Imprisoned Republican Rick Renzi Was a Victim of Prosecutorial Wrongdoing, Judge Admits, But Refuses Retrial
The federal judge's own conclusions strongly suggest the former U.S. representative was wrongfully imprisoned, but the judge is apparently unwilling to challenge Obama's Department of Justice.
Tucson Federal District Court Judge David Bury issued a decision December 30 denying a retrial for imprisoned former Congressman Rick Renzi of Arizona, the latest in developments I’ve been tracking over the last six months. Strangely Bury issued this decision while also admitting in his nine-page opinion that virtually everything factual Renzi had asserted in his motion for a retrial regarding the prosecution’s misconduct was true.
The judge conceded that the prosecution withheld exculpatory evidence from Renzi’s defense (which I’m convinced likely would have changed the jury’s mind)* not just once, but multiple times. Some of it was not discovered until after the trial was over, so the jury never got to see the other side of the story. That constituted a Brady violation, which the U.S. Supreme Court has held is a violation of due process.
Information is now emerging revealing striking similarities between the Renzi case and the prosecution of former Alaska Senator Ted Stevens, which also involved corrupt tactics by FBI agents in order to obtain a conviction of a member of Congress. But when the judge in the Stevens case discovered after the trial that the prosecutors had withheld crucial evidence, the entire indictment was thrown out.
Material Omissions, Dollars for Testimony
The prosecution of Renzi was based on the premise that he had proposed a federal land exchange that supposedly would have benefited him financially. But it came out after the trial that the prosecution’s key witness/victim, Philip Aries, changed his story to say it was Renzi’s idea to propose the land exchange instead of others, after Aries was told by the prosecution that he would receive money for his testimony. During the hearing to reconsider a new trial last October, Aries said that he discussed compensation with an FBI agent for testifying: “$10,000 would be a home run,” he said he told the agent, and “$25,000 would be winning the lottery.”
Judge Bury admitted that the proposal to include the Sandlin land, which supposedly would have benefited Renzi, really came from Aries, not Renzi. FBI Agent Dan Odom agreed on the stand during the October hearing that leaving out this exculpatory information was a “material omission.” Nevertheless, though chief DOJ prosecutor Gary Restaino knowingly presented Aries’ testimony without revealing they had paid Aries for it, he was never punished.
Part of the Judge Bury opinion focused on the government reading to Aires what in legal jargon are called “Admonitions” or “Admonishments.” This is where a potential FBI informant is read a script stating that the informant may receive financial award for his testimony. The judge concluded that the prosecution never disclosed to the defendants that just such a script had been read to Aries:
The Government admits it did not disclose the admonishments to the Defendants … It is the Government’s position that disclosure of the Admonitions was not warranted under Brady because they do not reflect that Aries believed he would be paid … The Court does not agree.
According to the Government, the Admonitions do not need to be disclosed if payment comes after everything is done because then it is a surprise. … As the Court suggested at the hearing, it does not agree.
The Court is also concerned regarding the propriety of the Government’s assertion during closing argument that Aries had not received one thin dime in relation to this case, when at the time the Government knew the case agent wanted him to be paid …
The Government suppressed evidence of the Admonitions, the flip-flop, and Agent Odom’s confirmation to Aries on November 10, 2006, that he was providing the type of assistance which could make a reward possible.
Also, a document in the court record from The Nature Conservancy showed that the organization had proposed the idea of a land exchange to Renzi and Renzi’s staff, which would include the Sandlin land. In order to discredit this finding, Restaino — whose wife was a high-level staffer for Janet Napolitano and was concerned about Renzi challenging Napolitano for governor — found left-leaning Nature Conservancy employees who disliked Renzi to testify against him in the initial trial.
Ultimately, when the much-needed exchange finally worked itself out years later, The Nature Conservancy got the land they wanted, Fort Huachuca was able to lower its water usage as it needed — and Renzi was sent to prison.
More Evidence Withheld
The judge’s recent review of the case brought to light at least four more major violations involving the prosecution withholding evidence, evidence that was never made public and was not presented to the jury.
First, Restaino deliberately withheld recordings of phone calls from the defense — until Renzi happened to figure out there were numerous calls in the initial document production that hadn’t been given to the defense. Restaino was not punished for this withholding.
Second, Restaino withheld the fact that a former staffer of Renzi’s, John Eckles, who planned to testify against him, had stolen money from congressional candidate Bradley Beauchamp, and Restaino likely did not file charges against Eckles in exchange for his cooperation against Renzi and a co-defendant. Renzi discovered this information much later on his own. Restaino was not punished.
Third, Restaino withheld the truth from the judge who was monitoring the wiretapping, even lying on the monthly status report to the judge, insisting he wasn’t listening to Renzi’s attorney-client privileged phone calls, when in fact Restaino’s lead FBI agent was listening and sharing them with other agents while keeping the calls unsecured in his desk. For some unknown reason, that judge recused herself after the wiretapping incident. The judge issued a scathing opinion throwing out the wiretapping evidence, but Restaino was not punished.
Fourth, Restaino withheld the truth that the FBI had destroyed evidence that would have proven they illegally listened to Renzi’s attorney-client privileged calls, and used this evidence to bring their indictment. Restaino was not punished.
Additionally, Judge Bury’s decision after Christmas to deny Renzi a retrial was based on inaccurate information. He said in his opinion that it was too late to consider the fact that the prosecution had withheld notes from the FBI agent, notes which revealed that Aries had told the agent that it was Renzi’s former assistant, Joanne Keene, who had first proposed including the Sandlin property in the land exchange during a conversation they had. Bury’s reasoning was that since this new information had been brought up in a reply brief, generally new arguments brought up in reply briefs are too late. Well, this is not just any “new argument” brought up in a reply brief, but the crux of the criminal case against Renzi. It’s not Renzi’s fault that he did not discover this Brady violation until that point. He is essentially being punished for Restaino deliberately withholding evidence.
Additionally, although Judge Bury admitted that Aries had been impeached and discredited as a witness for flip-flopping, Bury claimed that Aries’ statement that Renzi promised him the land exchange would get a “free pass” through the Natural Resource Committee had been corroborated by other witnesses, such as Joanne Keene and Guy Inzalaco. That’s not true. Keene testified that Renzi mentioned that he had a “placeholder” in his proposed bill, The Southeast Arizona Land Exchange and Conservation Act, into which he could assert the proposed legislation. But a placeholder merely means a blank section reserved in a bill for provisions that can be added later, nothing more. It doesn’t imply a trade or “quid pro quo.”
And rather than corroborating Aries’ supposed “free pass,” Inzalaco testified that he could not remember the substance of what he discussed with Renzi. Not surprisingly, the jury acquitted Renzi of the charges that related to his conversation with Inzalaco.
How can a conviction of extortion stand if it came out later that Renzi wasn’t the one who had proposed the land exchange? When confronted in October with FBI agent notes of who Aries said really proposed it, and evidence of the money promised him, Aries, who originally said during trial that Renzi had proposed it, changed his testimony.
Disturbing Parallels to the Ted Stevens Case
The similarities to the botched prosecution of former Alaska Senator Ted Stevens are disturbing. After Stevens was convicted of failing to report gifts, one of the FBI agents filed a whistleblower affidavit, alleging that prosecutors and FBI agents conspired to withhold and conceal evidence that likely would have resulted in a verdict of not guilty. The judge ordered a hearing to consider whether there should be a retrial.
The New York Times reported that Judge Emmet G. Sullivan said, “In 25 years on the bench, he had ‘never seen mishandling and misconduct like what I have seen’ by the Justice Department prosecutors who tried the Stevens case,” repeatedly refusing to turn over documents to the defense. “Again and again, both during and after the trial in this case, the government was caught making false representations and not meeting its discovery obligations,” he said.
At the hearing to consider a retrial for Renzi in October, Judge Bury similarly expressed his disgust with the prosecutors for withholding exculpatory evidence from Renzi’s defense. Bury told Restaino that he had violated Renzi’s rights.
Judge Sullivan ultimately held the Stevens’ prosecutors in contempt for not disclosing the exculpatory evidence to the defense. Once he did that that, the DOJ filed a Motion of The United States To Set Aside The Verdict And Dismiss The Indictment With Prejudice. The prosecutors were removed from the case and two were suspended.
Due to the extraordinary level of corruption by DOJ prosecutors and FBI agents in Renzi’s case, this conviction cannot be allowed to stand. Yet Judge Bury said he will not order a new trial because the withheld evidence wouldn’t change a single juror’s mind. Really? There is more prosecutorial misconduct in this case — that would have exonerated Renzi — than in Ted Stevens’ case. Any normal American chosen for a jury discovering these new developments would be horrified. Regardless, Bury doesn’t even need to order a new trial; he can simply drop all the convictions.
Renzi intends to appeal the decision to the Ninth Circuit Court of Appeals, and will be asking the DOJ’s Office of Professional Conduct to investigate Restaino, and for the Office of Inspector General to investigate FBI Agent Odom. Knowingly putting on false witness testimony is a serious offense that strikes at the heart of our justice system. There is mounting evidence that Renzi was targeted for political reasons by powerful Democrats who control much of the legal system. If they can put an innocent man in prison and the man cannot even get recourse on appeal, few if any conservative persons in politics are safe.
Renzi was apparently targeted because he was a popular, charismatic Congressman from a Democratic-leaning district. And apparently the standard for Judge Bury is: Guilty, even if shown to likely be innocent, because you don’t want to cross the Obama administration and his DOJ.
* The framing around the parenthetical note was changed from dashes to parentheses, and the words “I’m convinced” added to make clear that it is my view — rather than the judge’s — that the exculpatory evidence would have changed the jury’s mind.