s opposition motion. 

9:32 AM
The bailiff or the clerk, I miss noting which, ask Mr. Neuman if he wants to meet in chambers with the judge. Mr. Neuman responds that he would like his matter on the record. The DDA’s clerk comes back with copies a few minutes later.

9:35 AM
Folgar is brought out. He looks like he’s a short stature man, with dark hair that has some gray in it. He’s in a blue jumpsuit.  The court reporter takes her seat and Judge Kennedy takes the bench. The case is called, People v. Folgar. Counsel state their appearances. Mark Werksman for the defense. Dayan Mathai for the people. Catherine Chon.

Judge Kennedy states that on calendar is a motion to disqualify counsel, and there may be something to have to do with 1275 bail review. She tells the parties she’s read the people’s motion and the defense response.

JK: Do you wish to be heard, either side right now?
MW: If the court has specific questions, I’d be happy to address.

Mr. Werksman continues. “My firm has been representing Mr. Folgar since the summer of 2011, when search warrants were first served. ... I have been representing him in Judge Fidler’s court on and off, for the return of property.”

Mr. Werksman mentions something about the DDA at the time, not wanting to, or actually returning his clients passport. “I’ve personally represented him a little over five years. ... [His partner] Alan Jackson, a former high ranking DDA, ... he joined the firm around January 14 of this year.”

“ ... Shortly after Jackson joined the firm, I received on behalf of Mr. Folgar, a target letter from DDA [? McCow?], informing me that Mr. Folgar was a target of an active grand jury [inquiry? investigation?]. ... Then Jackson was contacted by a Wendee Luke, and it became clear, that Mr. Jackson’s emerging involvement on the behalf of Wendee Luke. .... He was told he may have a conflict of interest, because of his involvement five and a half years ago, because of the Park case.”

“... [analysis of health care fraud] ... my firm established an ethical wall that locked Mr. Jackson from Mr. Folgar’s files, electronic [and] physical. ... Mr. Jackson never met or spoke with Mr. Folgar and I never had discussions of any kind, other than to tell him I can’t discuss Folgar and Wendee Luke.”

“... Then he [Jackson] became involved with Terry Luke. ... Because he is ... Mr. Jackson has withdrawn from any representation from [Terry] Luke. ... He will not seek to represent Wendee Luke and not going to represent Terry Luke.”

“ ... Asking this court to find there is no vicarious conflict ... there is no direct conflict ... and my firm should be allowed to represent Tony Folgar.”

The court replies, “Let me ask the prosecutor. ... We had a situation where ... I’ve removed prosecutors from the case I recently did that ... [required?] prosecutors office ... to put a wall between the former prosecutor and the ones now pursuing the action. I didn’t recuse the entire DA’s office. ... Why should this be any different?”

DDA Mathai gives the people’s oral rebuttal argument.

“The people’s position is, it doesn’t need to be any different at the time of the filing of the motion. My knowledge of his position is fresh from this morning. ... It’s not that necessarily his fault. ... What we argued for, what was troubling to us ... the time frames that Mr. Werksman outlined, it was known well in advance. ... There was not only a conflict of interest in the case. ... Mr. Jackson, working for for Werksman’s firm, also had a conflict among [his?] own clients. ... Nothing was done in terms of informing the people of these safeguards and these measures.  ... Reading the case [file?] was one of the paramount concerns that we had.”

“... We thought Mr. Jackson was going to stay on the case with one of the Lukes. ... His law firm ... that he’s a partner, not just an associate ... it is engaged in the defense of another defendant. ... So now that the environment has changed a bit ... not only is Jackson not representing Terry Luke, he made clear through his colleague the other day. ... Clearly Mr. Jackson is not going to represent anyone. ... I guess where we would put argument now, given that, we have concerns with [how?] Alan Jackson’s involvement in the case, the question becomes to us if he is [a] partner in this firm, what confidence [do we] have the work product that he is privy to and the work that he did on this case ... We believe is substantially related as we put out in our moving papers."

“... Some things I read this morning, I’m not sure that is enough to satisfy the court, or that these preventative measures are in place and timely imposed. ... I agree with the court, if the court is satisfied with those things then the court can make that determination. ... Our position is, Mr. Jackson [other than Mr. Folgar and Wendee Luke? ] received target letters. [I] got a call from Mr. Jackson that he was going to represent Wendee Luke. ... A possibility of conflict came [out?] ... we were in the grand jury. ... I told him it would be an issue and we would [appropriately?] address at an appropriate time. ... In January of this year, they knew of two separate defendants being represented by their firm. ... And one was specifically for a former prosecutor who worked on this case. ... I don’t know if that was why he was retained [by these defendants] and the under pinning of this case.”

[My notes are not clear here, where DDA Mathai stops and Judge Kennedy rules. It’s somewhere in this next paragraph.]

Because he had argued in court that there was rampant fraud.  He argued that money from the Dr. Uwaydah was likely paying for the lawyers and paying for Park’s bail. ... These were the issues that were very clear back in January. ... And all we heard from Jackson was, there wasn’t going to be a conflict.

Judge Kennedy continues. “I think it was obvious that he could not stay on representing any defendant in the case. I think it became clear to him and that’s why he indicated that ... [at the bail motion? he was?] out.”

"... Now, I have no reason to disbelieve Mr. Werksman’s representation to me and the steps that were taken in his own office. He has appeared in my court over the years. I have nothing but the highest regard for him and his ethics. ... So when he makes the declaration under penalty of perjury, I accept them, unless there is some reason not to. ... And I do think that [ethical] wall has to be impenetrable, and has to be maintained throughout this representation. And you [Mr. Werksman] stated you were prepared to do that.”

Mr. Werksman answers, “Yes, your honor. ... Mr. Jackson’s focus was on a murder case ... and I think the issue crept up on him. ... He didn’t go into it having an inside track on any of this. ... I’m still on the case and Mr. Folgar wants me to remain on the case. ... I did obtain conflict waivers from all parties when we were going to represent them. ... We tried to do this in the most ethical way possible, and I submit your honor we’ve taken appropriate steps in our office.”

Judge Kennedy rules. “So the motion to disqualify Mr. Werksman is denied but these safeguards are going to be in place. So, is there anything else?”

DDA Mathai responds. “Bail reduction for Mr. Folgar.”

Mr. Werksman argues for his client. He gives a bit of background on how he was informed that his client was going to be arrested.

“He is here because of a phone call late [at?] night from Mr. Mathai, who called me at 10 pm on a Tuesday night. [He told me], your client has been indicted. Please bring him at noon to Dept [100?] and we will surrender him. ... I told him [Folgar?] he needed to get ... I was in federal trial ... [I] had an associate appear at noon ... [Folgar] who self surrendered and has been in custody ever since.”

“... Going back further in the time, when the original search warrants [were served?]. .. [He got?] cash recepits of property received ... [He was?] told he was part of a massive fraud and his passport was also seized. ... He’s a US citizen. ... Has been for over 35 years. ... He has appeared numerous times in Dept. 106 trying to get his property back ... and it was never right.”

 [I guess Werksman is saying Folgar has not been able to get his property back.]

“... But around the middle of 2011, my client wanted to travel with his family. I talked to the DDA, [and] investigators [Mike Holgan? and Tim McCrillis?] about getting his passport back and DDA [Antino Colinio?] did not oppose the return of the passport and Judge Fidler didn’t oppose.”

I believe Judge Kennedy interjects that at that time there was no case filed.

Mr. Werksman continues to plead for reduced bail for his client. “My client’s passport was returned to him and he has had it since 2011. Hasn’t used it since 2011. ... He traveled back to Guatemala in 2012 for a visit [to family]. ... He was not a flight risk. ... They gave the passport back voluntarily. ... He came back knowing he might be indicted.”

Mr. Werksman argues that his client can’t afford the 1 million bond. The court asks for the exact figure. It is 1,020,000.

“He can’t afford it. ... He’s been married for 36 years. He has four children and a four year old. He’s lived in this community for 25 years. ... A US citizen for 32 years and has had the same counsel for five years. ... This is a man who can be trusted to obey the law and make his appearances.”

Mr. Werksman then gives his interpretation of the bail schedule for the charges against his client. Werksman calculates, the highest amount the bail should go, “is $325,000. ... Everyone else has managed to bail out but he can’t. ... He volunteered to give back his passport. ... Ask to reduce his bail to $100,000. ... [will indicate?] ... the people’s interest to secure his appearance. ... So would ask ... to not allow them the bond that they want but to tailor the bond ... [specifically?] calculation whether he’s a flight risk to [the community?] ... he’s neither.”

DDA Mathai responds. “The problem with [what I hear Mr. Werksman?] arguing, its not a question of what the people want the bail to be, and somehow, we created this. The bail is set for the charges for what he is charged with and the court must accept is true for the purposes of bail.”

“ ... Arguing that he was retained five years ago, what’s troubling is he retained a lawyer, he knew he was the subject of a large investigation. ... [At] 20 locations, search warrants were executed. He knew his home was a subject of a search. He knew he had been interviewed about his conduct through Frontline and Dr. Uwaydah. ... He knew that over [$220,000?] in cash was taken from his house in various denominations, hidden in parts of his house ... and recovered by law enforcement. He knew it all.”

Judge Kennedy asks, “Has it been forfeitured?” DDA Mathai replies, “It’s in the forfeiture proceedings ... in the US Attorney’s office. ... At the time of the search warrant, he was employed as a paralegal at a law office. ... He said he was employed. ... And we have his tax returns. All that was in 2011. ... He continued in the criminal behavior. ... All this from 2011 to 2015, ... [he] continued his relationship with Frontline. ... He got illegal payments for referral of patients. Patients ... he knew better ... knew it was against the law.”

“[Mr. Werksman] talks about the phone call. That’s all true. ... Contents of the phone call.  ... Law enforcement was sitting on Folgar’s house and he made that phone call. ... It was known because there was contact between law enforcement and members of his house. ... His lawyers contacted the DA’s office and asked why and they were told. He did surrender, and as a result, is present in court. ... He was going to be arrested.”

“With regard to the passport. ... It may be in 2011, there was a huge investigation going on, the DA at the time thought it was okay to give the passport back. ... Our concerns are much greater now. ... We do have concerns about the amount of money and cash reserves that he has and given a chance, given the enormity of the case and the consequences is much greater than it was in 2011 ... a lot has changed. That’s the people’s position. ... The bail is set because of the schedule.”

Mr. Mathai continues but my fingers are starting to wear out. I take a momentary break from typing. 

Mr. Werksman argues again for his client. “We received a target letter, a Johnson letter, ... that a grand jury was going to be convened. So we’ve known for months now.”  Werksman goes over the circumstances of the surrender.

“Mr. Folgar got a call from an investigator, who asked him, ‘Would you meet us at a coffee shop close to your home?’ ... He called me. I called the investigator [and asked him], ‘What’s going on?’ So I called Mr. Mathai. ... I don’t want the court to think that he thought there was a warrant and he was hiding. ... He was invited to an interview and didn’t know where that would lead. ... He didn’t hop in a car and head to the border. ... His entire life savings was seized, so he has no liquid assets. ... He’s proven himself for reduced bond.”

Judge Kennedy rules. “I’m not going to reduce. The bond was set according to the schedule. The thing that bothers me most about [bail], you get a letter, or information that you’re being investigated ... and you said that he was represented [by you?] for years ... yet, the conduct for what he’s being investigated continues for years, and that’s disturbing to me.”

The hearing for Folgar is over and Mr. Ariel Neuman steps up to go on the record for his issue.

Mr. Neuman wanted to get head of the October 15 date. He’s been going back and forth with discovery.  The court signed an order to release the exhibits. Apparently they are still with the people at the DA’s office.

Judge Kennedy asks, “They’re still with the DA’s office? How can that be?”

Mr. Neuman continues. “I tried to get a set up time with the court. Tried to get the people to produce them before this weekend. ... [There are?] problems with fifteen defendants showing up in court and we haven’t even looked at the exhibits.”

The conversation then goes a bit off track to another issue. Apparently, there is a scheduled evacuation drill of the building at 10:30 am on October 15. Judge Kennedy was just assigned as a floor warden, and will be wearing an orange vest, [in honor of of all the defendant’s in orange]. Judge Kennedy knows that they are going to evacuate the building. There is going to be a time where no one is in the building.

She tells counsel, “If you are not done by 10:30 am, you’re going to have to come back after lunch.”

DDA Chon responds. “I followed up with the grand jury adviser. The grand jury has them. ... don’t know if they have them or if the adviser has them. ... What we found out is, we have to do an order to Judge Brandlin who is in charge of the grand jury. He has to sign an order. Everyone from the defense has to pick up their own copy. ... That was Thursday.  ... I have to go in to see if an order was signed and see how long it takes for them to complete the order. I was advised by the grand jury adviser that it’s not practical for the defense attorneys to come down to the exhibit room. ... It’s that, ... can’t bring the copy service in to make the copies so the best thing is the DA to do it.”

DDA Chon states, “I have to wait to see what the procedure is, and go over 80 exhibits, make a copy for ourselves. ... I will try to do that before the next court date. That’s what I can represent. ... I’ve been in court all last week on other maters, in this case. ... I’m trying to work on it. ... Trying to work on grand jury advisor ... [but] she’s in session. ... We’re trying to work on getting copies to the defense. ... Only so many hours in a day and trying to work on it.

As they are discussing releasing the exhibits, I'm wondering if the defense counsel have all received a copy of the grand jury transcripts, and it's just the exhibits they need. The LA Times was able to get a copy of the transcripts.

Judge Kennedy comments. “The court clerk came up to me, ... needed a minute order. My clerk did prepare that on Friday.”

Mr. Neuman says something to the effect that that [issue] is smoothed over. “What we want is the written instructions and exhibits. ... I heard from the exhibit room it wouldn’t be a problem for us to come in and set that up. ... It’s about mixing that in with discovery. ... Not asking for her to expedite discovery.”

Judge Kennedy appears puzzled. “I don’t understand why these exhibits ... I’ve had other cases with [a grand jury] indictment ... and when I hand to handle other 995 motions, for example, the Bell case ... huge exhibits and transcripts and stuff. ... I got them from the clerk, not the grand jury. ... There were six binders full of exhibits. ... In the hundreds [of pages of exhibits]. ... I requested them and they were brought to me. ... Not the DA or the grand jury person.”

I believe Judge Kennedy asks if they were moved into evidence. DDA Chon replies, “They were moved into evidence.”

Judge Kennedy states, “If they were moved into evidence, they should be in the ... [room] for the clerk of the court. ... And it should be ... we’ll give them to the DA to duplicate .... They are not the DA’s exhibits anymore. ... They are part of evidence that have been received.”

DDA Mathai talks about getting them to the grand jury adviser, and if they could have a copy....

Judge Kennedy, still puzzled, “I don’t understand how they are in the exhibit room. Shouldn’t they be with the clerk?”

Mr. Neuman tells the court, “I was down at the basement in in the grand jury [exhibit?] room.”

DDA Mathai states what he was told when he talked to the clerks. 

Judge Kennedy orders the prosecution to “get to the bottom of it.” She then asks, “Do we have another defendant on calendar tomorrow?”

Someone answers, “Yes.” Judge Kennedy replies, “You’ll report to me tomorrow.”

And that’s it for the Folgar motion to dismiss counsel and his bail motion.

Tomorrow is Kelly Soo Park's bail hearing.

The next post on this case can be found HERE.