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When safeguards fail (cont.) Making deals
Perhaps the biggest tool federal prosecutors have to mold testimony is the promise of leniency for a grand jury witness facing criminal charges. Consider the case of William Moore, accused of trying to bribe U.S. Postal Service officials in Dallas. In the late 1980s, he’d been trying for months to get the U.S. Postal Service to take a look at an optical scanning device his company developed that could greatly speed up mail sorting. He’d had no success. People who’d worked with the government said he should hire a lobbyist. It turned out Valder was investigating the lobbyist Moore hired, John R. Gnau Jr. of Michigan, for passing bribes to Peter E. Voss, a member of the Postal Service’s board of governors. Another target of the investigation was Willam Spartin, an executive recruiter who had joined in Gnau’s bribery scheme. Prosecutors promised Spartin that he would not be prosecuted if he provided truthful testimony. He told federal prosecutors he didn’t know if Moore had been told about the bribes — and a polygraph test showed he was telling the truth. After Valder heard of Spartin’s statement about Moore, he confronted him in an interview room and tore up the non-prosecution agreement the government had promised. Valder would later say he was trying to get the witness’s "attention." Spartin’s lawyer asked Valder for a second chance, saying Spartin was trying to be helpful. So Valder "refreshed" Spartin’s memory by showing him government summaries of grand jury statements made by co-defendants and other witnesses — summaries Moore’s attorneys said prosecutors had slanted against him, despite prosecutors’ ethical obligation to make a balanced presentation of the facts. In an interview room, Valder then questioned him again about Moore. In 19 separate answers, Spartin said that he wanted to be helpful, but he had nothing incriminating on Moore. "I’m not going to lie," he said. Spartin said the summaries seemed to indicate there was enough evidence to "hang" Moore’s company and Moore himself. Valder took Spartin into the grand jury room, then carefully crafted a question that avoided asking what Spartin actually knew about Moore’s involvement. "Do you recall that you told [postal inspectors] that, in your judgment, Moore and Reedy did know that Voss was receiving money from Gnau relative to the [procurement contract]?" Valder asked. "That is my opinion, yes sir," Spartin replied. Grand jurors never learned of Spartin’s 19 earlier denials. Moore’s lawsuit argued that Valder used similar threats to slant the testimony of a second witness. Prosecutors asked Frank Bray, a mid-level employee of Moore’s company, to read and confirm as truthful a 22-page summary of his statements that prosecutors had prepared. When Bray and his lawyers realized the summary intimated that Bray knew Moore had knowledge of the bribes, he refused to sign it. Valder threatened Bray with perjury if he didn’t sign. After a negotiating session that lasted until 1 a.m., the two sides reached a compromise: Bray would sign the statement as drafted if Valder would allow Bray to tell grand jurors he didn’t know if Moore was aware of the bribes. Valder agreed. But then he never gave Bray the opportunity to make that statement before the grand jury. All grand jurors knew of Bray’s statements to prosecutors was his summary, which he’d told prosecutors had been wrongly slanted against Moore. The Justice Department’s Office of Professional Responsibility found nothing wrong with such conduct. It exonerated Valder 19 months after Moore filed his complaint. One of Moore’s criminal lawyers, Robert Bennett, another former U.S. attorney who recently represented President Clinton in the Paula Jones and Monica Lewinsky cases, called the case "an outrageous and shameful exercise of prosecutorial power. The power was frighteningly abused." Valder never returned phone calls seeking comment. Paid for mistakes Moore figures he made two mistakes. He had criticized the government loudly and publicly when the Postal Service refused to look at his company’s new scanning device. Then he’d opened his books to investigators when they inquired about his relationship with Gnau, because he knew he had nothing to hide. He believes his criticism of the Postal Service prompted the government’s initial investigation, an accusation the government has denied. Then, after he’d opened his books, he learned through third parties that Valder was feeding the information to a federal grand jury, trying to connect it to the bribery scandal. "I did not believe this could happen to somebody like me in America," he said. "I’m a patriot, businessman. ... I got to the pinnacle of my success, and these guys use criminal statutes to bring me down when I hadn’t done anything." Moore was elated to be exonerated, but his professional career was in ruins. He’d been removed from his position as head of the company after his indictment, and competitors initiated a hostile takeover. They bought the company and its extensive research on equipment, then promptly merged with existing operations, putting 3,000 employees out of work. Moore rebounded by establishing a profitable consulting business, but he still felt angry that he never got his day in court. "It’s one thing to wave your arms around and rail about this type of thing, but I couldn’t get the issue of accountability out of my mind," he said. "These people aren’t accountable. They get away with things like this and claim this ‘immunity.’ "They can literally lie, cheat and steal." His decision to sue the government occurred by chance. He met Paul "Mickey" Pohl, a top litigator in the Pittsburgh office of the Cleveland firm of Jones, Day, Reavis and Pogue — the nation’s second-largest law firm — while on vacation in Hawaii. While his firm is not known for suing the government, Pohl was intrigued by the case. He thought it might offer an opportunity to change the law surrounding federal immunity. Pohl took the case on contingency. Moore agreed to pay all his expenses. The suit, filed in a Texas federal court, sought damages of $30 million. Moore’s civil suit accused Valder and some postal inspectors of prosecuting him because he had criticized the way the government did business. The suit also charged that:
In its responses, the government claimed absolute immunity, which is designed to free the judicial process from the harassment and intimidation associated with litigation. Moore’s lawsuit has been appealed to the Supreme Court, but the only part that remains alive is a complaint about the action of postal inspectors, although appeals are pending on court decisions that held that Valder’s grand jury conduct was immune from prosecution. When Moore speaks of the outcome of his case against Valder and the postal inspectors, he insists he will not stop until someone tells him he can’t push the matter further. He finds it hard to accept that the government cares so little about abuses like this, which do real harm to citizens. "The fact of the matter is ... we’ve got judges’ opinions time and time again showing the government did this to these people and the government says they did nothing wrong. "I want to prove once again that if I want to complain about the government of the United States, I can do it. And I want to show that you shouldn’t get punished for doing that."
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Valder told several postal
inspectors in the presence of a grand jury witness that he did not care whether Moore was
guilty — he just wanted to secure a "high-profile" indictment to further
his career.
