Records indicate DOJ execs aware of misconduct alleged in ATF case

Top U.S. Department of Justice officials withheld information from a federal judge about judicial irregularities in a high-profile lawsuit against the ATF, according to recently unsealed court documents.

The disclosures are contained in thousands of pages of court records unsealed Aug. 12 in the case of retired undercover agent Jay Dobyns, who infiltrated the Hells Angels motorcycle gang.

Dobyns sued the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives for failing to properly investigate an arson at his Tucson home on Aug. 10, 2008, and for neglecting to protect him and his family against death threats.

The Justice Department oversees ATF and other federal law-enforcement agencies.

Unsealed records show Stuart Delery, now the No. 3 person at the DOJ, and Jeanne Davidson, who has been nominated for a federal judgeship, did not notify the judge in response to e-mails telling them a DOJ attorney tried to scuttle plans to reopen the botched arson investigation.

Electronic e-mail receipts from their accounts were sent, indicating someone saw the e-mails.

E-mails also show Davidson participated in discussions with subordinates about whether to tell the trial judge that an ATF supervisor possibly threatened an ATF internal-affairs agent whose testimony helped Dobyns.

James Reed, Dobyns’ attorney, said Delery and Davidson were ethically and legally obligated to report the possible witness and evidence tampering.

Delery and Davidson declined comment because the matter still is in litigation, said DOJ spokesman Patrick Rodenbush.

Rodenbush noted that a court-appointed “special master” investigated several incidents of possible misconduct during the trial, but concluded government officials’ actions did not constitute fraud on the court.

The special master, retired U.S. Magistrate Judge John M. Facciola, recommended on July 23 that the trial judge’s original opinion stand, because the possible misconduct did not appear to taint the trial judge’s opinion.

Facciola noted that the matter of whether government attorneys and ATF executives should face discipline could be addressed in other venues.

The trial judge, Federal Claims Judge Francis M. Allegra, ruled in Dobyns’ favor last year, awarding him $173,000, a fraction of the $1.7 million he sought.

Federal Claims Chief Judge Patricia E. Campbell-Smith, who has taken over the case, has yet to indicate whether she will accept Facciola’s recommendation.

It is uncertain what, if any, repercussions Delery, Davidson or other DOJ officials could face in light of the newly unsealed documents.

Delery was the DOJ’s senior supervising counsel during the Dobyns case. He now serves as DOJ acting associate attorney general, which is the agency’s third-ranking official.

Davidson also held a supervisory role during the Dobyns case. She now serves as director of the DOJ’s Offices of Foreign Litigation and International Legal Assistance, and has been nominated to a judgeship on the U.S. Court of International Trade.

DOJ attorneys are held to an extraordinary high standard, said Paul Charlton, who served six years as the U.S. attorney for Arizona and 10 years as an assistant U.S. attorney.

“The lawyers within the Department of Justice, unlike lawyers who represent private litigants, are supposed to advocate for the truth and nothing more. Your client is justice in a literal sense, it’s the right outcome, it’s the right thing to do,” Charlton said.

DOJ and ATF executives wanted to make an example of Dobyns, because he was one of a select few agents to publicly challenge ATF decision makers about unethical and improper actions, said retired ATF Agent Vince Cefalu of Lake Tahoe, Calif.

The years-long legal fight was the result, Cefalu said.

“What they do is they grind down until you can’t take it no more and you say, ‘Alright, I’ll stop. I’ll drop it. I’ll stop being a fool. I won’t talk anymore to the public or to the media or to the Congress or to anybody,’ ” Cefalu said.

Testimony during the Dobyns trial last summer showed ATF attorney Valerie Bacon attempted to influence ATF Special Agent in Charge Thomas Atteberry about plans to reopen the investigation of the arson at Dobyns’ home, because it could damage the ATF’s defense in the case.

Reed, Dobyns’ attorney, informed Delery, Davidson and other government attorneys of Bacon’s conduct.

In an e-mail on May 14, 2014, Reed insisted DOJ attorneys investigate, disclose and prosecute or punish everyone involved in what he called “the attempted criminal obstruction of justice by Valerie Bacon.”

The newly unsealed documents include e-mail read-receipts indicating people with access to Delery’s and Davidson’s e-mail accounts opened Reed’s e-mails.

Reed said he knew about Bacon’s actions before trial because Atteberry informed Dobyns, who in turn told Reed.

Atteberry, the ATF’s special agent in charge, testified: “I had a phone conversation, and I also believe I talked to her in person one time when she was in Phoenix, and I believe during the telephone conversation she made a comment to me that if you — meaning myself — reopen the investigation, that would damage our civil case.”

Allegra, the trial judge, clearly thought the incident warranted investigation.

He ordered his opinion served on then-U.S. Attorney General Eric Holder and two federal oversight agencies, accompanied by a transmittal letter pointing out Bacon’s actions and the government attorneys’ failure to disclose them.

However, the special master determined Delery’s and Davidson’s involvement — or non-involvement — had no impact on the trial judge’s ability to make an informed ruling. The special master reasoned Bacon’s attempt to sway Atteberry failed, so the trial unfolded as if it never happened.

The special master’s investigation also showed that several layers of DOJ attorneys, including Davidson, were aware of reported threats against ATF Internal Affairs Agent Christopher Trainor.

Trainor investigated Dobyns’ complaints that ATF supervisors improperly stripped him of his covert identification and purposely mismanaged the investigation of an arson at his home.

Trainor’s finding cast a trio of ATF supervisors, including Tucson chief Charles Higman, in a poor light.

Midway through the three-week trial, Higman left Trainor a voice mail in a “confrontational and antagonistic” tone that Trainor considered a threat. The same day, someone stuffed a construction cone into the tailpipe of Trainor’s vehicle.

Later, Trainor called Higman about the voice mail. Higman said no threat was intended. “That’s ridiculous. Why would I do that? I don’t even know you,” Higman replied, according to a transcript of the call.

Trainor reported the contact to an ATF attorney and DOJ lead trial attorney David Harrington. Harrington told him that the calls were not relevant to the case, according to court records.

Trainor disagreed and told Harrington that he planned to report the threat directly to the trial judge. Harrington twice told Trainor he should think long and hard about what that would mean for his career, according to court records.

DOJ attorneys exchanged more than two dozen e-mails discussing whether to disclose the matter to the trial judge.

Eventually, they decided to withhold the information, swayed in part by Harrington’s views that testimony about the arson was complete, Higman said his message was not a threat, and Trainor had withdrawn his demand to tell the judge.

Davidson, the high-ranking DOJ official, told the others in a July 21, 2013, e-mail what portion of the exchange would be important for the judge to know. She didn’t view the reported threat by Higman important, so the trial continued without the judge learning about it.

After the trial concluded, Trainor told the trial judge about Higman’s and Harrington’s comments. That led the judge to request the special master to investigate.

Trainor, who retired last year, declined comment.

None of the behind-the-scenes activity mattered, according to special master Facciola, because they failed to influence the trial judge’s decision.

Facciola wrote: “There was a decision made, based on legal principles and strategic judgments, that there was no reason to bring the alleged threats to the attention of the court. It bears emphasis that the wisdom of that decision is not the special master’s concern.”

Dobyns’ attorney said justice would be better served if everyone involved was deposed.

“The U.S. Department of Justice is supposed to be the gold standard of ethics,” Reed said. “They are supposed to go above and beyond their pursuit of ethical obligations by seeking the truth, regardless of whether or not it hurts the federal government.”

Retired undercover ATF Agent Louie Quinonez of Scottsdale said he believes the case has been driven by professional jealousy. Dobyns was one of the agency’s most effective undercover agents, but certain officials didn’t appreciate the risks he took nor the contributions he made.

ATF decision makers tried to quiet Dobyns for questioning decisions, Quinonez said. “If anyone asks me, ‘Should I stand up to the agency on this issue?’ I’d be inclined to tell them, ‘Don’t do anything. Keep your mouth shut and take it — or they will destroy you,’ ” Quinonez said.