Files Not Found

Thousands of missing FBI documents in the Timothy McVeigh case? It comes as no surprise to the survivors of Operation Lightning Strike.

One day, after returning from a lunch recess, attorney Dan Cogdell, who represented Stinger, noticed something interesting on the prosecution table. "There was this big roll of blueprints," says DeGuerin. "So Cogdell goes over there and unrolls it, and there they are! The very plans that the prosecution had denied existed."

DeGuerin says he doesn't often buy in to conspiracy theories, but in this instance, he believes someone familiar with the case -- with either the FBI or the U.S. attorney's office -- did not approve of the government's conduct and deliberately placed the blueprints where they would be discovered by the defense.

No matter how the drawings surfaced, U.S. District Judge Kenneth Hoyt apparently didn't care much for the government's case, either. Shortly after Assistant U.S. Attorney Martinez -- DeGuerin's nemesis from Brown's trial -- rested his case, Hoyt entered an oral judgment of acquittal for Hogge and her two co-defendants. So weak was the government's case, DeGuerin didn't even have to mount a defense. He believes that Hogge should never have been under investigation, much less brought to trial.

DeGuerin doesn't know if this type of law enforcement is "a huge conspiracy by everybody in the FBI," he says. "But I think the FBI engenders an attitude of arrogance and infallibility that encourages some individual agents and supervisors to make their own decisions. They've got an attitude that, 'By God, we are the FBI, and we write the rules.' "

DeGuerin, of course, was the attorney for the late David Koresh, and he still seethes at the thought of the fiery conclusion to the Branch Davidians' deadly standoff with the FBI outside Waco, one of McVeigh's motivating factors in deciding to commit mass murder. DeGuerin thinks federal prosecutors are often at the mercy of FBI agents, who decide what to reveal to the U.S. attorney's office. While DeGuerin reserves most of his venom for the FBI, Cogdell spreads his criticism equally between the bureau and the U.S. attorney's office. Indeed, the case of the missing blueprints is not the only one in which Cogdell witnessed questionable conduct by federal prosecutors.


In 1994 Cogdell represented Lawrence H. Ramming, one of ten defendants in a 27-count federal bank fraud indictment. In a ruling reminiscent of the one he made in the Hogge trial, Judge Hoyt dismissed the case on the grounds of insufficient evidence and prosecutorial misconduct. In his 34-page order, Hoyt accused prosecutors Julia Hyman and Michael Schwartz of withholding exculpatory evidence and coercing a witness with the threat of prosecution into altering his testimony to fit the government's theory.

"It is the only case I've ever been in where every day not only did the government engage in misconduct, they were caught engaging in misconduct," says Cogdell. "It got so bad that Judge Hoyt held the prosecutor in contempt and threatened to empanel a grand jury to inquire into criminal wrongdoing in the U.S. attorney's office."

Ramming eventually filed a civil suit against the government for wrongful prosecution. The case was settled out of court, reportedly for around $500,000.

"Most U.S. attorneys are decent, hardworking people," says Cogdell. "But the few that have [withheld exculpatory evidence] have done so with regularity and impunity. And it's gotten more sophisticated now. Because now I believe FBI agents are aware that when prosecutors get held in contempt and cases are dismissed based on prosecutorial misconduct, there is a salutary effect that deters prosecutors from doing that. But that's not the end of the line…because now FBI agents deliberately withhold production of [that evidence] to the assistant U.S. attorneys. So even if you trust your prosecutor, he may absolutely be dealing with you in good faith, but [the evidence] has been withheld from him by the agent."

Cogdell points to the recent sting operation at Houston City Hall and the FBI's use of undercover informant Julio Molineiro, whose questionable behavior led the Drug Enforcement Agency to stop using him -- something Cogdell equates to "getting kicked out of Guns N' Roses. It's hard to get blackballed as an informant for the DEA."

Cogdell says information about the informant's controversial reputation should have been made available to defense attorneys. He doesn't believe, however, that the prosecutor was aware of the situation. "If an FBI agent wants to withhold production of favorable evidence from a [federal prosecutor] or from a defense attorney, there's no way I'll know that it exists," says Cogdell. "It's a document in their office. I can't get into their computer."

Greg Sears, the acting U.S. attorney for the Southern District of Texas, did not respond to a request for an interview with the Press. However, one assistant U.S. attorney, who spoke on the condition of anonymity, somewhat agrees with Cogdell's assessment, saying that prosecutors are at the mercy of FBI agents when it comes to producing exculpatory evidence. The official line from the local FBI office is much less inflammatory, of course. According to Special Agent Robert Dogium, the bureau does its best to comply with any request for information from defense attorneys.

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