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Judge alleges ‘fraud on the court’ by government attorneys in Dobyns case

January 25, 2015

The tone set by Attorney General Holder at Justice and ATF Director Jones is one established at the very top of the Obama administration.

Commenting on revelations about Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and Department of Justice (DOJ) actions in the case of retired agent Jay Dobyns against his former employer, attorney David Hardy equated them with “a BATF and DOJ Watergate... or worse,” Friday. Noting that actions taken over a civil lawsuit evidently have included concealing evidence, secret threats against witnesses, and surveillance of attorneys and witnesses, the new information lends further credence to Dobyns’ allegations and appears to show government lawyers engaged in a criminal conspiracy.

“For people like me, who have sympathized with Dobyns but tried to reserve judgment about his case, the documents push us further into the retired agent’s camp,” Tim Steller of the Arizona Daily Star admitted. “You can’t read the few filings that have been unsealed in the case without wondering why the Justice Department is going to such extremes and spending so much on what is, at base, a relatively minor contractual dispute that could have ended years ago.”

Dobyns gained fame after infiltrating the Hells Angels and writing about his experiences in the New York Times bestseller, “No Angel: My Harrowing Undercover Journey to the Inner-Circle of the Hells Angels.” He has since been the subject of numerous reports focused on retaliation he has been subjected to for coming forward with information exposing official wrongdoing. He was also instrumental in providing background information on management personalities and practices involved in the Operation Fast and Furious “gunwalking” scandal.

Dobyns had sued his employer for failure to properly investigate an arson attack that destroyed his home and endangered his family, and for reneging on protection agreements over death threats he received, after the bureau withdrew his cover identity following the Hells Angels case. In September, Senior Judge Francis M. Allegra of the United States Court of Federal Claims awarded Dobyns $173,000 and denied government royalty claims against Dobyns for his book, seemingly providing an end to a prolonged six-year ordeal until the government challenged that ruling in the 11th hour. In a move surprising to many case-watchers, the judge then voided his own judgment, provoking speculation but no answers as to why.

Some of that may be getting clearer with the unsealing of case documents, now available on the Public Access to Court Electronic Records (PACER) system. Language used by Judge Allegra in his now-unsealed December 1 opinion does not mince words, and seems damning.

“[T]he court ... issued an order voiding the prior judgment based upon indications that the defendant [ATF], through its counsel, had committed fraud on the court,” Allegra wrote. “[F]raud on the court consists of conduct: 1. On the part of an officer of the court; 2. That is directed to the ‘judicial machinery’ itself; 3. That is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth; 4. That is positive averment or is concealment when one is under duty to disclose; 5. That deceives the court.”

Further detailed allegations, being investigated by this reporter and seemingly corroborated by the unsealed opinion, include Judge Allegra being contacted by Internal Affairs Investigator Christopher Trainor, a key witness in the Dobyns case, concerning his being threatened by a main government witness -- one the judge himself had raised perjury questions about -- and chillingly,also threatened by lead government attorneys. Trainor had reportedly earlier given the intimidation to ATF, which opened a criminal investigation, and then approached ATF and Department of Justice attorneys, both of whom allegedly refused to report the witness tampering allegations to the judge. It is further alleged Trainor was warned by the DOJ attorney that if he reported the witness to Judge Allegra, his career at ATF would suffer.

The judge then reportedly notified Attorney General Eric Holder, then-Deputy AG and (“Number Two” at Justice) James Cole, and the Office of Inspector General of DOJ attorney fraud against the court, and issued an order barring seven of the attorneys from filing any further legal documents in the Dobyns case. Although no direct connection has been established, it is noted that the timing of the judge’s notification appears contemporaneous with Cole’s resignation and Holder’s announced resignation.

“Coincidental” timing did not end there. Without explanation, ATF closed its investigation of the witness alleged to have threatened Trainor. DOJ’s Office of Professional Responsibility advised Judge Allegra they were not going to pursue fraud allegations against their attorneys.

“OPR has informed the parties that, while OPR will continue to gather information and monitor the proceedings in the Dobyns case, it will not, for the time being, conduct witness interviews or engage in other investigative actions relating to the issues before the court,” Judge Allegra was informed. OPR essentially told a federal judge they were not going to investigate concerns about fraudulent conduct by DOJ attorneys that he had raised.

After vacating his opinion so that he could incorporate the information into a new opinion, Allegra asked the Appellate Court to remand the case back to him in order to further determine the scope of alleged misconduct and the negative impact it may have had on the trial, a request that was granted in December. The next day, DOJ filed a sealed motion challenging its attorneys being barred and Allegra ordered it unsealed, further ordering DOJ justify its motion. That clarification was filed under seal in early January, and again, Allegra ordered it unsealed.

The documents show DOJ defending the accused attorneys, arguing they are upstanding civil servants and in good standing with the bar. In doing so DOJ was defending attorneys who allegedly ignored facts and evidence, harbored perjury, and bolstered ATF's attempt to frame Dobyns as an arsonist willing to murder his own family by fire. It mischaracterized information to the judge -- primarily arguing to Judge Allegra that Trainor's Internal Affairs report was irrelevant to the case, and denying Dobyns access to the report for twelve months, only relenting just before trial.

Trainor's report and his testimony were, in fact, essential to Dobyns' case, perhaps explaining why he would be a prime target for intimidation. It also could explain why DOJ treated Trainor as a hostile witness, when he clearly was nothing more than an independent fact-finder.

Dobyns filed motions on January 12 in two phases, one unsealed and one sealed, the latter being ordered unsealed by Allegra. The information, said by a knowledgeable source to be ‘astounding” and “catastrophic,” further alleges collusion between ATF top management and DOJ to deny justice by covering up misconduct.

These developments lend themselves to circumstantial speculation, including that Judge Allegra ordered motions unsealed because he has lost patience with and confidence in the government lawyers, seemingly an understatement inlight of his allegations of fraud. Further informed speculation surmises one DOJ attorney has had a federal judgeship derailed due to "mismanagement" of the Dobyns lawsuit.

Additionally, allegations have surfaced in the Dobyns’ motion Judge Allegra ordered unsealed that Dobyns’ attorney had been placed under surveillance to the point where the judge has been asked to allow his withdrawal, leaving the retired agent’s pursuit of justice further hampered.

“I said all along they were cheating,” Dobyns advised readers of his website in a Friday post. “Everyone was like, ‘sour grapes, disgruntled agent, whiny narcissist, etc. ... Just a fraction of the dirty games ATF and DOJ played on me are coming out. Reporters are finding it all on their own with no prompting from me. This is only the portion of what Judge Allegra has unsealed and allowed to be exposed. More and better dirt on these people is coming.”

“Everyone who has read this and called Jay their friend, and probably enjoyed his generosity over the years needs to take the five minutes it will take to write a letter, and send it certified mail to Sen. Charles Grassley and newly appointed House Oversight Chairman Jason Chaffetz DEMANDING DOJ answer for this,” Dobyns’ friend, colleague and fellow whistleblower Vince Cefalu told members of the CleanUpATF forum. That’s the website formed by bureau insiders fed up with waste, abuse, corruption and fraud, and the place where revelations of Fast and Furious guns being found at the murder scene of Border Patrol Agent Brian Terry were first made.

Cefalu himself is a previously-promoted agent who ran afoul of management for objecting to illegal wiretapping. Escalating retaliation, including for his providing further evidence of management wrongdoing, resulted in his being illegally fired and then reinstated in a settlement that included $85,000 in damages, legal fees, and an expunging of adverse information from his record.

These latest developments, along with revelations about ATF “sting” scandals in Milwaukee, Wichita, Portland and Pensacola, call into question the very justification for confirming B. Todd Jones as permanent director after a string of acting bureau heads. But before extrapolating that to engage in further speculation, the next developments in Judge Allegra’s court, as well as the reaction, if any, from Sen. Grassley and Rep. Chaffetz to these latest revelations, will provide the best window into who in the government knew and did what, and how high it has gone.

UPDATE: Dobyns will join this correspondent and host Mark Walters on Armed American Radio at 10 p.m. Eastern tonight for an exclusive interview on this breaking story.

The three-hour program broadcasts from 8 to 11 p.m. Eastern (adjust for your locale). Click here to find a list of stations nationwide, or here to listen via live streaming.