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IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

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STATE OF ALASKA

Plaintiff,

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vs.

ROLAND MAW,

Defendant.

~~~~~~~~~-) Case No. lJU-16-43 CR

MOTION TO DISMISS INDICTMENT

I certify that this document and its attachments do not contain (I) the name of a victim of a sexual offense listed in AS 12.61. 140 or (2) a residence or business address or telephone number of a victim of or witness to any offense unless it is an address used to identify the place of the crime or it is an address or telephone number in a transcript ofa court proceeding and disclosure of the information was ordered by the Cowt.

Roland Maw, by and through counsel Nicholas Polasky, moves this Court for an order

to dismiss the indictment dated February 12, 2016.

FACTS

In Alaska, a person may obtain a Permanent Fund Dividend (PFD) if they meet certain

qualifications regarding their residency in Alaska. To apply for a PFD, a person may complete

an online application. In the online application, a person answers a variety of questions. One

question has to do with whether a person has been gone from Alaska for more than 90 days or

more than 180 days in a calendar year. (The exact wording of the question - and whether it

relates to total days or consecutive days - is not clear and is an issue in this motion.) If a

person answers yes to either question they are presented with additional questions. If a person

answers no to the questions they are not asked further questions.

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number I JU-16-43 CR Page I of 18

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The prosecution has alleged that between 2009 and 2014 Mr. Maw applied for and

received a Permanent Fund Dividend (PFD), but that he was not a resident of Alaska during

that time. Specifically, the prosecution alleges that between 2009 and 2014 Mr. Maw filed out

a PFD application online, and that he answered no to the questions about whether he was gone

from Alaska for 90 days or 180 days. The prosecution alleges that the question about 90 days

clearly refers to total days of absence and not to consecutive days of absence. The prosecution

alleges that Mr. Maw answered no to the question, and alleges that he was out of Alaska for

more than 90 days each year from 2009 to 2014. Based on those allegation (that he failed to

disclose the number of days he was out of Alaska), the prosecution indicted Mr. Maw with six

counts of Unsworn Falsification in the First Degree, in violation of AS 11 .56.205 - one for

each year, for the information in his PFD application from 2009 to 2014.

The prosecution has also alleged that Mr. Maw obtained a variety of Montana resident

fish and game licenses between 2008 and 2014. Based on those licenses, as well as the

allegations that he failed to discloses absences from Alaska, the prosecution indicted Mr. Maw

with six counts of Theft in the Second Degree, in violation of AS 11.46.130(a)( 1 ), for the PFDs

he received between 2009 and 2014.

GRAND JURY PROCEEDINGS

A transcript of the grand jury proceeding is attached in a confidential envelope. At the

grand jury the prosecution introduced eight exhibits (which totaled 481 pages) and presented

the testimony of Investigator Shawn Stendevad.

Because the exhibits total 481 pages, they are included on a CD marked as Defense

Exhibit A. The eight grand jury exhibits include PFD records (Exhibit 1 ), Alaska Airlines

records (Exhibit 2), a letter from a Homeland Security agent (Exhibit 3), employment records

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number I JU-16-43 CR Page 2 of 18

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(Exhibit 4), Montana Fish, Wildlife & Parks records (Exhibit 5), a jury questionnaire (Exhibit

6), and two summaries prepared by Investigator Stendevad (Exhibits 7 and 8). Investigator

Stendevad's testimony was primarily about each of the exhibits.

A table of contents for the CD is as follows:

Exhibit # Exhibit PDF page Bate Stamp page number number

1 PFD records 1-32 4328-4359 2 Alaska Airlines records 33-196 4360-4523 3 Letter from Homeland Security Agent 197-198 4524-4525

Brady 4 United Cook Inlet Drift Association 199-411 4526-4739

(UCIDA) employment records 5 Montana Fish, Wildlife and Parks Records 412-477 4739-4804 6 Jury Questionnaire 478 4805 7 Sununary table prepared by Investigator 479 4806

Stendevad 8 Timeline summary prepared by 480-481 4807-4808

Investigator Stendevad

The column for "Exhibit" is a general description of what each exhibit is. The column

for "PDF page number" refers to the page number in the PDF file. The column for "Bate

Stamp page number" refers to the page number in blue on the bottom of each page.

Based on the presentation of the evidence, the prosecution obtained a twelve count

indictment - six for Unsworn Falsification in the First Degree and six for Theft in the Second

Degree.

DISCUSSION

The indictment in this case should be dismissed for several reasons.

I. The indictment was based on the introduction of exhibits that contained hearsay and were not properly authenticated.

The primary evidence introduced in grand jury was Exhibits 1 to 6, which were copies

of information provided by various business or govenunent agencies. The testimony of

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number \JU-16-43 CR Page 3 of18

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Investigator Stendevad primarily consisted of discussion of those exhibits. All except Exhibit 4

(the UCIDA employment records) should not have been admitted because the exhibits were

hearsay and were not properly authenticated.

A. Hearsay.

"Hearsay is a statement, other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the matter asserted." Evidence Rule

801(c). "A statement is (1) an oral or written asse1tion ... if it is intended by the person as an

assertion." Evidence Rule 801(a).

In this case, five of the six exhibits contained improper hearsay because the exhibits

were the statements of various businesses or government agencies, and not the statements of

the witness. None of the records contained anything that Investigator Stendevad had direct

knowledge of.

Two possible exceptions to the rule against hearsay are exceptions for business records

and public records and rep01ts. However, there was no foundational infom1ation presented that

would allow the prosecution to avail themselves of either of those exceptions.

In this case, two of the exhibits were records from businesses - Exhibit 2 (Alaska

Airlines records) and Exhibit 4 (UCIDA records - there is not issue with this exhibit). The

business records exception, Evidence Rule 803(6) provides:

Business Records. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge acquired of a regularly conducted business activity, and if it was the regular practice of that business activity to make and keep the memorandum, rep01t, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

Motion to Dism iss Indictment State of Alaska v. Roland Maw, case number I JU-16-43 CR Page 4of18

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Exhibit 2 contained more than 150 pages of information provided by Alaska Airlines.

Those pages are the statements of Alaska Airlines - and were offered by the prosecution for the

tmth of the matter - the trips alleged to have been taken by Mr. Maw. But those pages of data

were not introduced by a "custodian or other qualified witness" who was able to testify about

.. how the information in the exhibit was obtained. Instead, those pages were introduced by

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Investigator Stendevad, who was not qualified to provide the necessary foundation under Rule

803(6).

The four remaining exhibits can1e from various goverrunent agencies. However, none

of them are public records or repo1ts under 803(8).The public records and reports exception,

Evidence Rule 803(8) provides:

Public Records and Reports. (a) To the extent not otherwise provided in (b) of this subdivision, records, rep01ts, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law.

(b) The following are not within this exception to the hearsay rule: (i) investigative repo1ts by police and other law enforcement personnel; (ii) investigative repo1ts prepared by or for a goverrunent, a public office or an agency when offered by it in a case in which it is a party; (iii) factual findings offered by the state in criminal cases; (iv) factual findings resulting from special investigation of a particular complaint, case, or incident; (v) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness. Any writing admissible under this subdivision shall be received only if the patty offering such writing has delivered a copy of it or so much thereof as may relate to the controversy, to each adverse pa1ty a reasonable time before the trial, unless the comt finds that such adverse patty has not been unfairly surprised by the failure to deliver such copy.

The commentary to Rule 803(8) provides that the rule

recognizes that government records that are complied for purposes other than presentation on the government's behalf at trial are generally reliable (pa1t (a)), but that reliability is substantially diminished when the government stands to

Motion to Dism iss Indictment State of Alaska v. Roland Maw, case number I JU-16-43 CR Page 5of18

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gain an edge in litigation tlu·ough introduction of a record or report it has prepared (parts (b)(ii) & (iii)). Similarly, the rule differentiates factual findings made by the government in the process of carrying out public responsibilities, which are preswned to be reliable, from factual findings resulting from a special investigation of a particular complaint, case or incident, which are not within this exception, since there is no reason to believe that the government would itself rely on its findings outside the litigation contexts (part (b )(iv)).

Exhibit 1, the PFD records, is a printout of information apparently provided by the PFD

department for this investigation. Although not a rep011 in the same style as a police rep011, the

information from PFD is information prepared by a government agency for the prosecution of a

criminal case. That type of information falls squarely within the type of information that was

obtained for litigation and for presentation on the government' s behalf, and so it is not

contained in the public records exception.

Exhibit 3, the letter from Agent Brady to Investigator Stendevad, cannot be a public

record or rep011 because it is a letter prepared for the prosecution of this case - it is not a

record, rep011, statement or data compilation as contemplated by Evidence Rule 803(8). In

other words, a letter from one investigator to another investigator that summarizes a person's

record and is meant to be used against a person caimot be a public record or report.

Exhibit 5 contains approximately 64 pages from Montana Fish, Wildlife & Parks.

Those documents are closer to qualifying as public records or repmts than any of the other

exhibits, but because they are a selection of records that were obtained specifically for use in

this case they are similar to "factual findings resulting from a special investigation of a

paiticular complaint ... "

Finally, Exhibit 6, the jury questionnaire, is sin1ply a document from the Alaska Cowt

system. It is not a record or repmt or data compilation prepai·ed by the government - it is a

single piece of paper that was selected for presentation at the grand jury because it is alleged to

Motion to Dismiss indictment State of Alaska v. Roland Maw, case number lJU-16-43 CR Page 6of18

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contain incriminating information.

Because the six exhibits all contained improper hearsay information, they should not

have been presented to the grand j my.

B. Exhibits not properly authenticated.

Even if any of the five challenged exhibits could qualify as business records or public

records or reports, five of the six exhibits should not have been admitted because they were not

properly authenticated. (The only exhibit with proper authentication was Exhibit 4 - the

UCIDA records.) Authentication of documentary evidence is controlled by Article IX of the

Rules of Evidence. Evidence Rule 901, Requirement of Authentication or Identification,

provides

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims, except as provided in paragraphs (a) and (b) below:

(a) Whenever the prosecution in a criminal trial offers (1) real evidence which is of such a nature as not to be readily identifiable, or as to be susceptible to adulteration, contamination, modification, tampering, or other changes in form attributable to accident, carelessness, error or fraud, or (2) testimony describing real evidence of the type set forth in ( 1) if the information on which the description is based was acquired while the evidence was in the custody or control of the prosecution, the prosecution must first demonstrate as a matter of reasonable certainty that the evidence is at the time of trial or was at the time it was observed properly identified and free of the possible taints identified by this paragraph.

(b) In any case in which real evidence of the kind described in paragraph (a) of this rule is offered, the court may require additional proof before deciding whether to admit or exclude evidence under Rule 403.

The lack of proper authentication is evident based on the grand jmy testimony or based

and a review of the exhibits.

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number I JU-16-43 CR Page 7of18

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At grand jury, after a review of the exhibits, the prosecutor asked Investigator

Stendevad "For Exhibits 1 through 6, would ceriified copies of these exhibits be available for

trial?" and she responded "Yes, they would." Grand Jury Page 18, Lines 13-16. But the

possible availability of proper documentary evidence later does not justify the introduction of

improper documentary evidence in the grand jury.

The exhibits themselves also show that they lacked proper authentication. Exhibit 1

(data extracts from PFD), Exhibit 2 (Alaska Airlines records), Exhibit 3 (homeland security

letter), and Exhibit 6 Guror questionnaire) lacked any type of testimony or affidavit for

authentication. They were simply admitted by Investigator Stendevad, who stated what they

were. Because those four exhibits were introduced without any authentication, they should not

have been admitted.

Exhibit 5 (Montana Fish, Wildlife & Parks summary) contained a letter from

Investigator Chad Murphy that purports to certify the records that were included. The letter

purports to certify the records, but the ce1iification refers to only eight pages. Exhibit 5 has 64

pages. If the authentication from Investigator Murphy only authenticated some of the exhibit,

and it is not clear which paii of the exhibit was authenticated, and it is elem· that at least 56

pages were not authenticated at all. Because of this problem, there is no basis to say that any of

the pages were authenticated.

Because the exhibits were introduced without proper authentication, they were

improperly introduced.

II. Evidence Rule 104(b).

All the exhibits have information that is purported to be information either said by Mr.

Maw or information that is purported to represent conduct engaged in by Mr. Maw. However,

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number I JU-16-43 CR Page 8of18

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there was no evidence presented to support the belief that any of the statements or conduct was

actually Mr. Maw. This fow1dational requirement is controlled by Evidence Rule 104(b ).

Evidence Rule 104(b) provides:

Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. 1

In this case, nothing in any of the exhibits would be admissible or relevant if it was not

Mr. Maw. For example, the Exhibit 1 data extracts of the web applications are only relevant if

they are statements made by Mr. Maw. Likewise, the information in Exhibit 5 (the Montana

Fish, Wildlife and Parks) is only admissible if it was Mr. Maw who made application for those

licenses.

Or, Exhibits 2 and 3 are only relevant if it was Mr. Maw who engaged in the conduct.

Exhibit 2 is only relevant if it was Mr. Maw who made those flights. Exhibit 3 is only relevant

if it was Mr. Maw who made those border crossings.

But there was nothing in the grand jury to show that it was Mr. Maw, as opposed to

some other person, who made any of the statements or engaged in any of the conduct. The

closest the prosecution could come to that information was to prove that they did not have

information that it was not Mr. Maw. In the grand jury the prosecutor asked Investigator

Stendevad "Do you have any information that this wasn't Mr. Maw filing these applciations"

and Investigator Stendevad said "No." GJ Page 40, Lines 20-22. A grand juror then asked if

there was information about "who was sitting in the chair clicking the mouse?" GJ page 41

Lines 2-5. Investigator Stendevad was unable to answer that question, and said "the NSA

1 A useful article on this issue is by James Fayette, "Letters I've Written, Never Meaning to Send ... Conditional Relevance, Evidence Rule 104(b), and Mark Edwards' Curious Murder Trial," 26 Alaska L. Rev. 171 (2009). Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number IJU- 16-43 CR Page 9of18

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hasn't been willing to share that." But the lack of evidence is not evidence, and the lack of

evidence that it was not Mr. Maw is insufficient to meet the Rule 104( c) requirement that the

government must introduce evidence that it was Mr. Maw. 2

Finally, Mr. Maw notes that although this issue - whether or not the foundational

requirements of Evidence Rule 104(b) were met - applies to all the conduct in all of the

exhibits, the issue may be more meaningful regarding some exhibits than others. For example,

Mr. Maw does not necessarily assert that he is not the person who made the statements or

engaged in the conduct that is represented in every single exhibit. However, Mr. Maw does not

agree that he is the person who made the statements or engaged in the conduct in some of the

exhibits - and so for that reason Mr. Maw asserts that the prosecution should have to make the

required showing under Evidence Rule 104(b) for all of the exhibits - which they have failed to

do.

Ill. The questions Mr. Maw is alleged to have improperly answered were never introduced.

This case is premised upon the allegations that Mr. Maw improperly answered

questions in his online application. However, the questions that Mr. Maw is alleged to have

improperly answered were never properly introduced. The prosecution never introduced a

copy of the questions Mr. Maw responded to. Instead, the questions that Mr. Maw responded

c1 to were introduced through the testimony of Investigator Stendevad.

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2 One way this burden could have been met would have been for a person familiar with the business or government agency who provided the information to have testified about the business practices that resulted in the information being obtained. For example, a person from Alaska Airlines could testify about procedures in place to be sure that the person who takes the flight is the person on the ticket. But, as discussed above, a person from Alaska Airlines did not testify, so that information was not provided. Motion to Dismiss Ind ictment State of Alaska v. Roland Maw, case number I JU-16-43 CR Page 10 of 18

The prosecution introduced Investigator's Stendevad's testimony of what the questions

were several times. 3 First, early in her testimony Investigator Stendevad said "in response to

the question, 'were you absent for more than 90 days' or 'absent for more than 180 days'

during the prior calendar year, the qualifying year. He had said, 'no,' - he was - he had not

been absent." Grand Jmy, Page 19, Lines 9-14.

" Second, later in the grand jury, Investigator Stendevad said that 90 days is important

"because the PFD application specifically asks, 'were you absent from Alaska for a total of

more than 90 days dming the qualifying year?"' Grand Jury, Page 28, Lines 13-17.

Immediately after that, a grand juror asked "does it specify right on there whether it 's

II consecutive or not?" Investigator Stendevad said "Yes, it does. It says '90 days total ' dming

the calendar - the preceding calendar year." Grand Jury, Page 28, Lines 22-25. However,

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actual application. G J Page 29, Lines 2-7.

The issue of what the question actually said came up a third and final time a few

moments later when the prosecutor asked "What is the language of this question that's asked?

What does a person see when they're being asked the question?" Investigator Stendevad said

"They are asked the question, 'Dmin' - you know, "were you absent from Alaska for a total of

more than 90 days during the calendar year?' You know, during the preceding calendar year."

GJ Page 30, Lines 7-14.

Aside from those three instances where Investigator Stendevad testified about what the

questions was, there was no other information about what the question was. But that method of

3 The prosecutor mentioned the 90 or 180 day question in her opening statement as well. Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number I JU-16-43 CR Page 11 of 18

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best evidence rule and it was hearsay.

that:

A. Best evidence rule

The best evidence rule is contained, in part, in Evidence Rule 1002. Rule 1002 provides

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by an enactment of the Alaska Legislature or by these or other rules promulgated by the Alaska Supreme Court.

McCormick on Evidence (7th ed. 2013), § 232, Vol. 2, p . 128-130 includes a section

about the reasons for the best evidence rule, which provides:

... the basic premise justifying the rule is the central position which the written word occupies in the law. Because of this centrality, presenting to a court the exact words of a writing is of more than average importance, particularly in the case of operative or dispositive instrw11ents such as deeds, wills or contracts, where a slight variation of words may mean a great difference in rights. In addition, it is to be considered (1) that there has been substantial hazard of inaccuracy in some of the commonly utilized methods of making copies of writings, and (2) oral testimony purporting to give the terms of a writing from memory is probably subject to greater risk of error than oral testimony concerning other situations generally. The danger of mistransmitting critical facts which accompanies the use of written copies or recollection, but which is largely avoided when an original writing is presented to prove its terms, justifies preference for original documents.

Alaska case law is not flush with cases about Evidence Rule 1002 - but there is a useful

briefreference in Newman v. State, 655 P.2d 1302 (Alaska App. 1982). In Newman, the

prosecution indicted the defendant for perjury charges. Ne·wman, 655 P.2d at 1305. In grand

jury, the prosecution introduced the transcript of a prior misdemeanor trial (the trial in which

the defendant was alleged to have committed pe1j ury) and provided a brief summary of the

testimony of the misdemeanor trial. Id. On appeal, the defense contended that the prosecution

violated the best evidence rule when it provided the summary of the testimony. Newman found

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number l JU- 16-43 CR Page 12 of 18

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no merit in the argument and addressed the issue in a footnote. "Assuming that a witness'

summary of testimony at trial constitutes a violation of Alaska Rule of Evidence 1002, we note

that the transcript of the trial was presented to the grand jury and the jurors were instructed to

make their findings based on that transcript rather than on [the prosecutor' s] testimony." Id. at

1305, note 5.

In this case, when Mr. Maw applied for the PFD, he interfaced with a computer and

responded to specific questions. However, the prosecution did not produce copies of any of the

specific questions that he responded to. Instead, the prosecutor introduced Investigator's

Stendevad's testimony of what she thought the questions were. And, unlike Newman, her

summary of the question was not in addition to a copy of what the question was - her testimony

was the only evidence offered to prove what the question was.

This goes to the heart of the reason for the best evidence rnle. McCormick's comment

that "slight variations of words may mean a great difference in rights" is paiiicularly present

here.

First, there was confusion over what the question actually was. Investigator

Stendevad's testimony about the question had slight variations about what the question actually

was.

Also, Investigator Stendavad testified that the question "changed slightly over the

years." Specifically, Investigator Stendevad testified that "I know we have debated this

language. It's changed slightly over the years ... " GJ Page 30, Lines 18.

Stendevad testified that he worked as a PFD investigator for 11 years. GJ Page 15,

Lines 21-23. Investigator Stendevad testified on February 12, 2016 - so she must have meant

that she had worked for PFD since about 2005. Based on her time at PFD, it appears that when

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number I JU-16-43 CR Page 13of18

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she testified that "we have debated this language. It ' s changed slightly over the years .. . " he

must have been referring to 2005 to 2016.

The charges against Mr. Maw are based on allegations for the 2009 - 2014 PFD

applications. Because that timeframe is similar to the time frame that Investigator Stendevad

worked at PFD, which apparently included a time period when the language was debated and ,.

changed, it would be appropriate for the prosecution to have provided that exact question that

was asked of Mr. Maw in the computer interface instead oflnvestigator Stendevad's hearsay

•I testimony about the question. 4

,,, Finally, Investigator testified that the question had been clarified so that it was easy to

II understand whether it called for total days of absence or consecutive days of absence.

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' This is not a consecutive counting'?" GJ Page 36, Lines 12-14. Investigator Stendevad " ~ 14

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replied "Actually, it does say that on the online application. If you hover your mouse cursor

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over the little question mark next to that question, it does say that." GJ Page 36, Lines 15-18.

1; Based on that response - it is not clear whether the clarification about total days of absence or

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In short - there is confusion about what question Mr. Maw actually responded to - and

that confusion could be addressed if the actual question were introduced.

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4 Moreover, it appears that a screenshot interface may exist. Exhibit 1 contains several screenshots of the interfaces of other parts in the application process, but no screenshots of the interface about the 90 or 180 day question. Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number 1 JU-16-43 CR Page 14of 18

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Second, the prosecution presented several screenshots of what a person would have

seen when they submitted their PFD applications. The screenshots were all in Grand Jury

Exhibit 1 (defense Exhibit A). The screenshots include what appear to be the webpage prompts

in 2009 to 2014. None of those pages appear to contain any reference to the 90 or 180 day

requirement, or whether they refer to consecutive or total periods oftime. Moreover, the pages

appear to contain the official notifications that contain specific warning that references the

penalties for false information. With only these pieces of information to show what Mr. Maw

actually saw when he submitted his PFD applications online, there is no evidence about what

he was specifically asked about 90 or 180 days, total or consecutive periods of time, and

whether there was a warning he could be criminally charged if he answered those questions

improperly.

In short, Investigator Stendevad' s testimony about the question, as opposed to the

introduction of the actual question, violated the best evidence rule. And, this was important

because there is some confusion over what the question actually was.

B. Hearsay

Aside and independent from the best evidence rule, Investigator Stendevad' s testimony

about the questions Mr. Maw answered was also hearsay.

Hearsay is defined as "Hearsay is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted." Evidence Rule 801 ( c ). " A statement is (1) an oral or written assertion or (2)

nonverbal conduct of a person, if it is intended by the person as an asse1tion." Evidence Rule

801(a).

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number IJU-16-43 CR Page 15 of18

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In this case, the prosecution did not supply the question. Instead, Investigator

Stendevad testified about what she thought the question was. However, Investigator

Stendevad' s testimony about the question was an assertion ("the question Mr. Maw responded

to was .. . ") and it was offered for the truth of the matter asserted - it was offered to prove the

substance of the question.

Because Investigator Stendevad' s testimony about the wording of the question was

hearsay, it should not have been introduced.

IV. Because of the introduction of inadmissible evidence, and the small amount of admissible evidence, the indictment should be dismissed.

When inadmissible evidence is presented to the grand jury, the court must subtract the

improper evidence from the case that was presented and then determine whether the remaining

evidence would be legally sufficient to support the indictment. Stearns v. State, 827 P.2d 442,

446 (Alaska App. 1992), citing Oxereok v. State, 611 P.2d 913, 916 (Alaska 1980). If the

improper evidence is removed and there is still sufficient evidence to uphold an indictment, the

next question is whether "the probative force of that admissible evidence was so weak and the

unfair prejudice so strong that it appears likely that the improper evidence was the decisive

factor in the grand jury' s decision to indict." Id.

In this case, if the question Mr. Maw was asked is subtracted and if five of the six

:i substantive exhibits are subtracted (so that only Exhibit 4 - the UCIDA records are remaining),

there is virtually no evidence to uphold the indictment. The grand jury testimony was based on

Investigator Stendevad' s statement about what the questions were and it was based on evidence

obtained from those exhibits. :.. ~;

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probative force of that evidence was weak compared to the unfair prejudice from the

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number I JU- 16-43 CR Page 16of 18

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inadmissible evidence. This can be seen in tlu·ee ways. First, the sheer volume of the evidence

that was derived from those five sources comprised the bulk of the prosecution' s grand jury

evidence. That inadmissible evidence set the tone and formed the key portion of the case.

Second, the prosecution drew special attention to the inadmissible evidence. The

prosecutor gave an opening statement that discussed the theory of the case that Mr. Maw was

asked "a question that says ' were you gone more than 90 days?"' and that Mr. Maw improperly

answered. GJ Page 12, Line 19 to Page 13 Line 13. But as discussed, there was never proper

evidence introduced that Mr. Maw was asked that question. Instead, the question was provided

by Investigator Stendevad's hearsay statements. (The prosecutor's opening statement also

drew attention to the Montana fish and game records - which were not properly introduced.)

Third, Investigator Stendevad created and introduced two exhibits - 7 and 8 - that

contained her swnmaries of her investigation. However, those two exhibits were created based

upon the use of the improperly admitted evidence. In particular, exhibit 8 drew heavily from

the Alaska Airlines records and the letter from the homeland security agent - two exhibits that

were not authenticated and contained only hearsay.

In other words, the high volume of improper evidence coupled with the special attention

that the opening statement and exhibits 7 and 8 gave to the improper evidence meant that the

prejudicial effect of the improper evidence was high compared to any remaining evidence that

was properly introduced.

CONCLUSION

The grand jury in this case should be dismissed because the exhibits that were

introduced contained hearsay and were not properly authenticated, the prosecution introduced

allegations of statements made and conduct engaged in by Mr. Maw - but failed to satisfy Rule

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number l JU-16-43 CR Pagel 7 of 18

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104(b) and show that Mr. Maw was the person who made the statements or engaged in the

conduct, and finally - the prosecution did not properly introduce the questions that Mr. Maw is

alleged to have improperly responded to.

Because of the improper evidence that was before the grand jury, the indictment should

be dismissed.

Respectfully submitted at Juneau, Alaska, this J!{__4ay of September, 2016.

Alaska Bar No. 0707045

Motion to Dismiss Indictment State of Alaska v. Roland Maw, case number I JU-16-43 CR Page 18of18