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STATE BAR OF CALIFORNIA

OFFICE OF CHIEF TRIAL COUNSEL
GEORGE S. CARDONA. No. 135439
DJ
FI LE
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8/15/2023
sme BAR coum
CLERK'S omcg
DUNCAN CARLING, No. 262387
SUPERVISING ATTORNEY
L03 ANGELES
SAMUEL BECKERMAN, No. 311704
TRIAL COUNSEL
CHRISTINA WANG, No. 300286
TRIAL COUNSEL
Christina.Wang@calbar.ca. gov
845 S. Figueroa Street
Los Angeles, California 90017
Telephone: (213) 765-1415
10

11 STATE BAR COURT

12 HEARING DEPARTMENT - LOS ANGELES
13

14 In the Matter of: CASE NO. SBC-23-O-30029

15 JOHN CPLARLES EASTMAN, STATE BAR’S SUPPLEMENT TO
State Bar No. 193726, OPPOSITION TO RESPONDENT’S
16 MOTION FOR ABATEMENT
17 An Attorney of the State Bar

18

19

20
The State Bar hereby provides a supplement to its Opposition to Respondent’s
21
Motion for Abatement which the State Bar filed on August 10, 2023 (“Opposition”).
22
A. Fulton County Has Indicted Respondent on Nine Criminal Charges
23
On August 14, 2023, the Fulton County District Attorney filed a 41-count indictment
24
against Former President Trump, respondent, and 17 other co-defendants which alleges that
25
the defendants orchestrated a “criminal enterprise” to reverse the results of the 2020 election
26
in Georgia. Respondent is charged in nine counts: Count One, Violation of the Georgia
27
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State Bar’s Supplement to Opposition to Respondent’s Motion for Abatement
 1 Racketeer Influenced and Corrupt Organizations Act; Count Two, solicitation of violation of

2 oath by public officer; Count Nine, conspiracy to commit impersonating a public officer;

3 Count 11, conspiracy to commit forgery; Count 13, conspiracy to commit false statements

4 and writings; Count 15, conspiracy to commit filing false documents; Count 17, conspiracy
5 to commit forgery in the first degree; Count 19, conspiracy to commit false statements and

6 writings; and Count 27, filing false documents. 1

7 B. The Keating Factors Still Weigh Against Abatement

8 The State Bar maintains its opposition to abatement of these proceedings, as most of

9 the grounds set forth in the State Bar’s August 10, 2023, Opposition still apply. While it is

10 no longer uncertain whether respondent will be indicted on criminal charges, and many of
11 the allegations in the Futon County indictment are related to the issues in the State Bar case,

12 the prejudice to the State Bar and the public interest in resolving the State Bar case weigh in

13 favor of completing the trial.

14 The Fulton County criminal case against respondent could take years to resolve,

15 particularly given the number of co-defendants. As the State Bar noted in the Opposition,

16 respondent knew that he faced possible criminal charges related to the conduct alleged in the

17 NDC, including in Fulton County, but he chose to proceed with his State Bar trial without

18 moving for abatement. Now, halfway through the trial, the State Bar would be highly

19 prejudiced by delaying the completion of trial and a decision in this case for what could be

20 several years. Delaying the further presentation of evidence also risks loss of evidence. 2 (See

21

22 1
Respondent’s counsel informed the State Bar on August 15, 2023 that respondent is filing a
23 supplemental brief on the Fulton County indictment, and that he plans to attach the indictment to
that filing. The State Bar does not object to the court taking judicial notice of the August 14,
24 2023 Fulton County indictment.
2
If the court is inclined to grant respondent’s motion for abatement, the State Bar should be
25 allowed to present the rest of its evidence (with the exception of completing its questioning of
respondent) before the abatement of respondent’s evidence and remainder of his testimony. The
26 State Bar should present the testimony of Matthew Seligman, Bo Dul, and Jake Rollow, but
would not rest its case until completing respondent’s testimony following the end of the
27 abatement.
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State Bar’s Supplement to Opposition to Respondent’s Motion for Abatement
 1 rule 5.50(B)(5) [court may consider as relevant factor extent to which “evidence may

2 become unavailable because of any delay”].)

3 Furthermore, public protection strongly favors timely completion of the trial. The

4 State Bar has presented extensive evidence to support the NDC’s charges that respondent
5 engaged in acts of dishonesty and moral turpitude in matters concerning the peaceful

6 transition of power in 2020. As set forth in the Opposition, respondent disputes these

7 charges and continues to claim, both in court and in public statements, that the 2020 election

8 was stolen through fraud and that his actions to support efforts to reject the 2020 election

9 results were justified and valid. The public interest weighs strongly in interest of resolving

10 these competing positions as quickly as possible.

11 C. Respondent Has Waived his Fifth Amendment Rights on Many Topics
and Therefore the Burden on Respondent in Completing Trial Is Reduced
12
Respondent has already testified regarding many of the issues in this case without
13
asserting the Fifth Amendment. Because he elected to waive that right by answering
14
questions, he has waived his Fifth Amendment rights regarding those topics and any
15
testimony that might impeach the testimony he previously offered.
16
It is a “well settled rule that a defendant who takes the stand and testifies in his
17
behalf waives his Fifth Amendment privilege and his state constitutional privilege to the
18
extent of the scope of relevant cross-examination.” (People v. Saddler (1979) 24 Cal. 3d
19
671, 679 (en banc, citations omitted).) This rule applies not only to persons testifying in
20
civil and criminal suits, but also to respondents in State Bar disciplinary
21
proceedings. (See In re Utz (1989) 48 Cal. 3d 468, 479, 769 P.2d 417, 422 [“If the attorney
22
testifies without objection at a State Bar proceeding he has waived the privilege”].)
23
Once the privilege is waived, that waiver cannot be revoked. For example, the
24
waiver cannot be rescinded simply because a prosecutor subsequently begins an
25
investigation, so long as the potentially incriminating nature of testimony was known at the
26
time it was given. (See Banco Intercontinental, S.A. v. Alvarez Renta, 2007 WL 9761293, at
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State Bar’s Supplement to Opposition to Respondent’s Motion for Abatement
 1 *3 (S.D. Fla. Dec. 10, 2007), aff'd, 2008 WL 11502470 (S.D. Fla. Feb. 25, 2008) [“The

2 record reflects that Renta was acutely aware prior to trial, during trial and post trial that

3 his testimony would be potentially incriminating yet he chose to waive his Fifth

4 Amendment rights. Whether a prosecutor is contemplating a prosecution is immaterial to the

5 determination by a person if a response is incriminating.. . . Renta has waived his Fifth

6 Amendment privilege and there is no authority to suggest that his privilege is somehow

7 rehabilitated as a ‘target’ of a criminal investigation.“]; Core-Mark Int'l, Inc. v. Sparacio,

8 1994 WL 53763, at *7, n.4 (N.D. Ill. Feb. 18, 1994) [“The fact that between December 29,

9 1992, and January 19, 1993, Sparacio's counsel learned that his client was the subject of a

10 grand jury investigation did not alter the scope of his client's privilege. Either a response is

11 potentially incriminating or it is not. It is assumed that criminal laws will be enforced, and a

12 person will not be compelled to testify if his testimony would link him to a crime.”]; Acock,

13 Schlegel Architects, Inc. v. C. I. R., 97 T.C. 352, 360–61 (U.S. Tax Ct. 1991) [“Mr. Thomas

14 argues that because he had not yet been named as a target of the CID's investigation when

15 he executed the affidavit, he did not appreciate the risk of his criminal prosecution and

16 therefore did not voluntarily waive his Fifth Amendment privilege in giving the affidavit.

17 We do not agree. From the record before us, we find that Mr. Thomas was well aware that

18 he was a potential target of the CID investigation when he gave the special agent the

19 affidavit”].)

20 The scope of the waiver depends on the scope of the prior testimony, and

21 encompasses all matters within the scope of proper cross-examination. The latter includes

22 not only questioning about the details of matters previously testified to (see People v.

23 Williams (2008) 43 Cal.4th 584, 615), but more broadly consists of “any matter (1) to which

24 he has testified expressly on direct examination, (2) to which he has testified impliedly on

25 direct examination, and (3) that is relevant to impeach the defendant's credibility as a

26 witness.” (People v. James (1976) 56 Cal. App. 3d 876, 888 (citing People v. Thornton, 11

27 Cal.3d 738 (1974); People v. Ing, 65 Cal.2d 603 (1967), and People v. Wilson (1967)
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State Bar’s Supplement to Opposition to Respondent’s Motion for Abatement
 1 254 Cal.App.2d 489 (emphasis in original). See also People v. Barnum (2003) 29 Cal. 4th

2 1210, 1227 n. 3 [“Clearly, by testifying in his own defense, defendant relinquished his

3 privilege against compelled self-incrimination with respect to cross-examination on matters

4 within the scope of the narrative testimony he provided on direct examination, as well as on
5 matters that impeached his credibility as a witness.”].)

6 In determining what falls within the scope of implied testimony “the guiding

7 principle that is derived from the decisional law is to the effect, that, if the facts testified to

8 by a defendant on direct examination amount, by inference, to a denial of the charge, he

9 may then be cross-examined with respect to any matter tending to prove his guilt.” (People

10 v. James, supra, 56 Cal. App. 3d at 888 (emphasis in original).) “An implied denial of guilt
11 is considered as testimony denying the existence of any evidence relevant on the issue of

12 guilt, which makes cross-examination about the subject of any such evidence properly

13 within the scope of the direct examination.” (Id.)

14 In particular, an express or implied general denial of guilt may operate to permit

15 “cross-examination about facts indicating guilt even though evidence of such facts have not

16 first been introduced by the prosecution in its case in chief.” (Id.) Such facts may include

17 evidence relating to uncharged conduct not previously testified to, so long as that evidence

18 rebuts testimony previously given. (See id. (citing cases); see also People v. Coffman &

19 Marlow, 34 Cal. 4th 1, 72 (2004), as modified (Oct. 27, 2004) [“We conclude that Marlow's

20 direct examination response denying he ever wanted to kill Novis ‘or anybody else’ did

21 ‘open the door’ to questioning regarding the [uncharged] Orange County murder, and the

22 trial court abused its discretion in implicitly ruling to the contrary. A defendant who takes

23 the stand to testify in his own behalf waives the privilege against self-incrimination to the

24 extent of the scope of relevant cross-examination. It matters not that the defendant's answer

25 on cross-examination might tend to establish his guilt of a collateral offense for which he

26 could still be prosecuted.”] (Citation and quotations omitted); People v. Ing, 65 Cal. 2d 603,

27 610 (1967) [“[O]n direct examination defendant made a general denial of the rapes charged
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State Bar’s Supplement to Opposition to Respondent’s Motion for Abatement
 1 but did not refer to the other offenses. As we shall see, the other offenses were relevant to

2 show a common scheme or plan and thus would tend to rebut defendant's testimony on

3 direct examination. Cross-examination as to the other offenses would have been proper.”].)

4 Because respondent has already testified on many of the issues in this case, and
5 waived the Fifth Amendment regarding those topics and any testimony that might impeach

6 the testimony he previously offered, the burden on respondent in completing the trial is

7 reduced and weighs against abatement. Courts have denied stays of civil proceedings related

8 to criminal cases based on a finding that the burden on the defendant’s Fifth Amendment

9 privilege was minimal because the defendant had already testified in the civil matter. For

10 example, in Multiven, Inc. v. Cisco Sys., Inc. (N.D. Cal. 2010) 725 F. Supp. 2d 887, plaintiff
11 filed a motion to stay counterclaims on the grounds that the claims would jeopardize a

12 party’s Fifth Amendment privileges in parallel criminal proceedings arising out of the same

13 factual circumstances. The court denied the motion because the party had “already

14 voluntarily submitted declarations in support of Multiven's briefs regarding the parties'

15 cross-motions for summary judgment and has been deposed extensively, including fourteen

16 hours of deposition testimony. . .” (Id. at 897.) The court found that “continuing the

17 litigation will only minimally implicate [the party’s] Fifth Amendment rights, given the

18 extensive testimony he has already provided in this case.” (Id. citing F.T.C. v. J.K. Publ'ns,

19 Inc., 99 F.Supp.2d 1176, 1199 (C.D.Cal.2000) [“Where a defendant already has provided

20 deposition testimony on substantive issues of the civil case, any burden on that defendant's

21 Fifth Amendment privilege is ‘negligible.’”].) The court further found that the Keating

22 balancing test factors weighed against a stay, noting that the burden on the party of

23 proceeding with the counterclaims did not outweigh the burden on the other party of staying

24 the claims, and “neither the convenience of the Court nor the interests of the public will be

25 served by a stay.” (Id. at 898.)

26 In ESG Cap. Partners LP v. Stratos (C.D. Cal. 2014) 22 F. Supp. 3d 1042, defendant

27 Stratos was criminal charged with scheming to defraud investors interested in purchasing
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State Bar’s Supplement to Opposition to Respondent’s Motion for Abatement
 1 pre-IPO Facebook shares. In March 2013, an investor filed a civil complaint against

2 Stratos, and in May 2013, the Government filed a superseding indictment against Stratos,

3 adding various fraud counts based on the same scheme. After answering the complaint in

4 August 2013, Stratos filed a motion to stay the proceedings pending resolution of the
5 criminal case. Stratos argued that a stay was warranted because forcing him to engage in

6 discovery in the civil case would jeopardize his Fifth Amendment privilege against self-

7 incrimination. However, the court denied the motion for a stay, on the grounds that Stratos

8 had already participated in the litigation for over eight months, and the stay would severely

9 prejudice the plaintiff. (Id. at 1043–44 , 1046.)

10 Here, the burden on respondent in completing the trial is reduced because he has
11 already testified on many of the issues in this case, and waived the Fifth Amendment

12 regarding those topics. The burden on the State Bar of postponing the remainder of the trial

13 for an indefinite period of time, possibly several years, outweighs the burden on respondent

14 in completing the trial.

15 CONCLUSION

16 Balancing of all the relevant factors, abatement is not warranted in light of the

17 substantial prejudice to the State Bar and the minimal burden on respondent in completing
18
the trial. For these reasons, and the reasons set forth in the State Bar’s Opposition, the court
19
should deny the Motion.
20

21

22 Respectfully submitted,
23 THE STATE BAR OF CALIFORNIA
OFFICE OF CHIEF TRIAL COUNSEL
24

25

26 DATED: August 15, 2023 By:

Duncan Carling
27 Supervising Attorney
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State Bar’s Supplement to Opposition to Respondent’s Motion for Abatement
 DECLARATION OF SERVICE

CASE NUMBER(s): EASTMAN (SBC-23-O-30029)

I, the undersigned, am over the age of eighteen (18) years and not a party to the within action, whose business address and place of employment is the State Bar of
California, 180 Howard Street, San Francisco, California 94105, dawn.williams@calbar.ca.gov, declare that:
- on the date shown below, I caused to be served a true copy of the within document described as follows:

STATE BAR’S SUPPLEMENT TO OPPOSITION TO RESPONDENT’S MOTION FOR

ABATEMENT
By U.S. First-Class Mail: (CCP §§ 1013 and 1013(a)) By U.S. Certified Mail: (CCP §§ 1013 and 1013(a))
- in accordance with the practice of the State Bar of California for collection and processing of mail, I deposited or placed for collection and mailing in the City and County
- of San Francisco.

By Overnight Delivery: (CCP §§ 1013(c) and 1013(d))

- I am readily familiar with the State Bar of California’s practice for collection and processing of correspondence for overnight delivery by the United Parcel Service ('UPS').

By Fax Transmission: (CCP §§ 1013(e) and 1013(f))

Based on agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed herein below. No error was
reported by the fax machine that I used. The original record of the fax transmission is retained on file and available upon request.

By Electronic Service: (CCP § 1010.6)

Based on a court order or an agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the person(s) at the electronic
addresses listed herein below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was
unsuccessful.

(for U.S. First-Class Mail) in a sealed envelope placed for collection and mailing at San Francisco, addressed to: (see below)

(for Certified Mail) in a sealed envelope placed for collection and mailing as certified mail, return receipt requested,
Article No.: at San Francisco, addressed to: (see below)

(for Overnight Delivery) together with a copy of this declaration, in an envelope, or package designated by UPS,
Tracking No.: addressed to: (see below)

Person Served Business Address Fax Number Courtesy Copy via Email to:

Electronic Address Olga Gorbunkova

Randall Allen Miller olga@millerlawapc.com
rmiller@millerlawapc.com
Zachary Mayer Yvette Blandon
zachary@millerlawapc.com
yvette@millerlawapc.com
Jeanette Chu jeanette@millerlawapc.com

via inter-office mail regularly processed and maintained by the State Bar of California addressed to:
N/A
I am readily familiar with the State Bar of California's practice for collection and processing of correspondence for mailing with the United States Postal Service, and
overnight delivery by the United Parcel Service ('UPS'). In the ordinary course of the State Bar of California's practice, correspondence collected and processed by the State Bar of
California would be deposited with the United States Postal Service that same day, and for overnight delivery, deposited with delivery fees paid or provided for, with UPS that same
day.

I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date on the envelope or package is more than one day
after date of deposit for mailing contained in the affidavit.

I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct.

DATED: August 15, 2023 SIGNED:

Dawn Williams
Declarant

State Bar of California

DECLARATION OF SERVICE