SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER James B. Reed (AZ Bar No. 014015) Attorneys for Plaintiff Jay Anthony Dobyns IN THE UNITED STATES COURT OF FEDERAL CLAIMS JAY ANTHONY DOBYNS, Plaintiff, vs. THE UNITED STATES, Defendant. CASE NO. 08-700C (Judge Francis M. Allegra) (Judge John M. Facciola Special Master) PLAINTIFF JAY ANTHONY DOBYNSMEMORANDUM RE ISSUES FOR INVESTIGATION BY SPECIAL MASTER BAIRD, WILLIAMS & GREER, L.L.P. 6225 NORTH 24TH STREET, SUITE 125 PHOENIX, ARIZONA 85016 TELEPHONE(602) 256-9400 FACSIMILE (602) 271-9308 Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 1 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 1 of 42i TABLE OF CONTENTS TABLE OF CONTENTS.i INDEX TO APPENDIX OF EXHIBITS.iii I.Summary of Argument.1 II.Plaintiffs Rule 60 Motion and the Courts Indicative Ruling establishthe scope of the present proceedings...4 III.The enumerated items in plaintiffs Rule 60 motion7 IV.Multiple instances of ATFs and DOJs fraudulent and/or unethical conduct exist. A.ATFs improper conduct is documented in the Courts opinion..9 B.Elaboration of plaintiffs ten enumerated items is as follows9 1.Civil Division protected witness Charles Higman following his threatsof violence and potentially death against witness Christopher Trainor,with Civil Division instead threatening Trainors career if he disclosedthe threats to the Court10 2.DOJs Witness Tampering and Obstruction of Justice RegardingPhoenix Special Agent in Charge Thomas Atteberry.14 3.Plaintiff submits that Civil Divisions David Harrington made falsestatements to the Court that he had no prior knowledge of allegationsinvolving Valerie Bacons improper contacts with SAC Atteberry andASAC Canino17 4.Kent Kiffner and Rachel Bouman impermissibly withheld audiorecordings made of plaintiff without his knowledge and againstATF Orders requiring prior authorization by the U.S. Attorneys Office18 5.Civil Division protected or suborned trial perjury of George Gillettand Charles Higman20 6.Attorneys Kent Kiffner, Rachel Bouman and Valerie Bacon, at minimum,failed to cure after learning or, or else knowingly permitted or activelycoached material, false statements at the depositions of George Gillett,Charles Higman, and John Torres, regarding, inter alia, whether ATFpursued Jay Dobyns as a suspect and subjected plaintiff to surveillance21 Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 2 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 2 of 42ii 7.DOJ improperly withheld ATFs Internal Affairs Division (IAD) Reports andProfessional Review Board Memoranda to attempt to prejudice plaintiffsright to a fair trial...23 8.For ROI 1 and ROI 2 only, ATF Assistant Director Thomas Brandonreplaced PRB Bureau Deciding Official (BDO) Steven Zellers, whowas anticipated to sign ROI 1s PRB recommendations within daysof issuance.AD Brandon then refused to accept the PRBrecommendations for ROI 1 and ROI 2, possibly at DOJs instructionin order to maintain DOJs objections based on the deliberative processprivilege, and yet ordered no additional investigation to clarify his concerns28 9.On the eve of trial, ATF Deputy Director Brandon issued PRB letters ofclearance for William Newell, Marino Vidoli and Steven Pugmire, currentemployees found by the Court to have acted improperly; if this was atDOJs request, it would constitute witness and evidence tampering...29 10. Plaintiff seeks to establish that Civil Division attorneys improperly coachedtrial witness Ronnie Carter during questioning, including possibly signalingto him electronically while Carter was on the witness stand through his cellphone.30 V.Plaintiff submits that other topics of fraud on the Court not expressly enumeratedin plaintiffs Rule 60 motion, but which are appropriate for investigation, should be considered as well. A.If evidence emerges that the Justice Department influenced thetrial testimony of former ATF Acting Director Ronnie Carter or formerAssistant Director William Hoover, the Court may reconsider itsrejection of plaintiffs claim that the defendant breached an expressterm of the settlement agreement, which in turn would expose thegovernment to lost benefit of the bargain expectation damages32 B.Facts regarding an assault on plaintiff returning from an ATF event andregarding potential entrapment by ATF employees or informants alsomerit questioning34 VI.Plaintiffs key witnesses for the proceedings and the scope of inquiry.35 Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 3 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 3 of 42 INDEX TO APPENDIX OF PLAINTIFFS EXHIBITS 1.February 8, 2013 Correspondence signed from Jeanne Davidson to James Reed. 2.May 14, 2014 email from James Reed to Stuart Delery, David Harrington, Donald Kinner and Jeanne Davidson, subject line Dobyns v. United States, No. 08-700c (Fed. Cl.) 3.Emails notifying DOJ of Valerie Bacons conduct. March21,2013emailfromJamesReedtoStuartDelery,JeanneDavidson,DonaldKinner andDavidHarrington,subjectATFCounselValerieBacon;ReferraltoOIAofattempted obstruction of justice; Dobyns v. U.S.; 08-700c. April9,2013emailfromJamesReedtoStuartDelery,JeanneDavidson,DonaldKinner and David Harrington, subject Scope of defendant actors; Referral to OIA of attempted obstruction of justice by Valerie Bacon; 08-700c. 4.Read receipts to emails in Appendix Index No. 3. March 21, 2013 Read Receipt from Jeanne Davidson ATF Counsel Valerie Bacon; Referral to OIA of attempted obstruction of justice; Dobyns v. U.S.; 08-700c. March 21, 2013 Read Receipt from David Harrington ATF Counsel Valerie Bacon; Referral to OIA of attempted obstruction of justice; Dobyns v. U.S.; 08-700c. March 21, 2013 Read Receipt from Stuart Delery ATF Counsel Valerie Bacon; Referral to OIA of attempted obstruction of justice; Dobyns v. U.S.; 08-700c. March21,2013ReadReceiptfromDonaldKinnerATFCounselValerieBacon;Referralto OIA of attempted obstruction of justice; Dobyns v. U.S.; 08-700c. April 9, 2013 Read Receipt from Jeanne Davidson Read: Scope of defendant actors; Referral to OIA of attempted obstruction of justice by Valerie Bacon; 08-700c. April 9, 2013 Read Receipt from David Harrington Read: Scope of defendant actors; Referral to OIA of attempted obstruction of justice by Valerie Bacon; 08-700c. April9,2013ReadReceiptfromStuartDelery Read:Scope ofdefendantactors;Referralto OIA of attempted obstruction of justice by Valerie Bacon; 08-700c. April 9, 2013 Read Receipt from Donald Kinner Read: Scope of defendant actors; Referral to OIA of attempted obstruction of justice by Valerie Bacon; 08-700c. Iii Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 4 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 4 of 42 5.Trial Transcript 562:22- 563:20; 588:9 589:3. 6.March 29, 2010 Order disqualifying Eleaner Loos as participating counsel. 7.April 5, 2012 Email from David Harrington to James Reed: Dobyns v. United States, No. 08-700 (Fed. Cl.) 8.InvestigativeconclusionsofATFInternalAffairsDivisionReportofInvestigation,October11, 2012. 9.9/28/12 letter from Peter Chisholm to James Reed. iv Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 5 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 5 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 James B. Reed (AZ Bar No. 014015) Attorney for Plaintiff Jay Anthony Dobyns UNITED STATES COURT OF FEDERAL CLAIMS JAY ANTHONY DOBYNS, Plaintiff, vs. THE UNITED STATES, Defendant. NO. 08-700c PLAINTIFF JAY ANTHONY DOBYNSMEMORANDUM RE ISSUES FOR INVESTIGATION BY SPECIAL MASTER (Judge Francis M. Allegra) (Judge John M. Facciola Special Master) Pursuant to the Courts order dated March 4, 2015, plaintiff Jay Anthony Dobyns files this special proceedingmemorandumtoidentify andexplainissuesfor theSpecialMaster to investigateagainst the defendantUnitedStates,onbehalfoftheBureauofAlcohol,Tobacco,FirearmsandExplosives(ATF), and the United States Department of Justice (DOJ), related to the above-captioned action.MEMORANDUM OF ARGUMENT AND AUTHORITY I.Summary of Argument.PlaintifffilesthismemorandumtoassisttheSpecialMastertoconductafullandthorough investigation with respect to United States Court of Federal Claims Judge Francis M. AllegrasDecember 1, 2014, Indicative Ruling regarding plaintiffs November 19, 2014 Rule 60 motion for relief from judgment.Plaintiff Dobyns is an adversely-impacted victim of the Justice Departments fraud, including in the form of the expenditure of attorney fees to overcome unethical practices by Civil Division.Plaintiff was the BAIRD, WILLIAMS & GREER, L.L.P. 6225 NORTH 24TH STREET, SUITE 125 PHOENIX, ARIZONA 85016 TELEPHONE(602) 256-9400 FACSIMILE (602) 271-9308 Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 6 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 6 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prevailing party in a lawsuit against the United States for actions by ATF, this action, having been awarded $173,000.00forhiscaseinchief,andhavingdefeatedthegovernmentscounterclaimsseeking(1) paymentstotaling$245,000fromFox[Studios](Defendantscross-motionforsummaryjudgment,p. 12.),(2)earningsof$295,257.76inconnectionwithNoAngel(DefendantsPost-TrialMemorandumof Law,p.72),and(3)acourtorderimpos[ing]aconstructivetrustonallsumssubsequentlypaidor payable to Mr. Dobyns. (Id. at 81). Plaintiff achieved this victory despite misconduct by ATF officials and by the Civil Division trial and supervising attorneys of the U.S. Department of Justice. OnOctober24,2014,theCourtissuedanorderidentifyingatleastsomeoftheDepartmentof Justice attorneys who may have committed misconduct in defending the federal government in this action. To that list, based on allegations and documents referred toherein,plaintiffDobynssubmitsthatotherdefensecounselofrecordandsupervisingcounselbear varyingdegreesofresponsibilityformisconductcommittedbytheDepartmentofJusticeinthisaction, includingthefailuretoinvestigateallegationsofimproper conductby attorneys andwitnesses.Thenon- exclusive list of additional attorneys presently anticipated to bear responsibility are: Kent C. Kiffner, Rachel Bouman,ValerieBaconandStuartDelery.Finally,andspecificallyregardingplaintiffsallegationsasto Valerie Bacon and retired ATF managers George Gillett and Charles Higman, plaintiff submits that United States Attorney (Arizona) John Leonardos refusal to undertake investigations of matters of obstruction of justice, perjury, and criminal threats arising in this matter require investigation. RegardingDOJandATFdecisionstostanddownfrominvestigationsofretiredATFGroup Supervisor Charles Higman for threats made against ATF Internal Affairs Division (IAD) investigator and trialwitness-ChristopherTrainorandTrainorsfamilymembers,plaintiffrequeststhattheCourt investigate those ATF and DOJ employees as well, including any DOJ lawyers involved.Plaintiff Dobyns Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 7 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 7 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reportedtheseallegationsofmisconducttotheOfficeofProfessionalResponsibility(OPR)onmultiple occasions, with no investigative response. Ultimately, OPR declined to proceed pending this proceeding.Further, and based on (1) Attorney General Holders express, non-privileged statements made to membersofthefamilyofslainBorderPatrolAgentBrianTerry,thatAGHolderisveryfamiliarwithJay Dobyns lawsuit and maintains a file in his office on it, and further based upon (2) the Courts service of the September16,2014TrialOpiniononAttorneyGeneralHolder,plaintiffsubmitsthatapprovalforcertain actions in this lawsuit related to the termination of thecriminal investigation of Charles Higman fordeath and violence threats against trial witness-Agent Christopher Trainor may have actually been approved at the highest levels of ATF and the Department of Justice. This topic merits investigation. Supervising counsel Jeanne Davidson, Donald Kinner and Stuart Deleryrejected opportunities to do correct violations of law and ethical breaches by lead trial attorneys David Harrington and Kent Kiffner, along with ATF attorneys Rachel Bouman and Valerie Bacon and other DOJ attorneys. Jeanne Davidson wrote in February 8, 2013 correspondence (Appendix 1, hereinafter APP__) to undersigned counsel in dismissive fashion with regard to plaintiffs allegations of misconduct by David Harrington: Dear Mr. Reed: Thisletterrespondstoyourvariouse-mailcommunicationsalleging improprieties by David Harrington, counsel of record for the United States inthismatter.Ihavereviewedyoure-mailmessages,correspondence, pretrial materials and other documents, including the recording of the early meetingofcounselandthereportofinvestigationinthepending personnel action.Additionally, I have met with Mr. Harrington, as well as Donald Kinner (the immediate supervisor on the case) and Corinne Niosi (a trial attorney assisting with the case). Becausewetakeseriouslyanyallegationofpotentialimpropriety, howeverunfounded,Ihaveconsideredyourcomplaintsanddiscussed them with officials within the Civil Division. [] Mr. Harrington has always kept his supervisors appropriately apprised about case developments [.]Based upon my review, as described above, I believe that your complaints are without merit and that no inappropriate conduct has occurred. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 8 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 8 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ThelengthstowhichplaintiffallegesthattheDepartmentofJusticewithhelddocuments, misconstrued evidence and protected and/or suborned perjury in order to advance false legal and factual positions, reflected the bad conduct of ATF underlying the allegations of this lawsuit. If representations by theUnitedStatesDepartmentofJusticethelawyersfortheU.S.citizenryhadbeentakenatface valueandtheirinstructionsfollowedwithoutchallenge,then:(1)JayDobynsandtheCourtofFederal Claims would not now possess the ATF Internal Affairs Division Reports of Investigation, containing self-indicting and self-immolating criticisms of ATFs treatment of Jay Dobyns; (2) Jay Dobyns would not have the audio-recordings made of him without his knowledge or consent, documenting ATFs pursuit of him as the only named suspect in the arson investigation, despite lead investigators Hildick and Moreland ruling out any role of Jay Dobyns and his family; and (3) the Justice Department, whether directly or by proxy via ATFattorneyValerieBacon,wouldhavesuccessfullyblockedPhoenixSpecialAgentinCharge(SAC) Thomas Atteberry from re-opening the Dobyns residence arson investigation in January 2012 and avoided defendants tacit admission that ATFs 2008 original arson investigation was incompetent, incomplete and derailed by George Gillett and Charles Higman and should not have been closed. II.PlaintiffsRule60MotionandtheCourtsIndicativeRulingestablishthescopeof the present proceedings. Plaintiffs Rule 60 motion enumerates ten areas of scrutiny for the Courts consideration.That list, while containing essential allegations, should not prevent plaintiff or the Court from following evidentiary threads to other evidence of fraud upon the court or to other wrongdoers.Indeed, in an email dated May 14, 2014, plaintiff put defense counsel on notice of several instances of defense counsel fraud upon the court not listed in plaintiffs Rule 60 motion.(APP2)There exist multiple indicia of fraud affecting plaintiffs rights and the Courts interest in maintaining the integrity of its proceedings, and paragraph 21 of the Courts February 23, 2015 Order: Role and duties of the Special Master (hereinafter Special Master Order) states that the Court may explore any of those matters: Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 9 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 9 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The special master will make findings assisting the assigned judge in determining whether defendants attorneys, in the conduct of this case, effectuated a fraud upon the court under RCFC 60(d)(3).As may be necessary, the special master may also consider whether there are other grounds for relief from a final judgment in this case under RCFC 60, including the existence of fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party under RCFC 60(b)(3).(emphasis supplied) Rule 60 (b) reads in relevant part: Rule60.Relief froma Judgment orOrder[.] (b) Grounds for Relief froma FinalJudgment, Order, orp roceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: [.] (2) newly discoveredevidencethat, with reasonable diligence, could not have beendiscoveredintimetomovefora new trial under RCFC 59(b); [.] (3)fraud (whether previously called intrinsic or extrinsic), misrepresen-tation, or misconduct by an opposing party; [.] (d)Other Powers toGrantRelief. Thisrule does not limit a courts power to: (1) entertain an independent action to relieve a party from a judgment, order, or proceeding; (2) [not used]; or (3) setasideajudgmentforfraudonthe court. Paragraph 16 of the Special Master Order states in relevant part: 16. Pursuant to RCFC 53(b)(2), the special master is hereby authorized to: (A) investigate and enforce the matters discussed in paragraph 21 herein; Paragraph 17 of the Special Master Order states in relevant part: 17. Pursuant to RCFC 53(c)(1), the special master may: (A) regulate all proceedings; (B) take all appropriate measures to perform the assigned duties fairly and efficiently; and (C) exercise the assigned judges power to compel, take, and record evidence, including the resolution of any issues regarding the admissibility of evidence. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 10 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 10 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The theme and scope of these Rule 60 proceedings is explained at page six of the Courts December 1 Indicative Ruling.In paragraphs 2 and 3, the Court writes: The record indicates that there is much more involved here than a simple misstatement of fact, a fraudulent filing, or a failure to advise the court of a critical fact.Compare United States v. Parcel of Land and Residence of 18 Oakwood Street, 958 F.2d 1, 5 (1st Cir. 1992); Pri-Har v. United States, 215 F. Supp. 2d 404, 405-06 (S.D.N.Y. 2002).Rather, it appears that there is significant evidence that defendants conduct may actually have subverted the judicial process in a way that would trigger application of RCFC 60(b)(3) and 60(d) and that plaintiff has preliminarily demonstrated the exceptional circumstances justifying the extraordinary relief requested.Employer Mut. Casualty Co. v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir. 1996); see also Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45 (1944); In re Genesys Data Techs., Inc., 204 F.3d 124, 130 (4th Cir. 2000); Demjanjuk, 10 F.3d at 352-54; Potter v. Mosteller, 199 F.R.D. 181, 185 (D.S.C. 2000), affd, 238 F.3d 414 (4th Cir. 2000).In the courts view, an indicative ruling to reflecting this state of affairs is warranted.Nothing that defendant has argued to this point suggests otherwise. Based on the foregoing, the court hereby grants plaintiffs motion that the court issue an indicative ruling under RCFC 62.1.The court concludes that if, given the opportunity by the federal circuit, it would grant a motion to consider whether defendants counsel has committed fraud on the court under RCFC 60(b)(3) or RCFC 60(d).See RCFC 62.1(C).If the Federal Circuit remands the action, the court will allow both parties an opportunity to present argument, as well as relevant evidence and other testimony, before ruling on a motion for reconsideration under RCFC 60.See Hazel-Atlas Glass Co., 322 U.S. at 251; 11 Wright & Miller, supra, at 2870.(emphasis supplied) ThetwocoreallegationsoffraudintheCourtsIndicativeRuling,ifproven,wouldextinguishthe presumptions that DOJ had on other issues dependent upon assumptions of attorney candor. Indeed, the two topics of DOJ attorney misconduct identified by the Court, if proven, establish a pattern and practice of misconduct throughout trial. Plaintiffs Rule 60 motion for relief from the judgment argues at page 2: Plaintiff asks that the Court issue a ruling indicating its desire to vacate the August28,2014judgment,inordertoconducthearingsregarding possible attorney misconduct and determine any fraud on the Court. Id.(emphasissupplied).Thus,plaintiffcontendsthat,inadditiontothetenitemsarticulatedinhis November 19, 2014 Motion for Relief from Judgment, that other issues fit within the topic scope.Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 11 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 11 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Inparticular,plaintiffsFebruary18,2015,memorandumregardingtheappointmentofaspecial master explained that the issue of potential influence by DOJ on the testimony of ATF witnesses Ronnie CarterandWilliamHoovercouldhavealteredtheCourtsfindingsastowhetherATForderswere consideredlawsunderparagraphtenofthefulcrumsettlementagreement,andthereforewhether contractualexpectationdamageswouldhavebeenavailabletoplaintiff.Plaintiffagainreferredtothat topic,withoutobjectionfromdefensecounsel,ontheMarch3,2015statusconference.Thatandone additional Rule 60 area are set forth at the end of plaintiffs elaboration of the original ten items. III.The enumerated items in plaintiffs Rule 60 motion. Plaintiff alleges that Civil Division, in an apparent attempt to protect and advance ATFs unlawful conduct,withheldevidence,subornedordefendedperjury,protectedinstancesofobstructionofjustice, and knowingly made intentional false statements of fact to the Court and to undersigned counsel about all of the foregoing. The summary of potential conduct which plaintiff has alleged includes the following: (1)ATF Internal Affairs Division (IAD) Investigator Christopher Trainor reported to DOJ counsel that he was threatened by another trial witness and requested that DOJ report the threats to the Court.DOJ trial counsel instead refused and instead threatened his career if he reported the threats to the Court. (2)ValerieBaconobstructedanarsoninvestigationandtamperedwith witnessesandevidencebydirectingThomasAtteberryandCarlos Canino not to re-open ATFs investigation. Kent Kiffner, Rachel Bouman andothersmayhavedirectedherandassistedhertofileafalse declaration. See footnote 25, Opinion filed 9/16/14, Ct. Cl. 08-700c. (3)David Harrington made false statements to the Court that, prior to SAC Atteberrys trial testimony about Bacons instruction not to re-open the arson investigation, he had no knowledge of any such allegations. a.Plaintiff sent two emails (subject: Attempted Obstruction of Justice by Valerie Bacon) from attorneys Harrington, Davidson, Kinner and Delery. (APP3) and filed eight read receipts from DOJ with the Court (APP4). b.Harrington, in preparing SAC Atteberry for trial, would have learned of Bacons conduct. As soon as Atteberry testified about Bacons Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 12 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 12 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 call, Harrington objected on privilege grounds, with an urgency indicating that he knew exactly what SAC Atteberry would say. (4)Kiffner and Bouman withheld telephone surveillance recordings, despite plaintiffs requests for production. Deposition witness/ATF Agent Matt Bayer disclosed the recordings, as Kiffner sat by silently, not intending to disclose their existence. (5)GeorgeGillettandCharlesHigmancommittedperjuryattrial,which DOJ counsel did nothing to discourage or correct and, based on witness preparationandobjectionsattrial,certainlyunderstoodthattobe perjury and likely encouraged. (6)Kiffner and Bouman failed to cure and may have suborned deposition perjury by Gillett, Higman and William Newell regarding the surveillance and suspect status of plaintiff and also did so with respect to Los Angeles SAC John Torres. (7)Mr. Harrington falsely represented to undersigned counsel and to the Court that the October 11, 2012, and forthcoming June 2013 Internal Affairs Division Reports of Investigation (ROI 1 and ROI 2), and Professional Review Board (PRB) recommendations were not relevant and wrongfully withheld them. (8)For ROI 1 and ROI 2 only, ATF Assistant Director Thomas Brandon replaced PRB Bureau Deciding Official (BDO) Steven Zellers, who was anticipated to sign ROI 1s PRB recommendations within days of issuance.AD Brandon then refused to accept the PRB recommend-dations for ROI 1 and ROI 2, possibly at DOJs instruction in order to maintain DOJs objections based on the deliberative process privilege. (9)On the eve of trial, Brandon issued PRB letters of clearance for William Newell, Marino Vidoli and Steven Pugmire, current ATF employees found by the Court to have acted improperly; if this was at DOJs request, it would constitute both witness and evidence tampering. (10)Witness Ronnie Carters cell phone vibrated twice during key questions. When trial paralegal Jeff Elder retrieved the phone from Mr. Carter, Mr. Harrington took it from him hastily, while covering the phones display. (Carter testimony 562:22-563:20; 588:9-589:3). (APP5) Dobyns and undersigned counsel posit that the reasons were as follows: a.At trial, Mr. Carter looked to his attorneys constantly; DOJ may have signaled the witness through his phone to look to counsel for cues. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 13 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 13 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 b.Mr. Carters phone records during his questioning would identify the source or show no activity at all, i.e., DOJ supplied the phone. Plaintiff notified Civil Division counsel of record of their unethical conduct numerous times. Plaintiff submits that DOJs conduct, if proven, violated the following District of Columbia Rules of Ethics: Rule 3.3 - Candor to Tribunal. (a)(1)(2)(3)(4)(b)(c)(d) Rule 3.4 - Fairness to Opposing Party and Counsel.(a)(b)(c)(d)(e) (f)((1)(2)) Rule 4.1 - Truthfulness in Statements to Others. (a) and (b) Rule 8.3 - Reporting Professional Misconduct. (a)(b) and (c) Rule 8.4 Misconduct. (a)(b)(c)(d)(e)(f)(g) IV.Multiple instances of ATFs and DOJs fraudulent and/or unethical conduct exist. A.ATFs improper conduct is documented in the Courts opinion. The Courts September 16, 2014 Trial Opinion documents false, sworn statements by George Gillett and Charles Higman, which plaintiff alleges the Civil Division trial attorneys, specifically David Harrington, Corrine Niosi, Veronica Onyema and P. Davis Oliver either knew of and permitted, or actively solicited from the witnesses.Some of those statements rise to the level of perjury. In addition, the Trial Opinion, footnote 25, refers to obstruction of justice by ATF attorney Valerie Bacon and to emails notices that undersigned counsel sent to attorneys Harrington, Davidson, Kinner and Delery, who, after returning eight separate read receipts (APP4) of plaintiffs notifications (APP3) of obstruction of justice by Bacon, and received other email notifications, by their silence, aided and abetted Valerie Bacons attempted obstruction of justice of a criminal arson investigation. B.Elaboration of plaintiffs ten enumerated items is as follows. The improper behavior of the Department of Justice appears to have been calculated to prejudice plaintiffs right to a fair trial, and in some instances, interfered with criminal investigations.A non-exclusive list of those instances of bad conduct by Justice Department attorneys is as follows./// /// Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 14 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 14 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1.Civil Division protected witness Charles Higman following his threats of violence and potentially death against witness Christopher Trainor, with Civil Division instead threatening Trainors career if he disclosed the threats to the Court. As the evidence will show, ATF Internal Affairs Investigator Christopher Trainor received a threat that, in context, was clearly a death or violence threat, which Civil Division refused to disclose to the Court and instead threatened Christopher Trainor if he revealed it to Judge Allegra.Charles Higman, the Tucson Group Supervisor for ATF at the time of the August 10, 2008 arson of the Dobyns residence, committed perjury at trial, as the Court indicated in its September 16, 2014 Trial Opinion.According to plaintiffs limited information, based on Christopher Trainors summary of his sworn statement provided to the Office of Inspector General, the threat events are as follows. During the period between the June 2013 phase of trial in Tucson, Arizona, and the July 2013 trial phase in Washington DC, Mr. Higman called and left a voicemail for Agent Trainor that took strong issue with Agent Trainors testimony during the Tucson trial phase, particularly about Higman.Higmans dissatisfaction with Agent Trainors 4,000 page Internal Affairs Division Report concerning ATFs failed and incompetent response to the August 10, 2008 arson at the Dobyns residence mirrored the open dismay of Civil Division attorneys at trial with the testimony of Agent Trainor. Indeed, Civil Division trial attorney Corrine Niosi repeatedly attacked Agent Trainors integrity, truthfulness and professionalism, even though, as Agent Trainor testified at trial, his professional reputation and ethics had never before been questioned.1 To the contrary2, the Court found that Agent Trainors trial testimony was extraordinarily thorough3, well-supported and compelling4 - and injurious to ATFs defense to the Dobyns lawsuit. 1 The Courts September 16, 2014, Trial Opinion notes at page 28 that, in the case of defendants own ATF witness, Agent Christopher Trainor, presumably because defense counsel was dissatisfied with his testimony, the governments attorneys attacked Agent Trainor on the stand: it is conspicuous that the Justice Department attorneys in this case strenuously attempted to impeach Agent Trainors testimony an odd tactical decision to say the least.Id. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 15 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 15 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In contrast, the Court found that Charles Higman repeatedly provided false testimony at trial5, which was time and again impeached by plaintiff.6As part of the threat to Agent Trainor left on voicemail, Higman repeatedly requested to meet Trainor face to face, then asked Agent Trainor hows your health and how are your children?In context, the questions were chilling. But stranger still, to plaintiffs knowledge based on familiarity with both Charles Higman and Christopher Trainor, Mr. Higman had no personal or professional contact with Agent Trainor at any time in their careers and would not have any knowledge of Trainors family makeup, i.e., that information would have to have been supplied to Higman. But even more alarming is the fact that, after receiving the call, Agent Trainor went out to his vehicle 2 The Justice Departments attack on Agent Trainor failed. The Court wrote the court attaches considerable weight to the testimony of Agent Trainor, who authored the 2012 and 2013 IAD reports. Id.The Court further wrote at page 29: [i]n general, the court was impressed with Agent Trainors testimony his capabilities, knowledge of the subject matter of the investigations, general integrity and willingness to respond to the courts questions. Id. 3 In April of 2012, IAD initiated a formal investigation regarding multiple complaints from Agent Dobyns concerning ATFs response to the fire at his residence and subsequent follow-up. [] Agent Trainors work in completing this report was exhaustive, and entailed interviewing a number of witnesses; reviewing depositions; checking for compliance with ATF Orders; scrutinizing documents, files and logs available through the N-Force case management system; and reviewing various other internal ATF memoranda. Id. at 22. 4 See page 28 of the Courts September 16, 2014 Opinion regarding the adoption by the Court of both of the reports of investigation: the court attaches considerable weight to the testimony of Agent Trainor, who authored the 2012 and 2013 IAD reports. See also Footnote 47 of the Courts Opinion: Agent Trainors IAD report on the removal of the backstopping provided hundreds of findings and was based upon hundreds of documents and five months of interviews.Id. at 38. 5 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 wove a remarkable tapestry of fiction concerning his response to the fire and the investigation that followed. Trial Opinion, September 16, 2014, p. 27. 6 As his testimony progressed, Agent Higman was, time and again, contradicted not only by his own sworn testimony given at trial and in prior depositions but by that of other ATF witnesses. Based on the roll and surge of this contrary evidence, and for other reasons (including his general demeanor and non-responsiveness to questions), the court concluded that Agent Higmans testimony lacked credibility. Trial Opinion, September 16, 2014, pp. 27-28.Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 16 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 16 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 parked in front of his home, and an orange construction cone had been stuffed into the tailpipe of his automobile.In context, the voicemail from Charles Higman was a threat of violence and death. Higman reported the threats to Rachel Bouman, at the time still counsel of record in ATFs Office of Chief Counsel, and asked Bouman to provide that information to DOJ counsel.Bouman took the information, and then when Agent Trainor followed up several days later as to the status of the matter, Bouman told Trainor that she had no idea what he was talking about.Agent Trainor then took the information to DOJ lead trial counsel David Harrington, who told Trainor that the threats were not relevant to the proceeding, and that nothing would be done about them.When Agent Trainor disagreed and said that he would report the information directly to Judge Allegra, Harrington twice told Trainor that he should think long and hard about what that would mean for his career at the Justice Department if Trainor did so, insinuating retaliation or damage to Trainors as-yet untarnished career.Trainor had a second listener on a second line as a witness, Daniel Machonis, ATFs Chief of its Office of Professional Responsibility, who heard Harringtons refusal to act on the information and his thinly-veiled threats to Agent Trainors career. Agent Trainor, apparently distraught over the inaction by DOJ, independently sought outside counsel to help guide his next move.It was decided that Trainor would wait until after the Court issued its trial opinion before notifying the Court of the threats by Higman and the retaliatory threats by Harrington, which were then forwarded by the Court to Deputy Attorney General James Cole for investigation. After Trainor reported the threats to ATF, ATF opened a criminal investigative file against Charles Higman.Shortly thereafter, ATF closed the criminal investigative file, informing Trainor that Higmans role as a critical defense witness in the lawsuit by Jay Dobyns meant that ATF could not and would not - proceed further with the criminal investigation. It is impossible to imagine that decision being made on the grounds of witness importance without the involvement of Civil Division attorneys such as Mr. Harrington.Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 17 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 17 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiff believes that, as reprehensible as Charles Higmans conduct in this lawsuit was proven to be, the documented threats which he made to Christopher Trainor were inconsistent with someone with the street smarts of Charles Higman. Plaintiff intends to investigate, and believes he will establish, that the concept of pressuring Christopher Trainor via a contact from Charles Higman originated not with Higman, but with Civil Division attorneys.This is not to say that the Civil Division contemplated a death or violence threat against Trainor, which may have been the result of pressure that Civil Division was bringing to bear on Charles Higman; that pressure could have been an ultimatum that unless Trainor backed down from his adverse testimony, DOJ would have to pursue Charles Higman for perjury, based on likely and eventual findings by the Court.Plaintiff anticipates that, in that environment of DOJ pressure and personal desperation, Higman not surprisingly committed an otherwise unthinkable act, by implicitly threatening the safety and potentially the lives of Christopher Trainor and his children.If ATF investigators had questioned Higman at length as part of a criminal investigation, then, in plaintiffs theory of events, Higman would have disclosed that the idea for the pressure applied to Agent Trainor to alter his testimony originated with Civil Division attorneys. ATFs decision to quickly close down the criminal investigation of threats to the safety and lives of a federal agent and his children could have been the result only of a monumental concern such as the implications for any attorneys who encouraged Higman to make the pressure phone call to Agent Trainor.ATF leadership and DOJ attorneys allowed Higman to avoid further investigation or grand jury proceedings despite allegations of criminal conduct.Any attorneys who participated in any of the following actions clearly committed ethical improprieties and fraud on thisCourt: (1) suggesting to Charles Higman that he contact Christopher Trainor and pressure or threaten Trainor to change his Tucson testimony or else testify more favorably forATF in the Washington DC trial phase; (2) covering up the fact of Higmans threats after they occurred, including failing to report the threats to law enforcement authorities and to Judge Allegra; (3) threatening Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 18 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 18 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Christopher Trainors career if he reported the threats; and/or (4) requesting or participating in the premature closure of the criminal investigative file against Charles Higman for any improper reasons, including the perceived impact of the threats on DOJs defense of Jay Dobyns lawsuit or because Charles Higman would disclose that Civil Division attorneys actually requested that he contact Agent Trainor.At minimum, plaintiff seeks to prove that: (1) Higman threatened Trainor based on Trainors trial testimony; (2) ATF personnel and DOJ attorneys worked to conceal those facts from the Court; (3) ATF incompletely and prematurely closed the Higman threat investigation; and (4) ATF personnel and DOJ attorneys both failed to pursue criminal charges of perjury against one of their witnesses, i.e., Charles Higman. This course of action is eerily similar to the governments conduct towards plaintiff in his case in chief: ATF protected the executive wrongdoers while attacking the low ranking whistleblower employees. 2.DOJs Witness Tampering and Obstruction of Justice Regarding Phoenix Special Agent in Charge Thomas Atteberry. This Court has already found thatATF Office of Chief Counsel attorney Valerie Bacon, who was longstanding counsel of record in this action7, attempted to obstruct justice, while also engaging in witness andevidencetampering,byinstructingPhoenixSpecialAgentinCharge(SAC)ThomasAtteberryand Assistant Special Agent in Charge (ASAC) Carlos Canino not to re-open ATFs investigation into the arson of Jay Dobyns home. (See Footnote 25 to the Courts September 16, 2014 Trial Opinion, p. 21.8) 7 ATF Office of Chief Counsel attorney Valerie Bacon appeared as counsel of record for ATF at the following depositions: Matthew Bayer (08/23/11); Carson Carroll (12/03/10); Peter Forcelli (07/12/11); George Gillett (08/19/10); Charles Higman (08/22/11); Michael Hildick (07/14/11); William Hoover (06/15/11); Rick Horgan (08/18/11); Rick Kastigar (08/16/11); Kevin Leehey (10/31/11); Tristan Mooreland (07/13/11); William Newell (08/18/10); Brian Nowak (08/23/11); Patrick Sullivan (06/16/11); John Torres (12/02/10); and Anthony Vlahoulis (08/15/11). 8 Testimony at trial indicated that Valerie Bacon, an attorney in ATFs Office of General Counsel, attempted to convince SAC Atteberry not to reopen the arson investigation. [.] In a filing subsequently ordered by the court, defendants counsel acknowledged the contacts made by Ms. Bacon to SAC Atteberry, as well as to another potential witness in this case (Agent CarlosCanino). That filing suggests that Ms. Bacon had a discussion with Agent Canino that was similar to the one she had with SAC Atteberry, described above. Trial Opinion, September 16, 2014, Ftnt. 25, p. 21.Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 19 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 19 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PlaintiffanticipatesthathisquestioningofattorneysBacon,BoumanandKiffnerwouldlikely produceATFandDOJemailsdocumentingBaconsattemptedobstructionofjusticeandwitnessand evidence tampering, and in the process would reveal those persons at Civil Division and at ATF who were aware of, or even directed, Bacons contact with SAC Atteberry. Plaintiff submits that this Special Master investigation will likely demonstrate that Rachel Bouman and Kent Kiffner were aware of Bacons conduct as her DOJ supervising attorneys, and that it may reflect a strategic decision that leads to the involvement of Civil Division supervisors Jeanne Davidson, Donald Kinner and Stuart Delery.9 Indeed, it is impossible to imagine that supervising counsel were unaware of Bacons conduct.As per Item3(a),p.7(APP2),infra, undersignedcounselfiledwith theCourt,twofull setsofreadreceipts fromdefensecounselHarrington,Davidson,KinnerandDelery inresponsetotwoseparateemailsfrom undersignedcounselcontainingthesubjectlineAttemptedObstructionofJusticebyValerieBacon.10

9 Plaintiff believes that Rachel Bouman and Kent Kiffner will implicate others having knowledge of Bacons conduct.If at any time, former ATF agency counsel Eleaner Loos directed any conduct in this action, including Bacons, then DOJ violated this Courts March 29, 2010 order disqualifying Eleaner Loos from participating in a counsel of record capacity due to her status as a fact witness. (APP6). 10 Plaintiff submitted to the Court the following documents establishing DOJs knowledge of the allegations, found collectively at APP3 APP4: 1.March 21, 2013 email from James B. Reed to Jeanne Davidson, Stuart Delery, Donald Kinner and David Harrington, Subject: ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c (Importance: HIGH) (and forwarding email from Jay Dobyns to ATF Internal Affairs Investigating agent Christopher Trainor dated March 20, 2013, regarding obstruction of the Dobyns home arson investigation) a. March 21, 2013 read-receipt email from Jeanne Davidson, to James B. Reed, Subject: Read: ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c b.March 21, 2013 read-receipt email from Stuart Delery to James B. Reed, Subject: Read: ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c c.March 21, 2013 read-receipt email from David Harrington to James B. Reed, Subject: Read: ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700cCase 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 20 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 20 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (APP3)As the Court found, four DOJ Civil Division attorneys, at minimum, were aware at critical times, i.e.,bothpre-trialandpre-Atteberrytestimony,oftheattemptedobstructionofafederalcriminal investigation into the residential arson and assault committed against a federal agent and his family, along with attempted witness tampering of Thomas Atteberry, and yet took no corrective action.11

In response to that information, DOJ instead: (1) assisted Bacon to prepare a declaration in which BaconstatesthatshedoesnotrecallanythingabouthertelephonecallstoSACAtteberryorASAC Canino12;(2)withheldASACCaninosdeclarationfromtheCourtandundersignedcounsel13;and(3) d.March 21, 2013 read-receipt email from Donald Kinner to James B. Reed, Subject: Read: ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c2.April 9, 2013 email from James B. Reed to Jeanne Davidson, Stuart Delery, Donald Kinner and David Harrington, Subject: Scope of defendant actors; ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c (Importance: HIGH) (and forwarding email from Jay Dobyns to ATF Internal Affairs Investigating agent Christopher Trainor dated March 20, 2013, regarding obstruction of the Dobyns home arson investigation)a.April 9, 2013 read-receipt email from Jeanne Davidson, to James B. Reed, Subject: Read: Scope of defendant actors; ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c. b.April 9, 2013 read-receipt email from Stuart Delery to James B. Reed, Subject: Read: Scope of defendant actors; ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c . c.April 9, 2013 read-receipt email from David Harrington to James B. Reed, Subject: Read: Scope of defendant actors; ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c . d. April 9, 2013 read-receipt email from Donald Kinner to James B. Reed, Subject: Read: Scope of defendant actors; ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c. 11 The Court wrote: [o]n or about March 21, 2013, defendants attorneys (and their supervisors) received emails from plaintiffs attorney complaining about the contracts made by Ms. Bacon to SAC Atteberry. It appears that defendants attorneys did not respond to these emails or take any action in response thereto. Trial Opinion, September 15, 2014, Ftnt. 25, p. 21. 12 Although Bacon declared that she did not recall her conversations with Attebery and Canino, the trial testimony of Attebery and Civil Divisions description of the witness declaration of Canino make clear that they both recalled Bacons instructions to them. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 21 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 21 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 mademisstatementstotheCourtaboutCivilDivisionspriorknowledgeofthatinformation. Giventheir status, then-Commercial Branch Chief Jeanne Davidson and Civil Division Chief Stuart Delery had a duty to put a stop to such misconduct by Civil Division attorneys; instead, both of them ignored the allegations. Plaintiff,inhisJuly13NoticeofFilingAdditionalEmailRelatedtoIssuesRegardingAttorney ValerieBaconsubmittedanemailtoexplainwhyplaintiffcommunicatedwithdefensecounselonlyin writing.TheApril5,2012email(APP8)isExhibitAtoplaintiffsnoticeoffiling,inwhichtheJustice Departmentdemandedthatallcommunicationsbetweencounselinthislawsuitmustbeinwriting.The JusticeDepartmentthenrefusedtorespondtomostofplaintiffsemailsandcorrespondence, necessitatingfurtherwrittencommunications(usuallyemails)byplaintiffscounsel.Attrial,CivilDivision attempted to rely upon the amount of email between counsel to explain DOJs failure to respond to emails notifying Civil Division of Bacons attempted obstruction of a criminal arson investigation. 3.Plaintiff submits that Civil Divisions David Harrington made false statements to the Court that he had no prior knowledge of allegations involving Valerie Bacons improper contacts with SAC Atteberry and ASAC Canino. Compounding these offenses are what plaintiff believes to be David Harringtons false statements to Judge Allegra in chambers on June 17, 2013. At that time, Harrington stated that, prior to Thomas Atteberrys trial testimony that Bacon instructed Atteberry not to re-open the arson investigation because it would undermine the Justice Departments defenses of the Dobyns lawsuit, Harrington had no knowledge of any allegations about Bacons actions.14To the contrary, David Harrington, as part of trial preparation of SAC Atteberry as a witness for trial, would have learned of Bacons obstruction of justice before 13 David Harrington refused to disclose whatever sworn declaration that ASAC Canino gave to David Harrington and Corrine Niosi during trial regarding Valerie Bacons contacts with Canino. 14 Subsequently, David Harrington tried to morph the in-chambers, direct question by Judge Allegra into whether Harrington knew prior to trial about the allegations of Bacons impermissible instructions to witnesses, as opposed to prior to Atteberrys testimony; that was not the Courts question, as underlying counsel will testify, but nevertheless would have required Harrington reporting the matter to the Court. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 22 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 22 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Atteberry testified. Consistent with that fore-knowledge, as soon as Atteberry began to testify at trial about Bacons attempted obstruction of justice, Mr. Harrington objected on attorney-client privilege grounds with an urgency indicating that he knew exactly what Thomas Atteberry was about to state. 4.Kent Kiffner and Rachel Bouman impermissibly withheld audio recordings made of plaintiff without his knowledge and against ATF Orders requiring prior authorization by the U.S. Attorneys Office. Attorney Kent C. Kiffner was prior lead counsel for defendant, before departing DOJ following plaintiffs allegations that: (1) Kiffner and Rachel Bouman withheld improper audio recordings made of plaintiffs telephone calls without Dobyns knowledge; and (2) Kiffner conceded and protected the perjury of deposition witnesses Los Angeles SAC John Torres; and (3) both Kiffner and Rachel Bouman suborned and protected the perjury of Phoenix ASAC George Gillett and Phoenix SAC William Newell. Plaintiff had requested all of ATFs electronic recordings and surveillance records in discovery, but DOJ withheld two audio recordings of telephone calls with plaintiff Dobyns without his knowledge or required approval by ATF or the U.S. Attorneys Office (proving a primary allegation by plaintiff); DOJ did not disclose the existence of the recordings.Plaintiff obtained the two recordings only from ATF case agent Matt Bayer at his deposition, when, to the visible consternation of DOJ attorney Kiffner, Bayer voluntarily produced the audio recordings. Kiffner then provided a series of vague and implausible explanations for DOJs failure to produce the recordings, stories that changed over time.Plaintiff submits that Kiffner and Bouman fully understood that the audio recordings proved that ATF had pursued Jay Dobyns as a suspect, despite contrary deposition testimony by Newell, Gillett, Higman, Carter and Hoover that ATF had never viewed or treated Jay Dobyns as a suspect, testimony which Kiffner and Bouman repeatedly observed and defended, despite plaintiffs written allegations of deposition perjury on the issue. Plaintiff submits that, as government witnesses continued to testify that ATF did not conduct surveillance of Jay Dobyns, the pressure mounted on Kiffner and Bouman to withhold the audio recordings.With Agent Bayer testifying that he twice FEDEX-ed the audio recording to Rachel Bouman between August 2010 and August 2011, it passed from plausible to undeniable that Kiffner and ATF Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 23 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 23 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorney Bouman had agreed to withhold them from plaintiff.Upon plaintiffs request, both Kiffner and Bouman refused to sign affidavits that they had only inadvertently withheld the audio recordings. (APP6) Perhaps DOJs conduct in withholding the audio recordings might have been attributable to misplaced evidence, but for the fact that at the August, 2011 deposition of ATF Case Agent Matt Bayer, then-DOJ attorney Kent Kiffner did not bring copies of the audio recordings with him to the deposition or disclose their existence before the witness arrived and confronted Kiffner on the topic. It was apparent that Kiffner did not intend to disclose the audio recordings and instead would wait to see if plaintiffs questioning called for answers from Agent Bayer that required the witness to discuss the recordings. Bayers laudable, forthcoming disclosures related to the recordings did not let Kiffner succeed with that strategy.And yet the strategy has the taint of supervisory attorney involvement and instruction.15

In Civil Divisions motion filed on October 11, 2011, entitled Defendant United States Motion for Leave to Allow Fact Witness Depositions out of Time, the Justice Department conceded misconduct:[A]n ATF witness informed Government counsel of the existence of two recorded phone conversations between ATF and the plaintiff [then-ATF agent Jay Dobyns] following the fire incident at plaintiffs home. These recordings were apparently made without plaintiffs knowledge. [.] Government counsel discovered that the recordings had been produced by the [ATF] agency to the [Department of Justice] Civil Division, but had been omitted from production to plaintiff when the agencys materials were converted for use by the Government in an electronic database. Government counsel has acknowledged the error to plaintiffs counsel

To remedy this omission, and to avoid any prejudice to plaintiff, the parties have agreed, subject to court approval, to reconvene five of the depositions taken since June 2011.These reconvened depositions will be done at the Governments expense. [.] The fifth deposition involves a former Government employee who has indicated he will not cooperate with the Government. [.] The parties believe that this former Government employee was involved in the authorization of the recording of the calls, which is why his deposition will exceed an hour. 15 Twice in this action, both Kent Kiffner and David Harrington made the statement to undersigned counsel: I have my marching orders. DOJ supervisors were clearly intimately involved in certain of the strategic decisions in this lawsuit.Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 24 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 24 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Id.In response, on October 24, 2013, the Court ordered the re-depositions of witnesses: The court finds that good cause exists to grant the motion in light of the defendants omission of critical information in its production to plaintiff during fact discovery. [.]Defendant [United States] shall bear the expense of reconvening these five depositions. (emphasis supplied) Id. The Court would have understandably granted presumptions of inadvertent negligence to DOJs action, but given Civil Divisions intentional misconduct in this action as the facts now establish it to be, DOJ appears to have instead intentionally withheld key evidence without suffering meaningful consequences.Plaintiff seeks to determine if anyone conferred with Kent Kiffner about withholding the audio recordings and whether anyone directed Kiffner and Bouman not to disclose them. Plaintiff anticipates that Jeanne Davidson, based on her later statements that David Harrington was keeping her fully apprised of all activity in the lawsuit, was also apprised of everything happening in the case with Kent Kiffner as lead counsel. Accordingly, plaintiff anticipates that both Donald Kinner, as immediate supervising counsel, and Jeanne Davidson, approved of a strategy not to disclose the existence of the covert audio recordings. 5.Civil Division protected or suborned trial perjury of George Gillett and Charles Higman. The Court made extensive findings of false, sworn statements at trial by George Gillett and Charles Higman.While the Court did not specifically use the word perjury to describe their testimony, actual perjury is not required for Civil Division misconduct to rise to the level of Rule 60 violations if DOJ protected or encouraged false sworn witness testimony.Plaintiff seeks to establish that Civil Division: (1) was aware of the false nature of the multiple false statements by Gillett and Higman at trial; (2) protected those false statements; and (3) was an active participant in weaving together fictional accounts of actions by Gillett and Higman during the period of the August - September, 2008 arson investigation.16 16 An example of false testimony of Gillett and Higman were their contentions that they never targeted Jay Dobyns as a suspect. The Court concluded otherwise, relying in part on Christopher Trainors extensive report of investigation: IAD further concluded that SAC Newell, ASAC Gillett and Agent Higman targeted Jay Dobyns as a suspect in the arson of his home, even after highly-respected agents within the Phoenix Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 25 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 25 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6.Attorneys Kent Kiffner, Rachel Bouman and Valerie Bacon, at minimum, failed to cure after learning or, or else knowingly permitted or actively coached material, false statements at the depositions of George Gillett, Charles Higman, and John Torres, regarding, inter alia, whether ATF pursued Jay Dobyns as a suspect and subjected plaintiff to surveillance. As plaintiff will amply demonstrate during this proceeding, both George Gillett and Charles Higman repeatedly gave false, sworn testimony not just at trial, but at their depositions as well. As the Court found, George Gillett and Charles Higman repeatedly gave false testimony at trial.17

The topics on which they perjured themselves at their depositions include testimony that ATF never pursued Jay Dobyns as an arson suspect and that ATF never conducted any surveillance of Jay Dobyns, electronic or otherwise.18Further, John Torres gave false, sworn testimony numerous times at deposition when he stated on the record that he never attempted to sell any ATF investigational stories or his own life story to any third parties, whether book publishers or television or movie production companies or studios. Kent Kiffner, Rachel Bouman and Valerie Bacon took no steps to acknowledge to plaintiff the falsity of Torres testimony and took no corrective measures. Plaintiff submits that, given the evidentiary importance for ATFs defenses that those false, sworn statements represented, it would be consistent with Civil Divisions other misconduct in this matter for DOJ attorneys to have encouraged that false testimony. Field Division had concluded otherwise based on interviews and evidence found at the fire scene. Trial Opinion, September 16, 2014, p. 23. 17 As to Charles Higman, for instance, the Court wrote [o]n this and other points, Agent Higmans testimony appeared to evolve as questions were adduced. Trial Opinion, Ftnt. 23, p. 19.And as to George Gillett, the Court wrote at page 28 of the Trial Opinion: ASAC Gilletts testimony likewise posed serious credibility issues and [h]ighly damaging to ASAC Gilletts credibility is also the fact that he lied in denying to Agent Hildick and other agents that he view Agent Hildicks Cause and Origin Report (regarding the fire) as being unpopular. Id. 18 The record, however, plainly makes clear that Agent Higman instructed Agents Bayer and Maynard to record Agent Dobyns without proper authorization. Agent Higman again suggested that it was ASAC Gillett who authorized the recording. Trial Opinion, September 16, 2014, Ftnt. 22, p. 19. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 26 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 26 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Gilletts and Higmans deposition perjury became clear as soon as Agent Bayer disclosed the audio surveillance recordings made of two telephone calls with Jay Dobyns. At that point, it was beyond dispute that Gillett and Higman monitored Dobyns as a suspect and focused investigative resources on him as a primary suspect, despite investigators Moreland and Trainor having interviewed and excluded Dobyns and his family from suspect status and recommending pursuit of credible, legitimate suspects. Undersigned counsel made clear the perjury allegations against George Gillett and William Newell regarding suspect status by correspondence dated September 11, 2011, and October 24, 2011.Those letters set out the specific testimony in which Gillett and/or Newell committed perjury. Civil Division did nothing substantive in response to the allegations other than categorically deny them.Civil Divisions intention to protect false testimony by Charles Higman during his second deposition (re-deposition), after Agent Bayer disclosed the audio recordings to plaintiff, was demonstrated when Kiffner and Civil Division refused to permit Higman to be re-deposed telephonically when he was in France; DOJ obstructed the telephonic deposition even though Higman, attorney Kent Kiffner and plaintiffs counsel had already agreed to the conduct of that telephonic deposition in France beforehand. Kiffner could not provide any legal support for Civil Divisions claim that Higmans deposition could not occur telephonically while he was in France, and yet DOJ prevented plaintiff from deposing Higman until after plaintiff Dobyns had been forced to file his opening motion for summary judgment. In the context of Judge Allegra finding that Higman provided false testimony at trial, and given Higmans false deposition statements, that ATF had never subjected Jay Dobyns to surveillance or viewed or pursued him as a suspect (of which Higman was not only aware but had personally ordered), Kiffners motivation was obvious: plaintiff believes that Higman needed to fabricate a story regarding his reason for audio surveillance of Jay Dobyns that would be consistent with Higmans earlier perjury at his first Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 27 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 27 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 deposition, when he stated under oath that no such surveillance had occurred. Therefore, Kiffner needed to meet further with Higman to devise and protect similar false testimony during Higmans re-deposition. The deposition perjury by then-Los Angeles SAC John Torres became clear after the owner of Hollywoods Flashbang Productions, Shannon Murphy, was deposed. Based on numerous prior meetings with Torres, Murphy testified that dozens of deposition statements by Torres were knowingly false. DOJs knowledge of John Torres perjury is documented by Kent Kiffners statement, made in the presence of Valerie Bacon to third party witness Shannon Murphy after Murphys deposition, that Torress testimony was less than truthful.Shannon Murphy subsequently reported Torress perjury in an email to then-ATF Acting Director Kenneth Melson and to Kent Kiffner, neither of whom took action in response.19 Despite these instances of perjury at depositions and plaintiffs timely notification to DOJ, Civil Division did nothing.As a result, Civil Division violated ethical duties to disclose and act to correct the effects of perjury.Plaintiff intends to establish at the forthcoming evidentiary proceeding that no DOJ investigations, charges or discipline of any kind resulted from these instances of false, sworn testimony.7.DOJ improperly withheld ATFs Internal Affairs Division (IAD) Reports and Professional Review Board Memoranda to attempt to prejudice plaintiffs right to a fair trial. ATFsInternalAffairsDivision(IAD)concededtheentiretyofplaintiffscaseinchiefinthe conclusionssections of:(1)ATFsOctober 11,2012, ReportofInvestigation(ROI1) concerningATFs responsetotheAugust10,2008,arsonatplaintiffshome,and(2)ATFsMay13,2013,Reportof Investigation(ROI2)regardingATFswithdrawalofplaintiffscovertidentificationdocuments(covert 19 Shannon Murphy was plaintiffs witness. Neither Kent Kiffner nor Valerie Bacon undertook any response to her deposition statements that she feared retaliation by John Torres for testifying, nor did either of them make any effort to investigate Murphys sworn statements that Torres had threatened and intimidated her.Bacon assured plaintiff Dobyns that she would handle it internally but did nothing. Plaintiff Dobyns, still a federal agent at the time, notified ATF of Murphys allegations of threats by Torres and personally incurred the expense of housing her at a hotel that evening and altering her plane travel to protect her. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 28 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 28 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IDs).TheJusticeDepartmentrepeatedly,falselyarguedtotheCourtandtoplaintiffthatthealready-completed ROI 1 and its related Professional Review Board (PRB) conclusions, along with the contents of theforthcomingROI2werenotrelevanttotheallegationsofJayDobynslawsuit.Afterplaintiff demonstratedtheobviousfalsityofDOJsclaimsofimmateriality,CivilDivisionproceededattrialto disingenuously attack: (1) the integrity of IAD investigator Christopher Trainor forthe unimpeachable and highly professional manner of his conduct of the investigations and his drafting of ROI 1 and ROI 2; (2) the competenceofATFsInternalAffairsDivisioninadoptingROI1andROI2;and(3)ATFsPRBfor applying portions of ROI 1 to William Newell and George Gillettin recommending the termination of their federal employment. Thus, Civil Division desperately attacked its own client, ATF, as part of a strategy to misrepresent the nature of both ROI 1 and ROI 2 to the Court and withhold critical evidence from plaintiff.The litigation timeline for ROI 1 and ROI 2 is as follows.During 2012, and subsequent to the August 31, 2011 discovery cutoff in this lawsuit, ATFs Internal Affairs Division undertook its own investigation of the roles of William Newell and George Gillett regarding the 2008 arson investigation. IAD subsequently completed ROI 1.IAD simultaneously investigated but separately reported out its findings regarding the roles of William Newell, Marino Vidoli and Steven Pugmire in the withdrawal of plaintiffs covert IDs.ATFs PRB then conducted a hearing on ROI 1 in November 2012, at which it analyzed ROI 1 and made recommendations to terminate the employment of George Gillett and William Newell, based on ROI 1s factual conclusions. Because ATF generated ROI 1 and ROI 2 after the close of discovery, the discovery supplementation requirements of Federal Court of Claims Rule 26(e) represented plaintiffs only access to both reports of investigation, along with the related PRB memoranda, conclusions and employment recommendations with ATFs PRB made based on the reports respective findings. RCFC Rule 26(e)(1)(A) required that defendant timely and reasonably supplement its Rule 34 document production responses, because plaintiffs previous requests for production of documents Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 29 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 29 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 captured any and all documents in ATFs possession related in any respect to the August 10, 2008, arson at the Dobyns residence.Because the Courts Amended Protective Order protected pending personnel proceedings, there was no cognizable privilege excusing defendants failure to immediately produce the IAD and ROI documents, with their clearly relevant factual findings. And yet David Harrington and Civil Division improperly withheld the documents, without legal grounds, while at the same time repeatedly misrepresenting to the Court and plaintiff the contents and immateriality of ROI 1 and ROI 2. DOJ went to unethical lengths to keep the factual findings of ROI 1, ROI 2 and the PRB conclusions from plaintiff.Continuing the Timeline: because plaintiffs Appendix A, Rule 13 Meeting of Counsel memoran-dum was due on January 16, 2013, plaintiff requested that defendant immediately produce ROI 1 and the related PRB conclusions and PRB file, while Agent Trainor finished ROI 2.Civil Division denied plaintiffs request, groundlessly claiming that the deliberative process privilege existed for personnel as opposed to policy documents, and further ignored this Courts existing Amended Protective Order.In the process, Civil Division refused to summarize the contents of the PRB File, required by Rule 26(b)(5)(A)(ii).Withholding ROI 1 and the related PRB recommendations and conclusions prevented plaintiff from including certain of his witnesses and exhibits in his January 16, 2013 Rule 13 Meeting of Counsel preliminary list of witnesses and exhibits, and in his February 19, 2013 final witness and exhibit list. Continuing the Timeline: between September 17, 2012, and April 19, 2013, plaintiffs counsel made twenty-two written meet and confer requests for defendant to provide ROI 1, ROI 2 and the corresponding PRB file(s).Defendant denied all of plaintiffs requests based on DOJs false claims of immateriality and because, six months after the PRB had met and issued its conclusions, Assistant Director Thomas Brandon had inexplicably refused to sign and finalize the PRB recommendations.20 20 See Section 8, infra, for explanation as to Civil Divisions subversion of disclosure requirements by replacing ATFs ordinary PRB Bureau Deciding Official with Thomas Brandon for ROI 1 and ROI 2 only.Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 30 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 30 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 By letter dated January 11, 2013, David Harrington replaced DOJs earlier demand for plaintiffs counsel to incur the time and expense to travel to Washington DC to view ROI 1 in the Justice Departments DC office, with an offer to review ROI 1 in the U.S. Attorneys Office in Arizona to facilitate trial preparation. On January 13, 2013, within ninety (90) seconds of reviewing the factual conclusions of ROI 1 (APP8), undersigned counsel recognized their essentially dispositive nature in favor of plaintiff with respect to the allegations in his case in chief.And yet, DOJ refused to permit undersigned counsel to take notes or use the review of ROI 1 as part of any motion to compel the documents.And even more egregious, as a term of reviewing ROI 1, DOJ prohibited undersigned counsel from discussing the contents of ROI 1 with his client or disclosing the contents to Judge Allegra in a motion to compel.DOJ continued to refuse to produce ROI 1 and the PRB recommendations on false grounds of immateriality21 and deliberative process privilege. However, ATFs response to plaintiffs Freedom of Information Act (FOIA) request for the report stated that the underlying allegations in this internal investigation are of the type which could amount to violations of civil or criminal law (September 28, 2012, letter from P. Chisholm to J. Reed) (APP9).Despite that concession in ATFs FOIA response, Civil Division continued to falsely state to plaintiff and to the Court that the IAD conclusions were not relevant.The Court stated during the May 2013 pre-trial management status conference in Washington DC that the October 11, 2012 Report of Investigation was not merely a material document, but a core one, and ordered that witnesses critical to explaining ROI 1 would testify in Tucson during the first portion of trial.Both plaintiffs and defendants witness statements regarding ROI 1 demonstrated that David 21Defendants Response to Plaintiffs Rule 37(a)(1) Motion to Compel Rule 26(3)(1)(A) Supplemental Production of Documents as to Defendants Report of Investigations and Related Professional Review Board File states at page 1: [a]fter filing this lawsuit, Mr. Dobyns submitted an internal, administrative complaint alleging employee misconduct in connection with ATFs investigation of the fire at his house, and subsequently at page 4 of the memorandum misrepresented to the Court that [t]he asserted relevance of the ROI is particularly dubious.(emphasis added) Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 31 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 31 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Harringtons misrepresentations to the Court during the prior, April 3, 2013, status conference - that the factual portion of ROI 1 consisted simply of transcripts from this lawsuit - were willful and calculated false statements, intended to mislead a federal court regarding core evidentiary issues.Even despite the Justice Departments claim that the legal concessions by ATF in ROI 1 were not relevant to the second amended complaint, the factual admissions in both ROI 1 and the PRB File were sufficient to require the immediate production of ROI 1 and ROI 2 under Rules 26 and 34.Plaintiff was entitled to use ATFs own conclusions of fact admitting misconduct by ATF with respect to ATFs response and investigation of the August 10, 2008 arson at plaintiffs home. Those facts established that ATF breached the settlement agreements covenant of good faith by violating, at minimum: (1) ATF Orders 3040.1A, 3040.2A, 3210.7C22; (2) ATFs obligation to conduct thorough risk assessments when called for by threat circumstances, such as the August 10, 2008 arson; and (3) the spirit of the September 2007 settlement agreement to protect plaintiff, as part of an agreement arising out of claims by plaintiff that ATF had failed to respond to threats of death and violence against him.During the period of time that Harrington misrepresented to the Court the contents of ROI 1 and ROI 2, all of those legal issues were before the Court for trial, thereby mandating Harringtons obligations to be forthcoming about the factual materiality of ROI 1 and ROI 2. Civil Division should have immediately made available to plaintiff the factual admissions of ROI 1 and its related PRB conclusions in November 2012, to use in motions in limine and potentially for plaintiff to use in a renewed motion for summary judgment. Instead, at the time plaintiff filed his motion to compel production of ROI 1 and ROI 2, along with the respective PRB files, defendant had been in possession of ATFs October 11, 2012 Report of 22 Although the court, in its final Opinion, found that ATF orders were not included within the 2007 settlement agreement, the Court, as of the time of trial, had not precluded that legal theory. Thus, DOJ was required to produce documents such as ROI 1 and ROI 2 that were relevant to violations of AFTF orders. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 32 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 32 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Investigation for seven months, and had possessed the Professional Review Board conclusions adopting ROI 1, for six months.The Justice Department ignored this Courts Amended Protective Order as part of what plaintiff argues was an unethical strategy designed to hinder and handcuff plaintiffs ability to prepare for trial and review the report during a pre-trial settlement conference in April 201323. Indeed, the amended protective order arose out of the protection of the personnel files of a witness William Newell during Newells deposition in August 2010.Civil Division had no reasonable basis to withhold ROI 1 and ROI 2 and the related PRB files. David Harringtons conduct was deliberately misleading towards the Court and prejudicial to plaintiff regarding time-sensitive opportunities to make highest use of ROI 1 and the PRB file. 8.For ROI 1 and ROI 2 only, ATF Assistant Director Thomas Brandon replaced PRB Bureau Deciding Official (BDO) Steven Zellers, who was anticipated to sign ROI 1s PRB recommendations within days of issuance.AD Brandon then refused to accept the PRB recommendations for ROI 1 and ROI 2, possibly at DOJs instruction in order to maintain DOJs objections based on the deliberative process privilege, and yet ordered no additional investigation to clarify his concerns. Plaintiff submits that, as part of an effort to delay the production of ROI 1 and the related PRB recommendations, ATF replaced its Professional Review Boards Bureau Deciding Official (BDO) Steven Zellers, who would normally complete the approval process and sign the PRB recommendations within days after the PRB proceeding, with ATFs Deputy Director, Thomas Brandon, second in command of ATF.Deputy Director Brandon then categorically refused to sign off on the PRB conclusions for ROI 1 and, to plaintiffs knowledge, never signed the PRB recommendations for ROI 1 or ROI 2.Plaintiff wishes to investigate whether contends this prejudicial personnel swap was at the improper direction of Civil Division for the purpose of withholding the PRB memorandum and ROI 1 from plaintiff. The logical 23 Plaintiff contends that DOJs act of withholding of ROI 1 and its PRB conclusions from plaintiff while participating in mediation at which Donald Kinner and Rachel Bouman represented DOJ and Thomas Brandon represented ATF, constitutes fraud in the inducement.Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 33 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 33 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 connection and reason is that, as soon as Brandon signed the PRB recommendations accompanying ROI 1, Civil Divisions assertion of deliberative process privilege would evaporate.Plaintiff submits that the transparency of Civil Divisions strategy in replacing Zellers with Brandon as Bureau Deciding Official for this PRB proceeding was obvious, resulting in a seven month delay in the production of ROI 1 and the related PRB file.Plaintiff seeks to determine whether Civil Division, aware of the materiality of ROI 1 and ROI 2, arranged with ATF to replace Steven Zellers as Bureau Deciding Official with an ATF assistant director willing to take improper delaying instructions from Civil Division not to sign the PRB recommendations and thereby protect Civil Divisions assertion of the deliberative process privilege. If so, Civil Divisions conduct constitutes evidence tampering in an elemental form a complete obstruction of access to documents. 9.On the eve of trial, ATF Deputy Director Brandon issued PRB letters of clearance for William Newell, Marino Vidoli and Steven Pugmire, current employees found by the Court to have acted improperly; if this was at DOJs request, it would constitute witness and evidence tampering. The Court pointed to the superficial and insubstantial manner in which ATF, through Deputy Director Thomas Brandon, created evidence immediately before trial to exonerate ATF officials from impropriety in recalling the covert IDs of Jay Dobyns:[C]ontrary to the detailed findings made by the IAD investigation, an ATF review board summarily found, on the eve of trial, that there were not any integrity or conduct issues associated with Chiefs Pugmire and Vidoli, and SAC Newell, in removing the protections previously given to Agent Dobyns. Trial Opinion, September 16, 2014, p. 38.The Court compared ATFs nonexistent effort to explain the exoneration to the outstanding critique of ATFs conduct by Christopher Trainor: By comparison to the single paragraphs that constituted the PRBs memoranda clearing these individuals, Agent Trainors IAD report on the removal of the backstopping provided hundreds of findings, and was based on hundreds of documents and five months of interviews. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 34 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 34 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Id.Plaintiff submits that Civil Division wielded ATFs replacement of PRB Bureau Deciding Official Steven Zellers with ATF Deputy Director Thomas Brandon with respect to ROI 1 and ROI 2 only, as a two-edged evidentiary sword.On the one hand, Civil Division used Brandons refusal to sign the PRB conclusions related to ROI 1 in order to withhold and obstruct plaintiffs access to ROI 1 and the PRB recommendations under the deliberative process privilege, while at the same time Civil Division used Brandon to generate new trial evidence supporting defendant, in the form of the witness clearance letters for Newell, Vidoli and Pugmire. If Civil Division instructed or assisted Thomas Brandon in any way to generate these letters of clearance, then DOJ engaged in both witness and evidence tampering.10. Plaintiff seeks to establish that Civil Division attorneys improperly coached trial witness Ronnie Carter during questioning, including possibly signaling to him electronically while Carter was on the witness stand through his cell phone. Witness and former ATF Acting Director Ronnie Carter was a fulcrum witness as to the meaning and interpretation of the September 2007 settlement agreement that formed the basis of this lawsuit.During his December 2010 videotaped deposition, only a little more than two years following the August 2008 arson, Mr. Carter gave numerous instances of testimony favorable to plaintiff.Tragically, subsequent to his deposition, Mr. Carter suffered two strokes.Civil Division faced a formidable challenge in any situation where Mr. Carter varied in his June 2013 trial testimony from his December, 2010 videotaped deposition. Obviously, any defense claims that Mr. Carters trial testimony was more reliable and his memory more dependable as compared to his 2010 deposition testimony would not be credible.At trial, Carter overtly, constantly looked to defense counsels table before answering each question, which likely both the Court and undersigned counsel tolerated because of Mr. Carters debilitated condition. While there is no video of his trial testimony, Mr. Carters conduct at his videotaped deposition was the same, taking a pause after each question, looking to defense counsel, then delivering a slow, deliberate answer. Plaintiff submits that Civil Division guided Mr. Carter through his testimony at both his deposition and at trial.Nevertheless, plaintiff had obtained favorable deposition testimony. Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 35 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 35 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Then, at trial, the cell phone held by Mr. Carter rang repeatedly during two critical moments of argument over objections by DOJ to questions that undersigned counsel had posed to Mr. Carter.(APP8) Mr. Carter stated on the record that he did not know how to turn off the cell phone, an odd circumstance if it was his phone. When plaintiffs trial paralegal Jeff Elder retrieved the cell phone from Mr. Carter at the request of the Court, David Harrington hastily met Jeff Elder steps from the witness stand and took the phone with two hands, one hand covering the phones display.It was noticeably distinctive behavior to such an extent that both undersigned counsel and Jeff Elder recalled it afterwards.In the context of multiple examples of misconduct alleged against Civil Division attorneys in this lawsuit, there is one scenario that, tragically from an ethics standpoint is very logical. It is one that plaintiff would never suggest but for myriad unethical conduct by Department of Justice attorneys alleged herein.A possible reason for Mr. Carters phone being on during his trial testimony, one that is consistent with: (1) Mr. Carters unfamiliarity with the phone and his inability to turn it off; (2) the phone vibrating or ringing during key moments of arguments over objections between attorney Oliver and undersigned counsel; and (3) David Harringtons quick recovery and covering of the phone, is that a Department of Justice telephone number or caller ID appeared on the phones display. In other words, Civil Division was using the cell phone to remind Mr. Carter to look to counsels table for guidance with his answers. Consistent with that scenario, Mr. Carter would have been unfamiliar with the phone because it was not his, i.e., Mr. Harrington or another Civil Division attorney provided the phone to Mr. Carter for use during trial.By using a call or vibration mode, defense counsel intended to signal to a disabled witness to look to defense counsels table for visual cues regarding answers during a critical moment of objections to testimony, all as a method of leveling the playing field on behalf of a witness who possessed a cognitive disability.If so, then unfortunately for Civil Division, the phone was set to audibly ring instead of vibrate. Each trial attorneys cell phone records, particularly David Harringtons phone log, for June 11, 2013, would make clear whether any Civil Division attorney called or texted to the phone in Mr. Carters possession while he was testifying. Since the phone that Mr. Carter was using might not have been his Case 1:08-cv-00700-FMA Document 337 *SEALED*Filed 03/09/15 Page 36 of 42 Case 1:08-cv-00700-PEC Document 439 Filed 08/12/15 Page 36 of 42SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 own, his own telephone records for June 11, 2013, will either reveal the source of the calls at mid-day, or else will show no record of a call whatsoever meaning the ringing phone in his possession was not his. Mr. Carter simply needs to be asked why his cell phone was on and whether he received any forms of calls, text messages or prompts from the Department of Justice on the cell phone in his possession during your trial testimony.Further, Mr. Carter should explain if he was receiving cues from his lawyers during questioning.Plaintiff would ask all defense counsel, i.e., attorneys Harrington, Niosi, Oliver, Oneyama and Bouman what they know on this topic as well. V.Plaintiff submits that other topics of fraud on the Court not exp