“Today, August 10, is the seven year anniversary of the arson of my home. Should you continue to read on you will see that I am still fighting DOJ and ATF for justice and accountability.
On August 7, the United States Court of Federal Claims Special Master, the Honorable Judge John Faciolla, filed his Opinion and Order on his investigation.
172 Order re Unsealing File
The Special Master has ruled against me. In his eyes I failed in my attempt to prove that DOJ committed fraud upon the court during the trial of this lawsuit. I lost this battle.
The Special Master ordered the unsealing of certain documents related to the inquiry of alleged fraud and misconduct against Department of Justice attorneys during their defense of my allegations in the case Dobyns v. USA. I commend him for this decision.
The documents will soon be available through the United States Court of Federal Claims; docket 1:08-cv-00700-FMA. For those who hold a Pacer account they will be published here: https://www.pacer.gov/psco/cgi-bin/courtinfo.pl?court=E_USFCC
What you are going to find is witness statements, investigative reports, DOJ’s insider emails, court filings, thousands of them.
A friend telephoned and asked me if I felt like a wounded lion.
“Yes. A bit. I’ve been wounded before. I will be fine. A wounded lion is dangerous.”
I thought it both timely and appropriate to set the featured image (top of page) for this posting of the Swiss sculpture, the LION OF LUCERNE. It honors Swiss Guards massacred during the French Revolution – fighting, and failing – to defend a palace of great importance and to protect the people inside. They lost their battle as well.
Upon seeing it for the first time Mark Twain described “the Lion”: “His size is colossal, his attitude is noble. His head is bowed, a broken spear is sticking in his shoulder…”
Yes, that is how I feel today – noble, bowed and with a spear in my back, wounded, hurting.
You will have to wait for the Clerk of Court to publish the remainder of the unsealed file.
These are the instructions I have received:
1) The Clerk’s Office will wait to unseal any documents until August 12, 2015, when the Clerk’s Office receives defendant’s redacted versions of ECF document numbers 337, 350, 401, 342, and 342-1 on CD-ROM.
2) Once the Clerk’s Office receives the redacted versions of the documents listed above, the Clerk’s Office will upload the redacted versions to the docket. Please note that the Clerk’s office will not replace the sealed versions of these documents, but instead will file the redacted versions separately in order to preserve the official court record.
3) Finally, the Clerk’s office will unseal all other documents filed in the case from March 4, 2015, to the present except for ECF document numbers 409, 410, 425, and 428, which are to remain under seal pursuant to the Special Master’s August 7 order.
This is how it all went down. What follows are my allegations based on the evidence available to me.
Between 2004 and 2008 my family and I received numerous death and violence threats from criminals I had investigated who were subsequently arrested, indicted and prosecuted.
ATF failed to show any real interest in investigating these events. A few are listed here:
From ATF Report 20130060 (Robert “Mac” McKay threat):
From Office of Inspector General Report dated September 22, 2008 (Curtis Duchette threat):
From Office of Inspector General Report dated September 22, 2008 (Art “Whitey” Dominquez threat):
From Office of Inspector General Report dated September 22, 2008 (Doug “Slut Doug” Wistrom threat):
From Office of Inspector General Report dated September 22, 2008 (Robert “Chico” Mora threat):
From intercepted jailhouse letter written by convicted Hells Angel murderer Kevin Augustiniak:
The United States Office of the Inspector General (OIG) investigated ATF’s failures to investigate or even react to these threats and countless others.
OIG Conclusions delivered to President Obama and United States Attorney Eric Holder:
ATF chose to hold no one accountable or enact any changes. They blamed me. I filed a complaint against ATF. I met with ATF’s #1 and #2 shotcallers; Deputy Director Ronnie Carter and Assistant Director Billy Hoover, working together we reached an out of court settlement. In doing so ATF agreed that I had been subjected to retributions through ATF’s inaction to the threats I faced.
RECALL OF BACKSTOPPING PROTECTION
Almost immediately after settling my dispute and in spite of the active threats and murder contracts, ATF made an unprecedented decision and removed every single protective measure, or “backstopping”, I had in place to defend myself; fictitious ID’s, registrations, public records, etc. They did this maliciously as a new form of “payback”. I believed the recall of my protections was ridiculous, unnecessary and very dangerous but, I choked it down, content to move forward and put the dispute behind me. ATF’s Internal Affairs Division took a harsher view of what was done.
From ATF Report 20130060:
In his published Opinion (posted below) Trial Judge, The Honorable Francis Allegra, found, “…the central conclusion of the report was that Chief Vidoli, NIBIN Chief Pugmire and SAC Newell ignored information about threats to Agent Dobyns and his family in deciding to remove the fictitious identification. And the report underscored that the removal of fictitious identification put Agent Dobyns and his family at risk.”
Vidoli walked away with a promotion courtesy of now ATF Director Thomas Brandon.
ARSON OF MY HOME
On August 10, 2008, with my private personal information now open to the public for a few months and easily accessible, my home was burned to the ground by arsonist(s). My wife and two children were inside when the fire was started. Nearly everything we owned was destroyed.
I had many enemies. There were many suspects.
At that time, Charles Higman was ATF Tucson’s Resident Agent in Charge (RAC). He prevented an immediate ATF response to the incident and then coordinated and co-orchestrated a failed attempt to frame me for the arson. He did this in spite of some of America’s top arson investigators documenting that I was not involved and ignoring the true suspects. Higman (and others) did not view those expert opinions as a deterrent in their attempt to set me up.
This situation was fast becoming an even more dangerous one than I had previously settled. Spoken and written threats had evolved into a real attack.
As background, Higman was the puppet for two ATF Phoenix Field Division managers, Special Agent in Charge (SAC) William Newell and Assistant Special Agent in Charge (ASAC) George Gillette. Newell and Gillette were later determined to be the “boots on the ground” ringleaders of ATF’s ongoing Operation Fast and Furious. Higman managed the Fast and Furious gunwalking predecessor, Operation Wide Receiver. Their track records of incompetency were both well known to ATF and extraordinarily dangerous.
Because my family was in our home when the arson occurred, the “Three Amigos” were also accusing me of being someone so despicable that I was willing to murder my own family by fire (arson of an occupied structure).
I was never the best ATF agent, the smartest or, the best person. I have many flaws. What I did do was work my ass off for my agency and spilled my own blood, gallons of it, many times. I did not deserve to be criminally set-up by the people I worked for.
Joining ATF’s corrupt mangers were Federal Bureau of Investigation Agent Brian Nowak and Assistant United States Attorney Beverly Anderson who happily participated in the effort to pin the felony on me. They were going to be the ones to bring down the guy who was appearing on television and who had written a book that was going to become a movie. For that and my whistleblowing I had become Public Enemy #1 at ATF and DOJ. The U.S. Attorney’s Office in Tucson still considers me a suspect. If they could “get” me, they would be DOJ heroes.
When I complained to ATF executives of the frame-job I was literally “taunted” into legal action. Acting ATF Director Michael Sullivan (at that time also jointly holding the position of the United States Attorney for Massachusetts) told his U.S. Attorney peer who was serving as my liaison, “Tell Jay to do what he has to do.”
I accepted the challenge and filed the lawsuit now titled Dobyns v. U.S.A. DOJ took up the defense of ATF.
In 2012, a year before trial, ATF Special Agent Christopher Trainor who was assigned to ATF’s Internal Affairs Division conducted an exhaustive and comprehensive investigation of ATF’s failed reaction and response to the arson and the recall of my protective backstopping measures. He also examined ATF’s tactics to pin the crime on me.
Trainor’s report was completed and approved/sanctioned by ATF. In it, eleven conclusions of unethical and potentially criminal conduct towards me were documented citing the Three Amigos – Newell, Gillette and Higman – as the primary culprits.
I knew, ATF knew, everyone knew that Trainor had proven my allegations true. DOJ also knew what they were facing if we walked into a courtroom. They were in possession of the facts, evidence and official conclusions. Trainor had delivered those in a thorough and complete manner.
I tried to settle the lawsuit on numerous occasions. I DID NOT want to go to court. Not for fear of a loss but rather for fear that I would be responsible for further exposing how dirty ATF had become. I did not and do not view that as my responsibility to expose.
In spite of the actions taken against me, I still loved ATF and the men and women who served in the lower levels of the agency. My public statements were never designed to embarrass ATF or my peers, only to prevent any of them from ever again having to suffer under the treatment I had been subjected to by management. All of my “internal’ efforts for resolution had failed to produce a result. Neither ATF or DOJ had provided no voice in the matter and my only hope of survival and accountability was through the media. ATF and DOJ refused to take me serious.
Each settlement attempt I made was unilaterally rejected by DOJ and ATF. During one negotiation the governments counter-offer to me was, “drop your lawsuit against us and resign from service immediately or you will be terminated.” When I rejected that bad-faith “offer” ATF Executive Ronnie Carter emailed his peers saying, “Jay thinks this is just another payday”, referencing the out of court settlement I had previously negotiated with him.
In the summer of 2013 DOJ forced this case to trial, five years down the road from the arson. Their goal was to humiliate me and send a message to anyone who might challenge them in the future.
The first two weeks of trial were in Tucson and after a short break, the final week was in Washington, D.C.
Newell, Gillette and Higman served as DOJ’s “star” witnesses.
During trial, DOJ attorneys tried to help both Gillett and Higman “talk off” their conspiracy to withhold critical documents that helped prove they were trying to frame me for the arson and that they were doing nothing to pursue credible suspects. The key document demonstrating their audacity, being so brazen they even wrote it down and then transmitted their plan electronically (oops, I found it) was presented at trial. Gillette sent Higman this message to bolster Higman’s confidence that they would get away with knowingly and intentionally withholding information of their attempt to frame me from ATF superiors.
DOJ defended this email as friendly banter between peers.
The Trial Judge was the Honorable Francis Allegra. DOJ rode their trial horses, Higman and Gillette into his courtroom.
Judge Allegra wasn’t buying what DOJ was selling. On September 16, 2014, he published his trial court opinion and findings. I won. Justice was served.
Final Redacted Opinion
Judge Allegra reiterated the theme that he first announced at closing argument, that “professional jealousy” or “simply spite by certain ATF actors” motivated the governments insistence on defeating me. He also wrote that Gillette and Higman testified in a manner insulting to the law enforcement profession and embarrassing to the DOJ attorneys backing them up.
“A few words are in order regarding the credibility determinations that underlie some of the foregoing findings. In particular, the court finds significant portions of the testimony of two witnesses – Agent Charles Higman and ASAC George Gillett – unworthy of belief.”
“…Agent Higman targeted Agent Dobyns as a suspect in the arson of his home, even after highly-respected agents within the Phoenix Field Office had concluded otherwise…”
Judge Allegra characterized Higman’s trial testimony, “Agent Higman wove a remarkable tapestry of fiction concerning his response to the fire and the investigation that followed”, “Based on the roll and surge of this contrary evidence, and for other reasons (including his general demeanor and nonresponsiveness to questions), the court concluded that Agent Higman’s testimony lacked credibility.”
Judge Allegra found that Gillette was no better, “ASAC Gillett’s testimony likewise posed serious credibility issues”, “…it should not be overlooked that ASAC Gillett’s testimony was repeatedly contradicted by other witnesses and his prior depositions”, “Various emails in the record plainly demonstrate that ASAC Gillett failed to tell the truth…”
DOJ has never lifted a finger to investigate or prosecute the perjury their witnesses offered in the courtroom. Probably because their strategy had so utterly failed they wanted no more attention to it.
In a grotesque juxtaposition, during trial as DOJ embraced the Three Amigos they attempted to discredit Trainor thus reasoning that the credibility of Trainor’s investigation might crumble with him. If the impact of Trainor’s investigation could be diminished, its influence in the eyes of Judge Allegra would be damaged.
But the flaw in their strategy was that unlike DOJ’s lynchpin witnesses, Trainor’s professional history was impeccable. DOJ was willing to sacrifice Trainor’s good name and reputation to defeat me. It was disgusting to watch DOJ try to destroy a good man. This was a classic DOJ “kill the messenger” move that avoided any concern for facts and evidence.
DOJ’s trial attacks on Trainor started severely but went through the roof after he testified that the timing ATF’s decision to void the allegations of misconduct he proved against Newell and Gillette were “suspicious” (Note: Trainor’s testimony went further and was more descriptive and detailed, but remains under seal).
DOJ didn’t fool Judge Allegra, ““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”, “…the court attaches considerable weight to the testimony of Agent Trainor, who authored the 2012 and 2013 IAD reports.”
Judge Allegra characterized DOJ’s attempts to impeach Trainor at trial as, “More importantly though, there is every indication that Agent Trainor’s reports were thorough, well-documented and accurately reflected the substance of the more than 4,000 pages of documents, electronic messages, depositions and notes of interview that he reviewed and summarized in his two reports. Those reports, indeed, corroborate hundreds of critical facts that are otherwise reflected by the testimony and documents in the record. In general, the court was impressed with Agent Trainor’s testimony – his capabilities, knowledge of the subject matter of the investigations, general integrity and willingness to respond to the court’s questions.”
Below you will learn that DOJ went all-in to fracture Trainor’s credibility again, the next episode would come years later.
Newell and Gillette were facing termination for their treatment of me when ATF’s now Director Thomas Brandon allowed Newell to remain employed with a demotion and Gillett, to retire in lieu of termination. On the stand Trainor “let slip” this dirty little secret that DOJ wanted no one to know. Higman had bailed on his ATF career when the allegations against him began to surface so he was not subjected to termination or discipline, having already resigned.
ATF’s Director Thomas Brandon negotiated all settlements with ATF managers investigated in my case. All were given free rides including those who pulled my backstopping just before the arson. He internally cleared them of any wrongdoing mid-trial just when it looked like their ship was sinking. None were held internally or externally accountable.
THREATS TO TRAINOR
During our trial transition from Tucson to Washington, Higman, who had completed his testimony adversarial to me for the government, left a threatening voicemail on the telephone of Trainor who was scheduled to continue his testimony. Higman voiced his dissatisfaction with Trainor’s investigation. He knew Trainor had caught him dirty and with his pants down.
The same day the voicemail threats were received, Trainor discovered that his government vehicle had been vandalized with a construction cone forced into the tailpipe while parked at his residence.
Trainor reported the Higman threats to ATF investigators and mid-level managers. ATF field investigators who listened to the voicemail believed it was a threat, a serious one. ATF opened an investigation into Higman. The investigation progressed until, on the eve of interviewing Higman, ATF Headquarters Executives quickly closed it. If the governments “star” witness against me had tampered with my witness their defense of my case would be trainwrecked. ATF and DOJ did not want to prove what they knew to be true. Best way to stop that was to not interview Higman. They wouldn’t have to know the truth.
Trainor reported the threats to ATF attorney Rachael Bouman and to DOJ lead trail attorney David Harrington and his co-counsel assistant Corinne Niosi. Now knowing that ATF had no intention to conduct a complete investigation and hiding behind the white-wash dismissal of the Higman threats, Trainor documented that during a telephone call Harrington twice threatened him: should Trainor attempt to make Trial Judge Allegra aware of the threats his Justice Department career would be negatively impacted.
Facing threats to his safety and his career, Trainor continued his trial testimony in Washington. He testified accurately displaying the courage and integrity all of us expect and demand from a law enforcement officer. He did not report the threats against him at that time to Judge Allegra or anyone, including me, other than his private counsel and the trial attorneys.
Ignoring the noose around his own neck at closing argument Harrington arrogantly advised Judge Allegra that that blame for ATF’s failed arson response, “can be laid at the feet of Jay Dobyns and how he approached things”. Judge Allegra and I were still in the blind regarding the trial threats Trainor had faced.
Millions of taxpayer dollars had been spent to defeat me. DOJ’s attorneys cheated along the way. In spite of that they were unsuccessful.
But, not so fast.
Eric Holder’s DOJ appealed the ruling with the support and encouragement of ATF’s then Director B. Todd Jones. There was no way DOJ or ATF was going to stand for a lowly agent and his disability and construction law specialist attorney Jim Reed beating them, regardless of what verdict the trial produced. They had plenty of your tax money left in their banks to continue to fund their fight against me. They were betting that I would “tap-out” both figuratively and literally.
America, you paid for this! The joke is on you (and me).
Ex-ATF Director Jones and Attorney General Holder
REPORTING OF THE THREATS AGAINST TRAINOR TO JUDGE ALLEGRA
After DOJ’s appeal was entered Trainor contacted Judge Allegra and advised of the threat situations he had faced during trial from both Higman and Harrington, now fourteen months past.
By then the case was held in the control of the Appellate Court. Upon learning of the new allegations Judge Allegra asked that Court return to him his trial verdict for reconsideration but, his review would only take place after an inquiry into the threats against Trainor and other allegations of trial misconduct by DOJ could be properly investigated. Judge Allegra ordered an investigation and intended to use the inquiries findings to determine if a new verdict should be issued.
DOJ tried to appeal their way out of the soon-to-follow scrutiny. They lost and the process continued.
ASSIGNMENT OF THE SPECIAL MASTER
United States Court of Federal Claims Chief Judge, the Honorable Patricia Campbell-Smith, assigned retired Unites States Magistrate, the Honorable Judge John Facciola, to direct the inquiry on the courts behalf as a Special Master.
Judge Allegra’s December 1, 2014 opinion establishing these proceedings being very specific in his order regarding what he wanted the Special Master to accomplish on his behalf.
While my interests were unquestionably injured by the misconduct that we alleged, the Court also held an interest in whether government lawyers lied to or deceived the presiding judge. In the process of protecting my rights, Jim Reed and I became the de facto ‘special prosecutors’ on behalf of the court’s interest, attempting to obtain the documents and evidence needed to prove our claims – and Judge Allegra’s stated concerns – that DOJ committed fraud and misconduct.
Still more of your tax money was committed by DOJ to defend, protect and further cover-up their bad conduct. American’s fund DOJ’s behavior. In spite of our services designed primarily to defend the integrity of Judge Allegra’s courtroom, Jim’s firm, Baird, Williams and Greer and I self-funded our efforts. The imbalance of resources was extreme but we were not shaken or discouraged.
My attorney, James B. “Jim” Reed
Over six months passed. Thousands of man-hours were dedicated to both sides of the argument. Hundreds of pages of arguments, briefs, memorandums, opinions, orders and rulings were created; some of which are on the verge of being unsealed.
One of most hard fought contentions during the case was Jim’s work to overcome DOJ’s attempts to protect critical documents we needed to discover the truth.
On June 19, 2015 Special Master Facciola ruled in my favor under his Opinion on the Deliberative Process Privilege and ordered that those dangerous documents be released to me, under seal. We were on the path to success. We were being given the ammunition needed to prove the allegations against DOJ’s attorneys and ultimately to provide Judge Allegra the information he would want to see to determine if DOJ’s attorney misconduct affected the final outcome of the trial.
REMOVAL OF JUDGE ALLEGRA
On June 23, two judicial days later, Judge Campbell-Smith “terminated” Judge Allegra from my case and reassigned it to herself as the new trial court judge. The Arizona Republic contacted the Chief Clerk of the Court of Federal Claims to determine why Judge Allegra left the case – and the court’s service. The Clerk indicated that Judge Allegra had a health disability, but offered “no comment” when asked if Judge Allegra left his position voluntarily.
The Honorable Judge Patricia Campbell-Smith The Honorable Judge Francis Allegra
Three weeks later Judge Campbell-Smith contacted U.S. Senate Majority Leader Mitch McConnell, asking him to provide her new and additional judges sending White House nominees for the federal bench to the Senate Floor. She stated that the Court of Federal Claims had an urgent need for fill vacancies; in this context, it is regrettable that apparently Judge Allegra’s health circumstances, after seven years of handling my lawsuit and while he battled his health issues, did not allow him finish out this lawsuit in the manner in which he envisioned during these proceedings.
Fed. Claims Chief Judge Urges Congress To Fill Vacancies
Law360, Washington, July 13, 2015
The chief judge of the U.S. Court of Federal Claims urged Senate leaders on Friday to approve President Barack Obama’s nominees to the court, saying long-standing judicial vacancies have strained it.
In a four-paragraph letter, Chief Judge Patricia E. Campbell-Smith asked U.S. Senate Majority Leader Mitch McConnell, R-Ky., Minority Leader Harry Reid, D-Nev., and the chairman and ranking member of the Judiciary Committee “to fill at your earliest opportunity” five vacancies on the court, which has not been fully staffed with 16 judges since February 2013. The lack of judges has not slowed the complex casework arriving before the court, Judge Campbell-Smith added.
“Despite the court’s shortage of judicial officers, our caseload continues unabated,” she wrote. “The statutory requirements dictating deadlines for certain types of cases unique to our court, including government contract disputes — some of which involve national defense and national security — remain in effect.”
The cases in the Court of Federal Claims are often for high stakes, with three current suits considering damages of at least $40 billion, Judge Campbell-Smith wrote. The dollar amounts reflect the complexity of the underlying cases, which deal with government contract disputes, tax issues, environmental regulations and Native American claims, among others, she said.
ATF AND DOJ’S SELF-CREATED EVIDENCE
To support their shut-down of the ATF investigation into Higman’s threats against Trainor, ATF and DOJ trial attorneys actually crafted a declaration to the Special Master on behalf of ATF’s Assistant Director Michael Gleysteen in which they tried to explain why ATF chose not to fully investigate the Higman threats.
The trial attorneys are now known to have passed back and forth Gleysteen’s statement to the Special Master self-composing the document and adding “redline” edits to it with each exchange. The telling statement comes when one of the DOJ attorney writes, “I think this suits our needs.”
What DOJ and ATF had done (again) was to make Trainor the bad guy. They characterized him as delusional and over-reactive. When you feel that your children are threatened, short of taking an AK to the streets, is it even possible to over react? Does DOJ’s ‘take’ on this type of situation sound familiar?
Over a year after the threats against him had been made and passed Trainor stated that the threat was then likely a non-issue. DOJ jumped on that position to claim there never was a threat.
DOJ argued, how could a fraud have occurred if no “real” threat ever happened? Chris Trainor is once again victimized to beat me. A manipulation of the facts is nothing to worry about at DOJ.
NO DEPOSITIONS ?
The newly unsealed documents will demonstrate that Special Master Facciola first ordered depositions of several DOJ attorneys and ATF Agents, and then later withdrew his order, preventing us from asking any of them questions at deposition. Higman’s and the DOJ attorneys now held the knowledge that their alleged threats to Trainor would never be questioned live and under oath in this process by Jim Reed. Their questions and answers were all generated “in house” by their friendly and sympathetic protectors.
In denying depositions to me, in large part, the Special Master simply did not honor what Judge Allegra had intended.
The accused attorneys have retained private counsel specializing in criminal matters. They didn’t do that because they felt safe or because DOJ was intending to defend them as having acted within the ‘scope’ of their duties.
SPECIAL MASTER INQUIRY COMPLETED
In a Rule 60(c) proceeding (which we just completed), a judgment can be altered or amended if there has been a fraud upon the court, a misrepresentation or other misconduct.
The Special Master took a very narrow interpretation of that rule.
He determined that, because agent Trainor testified truthfully at trial – despite the threats and intimidation he faced from the Higman voicemail, the vandalism to his government vehicle that coincided, and, the threats he received to his career by DOJ – Judge Allegra’s verdict was not impaired and no ”qualifying” fraud occurred.
My interpretation of that decision is that in Special Master Facciola eyes, DOJ can threaten and intimidate witnesses so long as that conduct does not negatively impact their testimony. If the threatened witness does not cave in, then for Special Master Facciola – no fraud, no harm, no foul. I do not agree.
He also chose to ignore an important element of the rule – misconduct. For his own reasons he simply was never interested in exploring DOJ misconduct. Maybe because it was so dicey and had too many of DOJ’s big names involved. I do not know. More on that is below.
Judge Allegra is no longer available to rule on or accept/decline whether the Special Master’s standard for fraud, quite different from his own, was acceptable. That is now up to Judge Campbell-Smith in the weeks to come.
UNSEALING OF DOCUMENTS
In a final debate DOJ argued that key documents unveiled during the Special Master investigation containing what they claimed to be “sensitive” information including the names of the accused attorneys should not be released to the public. We argued that American citizens deserved to know how their government’s Justice Department operates, how they chose to spend your tax dollars and on what.
My contention was that the very attorneys who zealously tried, and failed, to support ATF’s self-imploded claim that I was an arsonist and potential murderer – doing so unethically knowing the facts and evidence they held in their hands proved that I was not – and who had further tried their best to wreck Chris Trainor’s reputation with no regard were now concerned that their cherished reputations as DOJ attorneys and representatives of justice might be soiled if their names were made public.
Judge Facciola granted those redactions but unsealed nearly everything else.
President Obama himself supported my argument. In the first executive order he signed after assuming office he stated,
January 21, 2009, “Memorandum for the Heads of Executive Departments and Agencies”
“A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, “sunlight is said to be the best of disinfectants.” […] In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”
Eric Holder’s DOJ strenuously fought my case-in-chief at trial. When they lost, Eric Holder’s DOJ filed an appeal to continue the fight. Despite assuring Senate Judiciary Committee Chair Charles Grassley that she would hold every attorney accountable who engaged in misconduct during my lawsuit and “look into it”, Loretta Lynch’s DOJ fought the Special Master inquiry and the publication of the related documents.
Nothing has changed with respect to my lawsuit following the confirmation of Loretta Lynch as Attorney General – nothing. Her assurances of accountability for attorney misconduct in this case appear to have been nothing more than feeding Senator Grassley answers she believed he wanted to hear of good faith intent, offered only for the purpose of securing her Senate confirmation.
The disgrace of this lawsuit for the Justice Department and American taxpayers continues, under new – but not – different leadership. The Justice Department is a rudderless ship, and this lawsuit continues the drumbeat emerging from federal lawsuits around the country, exposing DOJ as the most unethical, corrupt and menacing law firm in the United States. DOJ is not an advocate for the American citizenry – it is a threat to them.
I often get questioned by friends on my wisdom, or lack thereof, for openly challenging the President, the AG, DOJ and Congress. “They will destroy you if you are not more careful.” My answer is simple, “I don’t give a f**k. I am already destroyed and the truth is on my side. Besides, what are they going to do? Frame me as a murderer and put me in prison.” Been there, done that with these clowns. If I see a red laser dot on my chest, they better shoot first.
I like to refer to Ms. Lynch as, Holder-Lite. This is how she is spending your money.
Outgoing AG Holder Incoming AG Lynch President Obama
So what? Why is this important?
It is important because of the backstory Jim and I uncovered during our investigation.
THE DOCUMENTS DON’T LIE
The ultimate supervisor for the trial attorneys and the final decision-maker regarding whether to withhold threat information from Judge Allegra was DOJ Civil Division Section Chief and attorney Jeanne Davidson. Davidson has been at DOJ for twenty-three years and is one of the most powerful attorneys at the Justice Department, in America. Davidson is presently awaiting a Senate vote to confirm her as a Federal Judge.
Politics, Policy and the Law
February 6, 2015
International Trade Court Nominee Advances
Justice Department veteran Jeanne Davidson nomination to be a judge on the U.S. Court of International Trade advanced Thursday when the Senate Judiciary Committee approved her by voice vote.
But Judiciary Committee Chairman Charles Grassley (R-Iowa) said he will ask Davidson to answer additional questions regarding her involvement in a controversial court case.
“I would note that unsealed court documents in the case of Dobyns vs. U.S. have prompted some questions that need to be answered,” said Grassley during the committee business meeting. “So I want to follow up with her regarding the extent of her involvement in those cases.”
Senator Grassley is on to something.
Judge Campbell-Smith presents an award to DOJ Attorney Jeanne Davidson at 2014 U.S. Court of Federal Claims conference
What is Senator Grassley curious about?
Davidson’s involvement in DOJ’s defense of my lawsuit was front, center and early on. She wrote to my attorney Jim Reed in February, 2013 that her subordinate (DOJ’s lead trial attorney David Harrington) “kept her apprised… of all matters…”
If Davidson’s statement is accurate, and I will give her the benefit of the doubt that it is, then she knew, long before trial, what Harrington knew – ATF’s Internal Affairs Division investigation conducted by Trainor – a 4,000 page report (including exhibits) had concluded – again, seven months before trial – and proved that that all of my claims of retribution and endangerment were true. She approved DOJ’s strategies and let the case go to trial.
In one of the to-be-unsealed emails, Davidson is named by another of her subordinate attorneys, a supervisor above Harrington in the DOJ Anti-Dobyns trial team, crediting Davidson with the final and official decision not to advise Trial Judge Allegra that Higman had left a threatening voicemail on the telephone of Chris Trainor – mid trial!
Apparently when Jeanne Davidson gave the thumbs up to withhold evidence of Higman’s threatening voicemail from Judge Allegra, the DOJ trial attorneys felt “blessed” and free to obstruct justice skipping over their ethical requirement to report the threats to Judge Allegra.
Because the allegations of withholding threat information do not fit within the Special Master’s limited definition of fraud (one that Judge Allegra rejected when he established the inquiry), and because the Special Master did not consider the other portions of Rule 60 – misrepresentation and misconduct – Jeanne Davidson’s role in obstruction will not likely be subject to further investigation.
If anyone believes that DOJ’s Internal Investigators are going to properly investigate this matter then please turn around your spaceship and return to earth with me. Meanwhile, Davidson’s nomination for a federal judgeship awaits a Senate vote.
THE BACON SITUATION
At trial, the issue arose of an attempt by ATF Office of Chief Counsel attorney Valerie Bacon (who abruptly left during this lawsuit and found other employment at the Postal Authority) attempting to block ATF Phoenix’s new management team (replacing Newell and Gillette) from properly re-opening the criminal investigation into the arson of my home and conduct a legit search for the real arsonist(s). This is what ATF should have done in the first place.
Bacon telephoned and advised the two top ATF Phoenix supervisors that they should leave ATF’s arson investigation closed, because re-opening this criminal matter would damage DOJ’s defense of my allegations in civil court. This was a bad no-no.
How could DOJ defend their position that I was a suspect if the real suspect(s) were found out?
Two highly credible and highly respected ATF SAC’s – Phoenix SAC Thomas Atteberry who testified at trial, and now-ATF Miami SAC Carlos Canino, then-ASAC for Phoenix (in a sworn declaration to the Court), verified that Bacon proactively attempted to prevent their investigation and pressured them to stand down from their search for the real arsonist(s).
Judge Allegra briefly documented Bacon’s attempts to scuttle Atteberry and Canino’s righteous efforts in his Trial Opinion repeating Atteberry’s trial testimony:
“Testimony at trial indicated that Valerie Bacon, an attorney in ATF’s Office of General Counsel, attempted to convince SAC Atteberry not to reopen the arson investigation. In this regard, SAC Atteberry testified:
Q. . . . Did you get any kind of discouragement in any respect from anyone at ATF with respect to reopening this arson investigation?
Q. Please explain.
A. When I was seeking guidance to reopen the investigation, I had a phone conversation with somebody from Counsel’s office in ATF headquarters.
THE COURT: Can you be more specific, Agent? Do you know who it was?
A. I believe it was Valerie Bacon.
THE COURT: All right. Proceed.
A. 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.
Jim Reed had made DOJ aware of Bacon’s obstruction months before trial. My attorney put DOJ on pre-trial notice, emailing to – yep, you guessed it – Harrington twice, and including Davidson, supervising attorney Donald Kinner and now the third highest ranking DOJ attorney Stuart Delery. He could not have possibly made Bacon’s obstruction more clear.
Pre-trial Harrington emailed Davidson discussing with her Bacon’s tampering. They both knew. Neither did anything about it.
SECTION 18, UNITED STATES CODE 1001
Harrington sat in Judge Allegra’s chambers on June 17, 2013, in the middle of trial and said that he had no prior knowledge of the Bacon allegations prior to Atteberry’s trial testimony.
Hmmmmm? Problematic given the evidence in his soon to be released emails.
The matters regarding Valerie Bacon were of grave concern to Judge Allegra who expressly set forth in his instructions to the Special Master that he wanted this situation to be investigated for fraud on the court.
But, Harrington wasn’t done with his attempt at deception.
Knowing that DOJ’s Internal Affairs (Office of Professional Review [OPR]) had his back and was going to do their corrupt best to bury the Bacon obstruction, Harrington re-affirmed to federal investigators that he believed that his statements to Judge Allegra were true at the time he made them. He responded to OPR, this time in writing, going all-in on his lie.
Harrington’s emails to Davidson prove that he was familiar with the allegations about Bacon before trial. As a result of that knowledge, Harrington’s statements that he did not know were false statements made knowingly and intentionally to federal officials, i.e., to a federal judge and to federal investigative agents. He repeated his lie multiple times.
Again, DOJ did nothing. The rules that apply to ‘us’ do not apply to ‘them’.
The Justice Department – apparently because of their stature in the legal system – believes itself to be above the law and unaccountable for criminal actions. They seem to routinely “circle the wagons” internally to protect themselves, and not just in the case, but in dozens of others presently in the public eye.
As a federal agent, let me be clear about this – when you make intentional false statements to federal agents, you violate 18 USC 1001 – False Statements and Concealment. The Justice Department would like me to pretend that I don’t understand this. However, I was a criminal investigator for twenty-seven years before this case drove me from the job I loved. I encountered violations of that statute multiple times during my career while conducting investigations.
DOJ is very familiar with “1001” as well: it is the very statute DOJ is currently using to prosecute former Speaker of the U.S. House of Representatives Dennis Hastert.
DISREGARD FOR MISCONDUCT
Shortly after his appointment Special Master Facciola issued an order that he would not be investigating the Bacon witness tampering episode. The Special Master did not dig deep on the Trainor threats either.
The involved DOJ attorneys reported to, of course, DOJ, that they didn’t threaten Trainor. Without hearing the other side of the story, the Special Master sided with the attorneys and in essence, by doing so said that he did not believe Trainor.
This is not what Judge Allegra ordered.
With the Special Master giving the DOJ lies surrounding the Bacon situation a free pass, will AG Lynch (aka Holder-Lite) given the evidence now publicly available ensure that her own attorneys are held accountable (Harrington) to the same violations of criminal law that she does others (Hastert), as she promised Senate Judiciary Committee Chair Charles Grassley? So far, no. She hasn’t. Laws and rules and ethics are for the other guys, not for DOJ. In their eyes they are exempt.
Special Master 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.
Jim and I have invested our heart and resources on my behalf and on behalf of the preservation of the integrity of the courts. We view the conduct of the Justice Department as being unfaithful to America and the Constitution.
I am not a crusader or anyone’s Knight in Shining Armor. I just want truth, justice and accountability. For that I have been labeled an enemy of the state. I am in too deep to turn back now. Move forward to die tryin’.
The allegations referred for investigation (like Bacon) were largely ignored by the Special Master and the methods ordered to be used by Judge Allegra were rejected.
Special Master Facciola has made clear that he stands by his final report. I will respect that and I commend him for unsealing the documents involved and exposing his reasoning for support or, critical review. Although I disagree with his conclusions I do believe he is a man of character and transparency.
I will continue to trust the legal system and the courts. If I only backed their decisions in my favor and refused to honor those made against me I would be a hypocrite, I would be DOJ.
In this proceeding I believe that the Special Master did not follow the specific instructions he was delivered by Judge Allegra:
- ignored the Bacon situation, including our allegations that lead trial counsel David Harrington lied about his knowledge of those events;
- allowed DOJ to permit the accused attorneys to self-produce critical documents, with no meaningful oversight;
- denied by ability to question those attorneys under oath and then accepted their self-preservation statements at face value, specifically on the topic of Bacon and Harrington’s threats to Trainor;
- refused to permit me to obtain direct testimony of Christopher Trainor, and in the absence of that deposition, refused to accept the threat reports of Trainor authored;
And before reaching his conclusion on DOJ’s threats to Trainor,
- refused to allow the deposition of retired ATF agent Daniel Machonis who was a witness to the threats against Trainor’s career. Machonis would have testified that he was present on the call as a witness when Harrington threatened Trainor’s career; a direct contradiction to DOJ’s one-sided recollection. The Special Master never gave me the chance to make that a part of the record.
Finally, I am most disturbed that the Special Master himself, in his June 19, 2015 Opinion wrote that plaintiff’s allegations, if proven, might represent the commission of a crime – Obstruction of Justice – but then immediately cut off the proceedings to rule in favor of DOJ that no fraud or misconduct occurred denying me the ability to prove it to him. I can’t wrap my brain around that one.
As I stated previous, I lost this battle. But, am winning the war.
Battle 1: The case-in-chief at trial. DOJ – 0. Dobyns – 1.
Battle 2: DOJ’s attempt to prevent the Special Master’s investigation. DOJ – 0. Dobyns – 1.
Battle 3: The Special Master’s Fraud and Misconduct Inquiry. DOJ – 1. Dobyns – 0.
Battle 4: DOJ’s pending appeal of their loss in Battle 1: To Be Determined.
The War (my effort to expose the corruption that infects DOJ and ATF): The scorecard on this will be held by the American people whose hard earned money is collected every April 15 to pay for DOJ’s shams. Win or lose, I will not give up.
The appeal process will continue. Likely for several more years. Millions more of your dollars will be spent by DOJ in the process.
DOJ’s trial appeal is not about their loss during the case-in-chief. It is not about the $173K judgement against them. It is a personal and vindictive persecution of me. This is about a message that DOJ intends to send to all of us, whistleblower protection laws be damned – ‘You take us on, you point out our flaws, you dare make public allegations of corruption? Even when true, we will ruin and punish you to such an extent that anyone down the road who even thinks of doing the same, won’t.”
Congress is watching. To date, they appear to be OK with DOJ’s position. The Whistleblower Laws? They are a joke. Our country is run by attorneys and even when adversarial they like each other more than they like us.
So back to my opening…
♦ ♥ ♣ ♠
DOJ has treated this situation and my life like a card game. They think we are playing poker.
It’s not and I’m not. I am a wounded lion.