Federal Judge Accuses DOJ Attorneys of Defrauding The Court, Threatening Witness in Case of ATF Whistleblower Jay Dobyns

Katie Pavlich
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Posted: Jan 26, 2015 7:15 AM
Federal Judge Accuses DOJ Attorneys of Defrauding The Court, Threatening Witness in Case of ATF Whistleblower Jay Dobyns

Late last week reporter Tim Steller of the Arizona Daily Star in Tucson published a piece about alleged serious misconduct and intimidation from DOJ attorneys during the trial and lawsuit of former ATF agent and whistleblower Jay Dobyns against the government. 

One of the recently unsealed documents, a Dec. 1 opinion by Judge Allegra, finally explains why in October the judge voided his original decision, made in August, to award Dobyns $173,000. (He later reversed his decision to void the judgment, which still stands.) The reason: The judge believed that Justice Department attorneys had “committed fraud on the court.”

One area in which Allegra decided deception had occurred was in the treatment of Thomas Atteberry, the special agent in charge of ATF’s Phoenix office, and Carlos Canino, then the assistant special agent in charge of the agency’s Tucson office. In 2012, a Justice Department attorney, Valerie Bacon, asked both Atteberry and Canino not to reopen the investigation into the arson at Dobyns’ Tucson home because it could hurt the Justice Department’s defense in this case.

Atteberry and Canino were listed as witnesses in the case, but the judge didn’t hear about the DOJ effort to squelch the investigation until the trial, which he considered a concealment by the Justice Department. They went ahead and reopened the case, which remains unsolved, anyway.

More alarming was the other “fraud on the court” that Allegra cited: “An ATF agent who testified in this case may have been threatened by another witness during the trial.” Justice Department attorneys ordered the agent not to report the threat to the court or he would face repercussions, Allegra said.

As a refresher, Dobyns is the first law enforcement agent to ever successfully infiltrate multiple layers of the notoriously dangerous and violent Hells Angels motorcycle gang through "Operation Black Biscuit." After doing so and after his identity was exposed, he received death threats against himself and his family. ATF did nothing to protect him. When his house was burned to the ground at 3 a.m., ATF supervisors tried to frame him for the arson after Dobyns blew the whistle and exposed supervisors had done nothing to address serious and credible threats against his family. (You can read a detailed account of the situation here). As a result, Dobyns sued the Bureau.

In August 2014 that lawsuit and trial came to an end with Federal Judge Francis Allegra ruling in Dobyns' favor and awarding him $173,000 in damages. 

After a long six year court battle with the Bureau of Alcohol Tobacco and Firearms, Special Agent and whistleblower Jay Dobyns says he as been vindicated after Federal Judge Francis Allegra ruled in his favor late Tuesday. Dobyns, who infiltrated the dangerous and deadly Hells Angels gang as an undercover agent years ago, brought a lawsuit against the Bureau after supervisors ignored death threats to his family, which included plans to murder him either with a bullet or by injecting him with the AIDS virus, kidnapping and torturing his then 15-year-old daughter and kidnapping his wife in order to videotape a gang rape of her. Contracts were solicited between the Hells Angels, the Aryan Brotherhood and the MS-13 gang to carry out these threats, which were laid out in prison letters and confirmed through FBI and ATF interviews of confidential informants inside numerous detention centers. In 2008, his Tucson home was burned to the ground. When the fire was started, his wife and children were inside. Luckily, they escaped. Instead of investigating, ATF supervisors accused Dobyns of being the arsonist.

"I have been vindicated. First, I must thank God who provided me with strength and faith during these events. I thank those who have supported me; family, friends, peers and strangers but mostly my wife and kids – they have been the true victims here and been forced to suffer too needlessly," Dobyns wrote about the ruling on his website, where he released the news. "An agency I spilled my own blood for and enthusiastically accepted every dirty assignment on behalf of for twenty-seven years, knowingly and intentionally accused me of a crime I did not commit; being a person who would murder his own wife and children by fire."

In his opinion, Allegra said ATF exhibited "organizational weaknesses," in handling the threats against Dobyns and described ATF officials as demonstrating misfeasance in the case "rooted in the sorry failure of some ATF officials."

“The violations occurred because of the way officials like ASAC Gillett and RAC Higman functioned – and were allowed to function – after the arson, especially in terms of how Agent Dobyns was treated”; “In the courts view, the evidence showed that ASAC Gillett and Agent Higman knew that Agent Dobyns was not responsible for the fire, and still allowed him to be treated as a suspect as a form of payback. Moreover, ATF officials knew, or should have known, that individuals like ASAC Gillett and Agent Higman should not have been allowed to participate in the investigation – as it turned out their conduct was not only reprehensible, but predictably so. In donning blinders in this regard, ATF officials compounded potential harm that might have befallen the Dobyns family,” the opinion states.

It seems that this apparent misconduct by the DOJ attorneys is what led Allegra to make a dramatic ruling on Oct. 24. That day, he barred seven Justice Department attorneys who had led the case until then from making any further filings in the case. The DOJ is fighting that ruling.

Shortly after the ruling, Allegra withdrew his opinion without explanation, now we know why. Court documents show DOJ attorneys allegedly intimidated a key witness in Dobyns' case against the government, threatening that if he testified, his career at would be over. 

“On October 29, 2014, the court, invoking RCFC 60(b) and other provisions, issued an order voiding the prior judgment based upon indications that defendant, through its counsel, had committed fraud on the court," Allegra wrote in an unsealed opinion from December 2014. "The Sixth Circuit has indicated that fraud on the court consists of conduct: 1. On the part of an officer of the court; 2. That is directed to the ‘judicial machinery’ itself; 3. That is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth; 4. That is a positive averment or is concealment when one is under a duty to disclose; 5. That deceives the court."

After the opinion was issued, ATF's lead internal affairs investigator Christopher Trainor, a key witness in the Dobyns' case who testified at the Tucson and Washington D.C. portions of the trial, told Judge Allegra he had been threatened by a DOJ attorney and witness for the government, Charles Higman, in 2013 for his work in compiling evidence against ATF in the case. An internal criminal investigation was opened against Higman in 2013 after Trainor's allegations and Higman was accused of perjury in Allegra's August 2014 opinion, which was withdrawn after new revelations.

According to a letter to Judge Allegra from the DOJ Office of Professional Responsibility, OPR has "received multiple inquiries regarding whether the Federal Circuit's December 18, 2014 Order remanding the case of Jay A. Dobyns v. United States, No. 08-700C (FMA), to the Court of Federal Claims for further proceedings will affect the inquiry recently initiated by OPR into allegations that Department of Justice attorneys committed misconduct in the Dobyns case," and "the court will order depositions of at least some of the attorneys and other witnesses in this case, as well as the receipt of other relevant evidence."

Further, DOJ has allegedly been intimidating and conducting harassing surveillance of Dobyns' attorney Jim Reed. More from Steller:

Perhaps the most bizarre and worrisome allegations emerged in Reed’s Jan. 11 filing, which was originally filed under seal but unsealed by the judge except for a few redacted words. Reed, who is based in Phoenix, wrote that he “has felt himself under extreme surveillance for the last sixty days, both fixed and moving, and under lesser levels of surveillance for many months before that.”

“In the last 30 days,” Reed wrote, “counsel’s automobile has been broken into but with nothing stolen, as apparently has been his home, for which counsel has filed Phoenix Police Department complaints.”

DOJ is standing by it's attorneys as "outstanding civil servants." Attorney General Eric Holder has been informed by Allegra of the alleged defrauding of the court by DOJ attorneys. 

"I said all along they were cheating. Everyone was like, "sour grapes, disgruntled agent, whiny narcissist, etc." Just a fraction of the dirty games ATF and DOJ played on me are coming out. Reporters are finding it all on their own with no prompting from me (below). This is only the portion of what Judge Allegra has unsealed and allowed to be exposed. More and better dirt on these people is coming. The evidence of abuse from the trial? That's old news and minor compared to DOJ / ATF attorneys and witnesses defrauding federal courtrooms and judges. Jones and Brandon knew/know about this and did NOTHING, yet they call themselves "leaders". They are executive bagboys. DOJ is defending the reputations and careers of corrupt attorneys - the very same attorneys who tried to frame me and lied, cheated and stole to do it. They are all paid to cover for Holder and his "team" and do so shamelessly. Justice and truth are not their missions. Coverup and self protection is. To them "Justice" and "Truth" are meaningless words carved in the facades of their buildings. This is the tip of the iceberg of what is yet to come," Dobyns wrote on his website about the revelations. "I can only make one guarantee. Its not of victory. Its that I will not quit and will not be broken."

The House Oversight Committee and the Senate Judiciary Committees both have new chairmen, Rep. Jason Chaffetz and Sen. Chuck Grassley, who should both be looking into this is and demanding answers, especially with confirmation hearings for attorney general nominee Loretta Lynch later this week.

David Codrea has also written a piece about these revelations that's worth reading.