Henry F. Schuelke Sixth Interview: May 24, 2012

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Oral History of Henry F. Schuelke, III
Sixth Interview
May 24, 2012
This interview is being conducted on behalf of the Oral History Project of the Historical Society
of the District of Columbia Circuit. The interviewee is Henry F. Schuelke, III (attorney from
Blank Rome LLP). The interviewer is Louis R. Cohen. The interview is taking place at 3:10
P.M. on May 24, 2012.
MR. COHEN: Welcome back.
MR. SCHUELKE: Thank you.
MR. COHEN: We thought we would start today talking about your report commissioned
by Judge Emmett Sullivan about the conduct of the prosecutors in the
prosecution of Senator Ted Stevens, which had both legal and, I guess,
political consequences for him. Why don’t you start by describing the
prosecution itself: what he was charged with, and how the trial went.
MR. SCHUELKE: All right, a task force consisting of the Public Integrity Section at main
Justice and the U.S. Attorney’s Office in Alaska commenced an
investigation which they dubbed “polar pen.” And sometime in 2004 and
until 2006, the focus was exclusively on Alaska state legislators and
allegations of bribery in exchange for official acts in the Alaska
legislature. In the summer of 2006, the government confronted a man
whose name is Bill Allen who was the proprietor CEO and, effectively,
sole proprietor of a privately held oil field services and construction
company in Alaska called VECO. They had had him under surveillance
for some time. Had video and audio tapes. They gave him a presentation
on what they had and without further ado, he agreed to plead and to
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cooperate. With his cooperation and testimony, in the fall of 2007, they
prosecuted two state legislators: Victor Kohring and Kott. I’m drawing a
blank on his first name. They tried them to guilty verdicts and judgments
of conviction and they were both sentenced to terms of imprisonment and
shortly thereafter commenced service of their sentences in two different
federal penitentiaries. On the 29th of July of 2008, just short of a year
later, a grand jury here in Washington indicted Senator Stevens. And nine
counts alleging a conspiracy to conceal from the Senate Ethics Committee
and substantive counts alleging false statements in annual financial
disclosure forms for each successive year from 2001 through 2008. There
were allegations of assorted, fairly minor, alleged gifts which he had
received which had not been reported, and none of that amounted to a
great deal. So the heart of the government’s case was the allegation that
he had received $250,000 worth of labor and materials which allegedly
had been supplied by Allen’s company, VECO, on the renovation of a
small rustic cabin which Stevens owned in the town of Girdwood, Alaska
which is sort of a little ski town not too far from Anchorage.
MR. SCHUELKE: Allen was the government’s principal witness, as he had been in the Kott
and Kohring trials. The government adduced evidence in the form of
VECO business records which purported to establish that, indeed, they had
spent $250,000 on this project. During the course of the trial, it became
apparent and the Government ultimately conceded that those records were
insignificant part false because one of the VECO employees whose time,
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according to those records, amounted to a substantial part of the $250,000,
had not even been in Alaska for several months during the period that his
time was charged. And another, who was the functional foreman on the
job, whose name was Rocky Williams, worked sporadically, maybe
showed up on the site for a couple hours a day, and, yet, the records
showed that he worked 8 hours a day, 5 days a week, month after month.
The Government took the position, well, you know, Judge, it really
doesn’t matter that these records are just a placeholder because depending
on the year in question, the Senate rules required a disclosure of a gift or a
liability in excess of only a couple hundred dollars. And so, you know, we
got him coming and going. The Senator’s principal defense to which both
he and his wife, Catherine, testified was that he had insisted from the very
beginning that while Allen and his company might provide some labor
and, perhaps, material to the project, he wanted an independent third party
contractor who was equipped in terms of carpentry and drywall and
plumbing and HVAC to do the job and he wanted to pay for all of it and
because the VECO company, an oil platform construction firm, basically
had none of those qualities that I just described. And so they had
contractor, Christensen Builders, who regularly monthly billed Senator
Stevens, although the bills were sent to his wife Catherine because he was
here in Washington and she was more often than he in Anchorage and so
she was the one who was charged with paying the bills, which she did
religiously. And they paid Christensen a total of $160,000. When all was
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said and done and the cabin was appraised subsequent to the renovations,
it was assessed at $152,000. Both
MR. COHEN: This is for tax purposes or something like that?
MR. SCHUELKE: For tax purposes but they had local real estate appraiser who also
appraised it. And so, their testimony was that while they knew that Allen
and VECO had made some contributions to it, and while late in the
process he believed that he owed something to VECO, he and she both
understood that whatever work that VECO had done but for this little bit
at the tail end was included in the Christensen Builders invoices which
they paid in their entirety. That testimony was ridiculed by the
prosecutors in the course of cross-examination and in the course of
summations.
MR. COHEN: This is in a trial where and before whom?
MR. SCHUELKE: Before Emmett G. Sullivan of the U.S. District Court for the District of
Columbia. As I said, the indictment was returned on the 29th of July of
2008. Senator Stevens was up for reelection in November and sought a
speedy trial so that he could, “clear his name” before the election. The
Government agreed and the trial commenced on September 22nd and was
concluded in the middle of, no, it was concluded before the election at the
very end of October. In terms of the political consequences, he lost the
election by a very small margin and I rather doubt as does most of the
political punditry that he would have lost had he not been charged, tried,
and found guilty. It also had the political consequence of altering the
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balance in the Senate so that the Democrats took control of the Senate as a
result.
MR. COHEN: Or, you know, I remember the Democrats actually got a so-called vetoproof majority or so-called supermajority.
MR. SCHUELKE: A supermajority.
MR. COHEN: Sufficient to stop a filibuster.
MR. SCHUELKE: Right.
MR. COHEN: So, back to the trial.
MR. SCHUELKE: Allen
MR. COHEN: They’re accusing, if I’m understanding this, the prosecutors, an indictment
has charged Stevens with receiving and concealing gifts above the limit
from VECO because
MR. SCHUELKE: Or, if not gifts, liabilities. Because the disclosure form requires the
disclosure of gifts above a certain threshold and/or liabilities owed to
some third party.
MR. COHEN: Okay. In any event, it charges that he owed money to VECO for these
services and didn’t disclose that
MR. SCHUELKE: Mm hm. Correct.
MR. COHEN: And he says, I thought the principal contractor doing this was Christensen
which sent its bills to my wife who paid them and that whatever VECO
did was included in Christensen’s bill.
MR. SCHUELKE: Yes, and, to the extent that I recognized late in the process in 2002, that
Allen and VECO had done some work after the Christensen Builders had
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concluded their work, I told him both orally and in writing and repeatedly
that I wanted him to send me a bill, which he never did. And one of the
principal items of evidence in that regard was a handwritten note that
Senator Stevens sent to Allen in October of 2002 which read:
“Dear Bill:
When I think of the many ways you have been
helpful, I lose count. Friendship is one thing though
these ethics rules are something else entirely, so you
must send me a bill. Remember Torricelli, my
friend.
P.S. I spoke to Bob P. about this who will follow
up so don’t get POd at him.
As ever,
Ted
MR. COHEN: Torricelli is Senator Robert Torricelli of New Jersey
MR. SCHUELKE: Who only a matter of weeks before this note was penned, resigned from
the Senate in the face of allegations that he had accepted things of value
from somebody I don’t remember who.
MR. COHEN: And Bob P.?
MR. SCHUELKE: Bob P. was a man whose name is Bob Persons who lived in Girdwood,
Alaska and owned and operated a restaurant there called the Double
Muskie, which was kind of a local hangout. And he was a friend of both
Stevens and Allen and he kind of volunteered to keep his eye on the
project and, you know, report from time to time to Senator Stevens who
was not there because he was, for the most part, in Washington. Allen
ultimately testified on direct examination that, yes, he remembered getting
this note from Senator Stevens. Yes, he remembered speaking to Bob
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Persons and that Persons said to him, oh, don’t worry about that, that’s just
Ted covering his ass. Which was a rather dramatic piece of evidence
which came as a complete surprise to the defense and it was admitted,
notwithstanding some sort of obvious issues about its hearsay character
and/or its opinion character. But it was admitted to devastating effect
because Brendan Sullivan, who represented Senator Stevens, from his
opening statement and through the trial, whenever the opportunity arose,
made much of this handwritten note because he thought it gave the jury a
window into the Senator’s mind and his intent that he wanted to pay for
everything. And, after all, the offenses with which he was charged are
specific intent offenses. And so this utterly undermined that defense.
Sullivan, in the course of this cross-examination of Allen, quite effectively
through his cross, made the argument that this claimed recollection of
Allen six years after the event was a recent fabrication. And Allen, of
course, like most cooperating witnesses, had an enormous incentive to
make the Government satisfied with his cooperation. So, he had already
entered pleas of guilty in Alaska to two felony bribery accounts, was
awaiting sentencing, sought a 5K1 departure letter under the federal
sentencing guidelines which is entirely within the discretion of the
prosecution and which would permit the sentencing judge to depart
altogether from the guidelines. And under the guidelines he was looking
at quite a substantial term of imprisonment, but, also, he had shortly
before the trial, entered into a contract to sell his company, VECO, to a
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major corporation for several hundred millions of dollars. And apart from
Allen’s largesse in distributing some of the money to longtime employees,
he was the beneficiary, the recipient, of about a quarter of a billion dollars
in the sale of this property. Now, under the principles of respondiat
superior in the criminal law, the Government could well have charged
VECO, the corporation as well. And had they done so, CH2M Hill, which
was the buyer of the company, would have walked away from the deal.
And so part of Allen’s cooperation agreement was that they weren’t going
to charge the company. So, not only was his liberty at issue, but,
effectively, a quarter of a billion dollars rode on him satisfying the
Government that he was, indeed, cooperative. And one of the vices, in my
judgment, of this whole sentencing guideline regime with respect to the
5K1 departure [letter], is, not only is it exclusively within the authority of
the Justice Department whether to grant it or whether not to, but, by the
terms of that provision of the sentencing guidelines, the cooperation, in
order to qualify, must have been substantial and effective. So, merely
trying to cooperate doesn’t count.
MR. COHEN: “Effective” meaning you have to succeed in the prosecution of the
Government has to succeed in the prosecution of
MR. SCHUELKE: Well, that’s clearly the simplest and most direct way to accomplish that. I
mean, there have been cases in which the Government has employed a
cooperator as a witness and the defendant has been acquitted but out of the
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goodness of their heart they gave him a 5K1 letter anyway. But, by its
terms, it requires substantial assistance. So,
MR. COHEN: I assume Brendan Sullivan brought out for the jury these motives that Mr.
Allen might have had.
MR. SCHUELKE: He did, indeed. And he banged away at Allen on cross: “When did you
first tell the Government that you remembered this conversation with Bob
Persons? It was only just recently, wasn’t it? Because, the Government
tells us that it was only September the 9th when they gave us one of these
so-called Brady disclosure letters. And they listed four reasons why you
didn’t send Senator Stevens a bill and that wasn’t one of them. So, you
only came up with this recently, didn’t you?” “No! Not recently.” Now
the record makes it clear that the witness Allen was somewhat confused at
points. At some point, it appears that he thought Sullivan was asking him
whether he had the conversation with Persons only recently. But Sullivan
banged away on this to the point that it was abundantly clear that he
wanted to know when did you first tell the prosecutors about this
recollection. And his ultimate testimony in response, was, “No, not
recently.” In fact, he had first told the Government about this recollection
on the 14th of September, one week before the trial started. And while, at
times, Allen may have been confused during that cross-examination, the
prosecutor sitting at counsel table who had put him on the stand and who
was there taking notes during the cross-examination, knew full well that
he had relayed this story for the first time only recently, namely on
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September the 14th because it was that prosecutor to whom Allen
recounted that recollection on September the 14th. There’s a Supreme
Court case Napue v. Illinois decided years ago
MR. COHEN: Spell it.
MR. SCHUELKE: NAPUE. Which requires the Government to correct false testimony. The
prosecutor said not a word which, in my view, and as I concluded in our
report, constituted another example of a Brady violation because the fact
that he had, indeed, come up with this recollection only a week before the
trial was inconsistent with his trial testimony that it had not been recent.
And, you know, there are a couple of ways a prosecutor could deal with
that. The simplest way is to get up on redirect and say, “Now [blank] just
asked you, ‘Did you tell us about this only recently?’ and you said, ‘No,’
well, you did tell only on September the 14th. You remember that?” And
Allen might have said, “Well, I don’t know what day it was but, you
know, whatever you say.” And that would have solved the problem. Or
the prosecution could have approached the bench and made some kind of
disclosure to the court and to counsel. He could have taken Brendan
Sullivan aside and told him what the facts were so that he could continue
with his cross. He did none of that. Now
MR. COHEN: Did the Government argue that all this didn’t make any difference
because, as I think you said earlier, you’d have to disclose not only gifts
but also liabilities? So that even if a bill had been sent there would have
been a disclosure required?
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MR. SCHUELKE: Yeah, I mean, it’s clear from the internal prosecution deliberations, prior
to the return of the indictment, to which I had access, that the prosecution,
early on, identified what Stevens’ likely defense was and analyzed it in
terms of helpful, harmful, for the benefit of the Criminal Division front
office, that is, the Assistant Attorney General from the Criminal Division
before they returned the indictment. And they say, well, we got this
handwritten note Stevens sent to Allen, which Williams & Connolly had
produced to the Government. This is both good and bad. It’s bad in the
sense that, you know, he’s going to testify that he intended to pay for
everything and this note corroborates that. It’s good for us in the sense
that since we can rely either on gifts or liabilities, you know, this amounts
to an acknowledgment on his part that he had a liability.
MR. SCHUELKE: And they did argue to the jury alternatively.
MR. SCHUELKE: The jury found Senator Stevens guilty of all counts in late October of
2008. Shortly thereafter, well before the case was scheduled for
sentencing, and, therefore, the entry of a judgment against him, a young
FBI agent whose name was Chad Joy who had worked on the case and
was essentially the deputy case agent. The principal case agent was a
woman whose name is Mary Beth Kepner
MR. SCHUELKE: Joy, shortly after the trial, wrote what’s been called a whistleblower letter
which is a fair characterization, in which he made sordid complaints about
the conduct of agent Kepner: too close to the cooperating witnesses,
playing golf with the cooperating witness, not keeping files according to
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FBI protocol and so on. And also claimed that the prosecutors, one in
particular, the now-late Nicholas Marsh, had come up with a scheme to
send the VECO foreman, Rocky Williams, back to Alaska just before the
trial even though he was under defense subpoena as well as the
Government subpoena because he had not done well on a mock crossexamination. And the scheme was that, well, he’s got some significant
health problem so we need to send him back to Alaska where he can get
treatment. More on that to come. This whistleblower complaint triggered
a series of post-trial motions for a new trial. And the Government,
through the same prosecution team as had tried the case and the same set
of supervisors, were in the process of responding to these new trial
motions when Judge Sullivan held three of them in civil contempt: Bill
Welch, who was the chief of the Public Integrity Section; Brenda Morris,
who was the deputy chief and had been the lead trial lawyer in the Stevens
trial. And a DOJ appellate lawyer, Patty Stemmler, STEMMI think it is
LER, for having failed in a timely fashion to comply with an order that
Judge Sullivan had issued that they were to produce by a time certain a set
of documents that were related to the Joy whistleblower complaint. That’s
of significance to me only because once they, the three of them, were held
in contempt, the Department replaced them as the Justice Department
team to handle the post-trial motions and appointed three seasoned
prosecutors to take over. And one of them
MR. COHEN: Who were they?
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MR. SCHUELKE: Bill Stuckwisch, who at the time was a senior guy in the fraud section at
main Justice who left the Department only very recently and has joined
Kirkland & Ellis
MR. COHEN: How do you spell him?
MR. SCHUELKE: STUCKWISCH. Paul O’Brien, longtime career prosecutor who was in
the organized crime section of the Department. And Jaffe, JAFFE, his
first name I cannot recall. And Stuckwisch early in the process of trying
to figure out what transpired and what the relevant facts were was
reviewing some internal email by, between and among, the original
prosecution team, without any particular focus, I don’t think. And he
came upon a series of emails which were contemporaneous with an
interview of Bill Allen in April of 2008 – 5 months before the trial. I say
contemporaneous meaning it’s evident that they were emailing back and
forth while the interview was in progress because the interview took place
in Anchorage and the two Alaska prosecutors were physically present and
Marsh and Ed Sullivan, both of Public Integrity, were participating by
telephone from here in Washington. And one of Marsh’s e-mails, the one
that started out this e-mail chain was, “Am I pushing too hard?”
Whereupon somebody responded, “Mm, maybe we should shut it down
for now.” And Stuckwisch was just curious about what were they
“pushing” Allen about? To make a long story somewhat shorter, the
handwritten notes of first two of the four prosecutors who participated in
this interview were found ultimately after a matter of some several weeks,
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one of the other lawyer’s notes were found as were the notes of the FBI
agent, Kepner, who was present at this interview. And the notes make it
clear and are consistent one set with the other that the purpose of this
interview was to ask Allen about the set of documents that Williams &
Connolly had just then produced to the Government, including the nowfamous Torricelli note, as it came to be called. They were so interested
and concerned about this that it’s the day that they got this package of
material from Williams & Connolly the prosecutors had asked their lead
agent in Alaska to get ahold of Allen’s lawyer and set up an interview as
quickly as they could. And the interview was conducted one week after
the receipt of the Torricelli note. And the notes make it clear, because
they list a series of exhibits they were asking about that they were asking
him about the Torricelli note, among others. The notes all reflect him
being asked:
“Do you remember getting this note from Ted Stevens?”
“Yes, I think so.”
“Do you remember talking with Persons?”
“Nope.”
“Was this disclosed to the defense?”
“No.”
“Was there an FBI 3O2 of this interview? “
“No.”
MR. COHEN: Was there ever a disclosure to the defense
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MR. SCHUELKE: Correct.
MR. COHEN: that Allen had said, at that point, that he didn’t have any such recollection.
MR. SCHUELKE: No, there was not, which disclosure is required as a matter of law by a
Supreme Court case called Giglio v. The United States GIGLIO which
requires that impeachment material be disclosed to the defense—prior
inconsistent statements being impeachment material, along with a few
other things. And, had it been disclosed, I suppose one would first wonder
whether the Government would have elicited the cover-your-ass testimony
from him at all. They may have. But it certainly would have gone a long
way to supporting Brendan Sullivan’s claim that this was a recent
fabrication. I mean, if not a fabrication, at least, it was abundantly clear
that it was a recently claimed recollection. The Justice Department, once
this was discovered, concluded that it was of the sort of Brady/Giglio
nondisclosure that likely would have affected the outcome and, in the
formulation the Supreme Court has consistently used, would have left one
without confidence in the verdict and so they moved to dismiss the
indictment with prejudice which motion Judge Sullivan granted.
MR. SCHUELKE: And appointed me on that very day.
MR. COHEN: This is all after the elections ___ ___.
MR. SCHUELKE: This was in April of 2009. Stevens lost the election in November of 2008.
So that was the discovery which occurred before my appointment which
led to the dismissal of the case.
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MR. COHEN: If I’m understanding it, it would have been logically possible for the jury
to convict based on the notion that there was, even on Stevens’ version, a
liability that should have been disclosed.
MR. SCHUELKE: Yeah, that’s true.
MR. COHEN: But this created a doubt that it would have convicted him under the
circumstances.
MR. SCHUELKE: Yeah, particularly when the jury might have concluded that the liability he
had to VECO was measured in the hundreds rather in the tens or hundreds
of thousands of dollars. And, in large measure, the Government’s case
depended upon the testimony of Bill Allen who came, as we’ve already
discussed, burdened with lots of reasons for doubt about his credibility and
this, of course, would have been an exclamation point with respect to that.
So, Judge Sullivan, of course, granted the Government’s motion to
dismiss, but he had increasingly throughout the trial become concerned
about the Government’s credibility in representations to him that they had
met their Brady and Giglio obligations, because there were several
episodes during the course of the trial when it became clear that they had
not, but they were remediable at that point. And even though the defense
wanted a mistrial on several different occasions, Judge Sullivan denied
those motions, and granted some less drastic relief like limiting what the
Government was permitted to establish with respect to a particular claim,
and so on. But they had repeatedly failed to make disclosures and were
effectively caught.
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The episode to which I alluded earlier about Rocky Williams’
being sent back to Alaska, you know, Chad Joy in his complaint
characterizes this as a scheme. I deposed him in the course of my
investigation. He was a young fellow who had lots of sort of conflicting
motivations of his own and he backed away from a lot
MR. SCHUELKE: Joy’s ultimate claim, which I ultimately did not credit, was that they had
developed Giglio information in this mock cross-examination and then
had spirited Rocky Williams out of Washington back to Alaska so the
defense would not have access to him. One can make a pretty good
argument that that’s what happened. But it’s also true that Rocky
Williams was a longtime alcoholic who, by the time of these pretrial
interviews, was evidently in a very bad way and exhibiting classic
symptoms of cirrhosis of the liver, jaundiced, distended belly. Hot during,
you know, August in Washington, he’d be there for a prep session in the
office of the Justice Department bundled up in a sweater and jacket and so
on. And there’s no question that he was very ill. And, in fact, he died in
December of 2008. So there’s no question that he required medical
attention. It’s also true that he did a lousy job on the mock cross as one of
the prosecutors, Joe Bottini, one of the Alaska guys, eventually testified
when I took his deposition.
MR. COHEN: Bottini?
MR. SCHUELKE: Bottini. BOTTINI. He testified that it wasn’t just on cross-examination, it
was on direct, you know, you could ask him what day of the week it was
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and he might say, “I’ll have fries with that.” That’s a direct quote from
Bottini.
They did arrange to send him back to see a physician in Alaska
who had been treating him. They did tell him, Marsh told him, call
Williams & Connolly and let them know once you’re back in Alaska.
And, I believe, that that was so that without actually obstructing Williams
& Connolly’s ability to contact the witness, it would make it difficult.
And so he did go back to Alaska and he never did testify. Might the
defense have called him, nevertheless? Certainly when it was disclosed
belatedly by the Government, to the court and defense, that Williams had
been sent back to Alaska, Judge Sullivan was very upset about this: “This
is this Court’s subpoena. The defense has a subpoena issued by this
Court. You can just unilaterally decide you’re going to ship him out and
tell nobody?”
And so, as part of the remedy, Judge Sullivan was prepared to
make arrangements for him to be deposed in Alaska if that’s what the
defense wanted to do. For a variety of tactical reasons, and not to mention
the fact that the trial was already underway at that point, they opted not to
do that. Would they have, had they known what I discovered? I think so.
Because what I discovered was that in August 2008, exactly one month
before the trial began, August the 22nd, the two Alaska prosecutors,
Bottini and Goeke, which is GOEKE, interviewed Rocky Williams. Now
he’d been interviewed many times before. And he testified in the Alaska
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grand jury, so this was sort of a one month pretrial reinterview prep
session. And both Goeke and Bottini took detailed handwritten notes
during the course of this interview. Those notes, consistent one with the
other, revealed that Rocky told them, “you know, I remember back at the
very beginning, it was 1999, I think, and we were at the Kenai River
Classic.” KENAI, which is a big annual fishing tournament on the Kenai
River outside of Anchorage which they also use as a big political
fundraising event. “And Allen and Senator Stevens and I were talking and
Senator Stevens told us how he wanted to do a renovation on the cabin in
Girdwood and he wanted to make sure that this was done right because it’s
gonna be under a microscope. He wanted to have a contractor who would
do the work. He wanted to pay for everything and if we VECO did any
work on the project, our time and labor was to be included in the
contractor’s bills. And so, in the event, he engaged Christensen Brothers
Builders and every month I [Williams] would get their invoice ‘cause I
was kinda like acting as the foreman on the job, and I would examine
those invoices to make sure they were consistent with what I had observed
Christensen to be doing during that month and then I would take him up to
the VECO main office to give to Allen or his secretary so that my time,
Dave Anderson’s time and anybody else from VECO could be added into
the Christensen Brothers bills.”
MR. COHEN: This is what Rocky Williams said to you?
MR. SCHUELKE: No, this is what he told the two prosecutors a month before the trial.
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MR. SCHUELKE: Which is entirely consistent with Senator Stevens’ and Catherine Stevens’
defense.
MR. SCHUELKE: And the original plan was the Government was going to call him in its
case, perhaps, as its leadoff witness. Now it’s one thing for the defendant
and his wife to say we understood we paid for everything through this
mechanism, it’s quite another to have the Government witness who’s the
foreman on the job testify that that was his understanding as well, which,
in my judgment, is quintessential Brady material. And that was never
disclosed to the defense. Instead, Chad Joy, the agent who was present at
that interview, took virtually no notes of his own and the prosecutors,
Goeke and Bottini, dictated to him at the conclusion of the interview a
two-sentence 302. A 302 is the FBI form on which a memorandum of an
interview is transcribed. The interview consumed about 2 hours by their
estimate. The 302, which was supposed to be a summary of the interview,
two sentences. The first said: “I never told Ted or Catherine Stevens that
the VECO time was included in the Christensen Brothers bills.” The
second sentence said: “Neither of them ever asked me whether the VECO
time was included in the Christensen Brothers bills.” And the handwritten
notes of the prosecutors also recount those two statements, but it’s clear
from the notes that here’s how it went: Rocky tells them this whole story
about his understanding about how the VECO time was going to be in the
Christensen Brothers bills. They then say, well, okay, but did you ever tell
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them that? “Mmmno. That was the understanding from the beginning.”
Right?
MR. SCHUELKE: Goeke testified when I took his deposition, “Yeah, I wanted those two
statements recorded so that if Rocky testified at the trial and contradicted
that notion somehow, we’d be in a position on redirect to impeach him.”
Now, in my view, what this 302 amounted to, selective as it was, was an
anti-Brady 302. That is, if he comes up with this story because they
tumbled to it then, at least, we have him locked in to say, “yeah, but I
never directly told them that the VECO time was in the Christensen
Brothers bill.” So, in my judgment, you couldn’t possibly have conceived
of this plan to deal with this information, which is harmful to the
Government’s case, without understanding that it was Brady material,
because it was harmful to the Government’s case. And they had a clear
obligation to disclose it and they did not. Which is why
MR. COHEN: They pile it on by then sending Williams himself out of town?
MR. SCHUELKE: Right. Right. That episode is one of the bases for my conclusion that
Goeke and Bottini acted willfully when they failed to disclose Brady
information. And they are the only two, well, the prosecution team, who
were ever aware of this. Their notes, their handwritten notes, never saw
the light of day. Nobody else ever had occasion to look at them. We
discovered them in the course of our investigation.
MR. COHEN: Can we go back to the start of that, because I haven’t given you a chance
to explain how you got into this. The Government has moved and the
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Judge has granted a motion to dismiss the indictment. And the same day,
he asks you to undertake an investigation.
MR. SCHUELKE: Well, that was a Monday, the 9th of April, no, 7th of April. The
Government’s motion to dismiss had been filed, I believe, on the 1st of
April. So, Judge Sullivan had the motion and it was self-evident that he
was going to grant this motion, and he scheduled the hearing at which to
do that on Monday the 7th of April. On the previous Friday, in
anticipation of that, he called me. I was there minding my own business
when Judge Sullivan called.
MR. COHEN: Why did he call you?
MR. SCHUELKE: Well, I have known him for many years. I knew him when he was a trial
judge in the superior court many years ago. And I have, as we’ve already
discussed, for many years served as the counsel to the Judicial Tenure
Commission and Judge Sullivan was a member of that Commission with
whom I worked for quite a few years. And so, we knew one another quite
well. And beyond that, I can only tell you what he said when he
announced my appointment was that I was a former federal prosecutor, I
was a defense attorney at that point for many years and had experience
doing a variety of investigations for the Senate, for the Tenure
Commission, in my private practice, and we thought that for those reasons
I was well-equipped to do the job because I understood the prosecution
process and the defense function and had the requisite investigative
experience.
– 225 –
MR. COHEN: When he appoints you, does that require any formalities other than a court
order?
MR. SCHUELKE: No.
MR. COHEN: And how much does the court order spell out about the subjects you’re
going to cover, your powers, your right to use other people?
MR. SCHUELKE: Well, I can tell you exactly what the order said.
MR. COHEN: Okay.
MR. SCHUELKE: It said that I was appointed to investigate and prosecute for criminal
contempt as appropriate the six named prosecutors: William Welch,
Brenda Morris, Nicholas Marsh, Joseph Bottini, Jim Goeke and Edward
Sullivan who conducted the prosecution of Senator Stevens. That’s what
the order said.
MR. COHEN: Did you have the power to subpoena people?
MR. SCHUELKE: Well, I think I probably did on the strength of that order but in order to
cross the t’s and dot the i’s, I subsequently made application to him for the
express authority to issue subpoenas and conduct depositions, which he
granted. The criminal contempt statute is 18 U.S.C. Section 401, which
provides in relevant part that one can be convicted of criminal contempt
for the willful disobedience of a judicial order. The Federal Rules of
Criminal Procedure also spell out a procedural mechanism. And it
provides that ordinarily the Justice Department will serve as the prosecutor
for a criminal contempt investigation ordered by a federal judge unless the
judge concludes that the interest of justice requires that an independent
– 226 –
lawyer be appointed. And, you know, this is the obvious circumstance in
which one wouldn’t appoint the Justice Department to investigate itself.
And so, that’s why.
MR. COHEN: Although, the Justice Department had undertaken its own investigation.
MR. SCHUELKE: Well, they hadn’t, no, they had, well, they had the O’Brien-StuckwischJaffe team which only had occasion to “investigate” because they were
trying to learn the facts to get up to speed so they could respond to the new
trial motions. They weren’t directed to conduct an investigation into the
conduct of the prosecutors. But it’s also true that when the Joy complaint
was made public, the Justice Department’s Office of Professional
Responsibility commenced its own investigation, broadly, into the conduct
of the FBI because Joy was complaining about Agent Kepner and the
prosecution, to the extent that he raised claims like the so-called scheme to
send Rocky Williams back to Alaska. And OPR conducted that
investigation in parallel with ours. We cooperated one with the other. So,
for example, they made available to me transcripts of interviews that they
conducted and I reciprocated. And I had seen a draft of the OPR report
and I know they did a good, comprehensive and competent job. That
report has not been made public despite a lot of demands emanating from
the Congress and, as I understand it, while their report has been completed
and conclusions have been drawn about whether or not some or any of the
prosecutors committed professional misconduct, which is the OPR
– 227 –
mandate, it remains, as far as I know, in the internal Justice Department
appellate process.
MR. COHEN: Well, so you get Judge Sullivan’s order, how did you proceed?
MR. SCHUELKE: At the same time that Judge Sullivan appointed me. I told you I was
sitting there minding my own business in my office when he called me.
Probably, I don’t know, 6 or 8 months ago, I was talking to him one day
and he said, “Let me ask you this, knowing what you know now, would
you have answered the phone when I called you that day?” And I bit my
tongue and said, “Of course, Your Honor, I would have.” Anyway, a little
aside.
The same day he appointed me, he also ordered the Justice
Department to cooperate with my investigation. And the Attorney
General, Eric Holder, promptly announced that the Department would
cooperate. And the Department did cooperate completely. And so the
first thing I did was I arranged to have a meeting at the Department with a
lot of the Criminal Division brass they probably had eight of them there at
the meeting and to give them a preliminary laundry list of what I wanted:
I want access to all the email traffic of the prosecution team. I wanted,
starting January 1st of 2008, I want all the internal prosecution memos to
the front office and I want all the drafts of all those pro se memos. I want
access to all of the files maintained by Public Integrity, by the FBI, and by
the U.S. Attorney’s Office in Alaska hard copy files that I will be able go
through and select what I want copied. I don’t remember whether that
– 228 –
early on I had a specific list of people I wanted to interview. I think not.
Shortly after I was appointed, each of the subject lawyers retained separate
counsel and so, they were all represented and so with respect to my
dealings with them about my intention to take their depositions, I dealt not
with the Department but with their individual lawyers. And, of course,
they all had a Fifth Amendment privilege. They all could have asserted it
and declined. None did. And they all appeared voluntarily and I took
depositions of all of them as well as the FBI agents, senior people in the
Criminal Division management, including the then Assistant AG for the
Criminal Division and his deputy. I took Bill Allen’s deposition. I took
his lawyer’s deposition after we had a litigation over the production of the
lawyer’s handwritten notes of the series of meetings and interviews and
prep sessions that Allen had had with the Government. He made sort of a
halfhearted claim through his then new counsel here in Washington that
this was work product doctrine protected.
MR. COHEN: So now we’re up to seven law firms on the other side of the table from
you.
MR. SCHUELKE: Two for Allen. One for each of the subject attorneys, so that’s eight. But,
Matt Friedrich, the then former Assistant AG for the Criminal Division
was represented by separate counsel, as was his then deputy, Rita Glavin,
as were both of the FBI agents. So there were, I don’t know, a dozen
different lawyers and law firms involved in it.
MR. COHEN: Did you talk to Stevens himself in the course of the investigation?
– 229 –
MR. SCHUELKE: No. I did talk to the lawyers from Williams & Connolly and made
requests of them for documents and they cooperated completely. But, no,
I never had a need to or occasion to speak to Stevens himself. Of course,
he knew none of the relevant facts.
But we spent a considerable time, as you might imagine,
identifying, finding, and reviewing documents before we started the first
of our depositions. And
MR. COHEN: “We,” at that point, is?
MR. SCHUELKE: Bill Shields. Of counsel to my then law firm. And of counsel now to
Blank Rome. And it was only the two of us who conducted this
investigation. And it was a major undertaking. It took me a lot longer
than I had hoped it would. It took me a lot longer than I was comfortable
with. And it took us 2½ years or almost 2½ years.
MR. COHEN: You have a sense of how many hours?
MR. SCHUELKE: I don’t remember. I do know that we were paid by the Administrative
Office of the U.S. Courts the princely sum of $200 per hour, both Bill and
myself, and that, when all was said and done, they paid us a tad under a
million dollars at $200 per hour. That’s a lot of hours.
MR. COHEN: That’s a lot of hours.
MR. SCHUELKE: But one additional and significant issue which consumed a lot of our time,
which also would likely have been outcome determinative had it been
disclosed to the defense, was the following somewhat convoluted story.
In 2004, there was a criminal case indicted in Alaska. The lead
– 230 –
defendant’s name was Joseph Boehm, BOEHM. And he was charged
with a broad ranging conspiracy to distribute prohibited substances,
largely cocaine, and to enlist young women for purposes of prostitution.
And most of these young women were cocaine addicts who were basically
engaging in prostitution under Boehm’s direction for the cocaine. One of
them was a woman whose name was Bambi Tyree, TYREE. Bambi was
indicted along with Boehm but she ended up cutting a deal and
cooperating and was to testify at Boehm’s trial. Boehm eventually pled
guilty as well. But she was then scheduled to, and did, as a part of her
cooperation, testify against Boehm at his sentencing when there was a
lengthy sentencing hearing. That occurred in 2005. Before the Boehm
scheduled trial, before he had agreed to plead guilty, another Alaska
prosecutor who was responsible for this prosecution, his name escapes me
at the moment, but I’ll think of it, and an FBI agent whose name was John
Eckstein, had some concerns about Bambi’s credibility and they wanted to
pin one thing down with her. And so they went to see her, in the presence
of her lawyer, where she was then incarcerated at SeaTac, the SeattleTacoma federal correctional institution. And John Eckstein prepared an
FBI 302 of this interview. And the 302 reads in pertinent part: “Had sex
with Bill Allen when I was fourteen. Gave a sworn statement falsely
denying that I had had sex with Allen when I was fourteen. Did so at
Allen’s request.” And that was because, as we learned, Allen had had a
sexual liaison with another woman who was jealous about the fact that he
– 231 –
had this relationship with Bambi Tyree. Now, mind you, at this point,
Allen was probably 60 years old. And he’s got this 14 year old coke
addicted hooker who he has this relationship with. So the other woman is
going to blackmail him. She wants some money. She’s maintaining that
she’s going to disclose the fact that he’s had what amounts to statutory
rape with this 14 year old girl. And so Allen engaged a lawyer in
Anchorage and took Bambi down to see the lawyer and in an effort to
forestall this he has Bambi sign this false affidavit that she never had sex
with Allen.
This becomes known to the prosecutors between the Kott trial and
Kohring trial in the fall of 2007. They’ve got Eckstein’s 302 which says
as simply and as concisely as could be that according to Bambi the
affidavit was false and in addition, four days after that interview at
SeaTac, the prosecutor in the Boehm case filed a lengthy pleading with the
court seeking to, while he was conceding that the fact that she admitted to
signing a false sworn statement would be admissible against her to
impeach her when she testified, arguing that the underlying subject matter,
namely sex with Bill Allen should be excluded because Allen’s not in this
case, and he wasn’t and that would just be prejudicial and inflame the jury,
blah, blah, blah. But in the course of filing that motion, he laid out this
whole thing, the story I just told you, about how the other woman was
trying to blackmail him so Allen takes her to his lawyer and she swears
out this false statement. So the Stevens prosecutors have that as well. So
– 232 –
Nick Marsh and Jim Goeke are the two who tried the first of these two
cases in September 2007. Joe Bottini and Ed Sullivan, from the Public
Integrity, also part of the prosecution team, tried the Kohring case and
between the two trials somebody brings to the attention of the group of
them this 302 and this pleading that had been filed back in the Boehm case
two years earlier and don’t we have to disclose this?
MR. COHEN: They have not disclosed any of this to Stevens.
MR. SCHUELKE: No. They didn’t disclose it to Kott or Kohring and they didn’t disclose it
to Stevens. Instead Nick Marsh says, well you know I, and this is all in
emails, You know I hear you but you know we didn’t disclose it in the
Kott trial and I don’t think there’s really anything to this, I think this is a
mistake and I don’t think it’s true and now if you’re going to disclose it to
Kohring’s lawyers, well that means we’re going to have to say we failed to
disclose it to Kott. But you know if you insist we can run it up the flag
pole at PRAO. PRAO is the Professional Responsibility Advisory Office
within the Justice Department. Okay good, let’s do that. So Marsh calls
one of the lawyers at PRAO and purports to describe the relevant facts and
asks for an opinion, do we have to disclose this? He didn’t disclose the
302, he didn’t disclose the pleading, Frank Russo is the other lawyer in the
Boehm case, he didn’t disclose the pleading that Frank Russo had filed
and he told the PRAO lawyer that this was a mistaken recollection on the
part of the lawyer and blah, blah, blah and the PRAO lawyer then says,
– 233 –
well, I mean if that’s the case then there is no relevance you don’t have
anything to disclose. Good. Got nothing to disclose.
MR. SCHUELKE: I told you this was a convoluted story. Frank Russo and Eckstein
interview Bambi in July of 2004. Four days after the interview Russo files
the pleadings in the district court in Alaska which I have already
described. 2005, a little less than a year later, Boehm is now up for
sentencing and Bambi is being prepared to testify against him at his
sentencing hearing. In addition to Agent Eckstein’s 302 and his own
handwritten notes in the SeaTac interview, Russo had made his own notes
at that interview and his notes are consistent, had sex with Allen when I
was 14, falsely denied that I did, did it at Allen’s request. His notes, those
notes were discovered by the Marsh, Goeke, Bottini, Sullivan team two
years later and the line in Russo’s notes which originally read, did so at
request of BA, okay, Bill Allen; when they found the copy of these notes
the BA was crossed out and the marginalia read, Bambi’s idea. Okay. So
now it says, “Did so at request of, cross out Bambi’s idea.”
MR. COHEN: So it sounds she made it her idea.
MR. SCHUELKE: It was her idea not “Bill didn’t ask me to do this.” Right. So, Frank, how
did this come about? He says, “You know I’ve been racking my brain
about this and I’m pretty sure this is what happened. I took those notes at
the interview in 2004 at the SeaTac’s…”
MR. COHEN: This is Russo speaking?
– 234 –
MR. SCHUELKE: Frank Russo, yes. “I took those notes at the interview at the SeaTac
Penitentiary. A year later we’re prepping her for the sentencing in Boehm.
We get around to this subject. She never wanted to say anything negative
about Allen; she didn’t want to get him in trouble; he for years had been
giving her and her extended family lots of money. And so, when this
subject came up she said, ‘No! No! It was my own idea.’ So instead of
writing out a new set of notes I had with me in my file the notes I took a
year ago so I just crossed that out and wrote, ‘Bambi’s idea.’” Okay.
Now, when between the Kott and Kohring trials, Nick Marsh and
company focus on this issue. They go talk to Russo, he’s right down the
hall from Bottini in the U.S. Attorney’s Office in Alaska. So I mean,
“Frank, you know you filed this pleading which says Bill Allen had her
swear this false statement. Here’s a copy of your notes that says, Bambi’s
idea.” And at this point he didn’t really remember very well and he says,
“I don’t know.” So, they came to the convenient conclusion that what he
wrote in the brief was a mistake and that’s what they described to PRAO.
The only evidence is a mistaken account in a pleading filed by the
government and that’s only a pleading, that’s not evidence anyway. And
the PRAO lawyers never knew that there was an FBI 302, that the FBI
agent’s own notes were consistent with the 302 of what Frank Russo’s
notes actually originally said and so they say, nope, nothing to disclose, no
evidence.
– 235 –
MR. COHEN: So all PRAO was told was that Bambi, herself, had the idea of not saying
anything to harm Allen.
MR. SCHUELKE: Right, and what they told PRAO was simply false. And all of them
Bottini and Goeke, who were not participants in the conversation with
PRAO knew what PRAO had been told because the PRAO lawyer
dutifully wrote a memo of everything she was told and emailed it to the
whole group. And, you know, when I took their depositions, Bottini and
Goeke, I said, “well, Mr. Bottini you received this email did you not?”
“Apparently I did.” “Well now as you read this you would agree with me
would you not that this is, this part is false; this part is false and this part is
false.” “Yeah, I agree with you.” So, you didn’t say, “Oh wait a minute,
wait a minute! Nick you better to back to PRAO or I better, cause this is
wrong.” “No, I, you know, I don’t think I focused on it, I didn’t read it or
I didn’t read it carefully.” Uh, So that was not disclosed in the Kott or
Kohring trials, which after it came to light, led to the reversal of their
convictions and both of them were released from prison, having one of
them served a year and a half by that time, the other one ten months or
something; and it was not disclosed to Senator Stevens, and had the jury
here in Washington been acquainted with evidence that Allen had
suborned perjury, in combination with the rest of his problems, uh, and I
concluded with respect to Bottini and Goeke that that was a willful
nondisclosure as well. You know, they say, “well wait a minute, uh, you
know, we made repeated attempts to have some kind of disclosure made,
– 236 –
and we’re the two bozos out in Alaska; Public Integrity is running this
case, we don’t have our normal chain of command, the U.S. Attorney, our
boss, is recused from this case and we tried.” Oh. They tried by,
repeatedly, saying, you know, I think we need to disclose something about
this because the press in Anchorage is on to this Bambi Tyree/Bill Allen
relationship generally, and they’re going to write a story about gifts that
he’s given her and the family, and we don’t know what Williams &
Connolly might know about this, and oh, by the way, we just learned that
one of Boehm’s lawyers in the subsequent civil action up in Anchorage is
Ted Stevens’ brother-in-law, so they may well know this whole story with
that pleading, that Frank Russo filed, because it was under seal and
remained under seal until I asked the court in Alaska to lift the seal. So
the only ones who presumably would be privy to it would be the lawyers
who were involved in the case. And so what Bottini and Goeke were
proposing to the group and to management was, we can’t afford to get
caught not having disclosed this, so we ought to make some kind of
disclosure and “smoke out what Williams & Connolly might know about
this.” Just a pure tactical effort at covering their backs in case they got
caught without actually disclosing the relevant facts.
MR. COHEN: You mean by just sort of stating some good intentions.
MR. SCHUELKE: Well, yeah. What they did in response to those suggestions was shortly
before the trial began , because they were not disclosing the actual
underlying evidence of any Brady or Giglio material, instead they were
– 237 –
writing these summary letters, Dear Williams & Connolly: This is our
summary Brady disclosure letter. And they would have a number of
topics and on this topic it said, “There was a suggestion,” suggestion is the
word used, “There was a suggestion that uh an underage female had a
sexual relationship with Bill Allen and falsely denied such. We have
investigated this thoroughly, there is no evidence to support it.” That’s the
letter they wrote to support this suggestion.
MR. SCHUELKE: Now, you asked me early on about the roles of senior people on the
prosecution team by contrast to more junior people. There were six
lawyers whom I was ordered to investigate. Welch was the Chief of the
Public Integrity Section; Brenda Morris was a Deputy Chief who was
appointed at the eleventh hour to be the lead trial lawyer; Marsh, Bottini
and Goeke whom I’ve already described to you, who had been up until the
eleventh hour before the Stevens trial, the team, the lead lawyers. And the
young guy in Public Integrity whose name was Ed Sullivan who had just
recently come from the Civil Division and never seen, let alone, tried a
criminal case, who was a scrivener, a smart kid who drafted a lot of the
pleadings. Shortly before the case was indicted in July of 2008 the front
office Matt, and Friedrich and Rita Glavin called the whole team in, the
two guys from Alaska, Marsh, Sullivan to put on a dog and pony show for
us so we can see whether we think they’re up to this high visibility case
taking on a senior United States senator. And they were not overly
impressed and so Matt Friedrich wanted Brenda Morris to try the case.
– 238 –
Brenda had been, for a couple of years, the deputy chief of Public Integrity
and had some passing familiarity with this whole polar pen investigation
but never actively supervised any of it. She resisted but eventually they
said no Brenda you need to do this so she did. But as she herself testified,
the rest of the team, that is, Marsh, Bottini, Goeke and Sullivan, but
mostly Marsh who was the most senior of that four, really had his nose out
of joint and basically…
MR. COHEN: Because she had been brought in?
MR. SCHUELKE: Because she had been brought in. “And so in order not to make the
morale problem even worse,” she said, “I tried to make myself as little as
possible, and I’m spending my time getting up to speed, to learn the case,
preparing to try it and trying it. I didn’t have the time, the interest, or the
desire because of those morale reasons to actually play like supervisor
over these people.” Meanwhile, she and Rita Glavin are very close
personal friends. Rita Glavin was a very hard charging Justice
Department lawyer who, both because of her position in the front office
and because of her relationship with Brenda Morris, aggressively
supervised this prosecution. Welch, who was the chief of the Public
Integrity Section, as a result felt like he was taken out of the chain of
command. And which he was, effectively. And so he didn’t really have
the opportunity to supervise this on a workaday basis although, as I
conclude and as the report says, every time one of these disclosure issues,
and they came up repeatedly in the trial, came to his attention, was
– 239 –
brought to his attention, he told them, turn it over. And, according to both
him and Brenda Morris, Rita Glavin took the position “Hey, this is
Williams & Connolly we need to play this really close to the vest. We’re
not going to turn over 302s, except in so far as they are Jencks material.”
And so there was this perfect storm of absence of meaningful supervision
and improvident judgments about how discovery in the case should be
managed. Eventually, before the trial ended but after Allen had testified
and left, the Public Integrity Section got this big file from Alaska because
the Anchorage Police Department was investigating this sexual
misconduct allegation about Allen with minors and they ultimately sent it
to the Justice which has here in Washington the Child Exploitation and
Obscenity Section and so when, prior to that time, while the senior
management in the Criminal Division knew about this APD sexual
misconduct investigation, they took the position that “we don’t have that
stuff in our possession; we don’t have any obligation to go ask for it so
then we’d have to turn it over. We only have to turn over what’s in our
custody and control.” This is another ridiculous position to take. Well
now they have it so Welch started leafing through it, the night he got this
box, spent most of the night reading through it and he sees John Eckstein’s
302 of the Bambi interview in 2004 and he says, that’s not the way they
described this to me. And sent it immediately to Williams & Connolly.
So my conclusion about Welch was that he didn’t effectively supervise
this because he was effectively removed from that role but every time
– 240 –
somebody came to him because he was this leader in the Public Integrity
Section he directed them to do the right thing, to his credit. I credit
Brenda Morris’ account that she basically didn’t know anything about any
of this because she didn’t care to and wasn’t engaged in it and there’s no
evidence to the contrary. I concluded that Ed Sullivan the most junior guy
on the team, while he was privy to a lot of this information, made no
decisions, and followed the lead of the people who were senior to him,
like Marsh and Bottini. So…
MR. COHEN: And as to the remaining three your conclusions were…
MR. SCHUELKE: I concluded that Bottini and Goeke intentionally withheld Brady and
Giglio material. I made no such conclusion about Marsh simply because
he was deceased. Now, so that’s one of two elements of the criminal
contempt prosecution. Willful disobedience. The first essential element
that one has to prove is that there was a clear and unambiguous order
which was willfully violated, okay. So I concluded that the two of them
willfully failed to disclose Brady/Giglio material; had Judge Sullivan
issued a clear and unequivocal order that they were to turn over all Brady
and Giglio material I would have prosecuted the two of them for criminal
contempt. I concluded that Judge Sullivan had not issued such an order.
Long colloquy during pretrial hearings on the defense motion to compel
production of Brady, Giglio and other discovery materials. Judge
Sullivan. “We all know the law, we all know Brady, we all know Giglio,
we all know the Poindexter case from our Circuit Court, we all know the
– 241 –
Safavian case from Judge Friedman, you know, why shouldn’t I order you
to follow the law?” “Well, your honor, you’re right, we do know the law
and you know we’re complying with that and we recognize that we have a
continuing obligation to do so.” Um, “why shouldn’t I just say, why
shouldn’t I just say, follow the laws of Safavian, Poindexter and so on?”
Whereupon one of the Williams & Connolly lawyers says, “well your
honor, it would be helpful if you did that.” To which Judge Sullivan said,
“I just did. I just did.” Which in fact he hadn’t. He said “Why shouldn’t
I, right?”
MR. COHEN: Uh huh.
MR. SCHUELKE: At the end of that lengthy colloquy, he summarizes the whole situation
and he said, again, “I am not going to issue an order that simply says
follow the law. We all know what the law is and I accept that in good
faith the government will abide by it and I’m not going to issue an order.
Anything else, folks? We done with this?”
MR. COHEN: So if I understand correctly, the statute makes it criminal contempt to
willfully violate a court order but doesn’t make it a crime at least that
statute doesn’t make it a crime and to willfully fail to turn over Brady
material…
MR. SCHUELKE: Right, that’s correct. And the only statute that would is the obstruction of
justice statute over which I have no authority. The Justice Department
does.
– 242 –
MR. COHEN: Because your original order from Judge Sullivan didn’t authorize you to
look into any other crime.
MR. SCHUELKE: And couldn’t, as a matter of separation of powers. This is a judicial
function.
MR. COHEN: Thus only a prosecution for a violation of his order?
MR. SCHUELKE: Right. And the Justice Department is the sole authority to bring or not
bring an obstruction case. I said in my report, while I was doing this
analysis of the contempt statute and concluding that a contempt
prosecution would not lie for want of a clear and unambiguous order, I
dropped a footnote that says we offer no opinion as to whether a
prosecution for obstruction of justice might lie, citing to a case U.S. v.
Convertino which is very similar…
MR. COHEN: Spell that.
MR. SCHUELKE: CONVERTINO. Convertino is an AUSA in Detroit who was the lead
prosecutor in a terrorism case and they indicted and tried a couple of, I
don’t remember the nationality now, Middle Eastern origin, and they’d
done a raid of an apartment they had in Detroit and they found these
handwritten maps which appeared to be maps of part of Amman, Jordan.
But there are a number of military installations and a hospital, Queen
Rania hospital. And the government’s theory of this case was that they
were plotting to somehow to blow up one of these installations in Jordan
and they dispatched investigators to Jordan and took photographs of a
number of these installations from a helicopter and there is basically no
– 243 –
persuasive similarity between the drawing and the photo. And they went
to trial claiming that this drawing was an accurate depiction of this place
in Jordan and denied that they had ever taken any photographs. Not only
did they not disclose them, they denied that they were ever taken. And so,
and the evidence was that Convertino, the AUSA knew about the
photographs because they were sent to him electronically and they had the
emails and what not. So they indicted Convertino and this agent.
MR. COHEN: For obstruction?
MR. SCHUELKE: For obstruction of justice, for having failed to disclose. That case went to
trial, they were acquitted by a jury. It appeared to be a classic case of jury
nullification; these are the guys with the white hats who were trying to
prosecute the terrorists. But theoretically, to answer your question, yeah,
this conduct I found would support an obstruction of justice charge, in my
view.
MR. COHEN: Do you think that when the participants asked Judge Sullivan not to issue
an order, they were thinking of the possibility of criminal contempt? Was
the Justice Department saying, well, you know, let’s not turn our Brady
judgments into possible contempts?
MR. SCHUELKE: I don’t think so. I mean I think the truth of the matter is that by the time
the case was in trial, with the exception of the Bambi Tyree issue, I don’t
think that Bottini or Goeke ever gave one thought to what Rocky Williams
had told them a month earlier. I mean I don’t think they were consciously
saying, “We know we’re supposed to turn this over, you know but we’re
– 244 –
not going to do it.” They’ve rationalized it. I don’t see how they could
possibly do that with Bambi.
MR. COHEN: Are there other significant incidents of misconduct that you haven’t
mentioned, or is it the two, primarily the two that you have described?
MR. SCHUELKE: Well, there are three basically, I mean, with respect to the one that
originally prompted the dismissal, Allen’s April 2008 interview where he
didn’t remember talking to Bob Persons, all five of the participants at that
interview, four lawyers and the FBI agent claimed not to have
remembered what he said in that interview. The FBI agent testified that
she didn’t do a 302 because the interview did not go well. I found that
hard to believe, this collective memory failure and I said so in the report.
But I also said that I was unable to cite to evidence that any one of them
actually did remember and so I didn’t think I could make a contempt case
out of that, had there been the requisite order. But I persistently view
that’s pretty damn hard to believe that all of them; because, as I said
earlier, they knew what the defense was; they knew what Ted Stevens was
going to make out of that handwritten note; they had identified that
possible defense before they even got that note and as I think I also said,
they scrambled to get a hold of Allen as quickly as they could, to ask him
about this and yet they forget about it. And you would think that come
September 14, when Allen did come up with the recollection, five months
later and Bottini and Kepner and company all went to the war room where
they all worked and hey, we got a great piece out of Allen today, you
– 245 –
know, this is big news internally. Don’t you think one of them might of
said, wait a minute, didn’t we ever ask him this before, I mean we’ve had
this note since last April.
MR. COHEN: I’d like to stop here.
MR. SCHUELKE: It’s 5:00 so you have, as we said, more important things to do.