Judge suspects ATF attorneys of fraud in ex-agent's suit

A federal judge suspects that seven attorneys representing the Bureau of Alcohol, Tobacco, Firearms and Explosives committed fraud in the case of a retired federal agent who infiltrated the Hells Angels motorcycle gang in Arizona.

Court of Federal Claims Judge Francis Allegra banned the attorneys from filing documents in his court, and he ordered additional hearings to investigate the attorneys' actions, essentially creating a trial within a trial.

The accusations are spelled out in newly unsealed court documents in the case involving former federal agent Jay Dobyns, a onetime University of Arizona football star who sued the ATF for improperly handling threats against him following his undercover stint with the Hells Angels.

The judge previously ruled in Dobyns' favor, but withdrew his own decision after learning about the ATF attorneys' conduct.

Former U.S. Attorney for Arizona Paul Charlton said he has never heard of a federal judge taking similar action against government attorneys.

"That's extraordinarily unusual, and if the basis for that order is true, greatly disappointing," said Charlton, who served in the U.S Attorney's Office from 1991 through 2007.

ATF Agent Thomas Mangan, a spokesman, declined comment.

"I understand that some documents related to this judicial matter have been unsealed, but they are part and parcel to the ongoing litigation and therefore we cannot comment on this matter," Mangan said in an e-mail.

The specific order that names the banned attorneys remains sealed.

The newly unsealed court documents disclose:

— An ATF attorney attempted to thwart an investigation into arson at Dobyns' house, and fellow ATF attorneys failed to report the incident to the court. Those actions put the integrity of the trial at risk, according to the judge.

—Dobyns' attorney, James Reed, has been under relentless surveillance for months by several unidentified people.

The case focused on the ATF's investigation of a fire at Dobyns' house after supervisors withdrew his covert identification. The court found that two now-retired ATF executives, George Gillett and Charles Higman, allowed Dobyns to be treated as a suspect in the 2008 fire as a form of payback for a previous settlement he had received against ATF for largely ignoring earlier death threats against him.

Other court documents indicate that Allegra's directive prevents the attorneys from serving as the government's counsel of record, but allows them to consult with their successors as the case proceeds.

Dobyns' attorney said he is awaiting directions from the judge regarding how the case will move forward. He declined further comment.

Dobyns, a Tucson resident, was a two-time honorable mention All-Pacific 10 Conference wide receiver at UA who worked as an undercover ATF agent for 27 years. He sports sleeve-splitting biceps, a shaved head and a dense collection of biker tattoos.

Dobyns said the judge made the correct move to protect the integrity of his courtroom.

"DOJ attorneys had been misrepresenting facts," Dobyns alleged in an interview with The Arizona Republic. "They have been withholding evidence. And I think Judge Allegra, whatever the basis for the decision was, I think it's appropriate.

"Judge Allegra not only has the obligation to be the finder of fact, he has the obligation to protect the dignity and integrity of the United States justice system."

The unsealed disclosures extend the six-year legal battle that briefly appeared concluded last year.

After a three-week trial in Tucson and Washington, D.C., during which more than 20 ATF agents and executives testified, Allegra ruled on Aug. 25 that ATF violated good faith and fair dealing related to a prior agreement the agency had with Dobyns.

The judge awarded Dobyns $173,000, which was a fraction of what he sought, and rejected ATF's claim to a slice of the royalties from Dobyns' bestselling autobiography, "No Angel: My Harrowing Undercover Journey to the Inner Circle of the Hells Angels."

ATF appealed and Dobyns cross-appealed. The Federal Circuit Court of Appeals gave the case back to Allegra to reconsider.

Unsealed court records reveal at least two instances in which ATF attorneys may have committed fraud, Allegra wrote in a Dec. 1 opinion.

One instance involved the arson investigation. Dobyns was traveling the night of the fire and contended that an arsonist tried to murder him by burning his house. His wife and children were asleep in the home at the time, but escaped unharmed. The house was destroyed.

ATF supervisors treated Dobyns as the lone suspect for years, long after ATF fire investigators concluded that he had no involvement. Supervisors also ignored information Dobyns provided about credible suspects. The case has never been solved.

In early 2012, the ATF's new top supervisor for Arizona, Thomas Atteberry, reopened the investigation, according to court documents. Testimony during the trial indicated that ATF attorney Valerie Bacon tried to convince Atteberry to drop the matter, because she felt it would damage ATF's legal case against Dobyns.

Atteberry testified that Bacon tried to convince him twice — once by phone and once in person.

ATF attorneys knew about the contact, but none notified the judge before the trial started. That put the integrity of the court proceedings at risk, Allegra wrote in a decision that was filed under seal on Dec. 1.

Bacon made similar comments to a second ATF agent, Carlos Canino, who also was a potential witness in the case, according to court documents.

Bacon no longer works for ATF. Details about the circumstances of her departure were not available.

The second instance of possible fraud occurred when ATF attorneys failed to report to Allegra that an ATF agent who testified in the case was threatened by another witness, according to Allegra's Dec. 1 decision.

Court documents identify the threatened agent as Christopher Trainor, the lead internal-affairs investigator who researched the ATF's bungled handling of threats against Dobyns. His reports were critical to Dobyns' case.

Allegra noted that Trainor's testimony carried considerable weight. The judge wrote last year that Trainor's reports were thorough, well-documented and accurately reflected more than 4,000 pages of documents, electronic messages and interview notes.

"At the outset, it is conspicuous that the Justice Department attorneys in this case strenuously attempted to impeach Agent Trainor's testimony — an odd tactical decision to say the least," Allegra wrote.

Dobyns was far less restrained in his opinion as to why ATF attorneys' sought to undercut Trainor.

"What he did was internally prove everything that I had alleged for the last six years that had been ignored. So, from ATF's and DOJ's perspective, that was a huge internal indictment of the misconduct that they had been defending and allegations that they had been ignoring," Dobyns told The Republic.

Allegra's Dec. 1 opinion provides no further insight concerning the contact between Trainor and the other witness. However, an ATF attorney compounded the matter later.

A taped conversation indicates that an ATF attorney ordered Trainor not to disclose the threat against him, and told Trainor that there would be repercussions if he did disclose it, Allegra wrote. The judge did not identify the ATF attorney.

Concerning the possible tailing of Dobyn's attorney, Reed reported to the court on Jan. 11 that he believed he had been under extreme surveillance for two months and lesser surveillance for many months before that.

Reed wrote that people tracked him at his home, office and while driving, and may have been responsible for break-ins of his car and home during which nothing was stolen. Reed reported that he told retired ATF agent Joseph Slatalla about his concerns and when they inspected the damage to his car, someone in another car photographed them, then followed Slatalla.

The Department of Justice's Office of Professional Responsibility opened, then shelved, an inquiry into Allegra's suspicions about the attorneys, according to letter to Allegra from Justice associate counsel Raymond Hurley.

"While OPR will continue to gather information and monitor the proceedings in the Dobyns case, it will not, for the time being, conduct witness interviews or engage in other investigative actions relating to the issues before the court," Hurley wrote in the letter, dated Jan. 9.

Dobyns said the case has made him question everything he stood for during his career.

"They have been so dirty and so corrupt," he said. "That was not the system that I believed that I was working for and within."