Investigator: Trial for ex-ATF agent who infiltrated Hells Angels good enough
A judge’s decision to award $173,000 to a former ATF agent who infiltrated the Hells Angels should stand despite numerous judicial irregularities involving U.S. Department of Justice personnel, a federal court investigator says.
The investigator’s recommendation is contained in thousands of pages of documents unsealed this week in the case of retired undercover agent Jay Dobyns. Dobyns sued his former employer, the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, for failing to properly investigate the arson of his home in Tucson and neglecting to protect him against death threats.
U.S. Court of Federal Claims Chief Judge Patricia E. Campbell-Smith can accept or reject the investigator’s recommendation, or restart the investigation into possible fraud and misconduct. The unsealed documents include witness statements, investigative reports and e-mails detailing a web of alleged threats, lies and cover-ups that reach deep within the Department of Justice and ATF.
Newly release documents
Among the most jarring:
- Justice Department attorney Valerie Bacon asked top ATF officials not to reopen a failed investigation into an arson attack at Dobyns’ house in Tucson because it could interfere with the government’s defense against Dobyns’ lawsuit.
- An ATF Internal Affairs agent who investigated the agency’s flawed arson investigation was threatened by an ATF official mid-trial, ostensibly as a warning not to testify on Dobyns’ behalf.
- After the Internal Affairs agent reported the threat to ATF and DOJ higher-ups, they withheld the information from the federal judge who was hearing the case.
Despite those irregularities, among many others, the trial’s outcome was unaffected, according retired U.S. Magistrate Judge John M. Facciola, the judicial investigator. ATF officials reopened the arson investigation regardless of the attorney’s effort to stall it, and the Internal Affairs agent provided strong evidence that supported Dobyns after the reported threats, according to Facciola.
The legal system provides other venues to address wrongdoing by government officials, Facciola said.
Both sides have until Aug. 27 to formally respond to the recommendation.
Facciola took seven months to investigate whether DOJ and ATF committed fraud or other misconduct before and during the 2013 civil trial of Dobyns’ suit. Facciola submitted his findings in batches this year in April, May and July, but they remained sealed until late Wednesday.
History of the case
Dobyns served 27 years with ATF, often as an undercover agent, including a nearly two-year stint during which he infiltrated Hells Angels by posing as a gun-running thug.
Monday marked the seventh anniversary of the fire that destroyed Dobyns’ house. His wife and children were asleep in the home at the time, but escaped unharmed. Dobyns was out of town, and the arson case remains unsolved.
Judge Francis M. Allegra ruled in Dobyns’ favor on Aug. 25, 2014. He found that the government breached the covenant of good faith and fair dealings.
Allegra awarded Dobyns $173,000 and barred the government from collecting royalties from Dobyns’ best-selling memoir, “No Angel: My Harrowing Undercover Journey to the Inner Circle of the Hells Angels.” The award was a fraction of the $17.2 million Dobyns sought.
The government appealed. Dobyns cross-appealed.
Later, Allegra voided his own decision because he learned about the threats against ATF Internal Affairs Agent Christopher Trainor. That set into motion Facciola’s inquest into possible misconduct, essentially a trial within a trial.
Allegra stepped down from the court for health reasons before Facciola turned in his findings. Campbell-Smith assigned the high-profile case to herself on June 23.
“I lost this battle,” Dobyns wrote in a 38-page rebuke of Facciola’s opinion that was posted on his blog.
“Facciola’s report is final, but the process is not over. In my view, it has barely begun. A hard kick in the teeth has never stopped me yet,” wrote Dobyns, a former University of Arizona football wide receiver.
ATF spokesman Agent Thomas Mangan said he had not seen the documents and declined comment Thursday.
Trial within a trial
Facciola looked into 10 separate incidents of possible misconduct, including whether ATF officials improperly withheld or delayed production of trial evidence; whether top ATF agents wrongfully absolved other ATF agents of misconduct before the trial; and whether the DOJ somehow was linked to two Hells Angels assaulting Dobyns at a Chicago airport.
Facciola dismissed the incidents, noting that even if true, they did not influence Allegra’s judgment or materially affect the outcome of the litigation. Allegra specifically called out the actions of Bacon, the ATF attorney, in his original ruling. Testimony during the trial showed that Bacon instructed ATF Special Agent in Charge Thomas Atteberry and a second top ATF official to scuttle plans to reopen the arson investigation.
“Irrespective of whether this is true or who was involved in such a directive, it had no effect on Atteberry. He reopened it anyway,” Facciola wrote in his April 7 opinion.
“Moreover, Atteberry testified as to what Bacon said to him, how he disregarded it and did what he thought he had to do — testimony that favored plaintiff,” Facciola wrote. Trainor, the ATF Internal Affairs agent whose testimony bolstered Dobyns’s claims, was a key witness in the lawsuit.
He determined that a trio of ATF’s former top agents in Arizona — Special Agent in Charge William Newell, Assistant Special Agent in Charge George Gillett and Tucson Resident Special Agent Charles Higman — delayed and improperly staffed the arson investigation.
Trainor also determined that Gillett and Higman agreed to prevent a full and accurate briefing of the investigation to superiors, and that Higman falsely told FBI investigators that Dobyns was the lead suspect in the fire, among other irregularities.
Report of threatening call
The trial was conducted in two phases, part in Tucson and part in Washington, D.C. During a trial break, Higman left Trainor a voicemail that Trainor considered threatening. The same day, someone stuffed a construction cone into the tailpipe of Trainor’s government-issued vehicle, court documents say.
Trainor reported Higman’s call to higher-ups. They threatened Trainor’s career if he reported the matter to the trial judge, according to court documents.
Trainor testified anyway. The trial judge wrote in his opinion that he gave considerable weight to Trainor’s report and testimony.
Allegra called out Gillette and Higman and questioned their credibility, ordering his opinion served on then-U.S. Attorney General Eric Holder, the head of the Department of Justice.
Facciola, the special master, determined Allegra’s verdict was unimpaired by the threats because Trainor testified truthfully during the trial, despite the risks to him, his family and career.
“It appears that if there was an attempt to induce Trainor not to testify as he did, it failed,” Facciola wrote.
Dobyns wrote in his blog that Facciola took a narrow view of whether DOJ attorneys and ATF officials committed fraud or other misconduct.
“My interpretation of that decision is that in Special Master Facciola’s eyes, DOJ can threaten and intimidate witnesses, so long as that conduct does not negatively impact their testimony,” Dobyns wrote “If the threatened witness does not cave in, then for Special Master Facciola, no fraud, no harm, no foul. I do not agree,” Dobyns wrote.
Dobyns’ attorney James Reed said Facciola should have taken a broader view of his mission.
“Judge Facciola used a standard for fraud on the court that was not used by Judge Allegra when Judge Allegra established the parameters for this proceeding. That is an argument that we made in response to Judge Facciola’s preliminary report, and it is an argument that we will continue to make in this proceeding,” Reed said Thursday.
After the special master’s task is ruled complete, the case is expected to head to the Federal Circuit Court of Appeals in Washington. The Department of Justice, through its Office of Professional Responsibility, is conducting a separate investigation into its attorneys’ actions.
Jay Dobyns — Retired, decorated ATF agent. He posed as a gun-running thug to infiltrate the Hells Angels and sued the ATF for failing to properly investigate an arson attack at his house and for failing to investigate death threats against him.
James Reed — Dobyns’ private attorney, based in Phoenix.
Francis M. Allegra — The judge on the U.S. Court of Federal Claims who heard most of Dobyns’ case. He ruled in Dobyns’ favor, then voided his ruling and ordered an investigation into allegations of possible misconduct by several ATF officials and Department of Justice attorneys during the trial. He retired for health reasons this summer.
John M. Facciola — A retired U.S. magistrate judge who served as a “special master” to investigate Allegra’s suspicions of fraud and other misconduct during the trial.
Patricia E. Campbell-Smith — The new chief judge of the Court of Federal Claims who assigned herself to the Dobyns’ case after Allegra left the court.
Valerie Bacon — An ATF attorney. According to court documents, she asked top ATF officials in Arizona not to reopen the botched investigation into the arson at Dobyns’ house, because it could hamper the government’s legal position in Dobyns’ lawsuit against ATF. She is no longer with the ATF.
Christopher Trainor — An ATF Internal Affairs agent who investigated several ATF officials tied to the botched arson investigation. Trainor reported that ATF and DOJ officials threatened him in association of his testimony during the trial.
William Newell — Former ATF special agent in charge of the Phoenix Field Division, which includes all of Arizona. Trainor found that he failed to properly staff the arson investigation.
George Gillett — Former ATF assistant special agent in charge of the Phoenix Division. Trainor found that he worked with Newell to improperly staff the investigation, then later prevented full and accurate briefings to ATF higher-ups about the investigation .
Charles Higman — Former ATF resident special agent in charge of the Tucson operations. Trainor found that Higman participated in efforts to improperly staff the arson investigation, then worked with Gillett to block briefings to higher-ups. Trainor also found that Higman falsely told FBI investigators that Dobyns was the lead suspect in the arson. During the trial, Higman left a voicemail for Trainor that Trainor considered a threat, according to documents.
David Harrington — ATF attorney. Trainor reported Higman’s threat to Harrington, according to court documents. Harrington told Trainor that his career would be negatively impacted if Trainor told the judge about Higman’s threat, according to court documents.