The haze blanketing the city of Houston this month was thin stuff indeed compared to the smoke the Hotel Six jury has labored to cut through in its first days of deliberation. After nine weeks of testimony, the panel confronted two mirror universes presented by prosecutors and defense attorneys representing the remaining five City Hall insiders charged with bribery and conspiracy.
Before the jury even started weighing the fates of former councilmen Ben Reyes and John Peavy, current Councilmen Michael Yarbrough and John Castillo and former port commissioner Betti Maldonado, two quick developments seemed ominous for the defense.
A draw for the final 12 panelists from the 13-person pool eliminated a black woman juror whose body language had been interpreted by prosecutors as increasingly pro-defense. That set the final group at nine men and three women, including eight Anglos, two blacks and two Hispanics, still a diverse jury by federal standards. Then the jurors elected as foreman a besuited white male lobbyist who had seemed skeptical of defense arguments. And with that, the final examination of the evidence began.
One of the first queries from the jury to the judge boosted defense spirits. If Ben Reyes was entrapped by the government, asked the foreman, does that mean all the defendants were entrapped? Although the judge answered "No," the question indicated that the cornerstone of the government's case may be crumbling.
The only point where the universes of the prosecution and defense coincide is agreement in the person of former city councilman Ben Reyes, and the agreement that he took the money. FBI undercover agents filmed Reyes and his four codefendants taking or passing on cash supplied by two agents posing as the bogus Latin American businessmen of the Cayman Group. They were trolling for corrupt city officials under the pretense of buying their way into the downtown convention center hotel project in the worst way, with cash bribes.
But from there, each side has its own terminology for identical actions: What's a bribe in one universe is a campaign contribution in the other; an illegal payoff here becomes a legal loan there; a bribe in one place is the legal payback of an old debt in another; and a damning admission to one side is otherwise presented as a simple shuck and jive to con potential investors.
"You saw something pretty special in this trial," prosecutor Mike Attanasio told jurors at the beginning of his summation. "For the first time in a long time, you got to look behind the curtain. Greed, corruption and dishonesty. That's what you got to see, and it wasn't pretty."
The weight of empirical evidence -- some 1,400 tapes documenting 400 hours of conversation -- would seem to favor the government, once one accepts that the federal agents' words on the tapes are lies to facilitate a public-corruption probe of Reyes and his circle of political associates. Since Reyes's own words declare his intention to buy by bribe the votes and leadership of three councilmembers, his defense amounts to a mirror of the FBI sting.
According to Reyes, he only pretended to bribe officials in order to take the agents' money while keeping them in line as potential investors for the hotel, for which he had seemingly developed a manic attachment. In other words, for every lie the agents told him, Ben did them one better, and kept their money to boot.
Of course, every time Reyes tells someone on the tapes that he really doesn't want money or a role in the hotel deal, the defense insists he was telling the truth and showing his true colors.
"He was holding a wolf by the ears," Reyes's attorney, Mike Ramsey, explained of his client's seemingly contradictory statements on the tapes. "If he lets go, he gets bit." While he was holding the wolf, Reyes found a way to pocket a satchel containing $50,000 and, according to his own defense, nearly $10,000 in undelivered bribes.
Closing arguments last week allowed the parties one last chance to imprint their scheme of things on the upcoming jury deliberations. As jurors and onlookers alike coughed from exposure to the tainted air outside, smoke became a recurring image in the lawyers' speeches as well. According to Ramsey, his client's incriminating statements about bribes and corrupt behavior were just Ben's way of "blowing smoke" at the federal agents.
Prosecutor Attanasio called that defense a smoke screen to allow corrupt city officials to offer and accept bribes with impunity. Attanasio derided the defense's "smoke machine," an apparent reference to the device employed by the bogus mastermind in The Wizard of Oz.
Betti Maldonado's attorney, Dick DeGuerin, who has characterized his client as a gullible, goodhearted ditz throughout the trial, was quick to seize on the analogy and put his client in the starring role.
"I do see Betti as Dorothy, bright eyed and innocent," declared DeGuerin. "And Toto, pulling the curtain aside." Then he pointed to FBI Special Agent Ron Stern, the sting's architect, who was sitting at the prosecution table. "That's the Wizard of Oz," intoned the lawyer. "That's who's pulling the controls, and that's the curtain you've been able to see behind briefly."
DeGuerin didn't specify who plays Toto in his production, although he also described Betti in canine terms as "eating out of the FBI's hands, unfortunately," and claimed the FBI used her as their "trained puppy dog."
In DeGuerin's Hotel Six version of The Wizard of Oz, Toto seems to be just another aspect of Dorothy/Betti's personality.
The strategies of the separate defense lawyers seemed to employ a set group of options in closing arguments. One: Defend the client by upholding his or her innocence and competence. Two: Defend the client as innocent by virtue of his or her incompetence. Three: Defend the client as innocent because he relied on the advice of a previous attorney who got him into trouble. Or four: Simply trash the government for unethical behavior and the employment of snitches with criminal pasts. Everybody seemed to use option four liberally.
The venerable, graying Robert Bennett mixed the first and third options in pleading with jurors not to allow Councilman John Castillo's "American success story" to end in a tragedy. Castillo, a longtime factotum to Reyes who had succeeded the term-limited councilman in the District 1 seat, had taken the stand in his own defense. He handed prosecutors an unexpected admission that he had accepted cash from Reyes during a conversation at the bar of Ruggles restaurant in January 1996. Castillo justified the money transfers as repayment of an old campaign debt by a suddenly flush Ben Reyes, though he never reported it on his income-tax filings, campaign reports, city financial statement or in an interview with FBI agents the day the sting investigation became public.
To explain the failure of Castillo to return or report his acceptance of an envelope containing $3,000 from Maldonado in the closing days of the sting, Bennett used option three and blasted the councilman's first attorney and former friend Frumencio Reyes. After conceding that Castillo had shown a lapse in judgment by spending $400 from the stash for a contribution to a nonprofit fundraising event, Bennett took out after Frumencio Reyes for his advice to Castillo to stay mum and sit on the money.
"John went to a lawyer who didn't have any sense," Bennett told the jury. "Now we know he had no ethics either."
Bennett was referring to the fact that the lawyer held the remaining $2,600 for Castillo in a safe for nearly two years, but when the money was finally turned over to the federal government, none of the bills matched the original cash, and several bore printing dates more recent than when Castillo gave his lawyer the money. The implication is that Frumencio spent at least some of the money and had to replace it, a breach of client trust that could cost him his legal license. It also hopelessly muddies the waters on the issue of whether Castillo spent more of the FBI money and replaced it before handing the $2,600 to Frumencio.
Peavy attorney Dan Cogdell followed Bennett, and played the hayseed country lawyer, describing Attanasio as a "good-looking, articulate vacuum cleaner salesman," and informant Julio Molineiro as "a big fat rat.... We don't import scum like that man to come in and police us."
Peavy had not testified in his own defense, so it was up to Cogdell to present the former councilman's rationale for accepting $2,500 in the parking lot at Carrabba's from an FBI agent and never returning it, even after the sting became public. He focused on Peavy's taped words when he took the envelope of cash: "That's a contribution, that's what it is."
"That's a telescope, or microscope, into the brain of John Peavy," Cogdell told the jury in a rather confusing metaphor. The lawyer also offered the opinion that if federal agents wanted to test officials with bribes, they should come out and declare they were offering bribes.
"They didn't want justice," said the lawyer, fiddling with the race card. "They wanted a conviction of a black judge." (Peavy is a former state district judge.)
Finally, Cogdell also went with option number three, and cited the advice of previous attorney David Berg to Peavy as the reason he currently faces jail time. Peavy had visited consultant Sue Walden after the sting went public and admitted to her, "I took the money." He produced $2,500 in an envelope and asked her to return it to the FBI. She refused and advised Peavy to get a lawyer.
According to Cogdell, Walden advised Berg to return the money to the government. Contacted afterward, Walden says she advised Berg that the money should be reported as a contribution while there was still time. Berg disagreed, and Peavy followed Berg's advice.
"You don't put him in a cage for following the advice of his lawyer," Cogdell declared, before ending his plea with, "I give John Peavy to you for your deliberations. I want you to give John Peavy back to me at the end of them."
Berg declined comment, citing the privacy of attorney/client discussions.
Mike DeGeurin's defense of Councilman Michael Yarbrough delved deeply into option two -- innocence by incompetence. A video showing Yarbrough confirming the acceptance of a previous cash payment from Reyes and the receipt of $1,500 more drew this explanation from DeGeurin:
"Some buildings, their elevators don't always go to the top floor," explained Mike DeGeurin. "Michael Yarbrough's elevator didn't go to the top floor several times. He was outsmarted and out-tricked ... the wheel was spinning too fast for him."
The defense saved its two headliners, Mike Ramsey and Dick DeGuerin, for the finish, and for the first half of his two-hour presentation, Ramsey gave the best presentation of the trial.
Prowling in front of the jury with his jaw clenched, Ramsey scorched the government for its conduct and repeatedly employed the image of Julio Molineiro knocking at a juror's door.
"Hi, I'm Julio. There's a wreck down the road," Ramsey grimaced. "One of your relatives is involved, and while you're gone, I'll keep the kids."
Ramsey painted his client Reyes as "an American original," a consummate idealist and defender of Hispanic interests and a sworn enemy of the Houston downtown establishment. That conveniently ignored the fact that the councilman had plenty of powerful establishment supporters during a 25-year political career, including the patronage of the Houston Endowment, the former Houston Chronicle owner whose operatives literally gave Reyes a lumberyard that he later ran into bankruptcy.
Never mind that Ramsey's address misquoted Teddy Roosevelt as John F. Kennedy, had the Constitution written in the wrong city, attributed a Bob Lanier quote about the JMB Hotel proposal to developer Wayne Duddlesten's project instead and made Julian Bond the mayor of Atlanta, a position he never held. It was riveting, and most of the jurors probably didn't notice the errors.
"Julio Molineiro glistens and stinks like a dead mackerel in moonlight," growled Ramsey. "Seems to me the government ought to get their own house in order before they come trying to help us."
Last was Maldonado attorney Dick DeGuerin, who has waged his defense as a jihad against the FBI, a crusade he began with his work on behalf of the late Branch Davidian leader David Koresh during the federal siege of the compound outside Waco. Throughout the trial, DeGuerin has labored with every possible witness to get each one to describe his "Dorothy" as well meaning but gullible, earnest but easily manipulated.
"To fool Betti was like a walk in the park" for trained FBI agents, said DeGuerin, who then admitted that under pressure his client had surrendered her ethics. "If she had been true to herself she would not be here. She allowed her resistance to doing wrong to be overcome."
Having conceded that Betti committed illegal acts by passing money to councilmembers, DeGuerin built the case that she was innocent because she had been entrapped by agents into breaking the law.
DeGuerin's ace in the hole is Judge Hittner's instruction to the jury on what constitutes entrapment. The instructions define a victim of entrapment as a person who has no previous intent or purpose to violate the law, "but is induced or persuaded by law-enforcement officers or their agents to commit a crime." Further, the instructions specify that the burden is on the government "to prove beyond a reasonable doubt that the victim was not entrapped."
Since the government presented no evidence that Maldonado had an inclination to bribe councilmembers before she met the Cayman operatives, it would appear the instructions give her a get-out-of-jail-free card.
Perhaps recognizing that hole in his offense, prosecutor Attanasio targeted much of his final hour of argument on Maldonado.
"In Betti Maldonado's world, you can do or say whatever you want, and slide cash to councilmembers, as long as your lawyer can come back and say you're tricked." He then played a tape of Maldonado saying, "I can't be naive about it, how much they got cash stuff."
DeGuerin exploded with objections when Attanasio characterized Betti as "ready and willing" and exempt from entrapment. That provoked Judge Hittner into shouting "sit down" three times at DeGuerin, before he finally complied.
In perhaps his most effective counter-jab, the prosecutor parodied Ramsey's "Hi, I'm Julio" routine by slapping an audiotape and videotape on the rail in front of the jurors. "Hi, I'm Julio, there's a wreck down the road, and here's an audiotape of it and a video of it.
"It's a smoke screen to take you away from the evidence," the prosecutor told the jurors. "Ramsey forgot about this."
Attanasio was not without his own missteps. Smarting from the ridicule of the defense attorneys as Washington bureaucrats trying to impose the Justice Department's will on Houstonians, the young prosecutor fell right into the trap. "We're living out of our suitcases and doing the best we can," he lamented.
The defense segment of the gallery hooted in mock sympathy, and Attanasio had inadvertently called up before the jury an image he certainly hadn't intended, that of the Civil War-era "carpetbagger" sent down by the federal government to impose order on the defeated South.
In making their decision, the Hotel Six jurors plowed through the high and low points of a mountain of audio- and videotapes, and the resulting transcripts. Yet in the end, their decision -- or failure to reach one -- may be shaped as much by what they did not hear as by what came out of the speakers and monitors in Judge Hittner's federal courtroom.
As a result of the judge's rulings, the defense was not allowed to present a parade of federal and local lawmen challenging the reliability and conduct of Julio Molineiro, the controversial informant who performed the near-impossible, conning the wily Reyes into biting on his cash bait. That didn't stop Reyes's attorney, Ramsey, from loosing perhaps the best barb of the trial concerning the chatty Chilean: "The government has gotten in bed with a whore and gotten up with a social disease."
Because the prosecution played its cards conservatively, no attempt was made to introduce evidence that while Betti Maldonado was a paid NAFTA liaison to the city and later port commissioner, she pressured former associate and boyfriend Marc Campos to continue to funnel money from a lobbying contract with the government of Mexico to her through her brother: not exactly behavior consistent with her attorney's portrait of her as sweet, goodhearted, gullible and naive. That testimony could have provided the vital proof of a predisposition to corruption by Maldonado that the government failed to document.
The jury also never got to hear a synopsis of accusations over the years that Ben Reyes helped his brothers, Tony and Greg, get city contracts. They also did not hear evidence that as a councilman, Reyes had assisted Guzman, a Miami-based bond company that employed his codefendant and Council successor John Castillo, to get bond underwriting assignments from the city of Houston. The pleas by Reyes on misdemeanor theft and campaign violations that ended a probe of the councilman in 1991 by the Harris County district attorney's office likewise remained unmentioned.
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Although the jury did hear a brief admission by Reyes that his claim to have been shot in Vietnam was false, the panel was never told that Reyes has long falsely maintained in campaign literature that he received two Purple Heart medals for his nonexistent wounds. Certainly not a crime, but not exactly a credibility builder either.
But given the mass of the Hotel Six evidence that was heard, perhaps the table was just too full to allow any extra morsels for dessert. And this history of small and petty acts is of little importance compared to the impact of a jury decision that could strip Houston City Council of two incumbents and impose mandatory prison terms on the five defendants, or send them all home, free if not scot-free.
The one common sentiment -- for the government, the FBI, the stellar defense team and the defendants -- is that no one wants to try this sucker again.
E-mail Tim Fleck at firstname.lastname@example.org.