Page 1 DEFENDANT’S MOTION TO DISMISS WITH PREJUDICE

Mark Ahlemeyer, OSB No. 095997

Assistant Federal Public Defender

Email: mark_ahlemeyer@fd.org

101 SW Main Street, Suite 1700

Portland, OR 97204

Tel: (503) 326-2123

Fax: (503) 326-5524

Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

JAMIE FAYE COBAT,

Defendant.

Case No. 3:16-cr-00187-MO-1

DEFENDANT’S MOTION TO 

DISMISS WITH PREJUDICE

The defendant, Jamie Faye Cobat, through counsel, respectfully requests that this Court 

vacate her convictions and dismiss the indictment with prejudice based on the government’s 

violation of its constitutional obligation to produce exculpatory evidence pursuant to Brady v. 

Maryland, 373 U.S. 83 (1963).

BACKGROUND

On April 26, 2016, Ms. Cobat was indicted on three counts of Theft of Government Funds 

in violation of 18 U.S.C. § 641. CR 1. The counts alleged that Ms. Cobat had stolen or converted 

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United States-funded benefits in the following amounts: $18,197 from Supplemental Security 

Income (SSI), $2,845 from the Temporary Assistance to Needy Families program (TANF), and 

$5,825 from the Supplemental Nutrition Assistance Program (SNAP). Id.

On October 5, 2016, the government filed a superseding indictment charging Ms. Cobat 

with engaging in an overall scheme to defraud the government in violation of 18 U.S.C. § 1343 

(Count 1). CR 16. The three substantive counts of theft were also charged in the new indictment 

(Count 2 – SSI; Count 3 – TANF; Count 4 – SNAP). Id.

The case proceeded to a jury trial and, on April 6, 2017, Ms. Cobat was convicted of all 

charges. Sentencing was ultimately set for January 5, 2018. CR 121.

On December 28, 2017, defendant filed a motion for a new trial based, in part, on an 

allegation that the government violated its constitutional duty under Brady v. Maryland to produce 

exculpatory evidence showing that Ms. Cobat did not receive the TANF funds she was convicted 

of having converted. CR 125. Defendant also filed a motion to strike sentencing, arguing that the 

new trial motion should be decided before proceeding with sentencing. CR 123.

The government responded by denying that a Brady violation occurred and it encouraged 

the Court to proceed with sentencing as scheduled. CR 130. At the hearing on the date set for 

sentencing, the Court granted the defense motion to strike the sentencing and permitted additional 

discovery in the case relevant to the Brady claim.

On February 20, 2018, the government reversed its position and moved to vacate the 

conviction on Count 3. CR 137. The defense understands that motion to be a concession that a 

Brady violation did occur in this case. The Court granted that motion on February 26, 2018. CR 

139. Further arguments on defendant’s Motion For A New Trial are scheduled for March 22, 

2018. CR 136.

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ARGUMENT

I. The Government’s Brady Obligation Is Fundamental To The Fair Administration Of 

Justice And Failures To Fulfill That Duty Should Be Strictly Enforced.

It has long been understood that there is a “special role played by the American prosecutor 

in the search for truth in criminal trials.” Strickler v. Greene, 527 U.S. 263, 281 (1999) (citing 

Berger v. United States, 295 U.S. 78, 88 (1935)). In Brady v. Maryland and its progeny, the 

Supreme Court established that a fundamental aspect of this “special role” is the prosecutor’s duty 

to provide a criminal defendant with relevant and helpful evidence. Withholding of such material 

violates the government’s critical responsibility “to provide every criminal defendant with a fair 

and impartial trial.” Phillips v. Ornoski, 673 F.3d 1168, 1188 (9th Cir. 2012). And it is not merely 

a defendant who suffers the consequences when the government falls short of its duties; all of 

society, and our reliance on the fairness of the justice system, suffer the consequences. Indeed, 

“[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system 

of the administration of justice suffers when any accused is treated unfairly.” Brady, 373 U.S. at 

87; see also Ornoski, 673 F.3d at 1181-82 (“These duties provide fundamental protections that are 

vital to the successful operation of an adversarial system of criminal justice; they embody the 

state’s obligation not to obtain the accused’s conviction at all costs, but rather to do justice by 

furthering the truth-finding function of the court and jury.”).

The government’s Brady obligations are not self-executing. They require specific 

prosecution teams to faithfully adhere to their duties and be scrupulous in ensuring that a fair trial 

occurs. Unfortunately, as numerous courts and judges have observed, the government has too 

often failed in living up to its unique duty of ensuring that justice is done. In 2013, the then-Chief 

Judge of the Ninth Circuit decried “an epidemic of Brady violations abroad in the land” and argued

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that “[o]nly judges can put a stop to it.” United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) 

(Kozinski, C.J., dissenting from the denial of en banc review). Per the Chief Judge:

I wish I could say that the prosecutor’s unprofessionalism here is the exception, that 

his propensity for shortcuts and indifference to his ethical and legal responsibilities 

is a rare blemish and source of embarrassment to an otherwise diligent and 

scrupulous corps of attorneys staffing prosecutors’ offices across the country. But 

it wouldn’t be true. Brady violations have reached epidemic proportions in recent 

years, and the federal and state reporters bear testament to this unsettling trend.

Id. at 631-32 (listing twenty-nine cases).

The District of Oregon is by no means immune to such problems. See, e.g., United States 

v. Price, 566 F.3d 900 (9th Cir. 2009) (new trial granted after a conviction in the District of Oregon 

where the government failed to produce impeachment evidence of a key witness); United States v. 

Sedaghaty, 728 F.3d 885 (9th Cir. 2013) (new trial granted after a conviction in the District of 

Oregon where the government failed to produce evidence that it had paid a key fact witness). In 

2014, Oregon District Judge Ancer Haggerty invoked the court’s supervisory powers to issue an 

“Amended Supervisory Opinion” addressing “pervasive discovery problems” in a case that had 

been settled by a plea agreement.1 United States v. Pedersen, 2014 WL 3871197, *1-3 (D. Or. 

Aug. 6, 2014). Quoting Chief Judge Kozinski, Judge Haggerty stated that “the court does not 

believe that it can, in good conscience, allow the government’s conduct to pass without comment”:

When a public official behaves with such casual disregard for his constitutional 

obligations and the rights of the accused, it erodes the public’s trust in our justice 

system, and chips away at the foundational premises of the rule of law. When such 

transgressions are acknowledged yet forgiven by the courts, we endorse and invite 

their repetition.

Id. at *2 (quoting Olsen, 737 F.3d at 632).

 

1

In addition to the discovery violations, Pedersen involved the government infringing on the 

attorney-client privilege.

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Judge Haggerty’s Supervisory Opinion was “intended as a preventative rather than a 

punitive measure” and he expressed his “hope[] that similar conduct will not recur.” Id. at *33 & 

n.1. He echoed Chief Judge Kozinski’s belief that courts must strictly enforce violations to ensure 

the fundamental fairness of our justice system: “Only through the stringent safeguarding of a 

criminal defendant’s rights can the court ensure that justice is done.” Id. at *33.

Stringently enforcing Brady violations when they come to light is critical given that, “[d]ue 

to the nature of a Brady violation, it’s highly unlikely wrongdoing will ever come to light in the 

first place.” Olsen, 737 F.3d at 630. This is so because the defense is often unaware of the Brady 

material, and “all the incentives prosecutors confront encourage them not to discover or disclose 

exculpatory evidence.” Id. Indeed, even where a defendant learns of suppressed Brady evidence 

and overcomes the “materiality” standard, the ordinary remedy of a new trial essentially gives the 

government “a do-over, making it no worse off than if it had disclosed the evidence in the first 

place.” Id. Thus, it is questionable whether there is any real deterrent in simply ordering a new 

trial. In any event, as discussed below, the proper remedy in this case is to vacate the remaining 

convictions and dismiss the indictment with prejudice.

II. The Court Should Exercise Its Supervisory Powers And Dismiss The Indictment With 

Prejudice Based On The Government’s Violation Of Brady.

A district court may dismiss an indictment with prejudice based on its inherent 

“supervisory powers” where doing so would: (1) implement a remedy for the violation of a 

recognized statutory or constitutional right; (2) preserve judicial integrity by ensuring that a 

conviction rests on appropriate considerations validly before a jury; or (3) deter future illegal 

conduct. United States v. Chapman, 524 F.3d 1073, 1084-85 (9th Cir. 2008).

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In the context of Brady violations, all three considerations are implicated and courts have 

exercised their supervisory powers to dismiss indictments with prejudice. See, e.g., Chapman, 524 

F.3d at 1090; United States v. Aguilar, 831 F. Supp. 2d 1180 (C.D. Cal. 2011); United States v. 

Fitzgerald, 615 F.Supp.2d 1156 (S.D. Cal. 2009). However, where a Brady violation occurs based 

on accidental conduct or mere negligence on the part of the government, the granting of a new trial 

is the ordinary remedy. Because a court must be mindful of encroaching on the “prosecutor’s 

charging authority,” dismissing a case with prejudice is appropriate only “in cases of flagrant

prosecutorial misconduct.” Chapman, 524 F.3d at 1085 (quoting United States v. Simpson, 927 

F.2d 1088, 1091 (9th Cir. 1991)). The “flagrant misbehavior” standard is satisfied where there is 

a “reckless disregard” of a prosecutor’s constitutional obligations. Fitzgerald, 615 F.Supp.2d at

1159 (quoting Chapman, 524 F.3d at 1085). When considering whether to dismiss a case with 

prejudice, a court should also evaluate the government’s conduct in causing the violation and its 

“willingness to own up to it.” Chapman, 524 F.3d at 1087.

Finally, before ordering an indictment dismissed with prejudice, a court must be satisfied 

that a defendant has been substantially prejudiced and that a lesser remedial action would be 

inadequate. Id. In this case, all the standards set forth in Chapman are met.

A. The Government’s Conduct In This Case Evinces A Reckless Disregard For Its 

Constitutional Obligations.

The government had numerous opportunities to fulfill its constitutional obligation to see 

that justice was done and own up to its error, but it was seemingly more focused on convicting and 

sentencing Ms. Cobat than it was on fulfilling its duty. Before, during, and after trial, the 

government was put on notice of the potential problems with respect to Count 3. Before and during 

the trial, the government apparently took no steps to investigate whether those concerns were valid. 

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After trial, the government did some investigation but then concluded—and strenuously argued to 

this Court—that its follow-up revealed no problems with the conviction. Finally, after being 

forced to support its position with evidence, the government conceded it was wrong and admitted 

that Ms. Cobat should not have been convicted on Count 3. The timeline of the government’s 

response to Ms. Cobat’s claim that she believed she was receiving pre-SSI benefits and not TANF 

demonstrates that the government recklessly disregarded its constitutional duty to find and disclose 

exculpatory evidence.

1. First And Second Opportunity To Correct Itself—Prior To And During Trial.

In discovery, the government provided Ms. Cobat with the Oregon Department of Human 

Services (DHS) TRACS narratives, which document interactions between the agency and its 

clients. The last entry in the TRACS narratives provided to the defense was dated October 19, 

2016. Disc. at 1589. Newly provided discovery shows that there were two additional TRACS 

entries between that date and the date of trial, April 4, 2017. Both of those entries occurred on 

January 18, 2017. And in both, Ms. Cobat clearly states to DHS representatives that she did not 

believe she received TANF after March of 2012. Exhibit A (“She states she did not receive TANF 

after March 2012”). A follow-up email between DHS employees also notes that Ms. Cobat had 

requested her agency records so that she could “prove she last received TANF in March 2012.” 

Exhibit B.

As noted in defendant’s Motion For A New Trial, Ms. Cobat testified at trial that she 

believed she did not receive any TANF benefits after April of 2012. CR 125 at 5; tr. at 328. 

Instead, she understood she was receiving what was essentially an advanced loan on her own 

disability claim. Id. The government falsely argued to the jury that Ms. Cobat had suddenly 

concocted a new defense: “She never denied receiving TANF until she got up on the stand 

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yesterday . . . .” Tr. at 416. Moreover, the government argued that the case “come[s] down to Ms. 

Cobat’s credibility” and that she should not be believed because her testimony regarding TANF 

was inconsistent with the evidence:

Now, yesterday Ms. Cobat did testify that she believed she was not receiving TANF 

as of April 12th, 2012, and therefore that she did not receive those benefits, but the 

records in evidence show that those TANF benefits did not stop until May of 2013, 

and that between August of 2012 and May of 2013, $2,845 in TANF benefits were 

paid to her.

Id. at 383-84.

The evidence that the government was referring to was presumably the testimony of the 

case agent and other DHS employees. This was the same evidence the government offered to the 

Court in successfully defeating a mid-trial motion for judgment of acquittal. Of course, as we now 

know, that evidence was wrong. But it does not appear that the government made any efforts to 

confirm or deny the truth despite several pretrial warnings and Ms. Cobat’s own testimony at trial.

2. Third Opportunity To Correct Itself—Prior To Defense Motion For A New Trial.

The government had another opportunity to correct course in December of 2017. At that 

time, undersigned counsel contacted the government to express concerns that, based on a review 

of the undisclosed deposit records, it appeared that Ms. Cobat did not receive the TANF benefits 

she was convicted of receiving. As the government would later explain in its Response to the new 

trial motion:

[I]n response to defense counsel’s query about the SFPSSI benefits, the government 

obtained an explanation from DHS and provided it to defense counsel prior to the 

filing of defendant’s motion for new trial. The DHS overpayment writer explained 

that defendant was not eligible for anything under the TANF program—including 

TANF and Pre-SSI—due to defendant’s child not being in the home. (See 

Declaration of DHS employee attached as Exhibit 3 for further explanation of the 

TANF program benefits.)

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Thus, defendant’s continued argument that the SFPSSI documents would have 

supported defendant’s argument that she was not receiving TANF benefits is 

without merit. She was receiving a TANF benefit and the[re] was no error.

CR 130 at 3 (emphasis added). Apparently, either the query or the explanation was insufficient as 

the government continued to assert that Ms. Cobat’s conviction was valid and that the parties 

should proceed to sentencing on the then-set date.

3. Fourth Opportunity To Correct Itself—After The Defense Motion For A New Trial.

Because undersigned counsel believed the government’s response to the pre-SSI query did 

not fully address the problems raised, counsel filed a motion to strike the sentencing and a motion 

for a new trial based, in part, on the government’s failure to produce pre-SSI related documents 

and DHS’s deposit records. In the motion, defendant argued that at the very least, “the undisclosed 

material is fatal to the conviction on Count 3” because: (1) it appeared Ms. Cobat did not receive 

TANF funds; (2) if she did, it was less than $1,000; (3) even if pre-SSI could be considered TANF, 

there was no evidence that she knew about pre-SSI reporting requirements; and (4) there was no 

evidence that pre-SSI was federally funded, and the undisclosed documents suggested otherwise. 

CR 125 at 9.

Without apparently doing the investigation it has now done, the government responded 

forcefully. It asserted that defendant’s “arguments are without merit,” that “reliance on [the new] 

exhibits is misplaced,” and that the defendant “misstates the law.” CR 130 at 1-2. The government 

claimed the new evidence “would have added nothing of substance” to the trial and was neither 

“material [n]or exculpatory.” Id. at 5. According to the government, “the Pre-SSI documents and 

the SNAP/TANF EBT log provide nothing that contradicts the DHS investigator or caseworker’s 

testimony.” Id. at 6. And finally, as it had before the jury, the government claimed that Ms. Cobat 

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“did not deny receiving TANF benefits until her testimony on direct.” Id. at 7. As is now apparent, 

every one of those statements is wrong.

4. Fifth Opportunity—After This Court Orders Further Inquiry.

Fortunately, this Court did not merely accept the government invitation to summarily deny 

the defense motion and proceed with sentencing. Instead, the Court permitted additional discovery 

and a future hearing where further evidence could be adduced. It is that decision that finally 

spurred the government to fully investigate what Ms. Cobat had first told DHS representatives 

almost a year earlier.

The government’s failure to investigate whether it had withheld exculpatory evidence, 

whether its witnesses had testified falsely, and whether Ms. Cobat had been wrongfully convicted 

supports dismissing the indictment. See Chapman, 524 F.3d at 1085 (“We note as particularly 

relevant the fact that the government received several indications, both before and during trial, that 

there were problems with its discovery production and yet it did nothing to ensure it had provided 

full disclosure until the trial court insisted it produce verification of such after numerous 

complaints from the defense.”). The government did not “own up to it,” id. at 1087, and instead, 

aggressively argued to this Court that there was “no error” and that sentencing should proceed as 

scheduled. CR 130 at 3. Apart from the fact that the government must now concede that it was 

wrong and that a Brady violation occurred, the Court should be extremely concerned that the 

government was adamant in its position despite having failed to do the necessary investigation to 

actually know whether its position was correct. See Pederson, 2014 WL 3871197 at *24 (“The 

government should not have made arguments relying on the production of discovery from a 

position of such ignorance.”) (citing Chapman, 524 F.3d at 1085). The government has the unique 

and critical duty to ensure that justice is done and that trials (and convictions) are fundamentally 

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fair. The government’s conduct in this case, especially with respect to its Response to defendant’s 

new trial motion, evinces a reckless disregard for its constitutional duties and warrants this Court 

dismissing the indictment under its inherent supervisory powers.

B. Dismissal Is Warranted Because Ms. Cobat Suffered Substantial Prejudice And 

There Is No Adequate Lesser Remedy Available.

Before dismissing an indictment with prejudice, the Court must be satisfied that a 

defendant suffered substantial prejudice and that no lesser remedial action is adequate. Chapman, 

524 F.3d at 1087. In assessing the propriety of dismissing an indictment, a court should consider 

the government’s misconduct, its willingness to “own up to it,” and whether the government would 

gain an advantage in a retrial. Id. at 1087-88.

Here, Ms. Cobat was clearly prejudiced because she was convicted of a crime that she 

could not have lawfully been convicted of. But the granting of a new trial cannot cure the extent 

of the prejudice in this case and is not an adequate remedy. First, a new trial would inherently 

“increase the emotional and financial burden imposed on [a] defendant,” which should not be 

permitted when the government’s own misconduct necessitates another trial. Chapman, 524 F.3d 

at 1081. And second, the government would gain a major advantage by having “an unfair 

opportunity to tailor its case based on what it learned the first time around.” Id.

Indeed, this is not a case where the government would simply get a “do-over” and would 

be “no worse off than if it had disclosed the evidence in the first place.” Olsen, 737 F.3d at 630.

If an effective defense attorney possessed the withheld material at the first trial, the defense could 

have significantly bolstered its theory of the case and completely destroyed the credibility of the 

investigation and the case agent, while bolstering Ms. Cobat’s testimony and credibility at the 

same time. As the district court in Chapman noted:

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If this case were to be retried, the government and its witness will not make that 

mistake again, and that’s the advantage that the government gains by its actions 

here. It gets a chance to try out its case[,] identify[ ] any problem area[s], and then 

correct those problems in a retrial, and that’s an advantage the government should 

not be permitted to enjoy.

Chapman, 524 F.3d at 1087 (alterations in original). Here, the defense should have had the 

opportunity to cross-examine witnesses and attack the government’s case using the highly 

exculpatory evidence that was suppressed. A new trial is an inadequate remedy because the 

government would have an opportunity to cure the now-apparent problems with its case and it will 

undoubtedly be prepared to handle defense inquiries into those matters. As a result, the defense 

would never have a fair opportunity to try the case on the terms it was brought by the government 

in the first place.

Moreover, it is also now impossible to assess whether the defense would have made certain 

decisions if it had the Brady material at its disposal and had used it effectively. For example, Ms. 

Cobat chose to testify in the case, which may never have happened if the government’s case-inchief had properly been impeached. Such critical tactical decisions cannot now be undone, and 

the government should not benefit by having forced those decisions to be made under 

circumstances where it had changed the dynamic of trial by unconstitutionally withholding 

information from the defense. For these reasons, a new trial is not an adequate lesser remedy to 

dismissal.

C. Dismissal Of The Indictment In This Case Is Warranted To Preserve Judicial 

Integrity And To Deter Future Constitutional Violations.

This case represents a fundamental failure of the criminal justice system and the fairness 

and objectivity that should attend to any prosecution by the United States government. At every 

step of the way, constitutional protections that should have avoided this wrongful conviction failed 

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because of the government’s own conduct. The Grand Jury did not protect Ms. Cobat because it 

was given only the incorrect testimony of DHS investigator and case agent Karlene Austin. That 

same false testimony convinced this Court to deny a motion for judgment of acquittal and 

convinced the petit jury to wrongfully convict on a count that never should have been before it. 

The Sixth Amendment right to effective counsel was stymied because trial counsel never received 

basic discovery such as deposit records that would have demonstrated the problems in the 

government’s case. Confidence in our system of justice and confidence in the government’s 

special duty to find and disclose exculpatory information will be eroded unless courts hold the 

government accountable. See Olsen, 737 F.3d at 626 (“Only judges can put a stop to [Brady

violations]”).

The violation of due process in this case came to light despite the government’s repeated 

efforts to deny that any such problem occurred. In assessing the appropriate remedy, this Court 

should be mindful that the government and the investigative agencies do not have clean hands. 

Moreover, this is not a case where dismissing the indictment would cause collateral harm to a 

victim or potentially put the community at risk by releasing a violent offender. This is a benefits 

theft case where the alleged victims are the same government agencies that failed to properly 

investigate and charge the case, which ultimately led to numerous due process violations. Those 

agencies can recoup any wrongly issued benefits through an administrative process and will not 

suffer financial harm if this Court dismisses the indictment. To ensure that these agencies and the 

prosecutors who rely on their investigations do not trample on the integrity of the judicial system 

or the constitutional rights of defendants, a strong remedy is required. Only a full dismissal of the 

case will adequately deter such problems in the future.

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CONCLUSION

For the reasons stated above, Ms. Cobat respectfully requests that this Court vacate her 

remaining convictions and order the indictment dismissed with prejudice.

Respectfully submitted this 9th day of March, 2018.

/s/ Mark Ahlemeyer

Mark Ahlemeyer

Attorney for Defendant

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