Files Not Found
When the news broke in April that the Federal Bureau of Investigation had suddenly discovered thousands of previously missing documents in the case of Oklahoma City federal building bomber Timothy McVeigh, Dale Brown stopped what he was working on at his home office in San Leon. Unlike many Americans, Brown wasn't shocked. He was nauseated. To him, it was more like déjà vu, an ugly reminder of his own lengthy battle with the federal government, which he claims contributed directly to his stroke and heart problems.
"To me, it was par for the course," says Brown. "I had thought that my case was an isolated one. But [after hearing the news], I realized it was the whole FBI. I don't support what McVeigh did, but it wasn't proper what they did to me. And even though McVeigh is a mass murderer, it's not right for them to do it to him, either. It made me sick to my stomach."
Make that sicker to his stomach. In the early 1990s Brown and several of his business associates got caught up in an ethically questionable FBI undercover sting known as Operation Lightning Strike, which targeted subcontractors in the Johnson Space Center aerospace community. Brown was never convicted of a crime, but he might as well have been. The episode shattered his personal life, ruined his health and destroyed his professional reputation. It also left him extremely bitter and obsessed.
"It think about it every morning, and it pisses me off," says Brown, who has double vision and is unable to use the right side of his body as the result of a blood clot in his brain. "It took my health. It took my wife. It took my baby. My home. It took everything in my life."
Such frustration obviously colored the news Brown heard back in April. But to him, the McVeigh snafu confirmed what he already knew from experience: The feds don't always turn over information in a timely manner. In Brown's case, he was regularly thwarted in his attempts to obtain exculpatory information important to mounting a defense. Attorney Dick DeGuerin, who represented Brown in the case, got a firsthand taste of what it's like dealing with an uncooperative governmental body.
"At the very best it's incompetence," DeGuerin says of the feds' propensity not to hand over all pertinent information to defense teams. "In this day and time, they ought to be able to retrieve every piece of paper with a scrap of information, electronically or otherwise, they have on a case, and turn it over."
Officials with both the FBI and the Houston U.S. attorney's office deny that they often fail to comply fully with the discovery process. If there is any foot-dragging, they say, it is the other agency's fault. The FBI will point a finger at the U.S. attorney's office, which will point right back at the FBI. But the blame game provides little satisfaction for criminal defendants who find themselves squirming under the weight of a federal investigation.
Eight years ago Dale Brown could have been a poster boy for the young man on the move in the Johnson Space Center subcontractor community. Handsome and trim at the age of 35, Brown ran daily. He swam, skied and climbed mountains. And he had dreams.
These days, Brown's speech is still rapid-fire, and ideas bounce around his head like so many pinballs. His senses of humor and outrage and fascination with the world remain the same. Just about everything else, however, has changed after two surgeries on his heart and one on his brain in the past seven years, procedures he is convinced were the direct result of his dealings with federal authorities in Operation Lightning Strike. Now overweight with shoulder-length hair, Brown occasionally rails at the right side of his body, which refuses to cooperate with the rest of him, the result of the stroke five years ago. (Most of Brown's physicians did not respond to interview requests from the Houston Press. The one who did, orthopedist Dr. Ian Reynolds, says he has no proof that Brown's legal problems were the cause of his health woes. He adds, however, that the extremely stressful legal battle did nothing to improve Brown's physical condition.)
The year before his stroke, Brown found himself in federal court facing a charge of bribing a government official. He was a long way from where he thought he would be.
A native of Indiana, Brown grew up an Eagle Scout and straight-A student. Since his father worked for Lockheed in the jet propulsion lab, Brown was a NASA brat. "When I was three years old," he recalls, "I went to my first test-firing. I saw rocket firings in the desert, and I saw rocket firings at my dad's work."
As a result of that early exposure, Brown developed a bad case of the space bug. After obtaining a bachelor of science degree from Eastern Illinois University, Brown moved to Houston in the mid-1980s and obtained a master's in business from the University of Houston-Clear Lake. He also arrived here with the dream of starting his own NASA-related company.
To pay the bills, Brown went to work for Eagle Technical Services, where he often served as a human guinea pig for the tests conducted by JSC's manned space division. Brown sometimes flew in the so-called Vomit Comet to experience the effects of weightlessness in space. Brown had access to much of the JSC complex, and he became friends with some astronauts, including David Wolf, who spent 122 days aboard Skylab in 1997 and 1998.
Most important, Brown began making inroads into the Clear Lake-area community of NASA contractors and subcontractors. In 1991 he teamed up with two other young entrepreneurs to form TerraSpace Technology Inc., a company designed to provide high-technology and engineering services to businesses and government. To keep their fledgling company afloat until they could land a lucrative subcontracting job from IBM or Rockwell that would put them on fiscal terra firma, the three young turks moonlighted for other area aerospace companies, many of which were startups themselves.
Shortly after the formation of TerraSpace, Brown went to work for Neal and Karen Jackson, owners of Horizon Aerospace. Not long after Brown came on board, the couple developed a relationship with a newcomer to the Clear Lake community named John Clifford. Clifford was an outsider in more ways than one. He was actually undercover FBI agent Hal Francis. Recently transferred from St. Louis, where he had successfully engineered a sting of U.S. Department of Defense contractors, the agent had come to Houston to target JSC contractors in a similar operation.
Francis set up shop as Southern Technologies Diversified, or STD, a play on the abbreviation for sexually transmitted diseases. Armed with the gift of gab and a seemingly unlimited supply of cash, Francis attempted to plug in to the NASA community by promoting a lithotripter, a device for smashing kidney stones. Space shuttle astronauts had been plagued by kidney stones, and Francis claimed his portable machine could be used in space. Problem was, no portable lithotripter existed. Still, Francis convinced the Jacksons and Brown that it did -- at least initially -- and he hoped to use them as his entrée into NASA society. Francis promised the Jacksons that if they hadn't made a million dollars by their then-expected child's first birthday, he'd make up the difference out of his own pocket. He also promised Brown a job as the supervisor of a planned island resort, a position that included a large salary and his own private plane.
Unfortunately for the undercover agent, word of Operation Lightning Strike, estimated to have cost anywhere from $4 million to $50 million, leaked to the media before he could ensnare any of JSC's big fish. Francis was left with only 15 guppies like the Jacksons and Brown. While the entire undercover operation reeked of entrapment and coercion, only Brown fought the charges brought against him. "For all that money, they got some poor souls to plead guilty to something they didn't do," says Brown. "But I fought them all the way through. And I haven't been healthy since."
Shortly before his indictment in August 1994, Brown underwent an upper aortic transplant. That was followed in 1996 by a heart transplant and the removal of three blood clots from his brain that have left his right side pretty much useless.
In 1995, sandwiched in between his operations, Brown endured another kind of trauma: a three-week-long federal trial. Originally Brown faced 21 federal charges. By the time he reached court the charges had been reduced to the five relating to a $500 bribe prosecutors claimed Brown made to a Defense Department procurement officer. Along the way, federal authorities withheld evidence as long as possible and constructed obstacles, great and small, including trying to deny Brown his choice of attorneys.
Strapped for funds, Brown attempted to arrange for a federal public defender. However, since another Lightning Strike defendant -- who at that point had not yet pled guilty -- was already using an attorney from the public defender's office, prosecutors convinced U.S. District Judge Ewing Werlein Jr. that if Brown also employed a public defender, a conflict of interest would exist. So Brown was forced to accept a lawyer chosen by the judge from a pool of ad litem attorneys. That attorney turned out to be a former FBI agent. According to Brown, the first thing the former agent told him was that he would always be loyal to the bureau. The first thing Brown told his attorney was that he was fired.
"So now I had just fired the only volunteer I had," laughs Brown.
With nowhere else to turn, Brown contacted an uncle back in Indiana who was well-off enough to hire an attorney who could adequately defend Brown against the considerable resources of the federal government.
Brown's first choice was constitutional expert Michael Tigar. However, in a dark bit of happenstance, before Brown could approach the Austinite, McVeigh blew up the Murrah Building in Oklahoma City, and Tigar was hired to lead the defense team of co-conspirator Terry Nichols. Brown then turned to high-profile criminal attorney Mike DeGeurin but was, once again, thwarted by the feds. Since DeGeurin's law partner Paul Nugent had had discussions about representing Brown's friend and business associate Neal Jackson, prosecutors argued -- and Judge Werlein concurred -- that DeGeurin's representation posed a possible conflict of interest. (Jackson eventually pleaded guilty to bribery charges and was sentenced to three years' probation. His wife was never charged.) Brown countered by hiring DeGeurin's even more famous brother, Dick DeGuerin. Still, says Brown, the obstruction to his defense continued.
Assistant U.S. Attorney Abe Martinez "held out until the night before trial to give us our discovery requests," says Brown. "Six hundred audiotapes. How could we possibly listen to 600 audiotapes the night before trial?"
Although Judge Werlein granted the defense team a two-month extension, DeGuerin recalls there was other exculpatory information he requested that the prosecution was never forced to hand over. Specifically, DeGuerin says he attempted to obtain a caveat letter that had accompanied several sets of profit-and-loss statements for fake companies that John Clifford claimed to own. Clifford had ordered Brown to combine the numbers and send the figures out to potential clients. Brown says the numbers were part of Clifford/Francis's plan to show that Brown had a predisposition to commit a crime, something the government needed to establish to proceed with its entrapment plan.
"He gave me financial statements for four fake companies to combine with Neal's," says Brown, adding that he didn't know that the businesses didn't exist. "And all I did was add up the numbers Francis gave me. It's not like I made them up."
When Clifford ordered Brown to send out the new numbers to the potential clients, Brown decided to include a caveat letter stating that he could not verify the figures. But when the documents were presented as evidence in court, there was no caveat letter to be found. Without the letter, says DeGuerin, it appeared that Brown was attempting to play fast and loose with the numbers.
"In discovery, they didn't give us the caveat letter," says DeGuerin. Its existence was proved only during DeGuerin's cross-examination of Jackson, Brown's former boss. The judge then ordered the prosecution to produce the evidence. The defense eventually received the documents, and the Brown trial ended in a hung jury. Three months later federal prosecutors decided against retrying Brown, and the charges were dismissed.
When word of Operation Lightning Strike surfaced in the media, Sharon Hogge had a feeling she knew some of the people involved, but the former U.S. Navy engineer never thought she would be one of them.
During the time that Francis was under cover as businessman John Clifford, Hogge was working in Houston as vice president of marketing and sales for Automaker. As a small high-tech robotics company, Automaker was struggling to land government contracts like the one it had won from the U.S. Army to build two robots to weld military machinery. Those contracts never materialized, and in March 1994 Automaker had to liquidate its assets. Hogge left the company before it went out of business, but following her departure, she heard rumors that the authorities were investigating allegations that Automaker had defrauded the government by filing false billing claims. Out of curiosity, Hogge decided to attend the auction, and she immediately identified some of the others in attendance as federal agents.
"It was pretty clear," she says. "They were all young and fit. All the other guys were older and wearing coveralls and looking to buy machine tools."
As the auction proceeded, the sleek-looking blond struck up a conversation with a couple of agents who asked if she'd be willing to come by their office and answer some questions. Hogge said she'd gladly help with their investigation. "The first day I went in to talk with the agents," remembers Hogge, "they took me back through two locked doors, and you sit in this little tiny room, like a little bitty library. The only way out was through the fifth-floor window. Francis was there. I knew of him from the news reports. The agents were all wearing guns. Sometimes I thought the easiest way out [of the mess] would have been for them just to have shot me. And I still feel that way at times. I wish they had just killed me that day, and it would have been over with."
After several sessions with the agents, Hogge began to worry that she had become a target herself. She decided she'd better get herself an attorney, so she contacted DeGuerin. "She was giving [the FBI] the names of people who knew about various things that were going on at Automaker," says DeGuerin. "It got pretty complicated, and she got kind of worried dealing with these folks. They kept telling her nothing was going to happen to her, but she was worried. So she comes to me, and I tell them that either she gets immunity or all bets are off."
Following DeGuerin's ultimatum in September 1996, a federal grand jury indicted Hogge along with Dan H. Stinger and James B. Morris, the former Automaker chief executive officer and operations manager, respectively. The essence of the 11-count indictment was that the trio had defrauded the government by billing the Department of Defense and the Department of Energy for work on robotics projects that hadn't even started yet. If convicted, Hogge faced up to 40 years in prison and $2 million in fines.
Key to the prosecution's case was its contention that Automaker had billed for mechanical drawings that didn't exist. The defense insisted the drawings did exist, and that they had been seized by the FBI. By the time the trial started, the blueprints still had not been produced. In fact, a former employee of Automaker testified -- under threat of prosecution -- that the drawings had never been done, but that he had been instructed by his bosses to say that they had.
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.
"Frankly, a defense attorney is never going to be happy that they've gotten everything they wanted," says Dogium, "and they shouldn't be. And I don't say that sarcastically. I mean, God love 'em. They want every doggone thing they can get. And I don't blame them."
The bureau, Dogium adds, feels no special need to defend itself with regard to the turning over of information beneficial to defense lawyers. Ironically, Dogium was one of the undercover agents involved in the City Hall sting. But perhaps Dogium should pay closer attention to the words of a former FBI agent deeply involved in the McVeigh investigation.
In 1995 Rick Ojeda was working as an agent with the bureau's field office in Durant, Oklahoma. In the aftermath of the Oklahoma City bombing, Ojeda, along with all other agents in the state, was called into Oklahoma City to help with what would become the McVeigh investigation. This past May in an interview with 60 Minutes II, Ojeda accused the FBI of ignoring some of his reports that would have helped McVeigh's defense. Specifically, Ojeda says he worked a lead that implicated other suspects in the bombing.
"I never saw anything brought to light about that," says Ojeda. "It ends up that after I came public with it, that that lead was turned over Lo and behold, they found it. And the funny thing about it is, I never mentioned in the 60 Minutes program what the lead was. But somehow the FBI figured out what lead it was, and they turned it over the next day."
Ojeda claims that he himself has been victimized by the FBI's refusal to turn over documents. He says he was fired from the bureau after allegedly conducting an unauthorized investigation against one of his bosses. In his termination hearing, Ojeda says, the agency never produced the complaints that had been filed against his superior, which were the motivating reason for his probe. Represented by DeGuerin, Ojeda, who now works as a private investigator in Austin, is suing the FBI for reinstatement.
Earlier this month, President George W. Bush nominated veteran federal prosecutor Robert S. Mueller to be the next FBI director. Ojeda believes whoever replaces Louis Freeh needs to rectify the problems in the agency, not just improve the bureau's tarnished image.
If Mueller is confirmed, not only will he face problems in his new job, but according to another former federal law enforcement officer, he also will leave behind old ones. Ronald Woods is a Houston criminal defense attorney who was part of the defense team for Terry Nichols. However, from 1990 to 1993, Woods served as U.S. attorney for the Southern District of Texas. During that time, Woods says, he emphasized the importance of conducting the most thorough investigations possible, and then letting the evidence determine whether prosecution was warranted. But these days, he says, there's an attitude among some federal prosecutors of obtaining convictions at all costs, evidence be damned.
"There are some within the U.S. attorney's offices across the country who are so career-oriented -- and they know careers are based on victories, not losses -- they often cut corners to assure those victories," says Woods, "oftentimes by withholding exculpatory evidence."
Still, Woods believes that most of the blame for failing to make that evidence available rests with the FBI. "It's been a problem for the 36 years I've been dealing with the FBI," he says.
Every morning Dale Brown raises the American flag outside his home, and he thinks about the fact that he will never achieve his dream of becoming an astronaut and perhaps hoisting that flag on the moon. When he's not getting therapy on his gimpy right leg and arm, he spends much of his time behind a large computer. In a bizarre twist, Brown now makes a living by auditing NASA contracts.
Many of the rooms in Brown's house are filled with boxes containing thousands of documents related to Operation Lightning Strike. A picture of Hal Francis is pinned to his wall. More than six years after his trial, Brown is still obsessed with his battle with federal authorities. He and his former partners sued the FBI for allegedly destroying their business, but the case was dismissed by both the Fifth Circuit Court and the U.S. Supreme Court. In its ruling, the Fifth Circuit stated that evidence indicated intentional indifference by the FBI with regard to the potential harm Operation Lightning Strike posed to people and businesses with no predisposition to be involved in a crime. However, the court dismissed the case on the grounds that the agents were not afforded due process. The court did say, "The facts, as pleaded, establish at least that level of federal agent culpability as Operation Lightning Strike evolved into a disastrous boondoggle." Still, Brown hopes to eventually tell his story in a book and movie.
Meanwhile, Sharon Hogge has adopted a different approach in putting her life back together. These days, she and a couple of family members have their own consulting firm. Unlike Brown, she is working to put Operation Lightning Strike behind her, but she concedes it's not easy. Even though she was found not guilty, she does not believe the system worked. If it had, she says, she would never have been in federal court in the first place.
"It hurts, and it will never stop hurting," says Hogge. "I don't know how to compensate for it. I don't think Dale Brown has an answer either. The only thing I can equate it to is that I was walking along a street and got hit by a bus. But the best way to win is to continue to be successful. I can still go forward."
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