Plaintiff Jay Anthony Dobyns' Memorandum Re Issues For Investigation by Special Master

Case 1:08-cv-00700-FMA
Case 1:08-cv-00700-PEC
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SEALED DOCUMENT SUBJECT TO PROTECTIVE ORDER
BAIRD, WILLIAMS & GREER, L.L.P.

6225 NORTH 24TH STREET, SUITE 125
PHOENIX, ARIZONA 85016
TELEPHONE (602) 256-9400
FACSIMILE (602) 271-9308
James B. Reed (AZ Bar No. 014015)

Attorneys for Plaintiff Jay Anthony Dobyns
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
JAY ANTHONY DOBYNS,
CASE NO. 08-700C
Plaintiff,
vs.
(Judge Francis M. Allegra)
THE UNITED STATES,
(Judge John M. Facciola Special Master)
Defendant.
PLAINTIFF JAY ANTHONY DOBYNS

MEMORANDUM RE ISSUES FOR
INVESTIGATION BY SPECIAL MASTER
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TABLE OF CONTENTS
TABLE OF CONTENTS .i
INDEX TO APPENDIX OF EXHIBITS.iii
I.
Summary of Argument.1
II.
Plaintiffs Rule 60 Motion and the Courts Indicative Ruling establish

the scope of the present proceedings...4
III.
The enumerated items in plaintiffs Rule 60 motion7
IV.
Multiple instances of ATFs and DOJs fraudulent and/or unethical conduct exist.
A.
ATFs improper conduct is documented in the Courts opinion..9
B.
Elaboration of plaintiffs ten enumerated items is as follows9

1. Civil Division protected witness Charles Higman following his threats
of violence and potentially death against witness Christopher Trainor,
with Civil Division instead threatening Trainors career if he disclosed
the threats to the Court10
2. DOJs Witness Tampering and Obstruction of Justice Regarding
Phoenix Special Agent in Charge Thomas Atteberry.14
3. Plaintiff submits that Civil Divisions David Harrington made false
statements to the Court that he had no prior knowledge of allegations
involving Valerie Bacons improper contacts with SAC Atteberry and
ASAC Canino17
4. Kent Kiffner and Rachel Bouman impermissibly withheld audio
recordings made of plaintiff without his knowledge and against
ATF Orders requiring prior authorization by the U.S. Attorneys Office18
5. Civil Division protected or suborned trial perjury of George Gillett
and Charles Higman20
6. Attorneys Kent Kiffner, Rachel Bouman and Valerie Bacon, at minimum,
failed to cure after learning or, or else knowingly permitted or actively
coached material, false statements at the depositions of George Gillett,
Charles Higman, and John Torres, regarding, inter alia, whether ATF
pursued Jay Dobyns as a suspect and subjected plaintiff to surveillance21
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7. DOJ improperly withheld ATFs Internal Affairs Division (IAD) Reports and
Professional Review Board Memoranda to attempt to prejudice plaintiffs
right to a fair trial...23
8. For ROI 1 and ROI 2 only, ATF Assistant Director Thomas Brandon
replaced PRB Bureau Deciding Official (BDO) Steven Zellers, who
was anticipated to sign ROI 1s PRB recommendations within days
of issuance. AD Brandon then refused to accept the PRB
recommendations for ROI 1 and ROI 2, possibly at DOJs instruction
in order to maintain DOJs objections based on the deliberative process
privilege, and yet ordered no additional investigation to clarify his concerns28
9. On the eve of trial, ATF Deputy Director Brandon issued PRB letters of
clearance for William Newell, Marino Vidoli and Steven Pugmire, current
employees found by the Court to have acted improperly; if this was at
DOJs request, it would constitute witness and evidence tampering...29
10. Plaintiff seeks to establish that Civil Division attorneys improperly coached
trial witness Ronnie Carter during questioning, including possibly signaling
to him electronically while Carter was on the witness stand through his cell
phone.30
V.
VI.
Plaintiff submits that other topics of fraud on the Court not expressly enumerated
in plaintiffs Rule 60 motion, but which are appropriate for investigation, should be
considered as well.
A.
If evidence emerges that the Justice Department influenced the

trial testimony of former ATF Acting Director Ronnie Carter or former
Assistant Director William Hoover, the Court may reconsider its
rejection of plaintiffs claim that the defendant breached an express
term of the settlement agreement, which in turn would expose the
government to lost benefit of the bargain expectation damages32
B.
Facts regarding an assault on plaintiff returning from an ATF event and

regarding potential entrapment by ATF employees or informants also
merit questioning34
Plaintiffs key witnesses for the proceedings and the scope of inquiry.35
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INDEX TO APPENDIX OF PLAINTIFFS EXHIBITS

1.
February 8, 2013 Correspondence signed from Jeanne Davidson to James Reed.
2.
May 14, 2014 email from James Reed to Stuart Delery, David Harrington, Donald Kinner and
Jeanne Davidson, subject line Dobyns v. United States, No. 08-700c (Fed. Cl.)
3.
Emails notifying DOJ of Valerie Bacons conduct.

March 21, 2013 email from James Reed to Stuart Delery, Jeanne Davidson, Donald Kinner
and David Harrington, subject ATF Counsel Valerie Bacon; Referral to OIA of attempted
obstruction of justice; Dobyns v. U.S.; 08-700c.
April 9, 2013 email from James Reed to Stuart Delery, Jeanne Davidson, Donald Kinner and
David Harrington, subject Scope of defendant actors; Referral to OIA of attempted obstruction
of justice by Valerie Bacon; 08-700c.
4.
Read receipts to emails in Appendix Index No. 3.

March 21, 2013 Read Receipt from Jeanne Davidson ATF Counsel Valerie Bacon; Referral to
OIA of attempted obstruction of justice; Dobyns v. U.S.; 08-700c.
March 21, 2013 Read Receipt from David Harrington ATF Counsel Valerie Bacon; Referral to
March 21, 2013 Read Receipt from Stuart Delery ATF Counsel Valerie Bacon; Referral to OIA
of attempted obstruction of justice; Dobyns v. U.S.; 08-700c.
March 21, 2013 Read Receipt from Donald Kinner ATF Counsel Valerie Bacon; Referral to
April 9, 2013 Read Receipt from Jeanne Davidson Read: Scope of defendant actors; Referral
to OIA of attempted obstruction of justice by Valerie Bacon; 08-700c.
April 9, 2013 Read Receipt from David Harrington Read: Scope of defendant actors; Referral
to OIA of attempted obstruction of justice by Valerie Bacon; 08-700c.
April 9, 2013 Read Receipt from Stuart Delery Read: Scope of defendant actors; Referral to
OIA of attempted obstruction of justice by Valerie Bacon; 08-700c.
April 9, 2013 Read Receipt from Donald Kinner Read: Scope of defendant actors; Referral to
OIA of attempted obstruction of justice by Valerie Bacon; 08-700c.
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5.
Trial Transcript 562:22- 563:20; 588:9 589:3.
6.
March 29, 2010 Order disqualifying Eleaner Loos as participating counsel.
7.
April 5, 2012 Email from David Harrington to James Reed: Dobyns v. United States, No. 08700 (Fed. Cl.)
8.
Investigative conclusions of ATF Internal Affairs Division Report of Investigation, October 11,
2012.
9.
9/28/12 letter from Peter Chisholm to James Reed.
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BAIRD, WILLIAMS & GREER, L.L.P.

6225 NORTH 24TH STREET, SUITE 125
PHOENIX, ARIZONA 85016
TELEPHONE (602) 256-9400
FACSIMILE (602) 271-9308
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James B. Reed (AZ Bar No. 014015)

Attorney for Plaintiff Jay Anthony Dobyns
UNITED STATES COURT OF FEDERAL CLAIMS
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JAY ANTHONY DOBYNS,
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NO. 08-700c
Plaintiff,
PLAINTIFF JAY ANTHONY DOBYNS

MEMORANDUM RE ISSUES FOR
INVESTIGATION BY SPECIAL MASTER
vs.
THE UNITED STATES,
(Judge Francis M. Allegra)

Defendant.
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(Judge John M. Facciola Special Master)
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Pursuant to the Courts order dated March 4, 2015, plaintiff Jay Anthony Dobyns files this special
proceeding memorandum to identify and explain issues for the Special Master to investigate against the
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defendant United States, on behalf of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),
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and the United States Department of Justice (DOJ), related to the above-captioned action.
MEMORANDUM OF ARGUMENT AND AUTHORITY
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I.
Summary of Argument.
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Plaintiff files this memorandum to assist the Special Master to conduct a full and thorough
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investigation with respect to United States Court of Federal Claims Judge Francis M. Allegras December
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1, 2014, Indicative Ruling regarding plaintiffs November 19, 2014 Rule 60 motion for relief from judgment.
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Plaintiff Dobyns is an adversely-impacted victim of the Justice Departments fraud, including in the
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form of the expenditure of attorney fees to overcome unethical practices by Civil Division. Plaintiff was the
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prevailing party in a lawsuit against the United States for actions by ATF, this action, having been awarded
$173,000.00 for his case in chief, and having defeated the governments counterclaims seeking (1)
payments totaling $245,000 from Fox [Studios] (Defendants cross-motion for summary judgment, p.
12.), (2) earnings of $295,257.76 in connection with No Angel (Defendants Post-Trial Memorandum of
Law, p. 72), and (3) a court order impos[ing] a constructive trust on all sums subsequently paid or
payable to Mr. Dobyns. (Id. at 81). Plaintiff achieved this victory despite misconduct by ATF officials and
by the Civil Division trial and supervising attorneys of the U.S. Department of Justice.
On October 24, 2014, the Court issued an order identifying at least some of the Department of
Justice attorneys who may have committed misconduct in defending the federal government in this action.
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To that list, based on allegations and documents referred
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to herein, plaintiff Dobyns submits that other defense counsel of record and supervising counsel bear
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varying degrees of responsibility for misconduct committed by the Department of Justice in this action,
including the failure to investigate allegations of improper conduct by attorneys and witnesses. The non-
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exclusive list of additional attorneys presently anticipated to bear responsibility are: Kent C. Kiffner, Rachel
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Bouman, Valerie Bacon and Stuart Delery. Finally, and specifically regarding plaintiffs allegations as to
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Valerie Bacon and retired ATF managers George Gillett and Charles Higman, plaintiff submits that United
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States Attorney (Arizona) John Leonardos refusal to undertake investigations of matters of obstruction of
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justice, perjury, and criminal threats arising in this matter require investigation.
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Regarding DOJ and ATF decisions to stand down from investigations of retired ATF Group
Supervisor Charles Higman for threats made against ATF Internal Affairs Division (IAD) investigator and
trial witness - Christopher Trainor and Trainors family members, plaintiff requests that the Court
investigate those ATF and DOJ employees as well, including any DOJ lawyers involved. Plaintiff Dobyns
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reported these allegations of misconduct to the Office of Professional Responsibility (OPR) on multiple
occasions, with no investigative response. Ultimately, OPR declined to proceed pending this proceeding.
Further, and based on (1) Attorney General Holders express, non-privileged statements made to
members of the family of slain Border Patrol Agent Brian Terry, that AG Holder is very familiar with Jay
Dobyns lawsuit and maintains a file in his office on it, and further based upon (2) the Courts service of the
September 16, 2014 Trial Opinion on Attorney General Holder, plaintiff submits that approval for certain
actions in this lawsuit related to the termination of the criminal investigation of Charles Higman for death
and violence threats against trial witness-Agent Christopher Trainor may have actually been approved at
the highest levels of ATF and the Department of Justice. This topic merits investigation.
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Supervising counsel Jeanne Davidson, Donald Kinner and Stuart Delery rejected opportunities to
do correct violations of law and ethical breaches by lead trial attorneys David Harrington and Kent Kiffner,
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along with ATF attorneys Rachel Bouman and Valerie Bacon and other DOJ attorneys. Jeanne Davidson
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wrote in February 8, 2013 correspondence (Appendix 1, hereinafter APP__) to undersigned counsel in

dismissive fashion with regard to plaintiffs allegations of misconduct by David Harrington:
Dear Mr. Reed:
This letter responds to your various e-mail communications alleging
improprieties by David Harrington, counsel of record for the United States
in this matter. I have reviewed your e-mail messages, correspondence,
pretrial materials and other documents, including the recording of the early
meeting of counsel and the report of investigation in the pending
personnel action. Additionally, I have met with Mr. Harrington, as well as
Donald Kinner (the immediate supervisor on the case) and Corinne Niosi
(a trial attorney assisting with the case).
Because we take seriously any allegation of potential impropriety,
however unfounded, I have considered your complaints and discussed
them with officials within the Civil Division. [] Mr. Harrington has always
kept his supervisors appropriately apprised about case developments [.]
Based upon my review, as described above, I believe that your complaints
are without merit and that no inappropriate conduct has occurred.
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The lengths to which plaintiff alleges that the Department of Justice withheld documents,
misconstrued evidence and protected and/or suborned perjury in order to advance false legal and factual
positions, reflected the bad conduct of ATF underlying the allegations of this lawsuit. If representations by
the United States Department of Justice the lawyers for the U.S. citizenry had been taken at face
value and their instructions followed without challenge, then: (1) Jay Dobyns and the Court of Federal
Claims would not now possess the ATF Internal Affairs Division Reports of Investigation, containing self-
indicting and self-immolating criticisms of ATFs treatment of Jay Dobyns; (2) Jay Dobyns would not have
the audio-recordings made of him without his knowledge or consent, documenting ATFs pursuit of him as
the only named suspect in the arson investigation, despite lead investigators Hildick and Moreland ruling
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out any role of Jay Dobyns and his family; and (3) the Justice Department, whether directly or by proxy via
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ATF attorney Valerie Bacon, would have successfully blocked Phoenix Special Agent in Charge (SAC)
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Thomas Atteberry from re-opening the Dobyns residence arson investigation in January 2012 and avoided
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defendants tacit admission that ATFs 2008 original arson investigation was incompetent, incomplete and
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derailed by George Gillett and Charles Higman and should not have been closed.
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II.
Plaintiffs Rule 60 Motion and the Courts Indicative Ruling establish the scope of
the present proceedings.
Plaintiffs Rule 60 motion enumerates ten areas of scrutiny for the Courts consideration. That list,
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while containing essential allegations, should not prevent plaintiff or the Court from following evidentiary
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threads to other evidence of fraud upon the court or to other wrongdoers. Indeed, in an email dated May
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14, 2014, plaintiff put defense counsel on notice of several instances of defense counsel fraud upon the
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court not listed in plaintiffs Rule 60 motion. (APP2) There exist multiple indicia of fraud affecting
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plaintiffs rights and the Courts interest in maintaining the integrity of its proceedings, and paragraph 21 of
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the Courts February 23, 2015 Order: Role and duties of the Special Master (hereinafter Special Master
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Order) states that the Court may explore any of those matters:
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The special master will make findings assisting the assigned judge in
determining whether defendants attorneys, in the conduct of this case,
effectuated a fraud upon the court under RCFC 60(d)(3). As may be
necessary, the special master may also consider whether there are other
grounds for relief from a final judgment in this case under RCFC 60,
including the existence of fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an opposing party under
RCFC 60(b)(3). (emphasis supplied)
Rule 60 (b) reads in relevant part:
Rule 60. Relief from a Judgment or Order
[.]
(b) Grounds for Relief from a Final Judgment, Order, or p roceeding.
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
[.]
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under
RCFC 59(b);
[.]
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
[.]
(d) Other Powers to Grant Relief. This rule does not limit a courts power
to:
(1) entertain an independent action to relieve a party from a judgment,
order, or proceeding;
(2) [not used]; or
(3) set aside a judgment for fraud on the court.
Paragraph 16 of the Special Master Order states in relevant part:
16. Pursuant to RCFC 53(b)(2), the special master is hereby
authorized to:
(A)
investigate and enforce the matters discussed in
paragraph 21 herein;
Paragraph 17 of the Special Master Order states in relevant part:
17. Pursuant to RCFC 53(c)(1), the special master may:
(A)
regulate all proceedings;
(B)
take all appropriate measures to perform the assigned
duties fairly and efficiently; and
(C)
exercise the assigned judges power to compel, take,
and record evidence, including the resolution of any issues
regarding the admissibility of evidence.
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The theme and scope of these Rule 60 proceedings is explained at page six of the Courts
December 1 Indicative Ruling. In paragraphs 2 and 3, the Court writes:
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The record indicates that there is much more involved here than a
simple misstatement of fact, a fraudulent filing, or a failure to advise
the court of a critical fact. Compare United States v. Parcel of Land and
Residence of 18 Oakwood Street, 958 F.2d 1, 5 (1st Cir. 1992); Pri-Har v.
United States, 215 F. Supp. 2d 404, 405-06 (S.D.N.Y. 2002). Rather, it
appears that there is significant evidence that defendants conduct
may actually have subverted the judicial process in a way that would
trigger application of RCFC 60(b)(3) and 60(d) and that plaintiff has
preliminarily demonstrated the exceptional circumstances
justifying the extraordinary relief requested. Employer Mut. Casualty
Co. v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir. 1996); see also HazelAtlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45 (1944); In
re Genesys Data Techs., Inc., 204 F.3d 124, 130 (4th Cir. 2000);
Demjanjuk, 10 F.3d at 352-54; Potter v. Mosteller, 199 F.R.D. 181, 185
(D.S.C. 2000), affd, 238 F.3d 414 (4th Cir. 2000). In the courts view, an
indicative ruling to reflecting this state of affairs is warranted. Nothing that
defendant has argued to this point suggests otherwise.
Based on the foregoing, the court hereby grants plaintiffs motion that the
court issue an indicative ruling under RCFC 62.1. The court concludes
that if, given the opportunity by the federal circuit, it would grant a
motion to consider whether defendants counsel has committed
fraud on the court under RCFC 60(b)(3) or RCFC 60(d). See RCFC
62.1(C). If the Federal Circuit remands the action, the court will allow both
parties an opportunity to present argument, as well as relevant evidence
and other testimony, before ruling on a motion for reconsideration under
RCFC 60. See Hazel-Atlas Glass Co., 322 U.S. at 251; 11 Wright &
Miller, supra, at 2870. (emphasis supplied)
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The two core allegations of fraud in the Courts Indicative Ruling, if proven, would extinguish the
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presumptions that DOJ had on other issues dependent upon assumptions of attorney candor. Indeed, the
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two topics of DOJ attorney misconduct identified by the Court, if proven, establish a pattern and practice of
misconduct throughout trial. Plaintiffs Rule 60 motion for relief from the judgment argues at page 2:
Plaintiff asks that the Court issue a ruling indicating its desire to vacate the
August 28, 2014 judgment, in order to conduct hearings regarding
possible attorney misconduct and determine any fraud on the Court.
Id. (emphasis supplied). Thus, plaintiff contends that, in addition to the ten items articulated in his
November 19, 2014 Motion for Relief from Judgment, that other issues fit within the topic scope.
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In particular, plaintiffs February 18, 2015, memorandum regarding the appointment of a special
master explained that the issue of potential influence by DOJ on the testimony of ATF witnesses Ronnie
Carter and William Hoover could have altered the Courts findings as to whether ATF orders were
considered laws under paragraph ten of the fulcrum settlement agreement, and therefore whether
contractual expectation damages would have been available to plaintiff. Plaintiff again referred to that
topic, without objection from defense counsel, on the March 3, 2015 status conference. That and one
additional Rule 60 area are set forth at the end of plaintiffs elaboration of the original ten items.
III.
Plaintiff alleges that Civil Division, in an apparent attempt to protect and advance ATFs unlawful
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conduct, withheld evidence, suborned or defended perjury, protected instances of obstruction of justice,
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and knowingly made intentional false statements of fact to the Court and to undersigned counsel about all
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of the foregoing. The summary of potential conduct which plaintiff has alleged includes the following:
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The enumerated items in plaintiffs Rule 60 motion.
(1)
ATF Internal Affairs Division (IAD) Investigator Christopher Trainor

reported to DOJ counsel that he was threatened by another trial witness
and requested that DOJ report the threats to the Court. DOJ trial
counsel instead refused and instead threatened his career if he reported
the threats to the Court.
(2)
Valerie Bacon obstructed an arson investigation and tampered with

witnesses and evidence by directing Thomas Atteberry and Carlos
Canino not to re-open ATFs investigation. Kent Kiffner, Rachel Bouman
and others may have directed her and assisted her to file a false
declaration. See footnote 25, Opinion filed 9/16/14, Ct. Cl. 08-700c.
(3)
David Harrington made false statements to the Court that, prior to SAC
Atteberrys trial testimony about Bacons instruction not to re-open the
arson investigation, he had no knowledge of any such allegations.
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a. Plaintiff sent two emails (subject: Attempted Obstruction of Justice

by Valerie Bacon) from attorneys Harrington, Davidson, Kinner and
Delery. (APP3) and filed eight read receipts from DOJ with the
Court (APP4).
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b. Harrington, in preparing SAC Atteberry for trial, would have learned

of Bacons conduct. As soon as Atteberry testified about Bacons
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call, Harrington objected on privilege grounds, with an urgency

indicating that he knew exactly what SAC Atteberry would say.
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(4)
Kiffner and Bouman withheld telephone surveillance recordings, despite

plaintiffs requests for production. Deposition witness/ATF Agent Matt
Bayer disclosed the recordings, as Kiffner sat by silently, not intending
to disclose their existence.
(5)
George Gillett and Charles Higman committed perjury at trial, which

DOJ counsel did nothing to discourage or correct and, based on witness
preparation and objections at trial, certainly understood that to be
perjury and likely encouraged.
(6)
Kiffner and Bouman failed to cure and may have suborned deposition
perjury by Gillett, Higman and William Newell regarding the surveillance
and suspect status of plaintiff and also did so with respect to Los
Angeles SAC John Torres.
(7)
Mr. Harrington falsely represented to undersigned counsel and to the

Court that the October 11, 2012, and forthcoming June 2013 Internal
Affairs Division Reports of Investigation (ROI 1 and ROI 2), and
Professional Review Board (PRB) recommendations were not relevant
and wrongfully withheld them.
(8)
For ROI 1 and ROI 2 only, ATF Assistant Director Thomas Brandon
replaced PRB Bureau Deciding Official (BDO) Steven Zellers, who was
anticipated to sign ROI 1s PRB recommendations within days of
issuance. AD Brandon then refused to accept the PRB recommenddations for ROI 1 and ROI 2, possibly at DOJs instruction in order to
maintain DOJs objections based on the deliberative process privilege.
(9)
On the eve of trial, Brandon issued PRB letters of clearance for William
Newell, Marino Vidoli and Steven Pugmire, current ATF employees
found by the Court to have acted improperly; if this was at DOJs
request, it would constitute both witness and evidence tampering.
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(10) Witness Ronnie Carters cell phone vibrated twice during key questions.
When trial paralegal Jeff Elder retrieved the phone from Mr. Carter, Mr.
Harrington took it from him hastily, while covering the phones display.
(Carter testimony 562:22-563:20; 588:9-589:3). (APP5) Dobyns and
undersigned counsel posit that the reasons were as follows:
a. At trial, Mr. Carter looked to his attorneys constantly; DOJ may have
signaled the witness through his phone to look to counsel for cues.
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b. Mr. Carters phone records during his questioning would identify the
source or show no activity at all, i.e., DOJ supplied the phone.
Plaintiff notified Civil Division counsel of record of their unethical conduct numerous times. Plaintiff
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submits that DOJs conduct, if proven, violated the following District of Columbia Rules of Ethics:
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IV.
Rule 3.3 - Candor to Tribunal. (a)(1)(2)(3)(4)(b)(c)(d)

Rule 3.4 - Fairness to Opposing Party and Counsel.(a)(b)(c)(d)(e) (f)((1)(2))
Rule 4.1 - Truthfulness in Statements to Others. (a) and (b)
Rule 8.3 - Reporting Professional Misconduct. (a)(b) and (c)
Rule 8.4 Misconduct. (a)(b)(c)(d)(e)(f)(g)
Multiple instances of ATFs and DOJs fraudulent and/or unethical conduct exist.
A. ATFs improper conduct is documented in the Courts opinion.
The Courts September 16, 2014 Trial Opinion documents false, sworn statements by George
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Gillett and Charles Higman, which plaintiff alleges the Civil Division trial attorneys, specifically David
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Harrington, Corrine Niosi, Veronica Onyema and P. Davis Oliver either knew of and permitted, or actively
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solicited from the witnesses. Some of those statements rise to the level of perjury.
In addition, the Trial Opinion, footnote 25, refers to obstruction of justice by ATF attorney Valerie
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Bacon and to emails notices that undersigned counsel sent to attorneys Harrington, Davidson, Kinner and
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Delery, who, after returning eight separate read receipts (APP4) of plaintiffs notifications (APP3) of
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obstruction of justice by Bacon, and received other email notifications, by their silence, aided and abetted
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Valerie Bacons attempted obstruction of justice of a criminal arson investigation.
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B. Elaboration of plaintiffs ten enumerated items is as follows.
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The improper behavior of the Department of Justice appears to have been calculated to prejudice
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plaintiffs right to a fair trial, and in some instances, interfered with criminal investigations. A non-exclusive
list of those instances of bad conduct by Justice Department attorneys is as follows.
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1. Civil Division protected witness Charles Higman following his threats of violence and
potentially death against witness Christopher Trainor, with Civil Division instead
threatening Trainors career if he disclosed the threats to the Court.
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As the evidence will show, ATF Internal Affairs Investigator Christopher Trainor received a threat
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that, in context, was clearly a death or violence threat, which Civil Division refused to disclose to the Court
and instead threatened Christopher Trainor if he revealed it to Judge Allegra.

Charles Higman, the Tucson Group Supervisor for ATF at the time of the August 10, 2008 arson
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of the Dobyns residence, committed perjury at trial, as the Court indicated in its September 16, 2014 Trial
Opinion. According to plaintiffs limited information, based on Christopher Trainors summary of his sworn
statement provided to the Office of Inspector General, the threat events are as follows.
10
11
During the period between the June 2013 phase of trial in Tucson, Arizona, and the July 2013 trial
phase in Washington DC, Mr. Higman called and left a voicemail for Agent Trainor that took strong issue
12
with Agent Trainors testimony during the Tucson trial phase, particularly about Higman. Higmans
13
14
15
dissatisfaction with Agent Trainors 4,000 page Internal Affairs Division Report concerning ATFs failed
and incompetent response to the August 10, 2008 arson at the Dobyns residence mirrored the open
16
dismay of Civil Division attorneys at trial with the testimony of Agent Trainor. Indeed, Civil Division trial
17
attorney Corrine Niosi repeatedly attacked Agent Trainors integrity, truthfulness and professionalism,
18
even though, as Agent Trainor testified at trial, his professional reputation and ethics had never before
19
been questioned.1 To the contrary2, the Court found that Agent Trainors trial testimony was extraordinarily
20
thorough3, well-supported and compelling4 - and injurious to ATFs defense to the Dobyns lawsuit.
21
22
23
24
25
The Courts September 16, 2014, Trial Opinion notes at page 28 that, in the case of defendants
own ATF witness, Agent Christopher Trainor, presumably because defense counsel was dissatisfied with
his testimony, the governments attorneys attacked Agent Trainor on the stand: it is conspicuous that the
Justice Department attorneys in this case strenuously attempted to impeach Agent Trainors testimony
an odd tactical decision to say the least. Id.
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In contrast, the Court found that Charles Higman repeatedly provided false testimony at trial5,
1
2
which was time and again impeached by plaintiff.6 As part of the threat to Agent Trainor left on voicemail,
Higman repeatedly requested to meet Trainor face to face, then asked Agent Trainor hows your health
and how are your children? In context, the questions were chilling. But stranger still, to plaintiffs
knowledge based on familiarity with both Charles Higman and Christopher Trainor, Mr. Higman had no
personal or professional contact with Agent Trainor at any time in their careers and would not have any
knowledge of Trainors family makeup, i.e., that information would have to have been supplied to Higman.
But even more alarming is the fact that, after receiving the call, Agent Trainor went out to his vehicle
9
10
The Justice Departments attack on Agent Trainor failed. The Court wrote the court attaches
considerable weight to the testimony of Agent Trainor, who authored the 2012 and 2013 IAD reports. Id.
The Court further wrote at page 29: [i]n general, the court was impressed with Agent Trainors testimony
his capabilities, knowledge of the subject matter of the investigations, general integrity and willingness to
respond to the courts questions. Id.
2
11
12
13
In April of 2012, IAD initiated a formal investigation regarding multiple complaints from Agent Dobyns
concerning ATFs response to the fire at his residence and subsequent follow-up. [] Agent Trainors
work in completing this report was exhaustive, and entailed interviewing a number of witnesses; reviewing
depositions; checking for compliance with ATF Orders; scrutinizing documents, files and logs available
through the N-Force case management system; and reviewing various other internal ATF memoranda. Id.
at 22.
3
14
15
16
17
18
19
20
See page 28 of the Courts September 16, 2014 Opinion regarding the adoption by the Court of both of
the reports of investigation: the court attaches considerable weight to the testimony of Agent Trainor, who
authored the 2012 and 2013 IAD reports. See also Footnote 47 of the Courts Opinion: Agent Trainors
IAD report on the removal of the backstopping provided hundreds of findings and was based upon
hundreds of documents and five months of interviews. Id. at 38.
4
In particular, the court finds significant portions of the testimony of two witnesses Agent Charles
Higman and ASAC George Gillett unworthy of belief. Agent Higman wove a remarkable tapestry of
fiction concerning his response to the fire and the investigation that followed. Trial Opinion, September
16, 2014, p. 27.
5
21
22
23
24
25
As his testimony progressed, Agent Higman was, time and again, contradicted not only by his own
sworn testimony given at trial and in prior depositions but by that of other ATF witnesses. Based on
the roll and surge of this contrary evidence, and for other reasons (including his general demeanor and
non-responsiveness to questions), the court concluded that Agent Higmans testimony lacked credibility.
Trial Opinion, September 16, 2014, pp. 27-28.
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parked in front of his home, and an orange construction cone had been stuffed into the tailpipe of his
automobile. In context, the voicemail from Charles Higman was a threat of violence and death.
Higman reported the threats to Rachel Bouman, at the time still counsel of record in ATFs Office
of Chief Counsel, and asked Bouman to provide that information to DOJ counsel. Bouman took the
information, and then when Agent Trainor followed up several days later as to the status of the matter,
Bouman told Trainor that she had no idea what he was talking about. Agent Trainor then took the
information to DOJ lead trial counsel David Harrington, who told Trainor that the threats were not relevant
to the proceeding, and that nothing would be done about them. When Agent Trainor disagreed and said
that he would report the information directly to Judge Allegra, Harrington twice told Trainor that he should
10
11
think long and hard about what that would mean for his career at the Justice Department if Trainor did so,
insinuating retaliation or damage to Trainors as-yet untarnished career. Trainor had a second listener on
12
a second line as a witness, Daniel Machonis, ATFs Chief of its Office of Professional Responsibility, who
13
14
15
heard Harringtons refusal to act on the information and his thinly-veiled threats to Agent Trainors career.
Agent Trainor, apparently distraught over the inaction by DOJ, independently sought outside
16
counsel to help guide his next move. It was decided that Trainor would wait until after the Court issued its
17
trial opinion before notifying the Court of the threats by Higman and the retaliatory threats by Harrington,
18
which were then forwarded by the Court to Deputy Attorney General James Cole for investigation.
19
After Trainor reported the threats to ATF, ATF opened a criminal investigative file against Charles
20
Higman. Shortly thereafter, ATF closed the criminal investigative file, informing Trainor that Higmans role
21
as a critical defense witness in the lawsuit by Jay Dobyns meant that ATF could not and would not -
22
23
proceed further with the criminal investigation. It is impossible to imagine that decision being made on the
grounds of witness importance without the involvement of Civil Division attorneys such as Mr. Harrington.
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Plaintiff believes that, as reprehensible as Charles Higmans conduct in this lawsuit was proven to
be, the documented threats which he made to Christopher Trainor were inconsistent with someone with
the street smarts of Charles Higman. Plaintiff intends to investigate, and believes he will establish, that
the concept of pressuring Christopher Trainor via a contact from Charles Higman originated not with
Higman, but with Civil Division attorneys. This is not to say that the Civil Division contemplated a death or
violence threat against Trainor, which may have been the result of pressure that Civil Division was
bringing to bear on Charles Higman; that pressure could have been an ultimatum that unless Trainor
backed down from his adverse testimony, DOJ would have to pursue Charles Higman for perjury, based
on likely and eventual findings by the Court. Plaintiff anticipates that, in that environment of DOJ
10
11
pressure and personal desperation, Higman not surprisingly committed an otherwise unthinkable act, by
implicitly threatening the safety and potentially the lives of Christopher Trainor and his children.
12
If ATF investigators had questioned Higman at length as part of a criminal investigation, then, in
13
14
15
plaintiffs theory of events, Higman would have disclosed that the idea for the pressure applied to Agent
Trainor to alter his testimony originated with Civil Division attorneys. ATFs decision to quickly close down
16
the criminal investigation of threats to the safety and lives of a federal agent and his children could have
17
been the result only of a monumental concern such as the implications for any attorneys who encouraged
18
Higman to make the pressure phone call to Agent Trainor. ATF leadership and DOJ attorneys allowed
19
Higman to avoid further investigation or grand jury proceedings despite allegations of criminal conduct.
20
Any attorneys who participated in any of the following actions clearly committed ethical
21
22
23
24
improprieties and fraud on this Court: (1) suggesting to Charles Higman that he contact Christopher
Trainor and pressure or threaten Trainor to change his Tucson testimony or else testify more favorably for
ATF in the Washington DC trial phase; (2) covering up the fact of Higmans threats after they occurred,
including failing to report the threats to law enforcement authorities and to Judge Allegra; (3) threatening
25
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Christopher Trainors career if he reported the threats; and/or (4) requesting or participating in the
premature closure of the criminal investigative file against Charles Higman for any improper reasons,
including the perceived impact of the threats on DOJs defense of Jay Dobyns lawsuit or because Charles
Higman would disclose that Civil Division attorneys actually requested that he contact Agent Trainor.
At minimum, plaintiff seeks to prove that: (1) Higman threatened Trainor based on Trainors trial
testimony; (2) ATF personnel and DOJ attorneys worked to conceal those facts from the Court; (3) ATF
incompletely and prematurely closed the Higman threat investigation; and (4) ATF personnel and DOJ
attorneys both failed to pursue criminal charges of perjury against one of their witnesses, i.e., Charles
Higman. This course of action is eerily similar to the governments conduct towards plaintiff in his case in
10
chief: ATF protected the executive wrongdoers while attacking the low ranking whistleblower employees.
11
2. DOJs Witness Tampering and Obstruction of Justice Regarding Phoenix Special Agent in
Charge Thomas Atteberry.
12
13
This Court has already found that ATF Office of Chief Counsel attorney Valerie Bacon, who was
14
longstanding counsel of record in this action7, attempted to obstruct justice, while also engaging in witness
15
and evidence tampering, by instructing Phoenix Special Agent in Charge (SAC) Thomas Atteberry and
16
Assistant Special Agent in Charge (ASAC) Carlos Canino not to re-open ATFs investigation into the arson
17
of Jay Dobyns home. (See Footnote 25 to the Courts September 16, 2014 Trial Opinion, p. 21.8)
18
19
20
21
22
23
24
25
ATF Office of Chief Counsel attorney Valerie Bacon appeared as counsel of record for ATF at the
following depositions: Matthew Bayer (08/23/11); Carson Carroll (12/03/10); Peter Forcelli (07/12/11);
George Gillett (08/19/10); Charles Higman (08/22/11); Michael Hildick (07/14/11); William Hoover
(06/15/11); Rick Horgan (08/18/11); Rick Kastigar (08/16/11); Kevin Leehey (10/31/11); Tristan Mooreland
(07/13/11); William Newell (08/18/10); Brian Nowak (08/23/11); Patrick Sullivan (06/16/11); John Torres
(12/02/10); and Anthony Vlahoulis (08/15/11).
7
Testimony at trial indicated that Valerie Bacon, an attorney in ATFs Office of General Counsel,
attempted to convince SAC Atteberry not to reopen the arson investigation. [.] In a filing subsequently
ordered by the court, defendants counsel acknowledged the contacts made by Ms. Bacon to SAC
Atteberry, as well as to another potential witness in this case (Agent Carlos Canino). That filing suggests
that Ms. Bacon had a discussion with Agent Canino that was similar to the one she had with SAC
Atteberry, described above. Trial Opinion, September 16, 2014, Ftnt. 25, p. 21.
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Plaintiff anticipates that his questioning of attorneys Bacon, Bouman and Kiffner would likely
produce ATF and DOJ emails documenting Bacons attempted obstruction of justice and witness and
evidence tampering, and in the process would reveal those persons at Civil Division and at ATF who were
aware of, or even directed, Bacons contact with SAC Atteberry. Plaintiff submits that this Special Master
investigation will likely demonstrate that Rachel Bouman and Kent Kiffner were aware of Bacons conduct
as her DOJ supervising attorneys, and that it may reflect a strategic decision that leads to the involvement
of Civil Division supervisors Jeanne Davidson, Donald Kinner and Stuart Delery.9
Indeed, it is impossible to imagine that supervising counsel were unaware of Bacons conduct. As
per Item 3(a), p.7 (APP2), infra, undersigned counsel filed with the Court, two full sets of read receipts
10
from defense counsel Harrington, Davidson, Kinner and Delery in response to two separate emails from
11
undersigned counsel containing the subject line Attempted Obstruction of Justice by Valerie Bacon. 10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Plaintiff believes that Rachel Bouman and Kent Kiffner will implicate others having knowledge of
Bacons conduct. If at any time, former ATF agency counsel Eleaner Loos directed any conduct in this
action, including Bacons, then DOJ violated this Courts March 29, 2010 order disqualifying Eleaner Loos
from participating in a counsel of record capacity due to her status as a fact witness. (APP6).
9
Plaintiff submitted to the Court the following documents establishing DOJs knowledge of the
allegations, found collectively at APP3 APP4:
10
1. March 21, 2013 email from James B. Reed to Jeanne Davidson, Stuart Delery, Donald Kinner and
David Harrington, Subject: ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted
obstruction of justice; Dobyns v. U.S.; 08-700c (Importance: HIGH) (and forwarding email from
Jay Dobyns to ATF Internal Affairs Investigating agent Christopher Trainor dated March 20, 2013,
regarding obstruction of the Dobyns home arson investigation)
a. March 21, 2013 read-receipt email from Jeanne Davidson, to James B. Reed, Subject:
Read: ATF Counsel Valerie Bacon; Referral to OIA of allegation of attempted obstruction
of justice; Dobyns v. U.S.; 08-700c
b. March 21, 2013 read-receipt email from Stuart Delery to James B. Reed, Subject:
c. March 21, 2013 read-receipt email from David Harrington to James B. Reed, Subject:
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(APP3) As the Court found, four DOJ Civil Division attorneys, at minimum, were aware at critical times,
i.e., both pre-trial and pre-Atteberry testimony, of the attempted obstruction of a federal criminal
investigation into the residential arson and assault committed against a federal agent and his family, along
with attempted witness tampering of Thomas Atteberry, and yet took no corrective action.11
In response to that information, DOJ instead: (1) assisted Bacon to prepare a declaration in which
Bacon states that she does not recall anything about her telephone calls to SAC Atteberry or ASAC
Canino12; (2) withheld ASAC Caninos declaration from the Court and undersigned counsel 13; and (3)
8
9
d. March 21, 2013 read-receipt email from Donald Kinner to James B. Reed, Subject:
10
11
2. April 9, 2013 email from James B. Reed to Jeanne Davidson, Stuart Delery, Donald Kinner and
David Harrington, Subject: Scope of defendant actors; ATF Counsel Valerie Bacon; Referral to
OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c (Importance: HIGH)
(and forwarding email from Jay Dobyns to ATF Internal Affairs Investigating agent Christopher
Trainor dated March 20, 2013, regarding obstruction of the Dobyns home arson investigation)
12
13
14
a. April 9, 2013 read-receipt email from Jeanne Davidson, to James B. Reed,

Subject: Read: Scope of defendant actors; ATF Counsel Valerie Bacon; Referral
to OIA of allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c.
15
b. April 9, 2013 read-receipt email from Stuart Delery to James B. Reed, Subject: Read:
Scope of defendant actors; ATF Counsel Valerie Bacon; Referral to OIA of allegation of
attempted obstruction of justice; Dobyns v. U.S.; 08-700c .
c. April 9, 2013 read-receipt email from David Harrington to James B. Reed, Subject:
Read: Scope of defendant actors; ATF Counsel Valerie Bacon; Referral to OIA of
allegation of attempted obstruction of justice; Dobyns v. U.S.; 08-700c .
d. April 9, 2013 read-receipt email from Donald Kinner to James B. Reed, Subject: Read:
Scope of defendant actors; ATF Counsel Valerie Bacon; Referral to OIA of allegation of
attempted obstruction of justice; Dobyns v. U.S.; 08-700c.
16
17
18
19
20
21
22
23
24
25
The Court wrote: [o]n or about March 21, 2013, defendants attorneys (and their supervisors) received
emails from plaintiffs attorney complaining about the contracts made by Ms. Bacon to SAC Atteberry. It
appears that defendants attorneys did not respond to these emails or take any action in response
thereto. Trial Opinion, September 15, 2014, Ftnt. 25, p. 21.
11
Although Bacon declared that she did not recall her conversations with Attebery and Canino, the trial
testimony of Attebery and Civil Divisions description of the witness declaration of Canino make clear that
they both recalled Bacons instructions to them.
12
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made misstatements to the Court about Civil Divisions prior knowledge of that information. Given their
status, then-Commercial Branch Chief Jeanne Davidson and Civil Division Chief Stuart Delery had a duty
to put a stop to such misconduct by Civil Division attorneys; instead, both of them ignored the allegations.
Plaintiff, in his July 13 Notice of Filing Additional Email Related to Issues Regarding Attorney
Valerie Bacon submitted an email to explain why plaintiff communicated with defense counsel only in
writing. The April 5, 2012 email (APP8) is Exhibit A to plaintiffs notice of filing, in which the Justice
Department demanded that all communications between counsel in this lawsuit must be in writing. The
Justice Department then refused to respond to most of plaintiffs emails and correspondence,
necessitating further written communications (usually emails) by plaintiffs counsel. At trial, Civil Division
10
attempted to rely upon the amount of email between counsel to explain DOJs failure to respond to emails
11
notifying Civil Division of Bacons attempted obstruction of a criminal arson investigation.
12
3. Plaintiff submits that Civil Divisions David Harrington made false statements to the Court
that he had no prior knowledge of allegations involving Valerie Bacons improper contacts
with SAC Atteberry and ASAC Canino.
13
14
15
16
Compounding these offenses are what plaintiff believes to be David Harringtons false statements
to Judge Allegra in chambers on June 17, 2013. At that time, Harrington stated that, prior to Thomas
Atteberrys trial testimony that Bacon instructed Atteberry not to re-open the arson investigation because it
17
18
19
20
would undermine the Justice Departments defenses of the Dobyns lawsuit, Harrington had no knowledge
of any allegations about Bacons actions.14 To the contrary, David Harrington, as part of trial preparation
of SAC Atteberry as a witness for trial, would have learned of Bacons obstruction of justice before
21
22
23
24
25
David Harrington refused to disclose whatever sworn declaration that ASAC Canino gave to David
Harrington and Corrine Niosi during trial regarding Valerie Bacons contacts with Canino.
13
Subsequently, David Harrington tried to morph the in-chambers, direct question by Judge Allegra into
whether Harrington knew prior to trial about the allegations of Bacons impermissible instructions to
witnesses, as opposed to prior to Atteberrys testimony; that was not the Courts question, as underlying
counsel will testify, but nevertheless would have required Harrington reporting the matter to the Court.
17
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Atteberry testified. Consistent with that fore-knowledge, as soon as Atteberry began to testify at trial about
Bacons attempted obstruction of justice, Mr. Harrington objected on attorney-client privilege grounds with
an urgency indicating that he knew exactly what Thomas Atteberry was about to state.
4. Kent Kiffner and Rachel Bouman impermissibly withheld audio recordings made of plaintiff
without his knowledge and against ATF Orders requiring prior authorization by the U.S.
Attorneys Office.
Attorney Kent C. Kiffner was prior lead counsel for defendant, before departing DOJ following
plaintiffs allegations that: (1) Kiffner and Rachel Bouman withheld improper audio recordings made of
plaintiffs telephone calls without Dobyns knowledge; and (2) Kiffner conceded and protected the perjury
of deposition witnesses Los Angeles SAC John Torres; and (3) both Kiffner and Rachel Bouman suborned
10
11
and protected the perjury of Phoenix ASAC George Gillett and Phoenix SAC William Newell.
Plaintiff had requested all of ATFs electronic recordings and surveillance records in discovery, but
12
DOJ withheld two audio recordings of telephone calls with plaintiff Dobyns without his knowledge or
13
required approval by ATF or the U.S. Attorneys Office (proving a primary allegation by plaintiff); DOJ did
14
not disclose the existence of the recordings. Plaintiff obtained the two recordings only from ATF case
15
agent Matt Bayer at his deposition, when, to the visible consternation of DOJ attorney Kiffner, Bayer
16
voluntarily produced the audio recordings. Kiffner then provided a series of vague and implausible
17
explanations for DOJs failure to produce the recordings, stories that changed over time. Plaintiff submits
18
that Kiffner and Bouman fully understood that the audio recordings proved that ATF had pursued Jay
19
Dobyns as a suspect, despite contrary deposition testimony by Newell, Gillett, Higman, Carter and Hoover
20
that ATF had never viewed or treated Jay Dobyns as a suspect, testimony which Kiffner and Bouman
21
repeatedly observed and defended, despite plaintiffs written allegations of deposition perjury on the issue.
22
Plaintiff submits that, as government witnesses continued to testify that ATF did not conduct
23
surveillance of Jay Dobyns, the pressure mounted on Kiffner and Bouman to withhold the audio
24
recordings. With Agent Bayer testifying that he twice FEDEX-ed the audio recording to Rachel Bouman
25
between August 2010 and August 2011, it passed from plausible to undeniable that Kiffner and ATF
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attorney Bouman had agreed to withhold them from plaintiff. Upon plaintiffs request, both Kiffner and
Bouman refused to sign affidavits that they had only inadvertently withheld the audio recordings. (APP6)
Perhaps DOJs conduct in withholding the audio recordings might have been attributable to
3
4
misplaced evidence, but for the fact that at the August, 2011 deposition of ATF Case Agent Matt Bayer,
then-DOJ attorney Kent Kiffner did not bring copies of the audio recordings with him to the deposition or
disclose their existence before the witness arrived and confronted Kiffner on the topic. It was apparent that
Kiffner did not intend to disclose the audio recordings and instead would wait to see if plaintiffs
questioning called for answers from Agent Bayer that required the witness to discuss the recordings.
Bayers laudable, forthcoming disclosures related to the recordings did not let Kiffner succeed with that
10
strategy. And yet the strategy has the taint of supervisory attorney involvement and instruction.15
In Civil Divisions motion filed on October 11, 2011, entitled Defendant United States Motion for
11
12
Leave to Allow Fact Witness Depositions out of Time, the Justice Department conceded misconduct:
13
[A]n ATF witness informed Government counsel of the existence of two

recorded phone conversations between ATF and the plaintiff [then-ATF
agent Jay Dobyns] following the fire incident at plaintiffs home. These
recordings were apparently made without plaintiffs knowledge. [.]
Government counsel discovered that the recordings had been produced
by the [ATF] agency to the [Department of Justice] Civil Division, but had
been omitted from production to plaintiff when the agencys materials were
converted for use by the Government in an electronic database.
Government counsel has acknowledged the error to plaintiffs counsel
14
15
16
17
18
To remedy this omission, and to avoid any prejudice to plaintiff, the parties
have agreed, subject to court approval, to reconvene five of the
depositions taken since June 2011. These reconvened depositions will be
done at the Governments expense. [.] The fifth deposition involves a
former Government employee who has indicated he will not cooperate
with the Government. [.] The parties believe that this former
Government employee was involved in the authorization of the recording
of the calls, which is why his deposition will exceed an hour.
19
20
21
22
23
24
25
Twice in this action, both Kent Kiffner and David Harrington made the statement to undersigned
counsel: I have my marching orders. DOJ supervisors were clearly intimately involved in certain of the
strategic decisions in this lawsuit.
19
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Id. In response, on October 24, 2013, the Court ordered the re-depositions of witnesses:
The court finds that good cause exists to grant the motion in light of the
defendants omission of critical information in its production to plaintiff
during fact discovery. [.] Defendant [United States] shall bear the
expense of reconvening these five depositions. (emphasis supplied)
3
4
5
6
7
Id. The Court would have understandably granted presumptions of inadvertent negligence to DOJs action,
but given Civil Divisions intentional misconduct in this action as the facts now establish it to be, DOJ
appears to have instead intentionally withheld key evidence without suffering meaningful consequences.
Plaintiff seeks to determine if anyone conferred with Kent Kiffner about withholding the audio
8
9
10
11
12
13
recordings and whether anyone directed Kiffner and Bouman not to disclose them. Plaintiff anticipates that
Jeanne Davidson, based on her later statements that David Harrington was keeping her fully apprised of
all activity in the lawsuit, was also apprised of everything happening in the case with Kent Kiffner as lead
counsel. Accordingly, plaintiff anticipates that both Donald Kinner, as immediate supervising counsel, and
Jeanne Davidson, approved of a strategy not to disclose the existence of the covert audio recordings.
14
5. Civil Division protected or suborned trial perjury of George Gillett and Charles Higman.
15
The Court made extensive findings of false, sworn statements at trial by George Gillett and
16
Charles Higman. While the Court did not specifically use the word perjury to describe their testimony,
17
actual perjury is not required for Civil Division misconduct to rise to the level of Rule 60 violations if DOJ
18
protected or encouraged false sworn witness testimony. Plaintiff seeks to establish that Civil Division: (1)
19
was aware of the false nature of the multiple false statements by Gillett and Higman at trial; (2) protected
20
21
those false statements; and (3) was an active participant in weaving together fictional accounts of actions
by Gillett and Higman during the period of the August - September, 2008 arson investigation.16
22
23
24
25
An example of false testimony of Gillett and Higman were their contentions that they never targeted Jay
Dobyns as a suspect. The Court concluded otherwise, relying in part on Christopher Trainors extensive
report of investigation: IAD further concluded that SAC Newell, ASAC Gillett and Agent Higman targeted
Jay Dobyns as a suspect in the arson of his home, even after highly-respected agents within the Phoenix
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6. Attorneys Kent Kiffner, Rachel Bouman and Valerie Bacon, at minimum, failed to cure after
learning or, or else knowingly permitted or actively coached material, false statements at
the depositions of George Gillett, Charles Higman, and John Torres, regarding, inter alia,
whether ATF pursued Jay Dobyns as a suspect and subjected plaintiff to surveillance.
1
2
3
4
As plaintiff will amply demonstrate during this proceeding, both George Gillett and Charles
Higman repeatedly gave false, sworn testimony not just at trial, but at their depositions as well.
As the Court found, George Gillett and Charles Higman repeatedly gave false testimony at trial.17
6
7
8
9
The topics on which they perjured themselves at their depositions include testimony that ATF never
pursued Jay Dobyns as an arson suspect and that ATF never conducted any surveillance of Jay Dobyns,
electronic or otherwise.18 Further, John Torres gave false, sworn testimony numerous times at deposition
10
when he stated on the record that he never attempted to sell any ATF investigational stories or his own life
11
story to any third parties, whether book publishers or television or movie production companies or studios.
12
Kent Kiffner, Rachel Bouman and Valerie Bacon took no steps to acknowledge to plaintiff the falsity of
13
Torres testimony and took no corrective measures. Plaintiff submits that, given the evidentiary importance
14
for ATFs defenses that those false, sworn statements represented, it would be consistent with Civil
15
Divisions other misconduct in this matter for DOJ attorneys to have encouraged that false testimony.
16
17
18
19
Field Division had concluded otherwise based on interviews and evidence found at the fire scene. Trial
Opinion, September 16, 2014, p. 23.
20
As to Charles Higman, for instance, the Court wrote [o]n this and other points, Agent Higmans
testimony appeared to evolve as questions were adduced. Trial Opinion, Ftnt. 23, p. 19. And as to
George Gillett, the Court wrote at page 28 of the Trial Opinion: ASAC Gilletts testimony likewise posed
serious credibility issues and [h]ighly damaging to ASAC Gilletts credibility is also the fact that he lied in
denying to Agent Hildick and other agents that he view Agent Hildicks Cause and Origin Report
(regarding the fire) as being unpopular. Id.
17
21
22
23
24
25
The record, however, plainly makes clear that Agent Higman instructed Agents Bayer and Maynard to
record Agent Dobyns without proper authorization. Agent Higman again suggested that it was ASAC
Gillett who authorized the recording. Trial Opinion, September 16, 2014, Ftnt. 22, p. 19.
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Gilletts and Higmans deposition perjury became clear as soon as Agent Bayer disclosed the
audio surveillance recordings made of two telephone calls with Jay Dobyns. At that point, it was beyond
dispute that Gillett and Higman monitored Dobyns as a suspect and focused investigative resources on
him as a primary suspect, despite investigators Moreland and Trainor having interviewed and excluded
Dobyns and his family from suspect status and recommending pursuit of credible, legitimate suspects.
Undersigned counsel made clear the perjury allegations against George Gillett and William Newell
regarding suspect status by correspondence dated September 11, 2011, and October 24, 2011. Those
letters set out the specific testimony in which Gillett and/or Newell committed perjury. Civil Division did
nothing substantive in response to the allegations other than categorically deny them.
10
11
Civil Divisions intention to protect false testimony by Charles Higman during his second
deposition (re-deposition), after Agent Bayer disclosed the audio recordings to plaintiff, was demonstrated
12
when Kiffner and Civil Division refused to permit Higman to be re-deposed telephonically when he was in
13
14
15
France; DOJ obstructed the telephonic deposition even though Higman, attorney Kent Kiffner and
plaintiffs counsel had already agreed to the conduct of that telephonic deposition in France beforehand.
16
Kiffner could not provide any legal support for Civil Divisions claim that Higmans deposition could not
17
occur telephonically while he was in France, and yet DOJ prevented plaintiff from deposing Higman until
18
after plaintiff Dobyns had been forced to file his opening motion for summary judgment.
19
In the context of Judge Allegra finding that Higman provided false testimony at trial, and given
20
Higmans false deposition statements, that ATF had never subjected Jay Dobyns to surveillance or viewed
21
or pursued him as a suspect (of which Higman was not only aware but had personally ordered), Kiffners
22
23
motivation was obvious: plaintiff believes that Higman needed to fabricate a story regarding his reason for
audio surveillance of Jay Dobyns that would be consistent with Higmans earlier perjury at his first
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deposition, when he stated under oath that no such surveillance had occurred. Therefore, Kiffner needed
to meet further with Higman to devise and protect similar false testimony during Higmans re-deposition.
The deposition perjury by then-Los Angeles SAC John Torres became clear after the owner of
3
4
Hollywoods Flashbang Productions, Shannon Murphy, was deposed. Based on numerous prior meetings
with Torres, Murphy testified that dozens of deposition statements by Torres were knowingly false. DOJs
knowledge of John Torres perjury is documented by Kent Kiffners statement, made in the presence of
Valerie Bacon to third party witness Shannon Murphy after Murphys deposition, that Torress testimony
was less than truthful. Shannon Murphy subsequently reported Torress perjury in an email to then-ATF
Acting Director Kenneth Melson and to Kent Kiffner, neither of whom took action in response. 19
10
11
Despite these instances of perjury at depositions and plaintiffs timely notification to DOJ, Civil
Division did nothing. As a result, Civil Division violated ethical duties to disclose and act to correct the
12
effects of perjury. Plaintiff intends to establish at the forthcoming evidentiary proceeding that no DOJ
13
14
investigations, charges or discipline of any kind resulted from these instances of false, sworn testimony.
7. DOJ improperly withheld ATFs Internal Affairs Division (IAD) Reports and Professional
Review Board Memoranda to attempt to prejudice plaintiffs right to a fair trial.
15
16
17
ATFs Internal Affairs Division (IAD) conceded the entirety of plaintiffs case in chief in the
conclusions sections of: (1) ATFs October 11, 2012, Report of Investigation (ROI 1) concerning ATFs
18
response to the August 10, 2008, arson at plaintiffs home, and (2) ATFs May 13, 2013, Report of
19
20
Investigation (ROI 2) regarding ATFs withdrawal of plaintiffs covert identification documents (covert
21
22
23
24
Shannon Murphy was plaintiffs witness. Neither Kent Kiffner nor Valerie Bacon undertook any response
to her deposition statements that she feared retaliation by John Torres for testifying, nor did either of them
make any effort to investigate Murphys sworn statements that Torres had threatened and intimidated her.
Bacon assured plaintiff Dobyns that she would handle it internally but did nothing. Plaintiff Dobyns, still a
federal agent at the time, notified ATF of Murphys allegations of threats by Torres and personally incurred
the expense of housing her at a hotel that evening and altering her plane travel to protect her.
19
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IDs). The Justice Department repeatedly, falsely argued to the Court and to plaintiff that the alreadycompleted ROI 1 and its related Professional Review Board (PRB) conclusions, along with the contents of
the forthcoming ROI 2 were not relevant to the allegations of Jay Dobyns lawsuit. After plaintiff
demonstrated the obvious falsity of DOJs claims of immateriality, Civil Division proceeded at trial to
disingenuously attack: (1) the integrity of IAD investigator Christopher Trainor for the unimpeachable and
highly professional manner of his conduct of the investigations and his drafting of ROI 1 and ROI 2; (2) the
competence of ATFs Internal Affairs Division in adopting ROI 1 and ROI 2; and (3) ATFs PRB for
applying portions of ROI 1 to William Newell and George Gillett in recommending the termination of their
federal employment. Thus, Civil Division desperately attacked its own client, ATF, as part of a strategy to
10
11
misrepresent the nature of both ROI 1 and ROI 2 to the Court and withhold critical evidence from plaintiff.
The litigation timeline for ROI 1 and ROI 2 is as follows. During 2012, and subsequent to the
12
August 31, 2011 discovery cutoff in this lawsuit, ATFs Internal Affairs Division undertook its own
13
14
15
investigation of the roles of William Newell and George Gillett regarding the 2008 arson investigation. IAD
subsequently completed ROI 1. IAD simultaneously investigated but separately reported out its findings
16
regarding the roles of William Newell, Marino Vidoli and Steven Pugmire in the withdrawal of plaintiffs
17
covert IDs. ATFs PRB then conducted a hearing on ROI 1 in November 2012, at which it analyzed ROI 1
18
and made recommendations to terminate the employment of George Gillett and William Newell, based on
19
ROI 1s factual conclusions. Because ATF generated ROI 1 and ROI 2 after the close of discovery, the
20
discovery supplementation requirements of Federal Court of Claims Rule 26(e) represented plaintiffs only
21
access to both reports of investigation, along with the related PRB memoranda, conclusions and
22
23
24
employment recommendations with ATFs PRB made based on the reports respective findings.
RCFC Rule 26(e)(1)(A) required that defendant timely and reasonably supplement its Rule 34
document production responses, because plaintiffs previous requests for production of documents
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captured any and all documents in ATFs possession related in any respect to the August 10, 2008, arson
at the Dobyns residence. Because the Courts Amended Protective Order protected pending personnel
proceedings, there was no cognizable privilege excusing defendants failure to immediately produce the
IAD and ROI documents, with their clearly relevant factual findings. And yet David Harrington and Civil
Division improperly withheld the documents, without legal grounds, while at the same time repeatedly
misrepresenting to the Court and plaintiff the contents and immateriality of ROI 1 and ROI 2. DOJ went to
unethical lengths to keep the factual findings of ROI 1, ROI 2 and the PRB conclusions from plaintiff.
8
9
10
11
Continuing the Timeline: because plaintiffs Appendix A, Rule 13 Meeting of Counsel memorandum was due on January 16, 2013, plaintiff requested that defendant immediately produce ROI 1 and the
related PRB conclusions and PRB file, while Agent Trainor finished ROI 2. Civil Division denied plaintiffs
request, groundlessly claiming that the deliberative process privilege existed for personnel as opposed
12
to policy documents, and further ignored this Courts existing Amended Protective Order. In the
13
14
15
process, Civil Division refused to summarize the contents of the PRB File, required by Rule 26(b)(5)(A)(ii).
Withholding ROI 1 and the related PRB recommendations and conclusions prevented plaintiff from
16
including certain of his witnesses and exhibits in his January 16, 2013 Rule 13 Meeting of Counsel
17
preliminary list of witnesses and exhibits, and in his February 19, 2013 final witness and exhibit list.
Continuing the Timeline: between September 17, 2012, and April 19, 2013, plaintiffs counsel
18
19
made twenty-two written meet and confer requests for defendant to provide ROI 1, ROI 2 and the
20
corresponding PRB file(s). Defendant denied all of plaintiffs requests based on DOJs false claims of
21
immateriality and because, six months after the PRB had met and issued its conclusions, Assistant
22
Director Thomas Brandon had inexplicably refused to sign and finalize the PRB recommendations.20
23
24
25
See Section 8, infra, for explanation as to Civil Divisions subversion of disclosure requirements by
replacing ATFs ordinary PRB Bureau Deciding Official with Thomas Brandon for ROI 1 and ROI 2 only.
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By letter dated January 11, 2013, David Harrington replaced DOJs earlier demand for plaintiffs
1
2
counsel to incur the time and expense to travel to Washington DC to view ROI 1 in the Justice
Departments DC office, with an offer to review ROI 1 in the U.S. Attorneys Office in Arizona to facilitate
trial preparation. On January 13, 2013, within ninety (90) seconds of reviewing the factual conclusions of
ROI 1 (APP8), undersigned counsel recognized their essentially dispositive nature in favor of plaintiff with
respect to the allegations in his case in chief. And yet, DOJ refused to permit undersigned counsel to take
notes or use the review of ROI 1 as part of any motion to compel the documents. And even more
egregious, as a term of reviewing ROI 1, DOJ prohibited undersigned counsel from discussing the
contents of ROI 1 with his client or disclosing the contents to Judge Allegra in a motion to compel.
10
11
DOJ continued to refuse to produce ROI 1 and the PRB recommendations on false grounds of
immateriality21 and deliberative process privilege. However, ATFs response to plaintiffs Freedom of
12
Information Act (FOIA) request for the report stated that the underlying allegations in this internal
13
14
15
16
investigation are of the type which could amount to violations of civil or criminal law (September 28, 2012,
letter from P. Chisholm to J. Reed) (APP9). Despite that concession in ATFs FOIA response, Civil
Division continued to falsely state to plaintiff and to the Court that the IAD conclusions were not relevant.
The Court stated during the May 2013 pre-trial management status conference in Washington DC
17
18
that the October 11, 2012 Report of Investigation was not merely a material document, but a core one,
19
and ordered that witnesses critical to explaining ROI 1 would testify in Tucson during the first portion of
20
trial. Both plaintiffs and defendants witness statements regarding ROI 1 demonstrated that David
21
22
23
24
25
Defendants Response to Plaintiffs Rule 37(a)(1) Motion to Compel Rule 26(3)(1)(A) Supplemental
Production of Documents as to Defendants Report of Investigations and Related Professional Review
Board File states at page 1: [a]fter filing this lawsuit, Mr. Dobyns submitted an internal, administrative
complaint alleging employee misconduct in connection with ATFs investigation of the fire at his house,
and subsequently at page 4 of the memorandum misrepresented to the Court that [t]he asserted
relevance of the ROI is particularly dubious. (emphasis added)
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Harringtons misrepresentations to the Court during the prior, April 3, 2013, status conference - that the
factual portion of ROI 1 consisted simply of transcripts from this lawsuit - were willful and calculated false
statements, intended to mislead a federal court regarding core evidentiary issues.
Even despite the Justice Departments claim that the legal concessions by ATF in ROI 1 were not
relevant to the second amended complaint, the factual admissions in both ROI 1 and the PRB File were
sufficient to require the immediate production of ROI 1 and ROI 2 under Rules 26 and 34. Plaintiff was
entitled to use ATFs own conclusions of fact admitting misconduct by ATF with respect to ATFs response
and investigation of the August 10, 2008 arson at plaintiffs home. Those facts established that ATF
breached the settlement agreements covenant of good faith by violating, at minimum: (1) ATF Orders
10
11
3040.1A, 3040.2A, 3210.7C22; (2) ATFs obligation to conduct thorough risk assessments when called for
by threat circumstances, such as the August 10, 2008 arson; and (3) the spirit of the September 2007
12
settlement agreement to protect plaintiff, as part of an agreement arising out of claims by plaintiff that ATF
13
14
15
had failed to respond to threats of death and violence against him. During the period of time that
Harrington misrepresented to the Court the contents of ROI 1 and ROI 2, all of those legal issues were
16
before the Court for trial, thereby mandating Harringtons obligations to be forthcoming about the factual
17
materiality of ROI 1 and ROI 2. Civil Division should have immediately made available to plaintiff the
18
factual admissions of ROI 1 and its related PRB conclusions in November 2012, to use in motions in
19
limine and potentially for plaintiff to use in a renewed motion for summary judgment.
20
21
Instead, at the time plaintiff filed his motion to compel production of ROI 1 and ROI 2, along with
the respective PRB files, defendant had been in possession of ATFs October 11, 2012 Report of
22
23
24
25
Although the court, in its final Opinion, found that ATF orders were not included within the 2007
settlement agreement, the Court, as of the time of trial, had not precluded that legal theory. Thus, DOJ
was required to produce documents such as ROI 1 and ROI 2 that were relevant to violations of AFTF
orders.
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Investigation for seven months, and had possessed the Professional Review Board conclusions adopting
ROI 1, for six months. The Justice Department ignored this Courts Amended Protective Order as part of
what plaintiff argues was an unethical strategy designed to hinder and handcuff plaintiffs ability to prepare
for trial and review the report during a pre-trial settlement conference in April 201323. Indeed, the amended
protective order arose out of the protection of the personnel files of a witness William Newell during
Newells deposition in August 2010. Civil Division had no reasonable basis to withhold ROI 1 and ROI 2
and the related PRB files. David Harringtons conduct was deliberately misleading towards the Court and
prejudicial to plaintiff regarding time-sensitive opportunities to make highest use of ROI 1 and the PRB file.
8. For ROI 1 and ROI 2 only, ATF Assistant Director Thomas Brandon replaced PRB Bureau
Deciding Official (BDO) Steven Zellers, who was anticipated to sign ROI 1s PRB
recommendations within days of issuance. AD Brandon then refused to accept the PRB
recommendations for ROI 1 and ROI 2, possibly at DOJs instruction in order to maintain
DOJs objections based on the deliberative process privilege, and yet ordered no
additional investigation to clarify his concerns.
10
11
12
Plaintiff submits that, as part of an effort to delay the production of ROI 1 and the related PRB
13
14
recommendations, ATF replaced its Professional Review Boards Bureau Deciding Official (BDO) Steven
15
Zellers, who would normally complete the approval process and sign the PRB recommendations within
16
17
days after the PRB proceeding, with ATFs Deputy Director, Thomas Brandon, second in command of
ATF. Deputy Director Brandon then categorically refused to sign off on the PRB conclusions for ROI 1
18
and, to plaintiffs knowledge, never signed the PRB recommendations for ROI 1 or ROI 2. Plaintiff wishes
19
20
21
to investigate whether contends this prejudicial personnel swap was at the improper direction of Civil
Division for the purpose of withholding the PRB memorandum and ROI 1 from plaintiff. The logical
22
23
24
25
Plaintiff contends that DOJs act of withholding of ROI 1 and its PRB conclusions from plaintiff while
participating in mediation at which Donald Kinner and Rachel Bouman represented DOJ and Thomas
Brandon represented ATF, constitutes fraud in the inducement.
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connection and reason is that, as soon as Brandon signed the PRB recommendations accompanying ROI
1, Civil Divisions assertion of deliberative process privilege would evaporate.
Plaintiff submits that the transparency of Civil Divisions strategy in replacing Zellers with Brandon
as Bureau Deciding Official for this PRB proceeding was obvious, resulting in a seven month delay in the
production of ROI 1 and the related PRB file. Plaintiff seeks to determine whether Civil Division, aware of
the materiality of ROI 1 and ROI 2, arranged with ATF to replace Steven Zellers as Bureau Deciding
Official with an ATF assistant director willing to take improper delaying instructions from Civil Division not
to sign the PRB recommendations and thereby protect Civil Divisions assertion of the deliberative process
privilege. If so, Civil Divisions conduct constitutes evidence tampering in an elemental form a complete
10
11
12
13
obstruction of access to documents.

9. On the eve of trial, ATF Deputy Director Brandon issued PRB letters of clearance for
William Newell, Marino Vidoli and Steven Pugmire, current employees found by the Court
to have acted improperly; if this was at DOJs request, it would constitute witness and
evidence tampering.
14
The Court pointed to the superficial and insubstantial manner in which ATF, through Deputy
15
Director Thomas Brandon, created evidence immediately before trial to exonerate ATF officials from
16
17
18
19
20
21
22
23
24
impropriety in recalling the covert IDs of Jay Dobyns:

[C]ontrary to the detailed findings made by the IAD investigation, an ATF
review board summarily found, on the eve of trial, that there were not any
integrity or conduct issues associated with Chiefs Pugmire and Vidoli, and
SAC Newell, in removing the protections previously given to Agent
Dobyns.
Trial Opinion, September 16, 2014, p. 38. The Court compared ATFs nonexistent effort to explain the
exoneration to the outstanding critique of ATFs conduct by Christopher Trainor:
By comparison to the single paragraphs that constituted the PRBs
memoranda clearing these individuals, Agent Trainors IAD report on the
removal of the backstopping provided hundreds of findings, and was
based on hundreds of documents and five months of interviews.
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Id. Plaintiff submits that Civil Division wielded ATFs replacement of PRB Bureau Deciding Official Steven
Zellers with ATF Deputy Director Thomas Brandon with respect to ROI 1 and ROI 2 only, as a two-edged
evidentiary sword. On the one hand, Civil Division used Brandons refusal to sign the PRB conclusions
related to ROI 1 in order to withhold and obstruct plaintiffs access to ROI 1 and the PRB
recommendations under the deliberative process privilege, while at the same time Civil Division used
Brandon to generate new trial evidence supporting defendant, in the form of the witness clearance letters
for Newell, Vidoli and Pugmire. If Civil Division instructed or assisted Thomas Brandon in any way to
generate these letters of clearance, then DOJ engaged in both witness and evidence tampering.
9
10
11
10. Plaintiff seeks to establish that Civil Division attorneys improperly coached trial witness
Ronnie Carter during questioning, including possibly signaling to him electronically while
Carter was on the witness stand through his cell phone.
Witness and former ATF Acting Director Ronnie Carter was a fulcrum witness as to the meaning
12
and interpretation of the September 2007 settlement agreement that formed the basis of this lawsuit.
13
During his December 2010 videotaped deposition, only a little more than two years following the August
14
2008 arson, Mr. Carter gave numerous instances of testimony favorable to plaintiff. Tragically,
15
subsequent to his deposition, Mr. Carter suffered two strokes. Civil Division faced a formidable challenge
16
in any situation where Mr. Carter varied in his June 2013 trial testimony from his December, 2010
17
videotaped deposition. Obviously, any defense claims that Mr. Carters trial testimony was more reliable
18
and his memory more dependable as compared to his 2010 deposition testimony would not be credible.
19
At trial, Carter overtly, constantly looked to defense counsels table before answering each
20
question, which likely both the Court and undersigned counsel tolerated because of Mr. Carters
21
debilitated condition. While there is no video of his trial testimony, Mr. Carters conduct at his videotaped
22
deposition was the same, taking a pause after each question, looking to defense counsel, then delivering
23
a slow, deliberate answer. Plaintiff submits that Civil Division guided Mr. Carter through his testimony at
24
both his deposition and at trial. Nevertheless, plaintiff had obtained favorable deposition testimony.
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Then, at trial, the cell phone held by Mr. Carter rang repeatedly during two critical moments of
argument over objections by DOJ to questions that undersigned counsel had posed to Mr. Carter. (APP8)
Mr. Carter stated on the record that he did not know how to turn off the cell phone, an odd circumstance if
it was his phone. When plaintiffs trial paralegal Jeff Elder retrieved the cell phone from Mr. Carter at the
request of the Court, David Harrington hastily met Jeff Elder steps from the witness stand and took the
phone with two hands, one hand covering the phones display. It was noticeably distinctive behavior to
such an extent that both undersigned counsel and Jeff Elder recalled it afterwards.
8
9
In the context of multiple examples of misconduct alleged against Civil Division attorneys in this
lawsuit, there is one scenario that, tragically from an ethics standpoint is very logical. It is one that
10
plaintiff would never suggest but for myriad unethical conduct by Department of Justice attorneys alleged
11
herein. A possible reason for Mr. Carters phone being on during his trial testimony, one that is consistent
12
with: (1) Mr. Carters unfamiliarity with the phone and his inability to turn it off; (2) the phone vibrating or
13
ringing during key moments of arguments over objections between attorney Oliver and undersigned
14
counsel; and (3) David Harringtons quick recovery and covering of the phone, is that a Department of
15
Justice telephone number or caller ID appeared on the phones display. In other words, Civil Division was
16
using the cell phone to remind Mr. Carter to look to counsels table for guidance with his answers.
17
Consistent with that scenario, Mr. Carter would have been unfamiliar with the phone because it
18
was not his, i.e., Mr. Harrington or another Civil Division attorney provided the phone to Mr. Carter for use
19
during trial. By using a call or vibration mode, defense counsel intended to signal to a disabled witness to
20
look to defense counsels table for visual cues regarding answers during a critical moment of objections to
21
testimony, all as a method of leveling the playing field on behalf of a witness who possessed a cognitive
22
disability. If so, then unfortunately for Civil Division, the phone was set to audibly ring instead of vibrate.
23
Each trial attorneys cell phone records, particularly David Harringtons phone log, for June 11,
24
2013, would make clear whether any Civil Division attorney called or texted to the phone in Mr. Carters
25
possession while he was testifying. Since the phone that Mr. Carter was using might not have been his
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own, his own telephone records for June 11, 2013, will either reveal the source of the calls at mid-day, or
else will show no record of a call whatsoever meaning the ringing phone in his possession was not his.
Mr. Carter simply needs to be asked why his cell phone was on and whether he received any
3
4
forms of calls, text messages or prompts from the Department of Justice on the cell phone in his
possession during your trial testimony. Further, Mr. Carter should explain if he was receiving cues from
his lawyers during questioning. Plaintiff would ask all defense counsel, i.e., attorneys Harrington, Niosi,
Oliver, Oneyama and Bouman what they know on this topic as well.
V.
9
10
Plaintiff submits that other topics of fraud on the Court not expressly enumerated
in plaintiffs Rule 60 motion, but which are appropriate for investigation, should be
considered as well.
A.
13
If evidence emerges that the Justice Department influenced the trial

testimony of former ATF Acting Director Ronnie Carter or former Assistant
Director William Hoover, the Court may reconsider its rejection of plaintiffs
claim that the defendant breached an express term of the settlement
agreement, which in turn would expose the government to lost benefit of
the bargain expectation damages.
14
To what degree, if any, defense counsel influenced the testimony of contract negotiators Ronnie
11
12
15
Carter and William Hoover is central to plaintiffs right to a fair trial and to the integrity of the proceedings.
16
17
18
Plaintiff contends that different testimony from witness Ronnie Carter as to whether the settlement
agreement included ATF Orders would have affected the trial outcome and enhanced the award of
damages in favor of plaintiff in the multiples of tens. The Court alluded to plaintiffs testimony supporting a
19
lost-benefit-of-the-bargain damages theory24 in the Courts opinion25, but when the Court concluded that
20
21
22
23
24
25
Expectation damages are intended to give [a plaintiff] the benefit of his bargain by awarding him a sum
of money that will, to the extent possible, put him in as good a position as he would have been in had the
contract been performed. Restat 2d of Contracts, 347 at cmt. a; see also Cuyahoga Metro. Hous. Auth.
v. United States, 65 Fed. Cl. 534, 543 (2005)(The general rule in common law breach of contract cases is
to award damages sufficient to place the injured party in as good a position as he or she would have been
had the breaching party fully performed.).
24
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defendant did not violate express terms of the contract, it declined to visit that damages theory further.
Accordingly, plaintiffs remaining damages theories were pain and suffering and, although ultimately not
adopted by the Court, loss of consortium. Under the Courts formula for damages, this yielded $173,000
for plaintiff, as compared to lost benefit of the bargain damages sought in an amount of ten million dollars.
Plaintiff submits that he would have proven breach of an express term of the settlement
agreement if Mr. Carter had testified as anticipated: that ATF orders were included within paragraph ten of
the agreement, consistent with his trial testimony at trial transcript page 486, lines 17-21 (APP9):
Q. Okay, so if there was an ATF order that governed how ATF investigated
threats against its employees, would that be included with the agreement?
A. Yeah, I would say so.
9
10
11
12
Instead, other than that single trial excerpt, Mr. Carters testimony as to whether the settlement agreement
included ATF orders seemed glaringly strained in its conformity to a line of responses favorable to DOJ.
13
William Hoover is the other, lesser important, witness as to the governments interpretation of the
14
settlement agreement. It is possible that witnesses who testified in the Washington DC portion of the trial,
15
i.e., Mr. Hoover, if aware of the nature of threats issued against Agent Trainor following the Tucson trial
16
phase, would be so offended by the absence of fair play, that they will be more forthcoming about any
17
prior efforts by DOJ to suggest testimony or manipulate recollections, interpretations or testimonial
18
language choice. If Mr. Hoover, as to his interpretation of the contract, had been leaning away from
19
20
testimony that precisely reflected his recollection of his interpretation of contract terms and negotiations,
the fact of the improprieties exerted on honorable witnesses supporting the plaintiff may re-invigorate and
21
22
23
24
25
As the Courts Opinion notes, Agent Dobyns testified that he would have demanded additional
compensation if there had been no assurance that the conduct in question would cease. In other words,
Jay Dobyns would have sought more in payment had he been properly made aware by ATF that it
believed it possessed unilateral, undisclosed reservations of rights under the agreement to respond
indifferently and with investigative obstruction towards the August 10, 2008 arson of the Dobyns residence
and to wrongly and unlawfully pursue him as the suspect instead of investigating known, credible
assailants who had previously issued death and violence threats against Jay Dobyns and his family.
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re-purpose Mr. Hoover in their testimonial accuracy, even if their testimony negatively impacted the
government. Thus, the testimony of Mr. Carter and Mr. Hoover can test any improper impact of defense
counsel conduct upon the legal theories of breach of express term of contract and contract damages.
B.
4
5
Facts regarding an assault on plaintiff returning from an ATF event and regarding
potential entrapment by ATF employees or informants also merit questioning.
During the course of this lawsuit, plaintiff received two extraordinarily odd telephone calls from
6
7
8
9
ATF personnel or informants confessing a desire to injure ATF managers. Plaintiff gave no encouragement and reported the calls to ATF. The callers, whom plaintiff did not previously know, both made
strange inquiries to plaintiff for information on his lawsuit. If these were directed by DOJ, as plaintiff
10
believes, they would constitute an underhanded and unethical attempt to communicate with a represented
11
party and to entrap a participant in an active lawsuit. Those two matters are now among several
12
deserving fresh review, given Civil Division hard ball tactics that are now coming to light. The question is
13
whether the calls were entrapment and whether Civil Division attorneys were aware of the effort.
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Secondly, during a return from Rochester New York in 2013, where plaintiff was speaking at an
ATF conference, plaintiff was assaulted by two Hells Angels associates or members riding on the New
York to Chicago leg of the trip. Plaintiff was assaulted on the jetway leading from the plane to the Chicago
terminal, and as the two assailants got away, was stunned by (1) the absolute disinterest by federal
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authorities to apprehend the men, and (2) ATFs refusal to pursue the matter in any manner whatsoever.
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ATFs neglect prompted an EEO complaint by plaintiff, which was also neglected. Plaintiff again seeks to
briefly inquire as to the knowledge of relevant ATF witnesses and Civil Division attorneys as to the events
and whether they represent an attempt at entrapment.
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VI.
Plaintiffs key witnesses for the proceedings and the scope of inquiry.
The following is plaintiffs non-exclusive list of witnesses whom plaintiff submits are critical to the
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3
investigation. Reasons requiring additional witnesses include that deposition testimony and discovery
responses may alter plaintiffs deposition needs, including not deposing some of the following persons. To
help define the next investigative stages, plaintiff views it as helpful to provide the following deponent list.
Plaintiff proposes that instead of an evidentiary hearing, the Special Master permit depositions of
witnesses for 2-3 hour blocks of time. Plaintiff further suggests that the Special Master attend the
depositions in order to resolve objections real-time and ask his own questions. At the end of discovery,
which would also include written discovery, the parties could submit motions akin to post-trial briefs.
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Non-attorney deponents / hearing witnesses:
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1)
2)
3)
4)
5)
6)
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7)
8)
9)
10)
11)
12)
13)
14)
15)
16)
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IAD Lead Investigating Agent Christopher Trainor

Chief of ATF Office of Professional Responsibility Daniel Machonis
ATF Deputy Director Thomas Brandon
Phoenix Special Agent in Charge Thomas Atteberry
Los Angeles Special Agent in Charge Carlos Canino
Person(s) responsible for closing down ATFs criminal investigation into the threats by
Charles Higman Rule 30(b)(6) / the person most knowledgeable
Former Tucson Group Supervisor Charles Higman
Former Phoenix Assistant Special Agent in Charge George Gillett
Former ATF Acting Director Ronnie Carter
Former ATF Assistant Director William Hoover
ATF Director B. Todd Jones
ATF Assistant Director for Office of Professional Responsibility Michael Gleysteen
ATF Assistant Director for Field Operations Ron Turk
ATF Director B. Todd Jones
ATF - William Newell
ATF - Larry Ford
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Attorney deponents / hearing witnesses:
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1.
2.
3.
4.
5.
6.
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DOJ lead trial attorney David Harrington

Former DOJ lead trial attorney Kent Kiffner
Former ATF attorney Rachel Bouman
Former ATF attorney Valerie Bacon
Former DOJ Director of Commercial Branch Jeanne Davidson
DOJ case supervising attorney Brian Snee
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2
3
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7.
8.
9.
8.
10.
DOJ case supervising attorney Donald Kinner

DOJ assistant trial attorney Corrine Niosi
DOJ assistant trial attorney P. Davis Oliver
DOJ assistant trial attorney Veronica Oneyama
DOJ former case supervising attorney, and current Assistant Attorney General
Stuart Delery
11. DOJ Deputy Attorney General James Cole (Trainor incident referred to him)
12. United States Attorney John Leonardo
13. United States Attorney General Eric Holder (regarding: (1) his response to
service of the trial court opinions report of attorney misconduct, (2) any participation in
misconduct decisions, and (3) communications with ATF Director B. Todd Jones, Deputy Attorney
General James Cole, Stuart Delery or Jeanne Davidson regarding this lawsuit)
DATED this 9th day of March, 2015.
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/s/ James B. Reed

BAIRD WILLIAMS & GREER, LLP
6225 North 24th Street, Suite 125
Phoenix, Arizona 85016
Telephone: (602) 445-7720
Attorneys for Plaintiff Jay Anthony Dobyns
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on March 9, 2015, a copy of the foregoing Plaintiff Jay
Anthony Dobyns Memorandum Re Issues For Investigation By Special Master was served on counsel for
Defendant electronically to Robert Kirschman, Civil Division, Commercial Litigation Branch, United States
Department of Justice, PO Box 480, Ben Franklin Station, Washington DC 20005.
/s/ James B. Reed

James B. Reed
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Case 1:08-cv-00700-FMA

BAIRD, WILLIAMS & GREER, L.L.P.

James B. Reed (AZ Bar No. 014015)

CASE NO. 08-700C

(Judge Francis M. Allegra)

THE UNITED STATES,

(Judge John M. Facciola Special Master)