Dunning Voir Dire

8/17/2019 Dunning Voir Dire

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) Case No. 2:14-cr-00382-BJR

)

JONATHAN WADE DUNNING )

DEFENDANT’S PROPOSED VOIR DIRE QUESTIONS

Pursuant to Fed. R. Crim. P. 24(a), defendant Jonathan Wade Dunning

hereby submits the following proposed voir dire questions to be posed to the panel

in this case. In accordance with the Court’s statements regarding the jury selection

process, the defendant has endeavored to pose questions in “yes/no” format, with

the understanding that the Court will inquire further on any “yes” answers during

individual voir dire, and that counsel will be afforded the reasonable opportunity to

follow up as necessary and appropriate. The defendant respectfully requests the

opportunity to supplement these proposed questions as necessary.

A. Background1

1. This trial is expected to take about four to five weeks. Is there anything that

would prevent you from serving as a juror for that period of time?

1 The defendant assumes that the Court will ask panel members the typical background

questions regarding their current employment, highest level of education, marital status, and

spouse’s employment, and thus has not set forth those questions here.4849-8834-8208.1

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2. Do you take any medication or have some other health concern that may

prevent you from giving full attention to the evidence as it is presented to you?

3. Do you have any political views or beliefs that would prevent or hinder you

from following the instructions that I will give as to the law or from acting as a fair

and impartial juror in this case?

4. Do you have any religious, philosophical, moral, or other belief that might

make you unable to render either a guilty or not guilty verdict for some reason that

is unrelated to the evidence that you see here in court?

5. Do you have any doubt that you would be able to evaluate each witness’s

credibility without bias or prejudice?

6. Do you have any strong feelings about lawyers or the criminal justice system

in general that would make it difficult for you to be a fair and impartial juror in this

case?

7. Do you have any doubt that you would be able to decide this case based

solely on the evidence presented at the trial here in the courtroom and not based on

any other information?

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B. Knowledge of the Case and Media Coverage

1. In this case, Jonathan Dunning has been charged with defrauding

Birmingham Health Care, Inc. and certain government agencies. Mr. Dunning has

pled not guilty, and, by law, is presumed innocent. Have you read, seen or heard

any news coverage about the case involving Mr. Dunning?

2. Sheila Parker, Terri McGuire Mollica and James Parker have pleaded guilty

to various crimes in connection with this investigation. Have you read, seen or

heard any news coverage about the cases involving Sheila Parker, Terri McGuire

Mollica or James Parker?

3. If you are selected as a juror, you will not be permitted to read or listen to

any news about this case. You will not be allowed to do any Internet research

concerning it. You will only be allowed to consider as evidence information that

you hear in this courtroom. Do you believe that you would have any difficulties

complying with this extremely important instruction?

C. Knowledge of the Parties

1. The government is represented here by the United States Attorney’s Office

for the Northern District of Alabama. Joyce White Vance is the United States

Attorney. Assistant United States Attorneys Tamarra Matthews Johnson, Melissa

Atwood and John Ward will try the case for the government. They will be assisted

by Special Agent Adam Hutzell of the FBI, Special Agent Matthew Temples of the

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IRS, and Special Agent Michael Britton of the Department of Health and Human

Services. The government will also be assisted by Coretta Howard, a paralegal

specialist with the U.S. Attorney’s Office. Do you know any of these individuals?

2. Have you, or to your knowledge has anyone you know, ever had any

dealings with any of these individuals or with the United States Attorney’s Office

here in the Northern District of Alabama?

3. The defendant is represented by Bill Athanas of the Waller Lansden firm in

Birmingham, and Bill Thomas of the W.H. Thomas Firm in Atlanta. They will be

assisted by Charles Prueter, another lawyer with the Waller Lansden firm, and

Shandra Wright and Christine Poynter, paralegals with the Waller Lansden firm.

Do you know any of these individuals?

4. As I mentioned at the outset, the defendant is Jonathan Dunning. Do you

know or have you had any dealings with Mr. Dunning?

5. Mr. Dunning owned all or a majority of a number of companies that

provided medical billing and consulting services, including Synergy Medical

Solutions, Synergy Health Link, and Legacy Consulting Group. Have you ever

heard of or done business with any of these companies?

6. In addition, Mr. Dunning owned all or a majority of a number of companies

that owned and leased commercial real estate, including Synergy Real Estate

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Holdings I, II and III. Have you ever heard of or done business with any of these

companies?

7. Mr. Dunning also owed or had an interest in three restaurants: the Villaggio

Restaurant at Ross Bridge, La Dolce Vita, and Bernie’s on Main. Have you ever

heard of or dined at any of these restaurants?

8. The evidence in this case will relate to Birmingham Health Care, a

community health center located in Birmingham. Have you ever heard of

Birmingham Health Care?

9. Have you, your family members or close friends ever been treated at a

Birmingham Health Care facility?

10. The evidence will also relate to Central Alabama Comprehensive Health, a

community health center located in Tuskegee. Have you Birmingham. Have you

ever heard of Central Alabama Comprehensive Health?

11. Have you, your family members or close friends ever been treated at a

Birmingham Health Care facility?

12. This names below are people that might be mentioned at trial, or who might

testify at trial. The purpose of the exercise is to find out whether you know any of

these people. It is a long list, but it is important that we know whether you know or

have had any dealings with any of the people whose names are going to be

mentioned in the course of the trial.

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• Sheila Parker

• James Robert Parker

•

Sharon Waltz

•

Terri Mollica

•

Jimmy Lacey

•

Jayson Meyer

•

Charles Ford

•

Jerry Vann

• Alan Yoe

• Raiford (Ray) Dyer

• Tony Mollica

• Patricia Osborne

• Donyatta Foster

• Ken Dowdy

• Kimberly Patton

• Flora Blackledge

•

Terry Burney

• Raenna Bolle

• Mike Oliver

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• Chris Retan

• Eugenia Thompson

•

Abdul Kallon

•

Alvin Fox

•

Valerie Holm

•

Claudia Johnson

•

Matthew Marinelli

•

Donald Solomon

• Thomas Tucker

• Brandi Eddins Wilson

• Theresa Ann DeLeon

• Roger Bushong

• Yelly Dobbins

• Kevin Fowler

• Alexander Greenbaum

• Carolyn Holmes

•

Lee Anne Irwin

• Kenthia McLeod

• Jerry Price

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• Pamela Watson

• Pamela Weaver

•

Janie White

•

Dwight Williams

•

Christopher Bledsoe

•

Keith Covington

•

Kenneth Holcomb

•

Michael Hollon

• Austin Landry

• Phillip Stutts

• Vincent Howell

• Jeff White

• Stanley Solomon

• Kristi Hazelwood

• Bob Bohorfoush

• Eva Dhua

•

Les Alexander

• John Bailey

• Rickey Green

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• Max Michael

• Kevin Ware

•

Louis Maxwell

Do you know or have you heard of any of these individuals?

13. This names below are people companies or organizations that might be

mentioned at trial:

• Banks, Finley & White

•

Covenant Consulting Group

• Health Resources Services Administration

• Birmingham Financial Federal Credit Union

• Commercial Valuation Services

•

WorkSmart MD

•

Junior Davis & Associates

•

CB Richard Ellis

•

Henry Schein, Inc.

•

NM Construction

•

Vincent Construction

•

Villaggio Restaurant at Ross Bridge

• Bernie’s on Main

• La Dolce Vita4849-8834-8208.1

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• Maynard Cooper & Gale

• Hare & Clement

•

Drake Hogan Pharmacy

•

Joseph & Co.

Have you, a family member, or close friend ever worked at, done business with, or

otherwise had any contact with any of those listed companies and entities?

D. Background in Community Health Centers, Government Grants,

Accounting and Real Estate

1. In this case, there will be great deal of testimony regarding community

health centers, which are organizations that provide health care services to various

individuals, including the homeless and the poor. Have you ever received

treatment at a community health center?

2. Do you know anything about how community health centers operate?

3. There will also be testimony about government grants, including those

provided by the federal government through the Health Resources Services

Administration. Have you ever been involved in preparing applications for

government grants, or worked for an organization that received government grant

funds?

4. Do you know anything about how the government grant process works?

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5. There will be a lot of accounting-related testimony regarding amounts paid

to or by Mr. Dunning, and otherwise owed to him. Do you have any particular

knowledge of accounting, bookkeeping or finance-related matters?

6. Have you, or your family members or close friends, ever worked as an

accountant or bookkeeper?

7. Have you, or your family members or close friends, ever worked as a real

estate appraiser or had dealings in commercial real estate?

8. Do you have any particular knowledge of commercial real estate or the

appraisal process?

E. Knowledge and Experiences of Panel Members

1. Do you now or have you ever held a position of leadership in any religious,

civil, political, social, professional or labor organization, society, or association?

2. Do you now or have you ever worked with any organization whose mission

includes providing assistance to the homeless or indigent?

3. Do you, or does anyone in your household, have any bumper stickers or

decals on your vehicle, or a personalized license plate?

4. Have you ever worked in any way in the area of real estate development, or

buying and selling commercial real estate?

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5. Have you ever been employed in a position that involved contract

negotiations, business projections, accounting, bookkeeping, or financial matters

for any type of organization?

6. Have you ever owned or invested in a business?

7. Have you ever served on the board of directors or in the capacity of

president, chief executive officer, chief operational officer, division manager, or

other official position with a company?

8. Have you or anyone close to you been affected by the financial problems of

a company where there have been allegations of corporate fraud or wrongdoing on

the part of the executives?

9. Have you ever loaned money to a friend?

10. The evidence at trial will reflect that some of the government witnesses and

others involved in the case failed to file income tax returns, and others had

questionable entries on filed tax returns. Have you or a close friend or relative

ever had an issue with the IRS regarding the filing or non-filing of tax returns?

11. The evidence at trial will reflect that the defendant had a strong personality

and aggressively sought to advance his business interests. Do you believe that

hearing evidence regarding the defendant’s efforts to maximize his income could

affect your ability to be a fair and impartial juror?

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12. The evidence at trial will reflect that the members of the boards of BHC and

CACH included a number of individuals who were over 60 years old. Do you

believe that people who are over 60 years old are less capable of making sound

decisions about financial matters?

13. The evidence at trial will reflect that the defendant’s companies received

contract payments and lease payments from BHC and CACH. BHC and CACH

are both non-profit organizations, while the defendant’s companies were for-profit

entities. Do you believe that there is anything improper about for-profit companies

contracting to provide goods and services or leasing space to non-profit

organizations?

F. Views about the Government and Lawyers

1. Have you, a family member, or a close friend ever applied for a position

with any law enforcement or securities regulatory agency?

2. Have you, a family member, or a close friend ever been employed by or had

any association with, the federal, state, or local government, or by any of its

offices, departments, or agencies, including any law enforcement agency?

3. Have you, a family member, or close friend been a member of a group that

lobbies or takes positions on law enforcement issues on a local, state, or federal

level?

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4. Have you, a family member, or close friend ever been a part of any branch

of the United States military or any other country’s military?

5. Have you, a family member, or close friend studied or practiced law or

worked in any capacity for a law office or for a private investigator?

6. Would you be able to follow the law and evaluate the testimony of each

witness in terms of that witness’s credibility?

G. Experience With and Views of the Criminal Justice System

1. Do you believe that simply because the defendant has been charged with a

crime it is likely he did something wrong?

2. Do you believe an that an indictment alone is proof of any wrongdoing?

3. In this case, the government has charged the defendant with 112 felony

counts. Do you believe that someone charged with so many counts must be guilty

of at least some of them?

4. The government prepares indictments and presents them to the grand jury,

which considers those indictments without hearing any evidence from the

defendant, and applies a standard which is far lower than the reasonable doubt

standard you will apply in this case. Would you have difficulty accepting that if

you were chosen as a juror?

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5. If, after hearing all the evidence and my instructions on the law, you found

that the government has not proven its case beyond a reasonable doubt, would you

feel comfortable finding the defendant not guilty?

6. Have you, or a relative or close friend, ever been charged with or convicted

of any crime?

7. Have you, a family member, or a close friend ever been accused of fraud?

8. Have you, or a relative or close friend, ever been the subject of an

investigation or accusation by any grand jury, state or federal, or any other

investigation, or the recipient of a subpoena for any inquiry or investigation?

9. Have you, or has any relative or a close friend, ever appeared as a witness,

been involved with in an individual or business capacity, or been questioned for

any investigation or inquiry, or been part of any legal action or dispute brought by

any of the following: the United States Department of Justice, the United States

Attorney’s Office for the Northern District of Alabama, the IRS, the FBI, or the

Department of Health and Human Services?

H. Victim of a Crime

1. Have you, or has any family member or any close friend, ever been the

victim of a crime, or ever pressed criminal charges against someone, or tried to

press criminal charges against someone?

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2. Have you, or your close friends or family members, been the victims of a

fraud or financial crime?

I. Prior Jury Service

1. Have you ever served as a trial juror before in any type of case?

2. Was a verdict reached?

3. Have you served as a grand juror, which is different?

4. If you have previously served as a trial juror or grand juror, is there anything

about your prior experiences as a juror that would prevent you from acting as a fair

and impartial juror in this case?

J. Views on Witnesses and Evidence

1. You may hear testimony in this case from what are called cooperating

witnesses; that is, witnesses who at one time were involved in alleged illegal

activity and are testifying on behalf of the government pursuant to a cooperation

agreement in the hopes of receiving a lesser sentence for the crimes they pled

guilty to. Do any of you have any experience with or feelings about the use of

cooperating witnesses generally or the credibility of evidence or information

provided by cooperating witnesses that would make it difficult for you to render a

fair and impartial verdict in this case?

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2. If one or more of these cooperating witnesses testifies, you will be instructed

that you should consider their testimony with more caution than the testimony of

other witnesses. Would you have any difficulty doing so?

3. If selected as a juror, you will hear testimony from witnesses called by the

government and possibly the defense. Would you be more likely to believe a

witness who was called by the government?

4. What if the witness called by the government was an FBI agent: would you

be more likely to believe that witness?

5. Would you be more likely to believe the testimony of an FBI agent if that

agent’s testimony was inconsistent with another witness?

6. Would you be more likely to give an FBI agent’s testimony more weight

than another witness?

7. What if the witness called by the government was a government employee:

would you be more likely to believe that witness?

8. Would you be more likely to believe the testimony of a government

employee if that witness’s testimony was inconsistent with another witness?

9. Would you be more likely to give a government employees’ testimony more

weight than another witness?

10. You must keep an open mind about this case and all the evidence that will be

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admitted until the end of the case. Do you believe you would have any difficulty

complying with that instruction?

11. The testimony in this case will include that which relates to government

grants for community health centers. Do you believe that government funds to

provide health care to the homeless and indigent are often wasted?

12. Do you believe that you would have difficulty remaining impartial and

withholding judgment in a case where the government has alleged a misuse of

grant funds intended for homeless and indigent people?

K. Ability to Follow the Law

1. Every defendant is presumed innocent and cannot be convicted unless the

jury unanimously, based solely on the evidence in the case, decides that his guilt

has been proven beyond a reasonable doubt. The burden of proving guilt beyond a

reasonable doubt rests entirely with the government. The defendant has no burden

of proof whatsoever. Would you have any difficulty in following this instruction?

2. Under the law, an indictment is merely a list of formal charges and is not

considered proof of any wrongdoing. The fact that the defendant has been indicted

is entitled to no weight at all in deciding whether a defendant is innocent or guilty.

Do you have any difficulty in accepting this principle?

3. Under our system of law, the jury determines the facts and the court

determines the law. These are two separate areas. At the end of the case the Court

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will give you instructions as to what the law is. And it is your job to determine the

facts of the case subject to the Court’s instructions on the law. You cannot

substitute your notions for what the law is or what it should be. You have to rely

entirely on the legal instructions given at the end of the case. Do you believe that

you would have difficulty or be unable in any way to apply the law as given to you

in the instructions at the end of the case?

4. The burden of proof in a criminal case—beyond a reasonable doubt—is

greater than the burden of proof in a civil case. In a criminal case, the defendant is

presumed innocent, and the government has to prove guilt beyond a reasonable

doubt. In a civil case, the plaintiff’s burden is only to show that he or she is more

likely than not to be entitled to relief. And that is, of course, a much lesser standard

than the beyond-a-reasonable-doubt standard. You may have had experience in

civil cases. And so you understand that it is a different burden and a much higher

burden in a criminal case. Is there anyone who does not understand that the

government’s burden of proof in this criminal case of beyond a reasonable doubt is

higher than the preponderance-of-the-evidence test that is used in a civil case?

5. Under the law, the defendant does not have to testify or even present any

evidence. If the defendant does not testify, the jury cannot draw any unfavorable

inference against the defendant based on that decision. That fact cannot enter at all

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into the jury’s deliberation. Would any of you have any difficulty in applying this

principle?

6. Under the law, the defendant is under no obligation to present any evidence

or case on his own behalf. If the defendant elects not to present any evidence, the

jury cannot draw any adverse inference against the defendant based on that

decision. Again, that fact cannot enter at all into the jury’s deliberation. Would you

have any difficulty in following that instruction?

7. Should the defense counsel decide to put on a case on the defendant’s

behalf, that fact does not in any way shift the burden of proof to the defendant. The

burden of proof always remains with the government. The government is always

under the obligation to prove the defendant’s guilt beyond a reasonable doubt.

Would you have any difficulty in following that principle?

8. The law provides that only the evidence that is produced here in court may

be used by you to determine whether the government has met its obligation of

proving the defendant’s guilt beyond a reasonable doubt. This is because much of

what is on the Internet is unreliable and/or inaccurate, and that concept applies in

this and every court case. Nothing that happens outside of court, nothing on the

Internet, nothing in your background can play any role in any decision here. It is

only what you hear and see in this courtroom. Would you have any difficulty in

applying that principle?

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L. Summary Question

1. As you can tell from the prior questions, the fundamental issue here is

whether there is anything in your personal history or life experience that would

prevent you from acting as a fair and impartial juror. Is there anything—whether

specifically asked about or not - that would affect your ability to render a fair and

impartial verdict in this case?

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Respectfully submitted,

/s/ William C. AthanasWilliam C. Athanas

WALLER LANSDENDORTCH & DAVIS LLP

1901 Sixth Avenue North, Suite 1400Birmingham, AL 35203

Telephone: (205) 226-5703Facsimile: (205) 214-8787

Email: [email protected]

/s/ Charles W. PrueterCharles W. Prueter

WALLER LANSDENDORTCH & DAVIS LLP

1901 Sixth Avenue North, Suite 1400

Birmingham, AL 35203Telephone: (205) 226-5735

Facsimile: (205) 214-8787Email: [email protected]

/s/ William H. Thomas

William H. ThomasThe W.H. Thomas Firm

The Tower Above the Four Seasons75 Fourteenth Street, Suite 2500

Atlanta, GA 30309Telephone: (404) 897-3523

Facsimile: (678) 965-1781Email: [email protected]

CERTIFICATE OF SERVICE

I hereby certify that on this the 22nd day of April 2016, I filed this pleading

through the Court’s CM/ECF system, serving all parties of record via email.

/s/ William C. Athanas

William C. Athanas 4849-8834-8208.1

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mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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