Fed-up Feds

Will the "temp" United States Attorney exile dissidents to the border?

Federal prosecutors, armed with the law and an intimidating investigatory arsenal, would hardly seem in need of public sympathy or job protection. However, in recent months, many lawyers assigned to the United States Attorney's Office in Houston profess to work in fear and loathing of their temporary boss, acting United States Attorney Jim DeAtley.

In the eyes of these prosecutors and some federal judges, DeAtley pumps up statistics by dumbing down the quality of prosecutions. He floods courts with so-called "nickel-and-dime" cases that would previously have been considered below the federal radar, such as small drug busts, social security fraud or mail fraud. The new emphasis, they claim, is designed to create glowing, and highly misleading, statistics that will come in handy for the department at budget time and for the Democratic administration in campaign year 2000. The irony of a Democratic appointee coming down hard on small drug- and immigration-law violators, who are largely from minority groups, is mentioned repeatedly by DeAtley's critics.

Assistant United States attorney discontent boiled over during a recent Department of Justice evaluation of the Houston office, as an estimated 20 to 25 dissidents vented about DeAtley and his policies. According to prosecutors, who could comment only confidentially to the Insider, the acting United States Attorney and his lieutenants Greg Serres and Fred Dailey have targeted malcontents and have retaliated with demotions, transfers and veiled threats of exile to border postings, particularly Laredo. Staff morale, never considered high during the tenure of predecessor Gaynelle Griffin Jones, has gone into the tank.

Among the first targets of the purge was former magistrate George Kelt, the major-crime section chief who was demoted to the appellate section with a hefty salary cut. A transfer of veteran fraud prosecutor John Braddock to a routine line prosecutor position was viewed similarly.

"This office now has the most experienced trial section handling appeals of any office in the country," snipes a lawyer who regularly works in the Houston federal courts.

Complaints about DeAtley's efforts to pump up the number of cases processed by the Houston office are not new, but they have increased in intensity as delays keep the expected presidential nominee for United States attorney, Mervyn Mosbacker, cooling his heels in Brownsville. The situation bears a remarkable resemblance to DeAtley's last posting as a three-year interim United States attorney in San Antonio. Incoming nominee Bill Blagg was left on hold there while DeAtley pushed the same program of boosting statistics while infuriating subordinates.

DeAtley's style, as well as his substance, has alienated subordinates. "He completely demeans the lawyers professionally and personally and always plays himself off what he describes as the inefficiency and ineffectiveness of the people under him," says one attorney. "Starting off when he came to Houston, he communicated publicly to people around the country and within the department that the office was poorly run and lawyers were inefficient and inadequate."

According to DOJ sources, DeAtley is strongly allied with, and protected by, Donna Bucella, director of the Executive Office of United States Attorneys in Washington. Bucella's office has taken an inordinate amount of time vetting nominee Mosbacker. Some believe that delay is intended to allow DeAtley to carry out a shake-up in Houston before the new man arrives.

"The Houston office is in horrible shape," says a former longtime government lawyer here. He explains that many prosecutors came from the district attorney's office but are now having to handle cases that they never would have assigned to their lowest ranking assistant D.A.'s. "It's not challenging, it's not what they signed on to do, and they're way overpaid to be doing small, petty cases for a clearly transparent purpose of getting the stats real high."

DeAtley has been on reserve duty as an Air Force colonel and did not respond to a request for an interview. In previous Press articles on his policies, he dismissed the complaints that his office is jacking up minor cases to pad statistics.

Earlier he credited the shift in prosecution policies with a focus on violent crime. "If I believed that prosecuting what some people are calling minor cases was impacting our ability to do the more complex white-collar and drug cases, I would take another look at it." DeAtley said he doesn't believe that's the case.

A justice department lawyer based in Washington claims that's exactly what's happening in Houston and that it has made the office a national joke among prosecutors. "Individual United States attorneys like to bump their numbers, and DeAtley's known for that. They don't want any part of complex, challenging white-collar cases, because there are too many risks."

Concern about the internal dissension and DeAtley's bean-counter policies slowly has been building even outside prosecution ranks. Federal judges' patience may be wearing thin. With DeAtley sitting atop a rumbling bureaucratic volcano, the question is whether the justice department can get his permanent successor in place before the mountain blows its top.

A group of veteran federal prosecutors from other regions in Houston met to evaluate the United States Attorney's Office in January. At that point DeAtley had been the "temporary" head of the office some 15 months. As a professional DOJ temp, DeAtley had the reputation for boosting prosecution stats through a combination of more generous plea bargaining with accused felons, splitting multidefendant indictments into individual cases, and lowering the bar for cases meriting indictment and trial. For example, state courts used to handle bank frauds involving less than $50,000. Now tellers who embezzle $5,000 make the cut for federal prosecution.

In the course of his Houston stay, DeAtley also has provoked the federal judiciary. Judge Vanessa Gilmore, the liaison between the judges and prosecutors, issued a written complaint about his trend to indict related defendants separately rather than grouping them into one case. Gilmore noted that such tactics clog dockets and violate a court rule requiring that judges be notified of litigation linked to other current cases.

Judge Melinda Harmon fumed about DeAtley's last-minute deal-making with defendants in a huge drug-conspiracy case. Harmon's unusually blunt statement from the bench stunned courtroom listeners: "I just want to say on the record I know something very odd is going on in the United States Attorney's Office, as shown by the way this case has been handled, and that I'm aware of that."

Judge Lynn Hughes, the senior federal jurist here, believes DeAtley's policies are designed to inflate statistics and justify agency budgets. He compares the policies to those of another United States attorney, Henry Oncken, who ran afoul of the judiciary by filling the courts with small cases.

"We had a United States attorney 15 years ago who thought everybody in the district should go to prison, and he just didn't have enough resources to get us all," recalls Hughes. "DeAtley's [policies] are more finely crafted for their bureaucratic purposes. Oncken just took a bulldozer to the problem, and it may have helped the agencies with their budgets, but I don't think he was particularly sensitive to that. He just liked to prosecute."

When the DOJ evaluators began talking to judges and prosecutors about DeAtley, they were stunned by the quantity and acidity of the complaints. They spent a week conducting interviews that were supposed to be confidential. The process concluded with exit interviews of DeAtley and his executive staff.

Even though no one on staff saw the evaluation, some section chiefs soon made comments indicating that the identities of the complainers were no secret. And the problems supposedly identified by the evaluation were not DeAtley and his policies; they were instead several "hot points," including the low number of cases handled by prosecutors and the high number of malcontents on staff. More ominous, a section chief also told staff that DeAtley and Bucella discussed budgeting funds to buy the Houston homes of low-producing attorneys and transfer them to the Valley, where plenty of drug and immigration cases awaited.

A week later, criminal division head Fred Daily put a slightly more diplomatic spin on the matter. Prosecutors reported that Dailey explained to them that case statistics were low in Houston and high in the Valley, and a plan was afoot to transfer a number of prosecutors to the border, particularly Laredo.

Several assistant United States attorneys say they'll take DeAtley to court if he tries to forcibly transfer them from Houston, and a veteran prosecutor figures the threat of a forced march to the bleak outpost of Laredo is more bluff than anything else.

"My own personal view is that's a hollow threat, getting people to think, 'My God! If I don't do something and run up my stats and get on someone's good side, I'll wind up in Laredo tomorrow.' The cost to the government of that sort of thing would be pretty severe and, under the circumstances, would probably be contested by certain people and would be an ugly situation. So I don't see it happening."

While the pressure builds inside the Houston office, future United States attorney Mervyn Mosbacker continues his work as chief federal prosecutor of the Brownsville office. There is no indication when he'll be coming to Houston, despite monthly rumors that his appointment is pending.

"Well, I don't have an update," said Mosbacker when the Insider called, "but I'm not concerned about it. I hope it's soon, but I don't have an estimated time."

Mosbacker is a Hispanic whose nomination is being pushed by the Texas Democratic congressional delegation. He clerked for Brownsville federal Judge Filemon Vela. Before joining the feds, he served as an assistant district attorney in the Valley. Although his experience is mostly with the kind of drug and immigration cases pushed by DeAtley in Houston, he's credited with good prosecutorial skills and is eagerly awaited by the same assistant United States attorneys who detest DeAtley.

Mosbacker is keeping a diplomatic distance from the office disputes in Houston. "Well, I wouldn't want to talk about internal stuff in the office or comment on anything concerning personnel," he says.

A spokeswoman for Bucella's office in Washington cautioned the Insider that there were impending developments to be announced concerning Mosbacker's appointment. But that was three weeks ago.

By most accounts, the lengthy delay for Mosbacker has been caused by foot-dragging in the justice department rather than at the White House. A DeAtley supporter figures that the department bureaucracy in Washington is just more comfortable with DeAtley and is in no hurry to disrupt what Bucella and others see as a necessary clear-cutting of office deadwood.

"There's nothing wrong with Mosbacker, other than the people in Washington like DeAtley and they know him," says this prosecutor. "They trust him. They don't know Mosbacker, and they don't know what to do with him."

The assistant United States attorney says, "The White House is distracted with all this other shit, and there's no senator calling up and saying, 'I want my guy on board,' so nobody's in any rush to do anything with it. So the poor bastard is just sitting down there [in Brownsville] and he's got no political clout. It's a very tough time."

A DeAtley critic sees the delay as political interference from the top. "Donna Bucella is exercising more power than she should. They're holding up this thing until they can find a place for DeAtley. He's not welcome back in San Antonio because he did the same thing over there and created a lot of bad feelings."

If Mosbacker is not moved into Houston soon, several observers hope local federal judges, who have the power to name acting United States attorneys, get into the act. Judge Hughes expects the subject of DeAtley and the conduct of his office to come up at a meeting of the federal judiciary in Houston next month.

"I assume that when we have a formal court meeting we will discuss the incumbent United States attorney and the status of the presidential appointment," says Hughes. He says he is uncertain about the attitudes of fellow judges toward DeAtley or alternatives. "It is a serious responsibility, so when we gather, as long as there is an interim United States attorney, we will consider how the office is operating."

A justice department prosecutor points out an oddity in the continuing delay for Mosbacker.

"If they can appoint him acting United States attorney once the White House clears him, they could do that today, and they could have done that a year ago. That indicates there is a delay that in my view is not genuine."

This source also notes that no previous interim United States attorney elevated from within the justice department required the intense internal scrutiny given to Mosbacker.

Judges might take a few pointers from their counterparts in San Antonio, who tired of the endless interim tenure of DeAtley. They took matters into their own hands by naming Bill Blagg as interim until his nomination could be processed.

"They had gotten completely fed up with the situation," says a DOJ attorney. "The judges were reflecting what they perceived to be terrible problems in the office and a guy they didn't care for who was doing inconsequential cases and whose policies and values they didn't share. It didn't take San Antonio long to come to that conclusion, and it hasn't taken the people in Houston very long, either."

DeAtley might also keep in mind the fate of predecessor Oncken. His similar fondness for pushing small cases eventually motivated local judges to pressure the White House and congressional patrons not to reappoint him. When his term expired, Oncken was gone, along with all those nickel-and-dime prosecutions.

If reports circulating within DeAtley's staff as we go to press are accurate, the latest version of the nickel and dime may also be on its way out. According to one source, Attorney General Janet Reno will make the long-awaited interim appointment of Mosbacker at mid-month, and the next major transfer out of Houston is likely to be the justice department temp himself.

Maybe he'd fit right in on the streets of Laredo.

Don't ship your news tips off to parts unknown. Send them to the Insider. Call him at (713)280-2483, fax him at (713)280-2496, or e-mail him at insider@houstonpress.com.

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