Human Rights Alert

PO Box 526, La Verne, CA 91750
Fax: 323.488.9697; Email: jz12345@earthlink.net
Blog: http://human-rights-alert.blogspot.com/
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11-01-20 Corruption of the courts and the legal profession in El Paso – Sealed in the Heart of
Texas
“Public corruption is prevalent in the United States… Public corruption also is a Texas tradition” [8]
Los Angeles, January 20 – the ongoing corruption scandal in El Paso, Texas, continues for the fourth year. In
parallel, USA v Ketner et al (3:06-cr-01369) in the US District Court, Western District of Texas, continues,
sealed, for the fourth year.
Media’s efforts to unseal the case remain denied by US Judge Frank Moltalvo.
Texas Media claim that it is the largest public corruption case in the history of the United States.
In denying denying media’s Motion to Intervene and justifying the ongoing sealing in the case, where a judge is
judging corrupt judges, Judge Frank Montalvo in his May 28, 2008 Memorandum Opinion and Order states:
b. The Public's Common-Law Right of Access
American courts recognize a general right to inspect and copy public records and
documents, including judicial records and documents.[41] "It is uncontested, however, that the
right to inspect and copy judicial records is not absolute. Every court has supervisory power over
its own records and files, and access has been denied where court files might have become a
vehicle for improper purposes.[42]
It is difficult to distill from the relatively few judicial decisions a
comprehensive definition of what is referred to as the common-law
right of access or to identify all the factors to be weighed in
determining whether access is appropriate. The few cases that
have recognized such a right do agree that the decision as to access
is one best left to the sound discretion ofthe trial court, a discretion
to be exercised in light of the relevant facts and circumstances of
the particular case. [43]
41 Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).
42 Id. at 598.
43 Id at 598-99; see also Belo Broadcasting Corp. v. Clark, 654 F.2d 423 (5th Cir. Unit A 1981)
("'Because no clear rules can be articulated as to when judicial records should be closed to the public,
the decision to do so necessarily rests within the sound discretion of the courts, subject to appellate
review for abuse."') (quoting United States v. Mitchell, 551 F.2d 1252, 1260 (D.C. Cir 1976».

In denying on October 14, 2008 media’s second Motion to Intervene, Judge Montalvo’s provides the quote:
"[W]hile all deception requires secrecy, all secrecy is not meant to deceive."
Obviously, in the ongoing El Paso, Texas, sealed court corruption case, the public would not be able to discern
which of the two it is.
______
Attached:
1. 08-05-28 USA v Ketner et al - Memorandum Opinion and Order in re: Carl Starr’s Motion to Intervene ……. 4
2. 08-10-14 USA v Ketner et al - Memorandum Opinion and Order in re: El Paso Media Group’s Motion to Intervene …… 39
3. 08-04-17 Details of El Paso public corruption cases remain hidden _ Texas Civil Rights Project ……. 76
4. 08-10-17 Montalvo denies NPT but unseals court's corruption case transcripts - Newspaper Tree El Paso ……. 83
5. 08-10-20 RCFP_ Court unseals more documents in secret El Paso corruption case ……. 85
6. 08-11-01 RCFP_ Sealed in the heart of Texas ……. 86
7. 08-11-23 Public Corruption in El Paso, Texas, Reaches $2.1 billions ……. 89
z Page 2/3 January 20, 2011
8. 09-07-02 Public Corruption 101_ The archives - Newspaper Tree El Paso ……. 99
9. 10-02-02 El Paso Corruption Spotlight JUDGE BONNIE RANGEL ……. 105
10. 10-02-04 El Paso judge convicted in sex, bribe case ……. 107
11. 10-02-05 Former El Paso Judge Manuel Joseph Barraza Found Guilty in Sex-Bribe Case ……. 108
12. 10-07-19 US Supreme Court rules on ‘honest services’ - Beginning of end for FBI probe ……. 110
13. 10-09-02 El Paso Public Corruption Time Line - Print This Story News Story - KFOX El Paso ……. 116
14. 10-09-02 FBI Press Release - Federal Grand Jury in El Paso Indicts 11 in Corruption Investigation ……. 119
15. 10-09-16 The Corrupt Courts of Collin County ……. 121
16. 10-11-09 2 More Indicted In El Paso Federal Corruption Investigation - KVIA El Paso ……. 126
______

Human Rights Alert is dedicated to discovering, archiving, and disseminating evidence of Human Rights violations by the
justice systems of the State of California and the United States in Los Angeles County, California, and beyond. Human
Rights Alert focuses on the unique role of computerized case management systems in the precipitous deterioration of the
integrity of the justice system in the United States.

http://twitter.com/inproperinla
http://www.scribd.com/Human_Rights_Alert
http://inproperinla.blogspot.com/
http://human-rights-alert.blogspot.com/
http://www.liveleak.com/user/jz12345
http://www.examiner.com/x-38742-LA-Business-Headlines-Examiner
_____________________________
WHAT DID THE EXPERTS SAY ABOUT THE JUSTICE SYSTEM IN THE UNITED STATES?
* "On July 26, 2010, Laurence Tribe, Senior Counsel for the United States Department of Justice, Access to Justice
Initiative, delivered an important speech to the Conference of Chief Justices, challenging them to halt the disintegration of
our state justice systems before they become indistinguishable from courts of third world nations."
Prof Laurence Tribe, Harvard Law School (2010), per National Defender Leadership Institute
http://www.nlada.net/library/article/national_dojspeechto%20chiefjustice07-26-2010_gideonalert
_____________________________
WHAT DID THE EXPERTS SAY ABOUT THE JUSTICE SYSTEM IN LOS ANGELES COUNTY, CALIFORNIA?
* "Innocent people remain in prison"
* "...the LA Superior Court and the DA office, the two other parts of the justice system that the Blue Panel Report
recommends must be investigated relative to the integrity of the system, have not produced any response that we know
of..."
LAPD Blue Ribbon Review Panel Report (2006)
http://www.scribd.com/doc/24902306/
* "...judges tried and sentenced a staggering number of people for crimes they did not commit."
Prof David Burcham, Dean, Loyola Law School, LA (2001)
z Page 3/3 January 20, 2011
http://www.scribd.com/doc/29043589/
* "This is conduct associated with the most repressive dictators and police states... and judges must share responsibility
when innocent people are convicted."
Prof Erwin Chemerinsky, Dean, Irvine Law School (2001)
http://www.scribd.com/doc/274339
_____________________________
WHAT DID THE UNITED NATIONS HUMAN RIGHTS COUNCIL STAFF REPORT SAY ABOUT THE JUSTICE
SYSTEM IN CALIFORNIA?
* "...corruption of the courts and the legal profession and discrimination by law enforcement in California."
http://www.scribd.com/doc/38566837/


Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 1 of 35
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHN TRAVIS KETNER, et al.,
Defendants.
§
§
§
§
§
§
§
§
§
§
EP-06-CR-1369-FM
MEMORANDUM OPINION AND ORDER
REGARDING MOTION FORLEAVE TO INTERVENE
Before the Court is Carl Starr's ("Starr") pro se "Motion for Leave to File Motion to
Intervene for the Limited Purpose of Being Heard in Connection with Access to Certain Portions
of the Record and Hearings and Memorandum in Support" ("Motion for Leave to Intervene")
[Rec. No. 57], filed in the above-captioned cause on March 26, 2008. Attached to his Motion for
Leave to Intervene is Starr's proposed "Motion to Intervene for the Limited Purpose of Being
Heard in Connection with Access to Certain Portions of the Record and Hearings and
Memorandum in Support" ("Proposed Motion to Intervene"). Therein, Starr asks the Court to:
(l) unseal all presently-sealed plea agreements filed in this cause; (2) unseal any other sealed
papers filed in this cause; and (3) open all hearings convened in this cause to the public.
Implicitly, Starr also asks the Court to unseal the transcripts for any closed hearings which
occurred before he filed his Motion for Leave to Intervene, as well as to make any future hearings
open to the public. Starr additionally seeks access to affidavits underlying search warrants
associated with the Government's ongoing public corruption investigation. If the Court
Case 3:06-cr-01369-FM Document 60
Filed 05/28/2008 Page 2 of 35
determines compelling interests require the sealing of all or a portion of the previously listed
documents or the closing of hearings to the public, Starr asks the Court to issue a written order
stating its findings of fact and conclusions of law which support its decision.
In a motion [Rec. No. 58] filed on April 7, 2008, Starr also asks the Court to set an oral
hearing on his Motion for Leave to Intervene. On April 29, 2008, Starr filed another motion
[Rec. No. 59] seeking leave to supplement his original Motion for Leave to Intervene with
summaries of two additional cases which he believes support his request for access.
For the reasons discussed below, the Court finds it should deny Starr's motion for an oral
hearing; grant his motion to supplement his original Motion for Leave to Intervene; and deny
Starr's Motion for Leave to Intervene with the exceptions set forth in Part VI of the
Memorandum Opinion.
I. PRELIMINARYPROCEDURAL CONSIDERATIONS
A. The Procedural Propriety ofa Motion to "Intervene"
Before it may consider the merits of Starr's filing, the Court must determine the legal
basis for it. Starr has invoked the First Amendment and titled the motion he wishes to file as a
motion to "intervene." No such procedural vehicle exists in criminal cases. Rather, a motion to
intervene is a procedural vehicle used in civil actions. I Further, in the context of determining
whether an appeal is properly before it, the Fifth Circuit has indicated certain misgivings
regarding the procedural propriety of such self-described "motions to intervene" filed in cases
1 See FED. R. elV. P. 24 (describing intervention of right and permissive intervention in a civil
proceeding).
2
Case 3:06-cr-01369-FM Document 60 Filed OS/28/2008 Page 3 of 35
challenging lack of media access to trial proceedings.
2
The courts differ on whether the media, though not parties to a
case, may [directly] appeal closure orders or must seek other
avenues of review. Some, including ours, have allowed such
[direct] appeals. Others allow an appeal after one of the media has
"intervened" in the underlying action for the purpose of
challenging the closure order.
3
In addition, the Fifth Circuit has stated that ''third parties lack standing in criminal proceedings."4
The direct, distinct and palpable injury in a criminal sentencing
proceeding plainly falls only on the defendant who is being
sentenced. It is the defendant and he alone that suffers the direct
consequences of a criminal conviction and sentence. Collateral
individuals to the proceeding ... have not suffered an Article III
direct injury sufficient to invoke a federal court's jurisdiction to
rule on their claim. For this reason, a private citizen generally
lacks standing "to contest the policies of the prosecuting authority
when he himself is neither prosecuted nor threatened with
prosecution.,,5
Be that as it may, courts, including courts of this Circuit, have implicitly recognized the ability of
the press or public to object, on First Amendment or common law grounds, to ajudicial decision
closing hearings and sealing documents in criminal cases by way of a motion or petition filed in
the appropriate district court.
6
Thus, mindful of Starr's pro se status, the Court will interpret his
2 See United States v. Chagra, 701 F.2d 354, 359 (5th Cir. 1983).
3 Id. (internal citations omitted).
4 McClure v. Ashcroft, 335 FJd 404, 411 (5th Cir. 2003); see United States v. Grundhoefer,916
F.2d 788, 792 (2d Cir. 1990).
5 Grundhoefer, 916 F.2d at 792; see McClure, 335 FJd at 411 (citing Grundhoefer with
approval).
6 See, e.g., In re Providence Journal Co., 293 FJd 1,6-7 (Ist Cir. 2002) (relating the procedural
process through which a newspaper sought access to certain documents filed in a widely publicized
public corruption case); United States v. Edwards, 823 F.2d Ill, 113-14 (5th Cir. 1987) (describing the
process by which the press objected to the in camera questioning ofjurors when a question of outside
3
- ---------------------
Case 3:06-cr-01369-FM Document 60
Filed OS/28/2008 Page 4 of 35
Motion for Leave to Intervene as an objection to the undersigned's decisions to close certain
hearings and seal various documents filed in this cause. The Court will also interpret his Motion
for Leave to Intervene as a request for it to: (1) inform the public and press of upcoming
hearings in this cause, if any, by posting notice of such hearings on the Court's public calendar
and the electronic case docket for this cause; and (2) keep any such proceedings open to the press
and general public.
B. Starr's Request for an Oral Hearing
Starr's Motion for Leave to Intervene concerns issues of law which are adequately briefed
in his written pleadings. It does not involve any disputed issues of fact which would require
determination by the undersigned. When a motion raises only issues of law instead of law and
disputed facts, it is standard procedure for federal district courts to decide the motion based on
the parties' written submissions. The Local Court Rules for the Western District of Texas reflect
this procedure: "A movant or respondent may specifically request an oral hearing, but the
allowance of an oral hearing shall be within the sole discretion of the judge to whom the motion
is assigned."7
The Court finds it has sufficient facts and legal authority before it to make an informed
influence arose during trial and the sealing ofthe associated transcript); In re Washington Post Co., 807
F.2d 383, 387 (4th Cir. 1986) (recounting that the newspaper filed a motion in district court seeking the
release of a plea hearing transcript and a right to attend future hearings in the case); Chagra, 701 F.2d at
356-57 (describing the process by which news reporters objected to a magistrate judge's decision, upon
the defendant's request, to close portions of the defendant's bond reduction hearing to the public); United
States v. Gurney, 558 F.2d 1202, 1205 (5th Cir. 1977) (during a high profile trial, news reporters filed a
"Petition for Hearing and for Vacation of Restrictions on Press and Other News Media," challenging the
trial court's refusal to give the reporters access to certain documents and exhibits).
7 LCVR-7(g); see also Crestview Parke Care Crr. v. Thompson, 373 F.3d 743, 750 (6th Cir.
2004) ("[F]ederal district courts can decide cases as a matter oflaw without an oral hearing when it is
clear there are no genuine material [factual] disputes to be resolved.").
4
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 5 of 35
decision on the merits of Starr's Motion for Leave to Intervene, rendering it unnecessary to hear
live argument. The Court will accordingly rule on Starr's Motion for Leave to Intervene based
on the pleadings on file.
Having disposed of these preliminary procedural issues, the Court now sets forth the
relevant factual and procedural history of this case.
II. BACKGROUND
The above-captioned cause arises from a lengthy and still ongoing criminal investigation
conducted by the Federal Bureau of Investigation, EI Paso Division, into allegations of public
corruption by EI Paso County officials and their associates. The investigation began in the
summer of 2004 and has allegedly uncovered systemic and wide-spread public corruption and
other fraudulent activities directed by individuals within the greater EI Paso community.
The initial Cooperating Witness engaged in over 350 consensually monitored
conversations. The United States Attorney applied for an electronic surveillance warrant (i.e., a
wiretap) pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1996,
codified at 18 U.S.C. §§ 2510-2520 ("Title III"). The wiretap began on July 13,2005, on three
separate telephone lines. The wiretap on Line 2 concluded during December 2005. The wiretap
on Line 1concluded in May 2006. The wiretap on Line 3 concluded in June 2006. All told, the
Government conducted twenty-five months' worth of surveillance on the three lines, during
which the Government intercepted thousands of conversations and text messages. On May 15,
2007, pursuant to this Court's Order, the United States Attorney mailed or hand delivered
notifications to 154 persons whose conversations were intercepted.
Over eighty "persons of interest" have been linked to the investigation. A"person of
5
Case 3:06-cr-01369-FM Document 60 Filed OS/28/2008 Page 6 of 35
interest" is someone with personal knowledge of the conduct under investigation, but who is not
necessarily suspected of criminal conduct. Ofthese individuals, thirty-five are past or current
public officials, either elected or appointed, thirteen are attorneys and three are or were judges.
These individuals represent a wide cross-section of the greater El Paso area, and in many cases,
are prominent community figures.
To date, the FBI has executed twenty-one searches, including two consent searches, and
eight civil seizure warrants. The FBI executed the first search warrant at Hospice El Paso
("HEP") on April 21, 2006. At HEP, the authorities seized 554 boxes of evidence.
The FBI executed a second series of search warrants on three sites located at the National
Center for the Employment of the Disabled's ("NCED") premises on May 9, 2006. The FBI
conducted a consent search at the offices ofNCED's contracted accounting firm on the same
date. Agents seized 1,332 boxes of evidence from NCED and NCED's accounting firm.
The FBI executed the third search warrant on the residence of Marc Schwartz
("Schwartz") on June 15,2006. Agents seized nineteen boxes of evidence at Schwartz's
residence.
The fourth series of search warrants were executed on Access Administrators (a third
party administrator for self-insured employee healthcare benefit plans) ("Access"); Access
subsidiaries Advantage Care Network and Physicians Healthcare Management; the residence of
Access President Frank Apodaca ("Apodaca"); and the office/residence of local attorney Luther
Jones ("Jones") on September 7,2006. At Access and its two subsidiaries, 251 boxes of
evidence were seized. At Apodaca's residence and from one vehicle and another consensually
searched vehicle, thirty boxes of evidence were seized. At Jones's office/residence, eight boxes
6
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 7 of 35
of evidence were seized.
On December 15,2006, the FBI executed a fifth series of search warrants on Salvador
Marcos ("Sal") Mena, Jr.'s ("Mena") residence and business, the Sal Mena, Jr. Insurance
Agency. Mena was then an EI Paso Independent School District ("EPISD") Trustee. The FBI
seized forty-seven boxes of evidence from Mena's residence and business. Agents also seized
$28,250 in cash from a third search location: Mena's bank safe deposit box.
Asixth series of search warrants were executed on the offices ofEI Paso County Judge
Anthony Cobos ("Cobos"), Commissioner Luis Sarinana ("Sarinana"), and Commissioner
Miguel A. Teran ("Teran") at the El Paso County Courthouse on May 15,2007. Search warrants
were also executed on the residence of Commissioner Teran and the residence of EI Paso County
("Thomason") Hospital District Board Member Arturo Duran ("Duran"). Agents seized sixteen
boxes of evidence from Cobos's office, twelve boxes of evidence from Sarinana's office, twenty-
one boxes of evidence and nineteen boxes of evidence from Teran's office and residence,
respectively, and sixteen boxes of evidence from Duran's residence.
On May 18,2007, agents executed civil seizure warrants on Roberto Gerardo "Bobby"
Ruiz ("Ruiz"), who was then an investment banker for Bear Stearns. Agents also seized over
800,000 stock shares, $25,000 in a profit-sharing account, $20,000 in a 401K account, and
$41,000 from Ruiz's Bank of America account.
Agents executed civil seizure warrants on Apodaca on May 21, 2007. The FBI seized
approximately $240,000 from Apodaca's Chase Bank accounts, $89,000 from Government
Employees Credit Union ("GECU") accounts, a Mercedes valued at $32,000, a Cadillac Escalade
valued at $29,000, and a Harley Davidson motorcycle valued at $11,000. Agents additionally
7
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 8 of 35
served a civil seizure warrant on the trust account of Apodaca's criminal defense attorney, Ray
Velarde ("Velarde"), on September 21,2007. Pursuant to that warrant, they seized
approximately $75,000 of Apodaca's funds held in trust by Velarde.
As of this writing, approximately twelve separate investigations are in progress as a result
of the investigatory work initiated in the summer of 2004. To date, the FBI has seized over 2,300
boxes of evidence from the execution of various search warrants and consensual searches. FBI
personnel have conducted interviews with numerous individuals. FBI personnel have
interviewed some of these same people on multiple occasions. This is especially true ofthe
defendants who have pleaded guilty and continue to debrief, and also of the confidential sources
who continue to provide new information. It is estimated the FBI Computer Analysis Response
Team ("CART") examiners have retrieved over sixteen terabytes (l terabyte =1000 gigabytes) of
computer data evidence contained within over 180 various forms of computer hardware (e.g.,
mainframe servers, desktop computers, laptops, thumb drives, etc.) seized from all the various
search sites, in addition to the sizeable amount of computer data seized from the EI Paso County
Courthouse's mainframe servers.
In order to allow the subject searches and seizures, the Court has, as it is constitutionally
mandated to do, reviewed lengthy affidavits. These affidavits describe in exacting detail the
probable cause for each and every one of these searches and seizures. These affidavits reflect the
substance of a carefully conducted investigation into various and diverse courses of conduct.
This Court in each instance was convinced that publicizing the content of these affidavits would
jeopardize the investigation and risk the livelihood and welfare of the persons who have
cooperated in this investigation.
8
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 9 of 35
Rather than waiting for the Government to seek indictments against them from a grand
jury, the following individuals have voluntarily chosen to cooperate with the active investigation,
as set forth below.
A. Defendant John Travis Ketner
The prosecutorial stage of the case formally began on June 8, 2007. On that date, the
Government filed an unsealed, four-count, eighteen-page Information [Rec. No. I] against
Defendant John Travis Ketner ("Ketner"), charging him with conspiracy to commit mail, wire,
and deprivation-of-honest-services fraud, in violation of 18 U.S.C. §§ 1341, 1346, and 1349
(Counts One, Three, and Four); and conspiracy to commit bribery concerning programs receiving
federal funds, in violation of 18 U.S.C. §§ 371 and 666 (Count Two).8 The Information gave a
general introduction identifying unindicted co-conspirators and business entities mentioned in the
Information. For each count, and in substantial detail, the Information also described the alleged
conspiracy, scheme and artifice to defraud, manner and means of the conspiracy, and the overt
acts taken in furtherance of it.
As with all the Informations filed in this case thus far, and as it is required to do, the
Government properly referred to the unindicted co-conspirators only by pseudonyms such as
"JohnCC-l" and "JaneCC-l" and the businesses by their acronyms.9 With the Information, the
8 On the same day, Ketner signed a written waiver relinquishing his right to be indicted by a
grand jury.
9 See In re Smith, 656 F.2d 1101, 1106 (5th Cir. 1981) ("The government in this case urges us to
accept the procedures followed regarding the [publicly available] factual resumes [filed in the case,
specifically naming an unindicted third party as the recipient of illicit payments,] to be consistent with
[United States v.] Briggs [, 514 F.2d 794 (5th Cir. 1975)]. The government argues that Briggs only
forbids the naming of unindicted co-conspirators by a federal grand jury. We cannot agree. The point
made in the Briggs decision is that no legitimate governmental interest is served by an official public
smear of an individual when that individual has not been provided a forum in which to vindicate his
9
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 10 of 35
Government filed a sealed Bill of Particulars in which it specifically identified the unindicted co-
conspirators and entities. to In addition, the Bill of Particulars, as used by the Government herein,
provided Ketner with further details of the allegations contained in the Information. The
Information, though correct in form and sufficient to apprise Ketner of the alleged violations of
the law, is indefinite in some of its statements. The Bill of Particulars provides a level of detail,
which if made public by inclusion in the Information, would seriously impair the ongoing
investigation.
Accompanied by his counsel, Ketner appeared before the Court on June 8, 2007, and
entered a guilty plea to the Information, pursuant to a plea agreement and attached factual basis
filed under seal. The proceeding occurred at the United States Courthouse in San Antonio,
Texas, the administrative seat of the Western District of Texas. The £1 Paso Division is part of
the Western District of Texas. 11 The undersigned conducted the hearing in San Antonio in
response to security concerns.
Notice of Ketner's plea hearing did not appear on the Court's public calendar or the
electronic case management system. The Court closed the plea proceeding to the public. It
additionally sealed the minutes and transcript of the plea proceeding. On June 18,2007, the
rights. We can think of no reason to distinguish between an official defamation originating from a
federal grand jury or an Assistant United States Attorney. The Briggs decision would be rendered
meaningless if it could be so easily circumvented by the actions of an Assistant United States
Attorney."); Briggs, 514 F.2d at 805 (heavily criticizing the practice of actually naming individuals as
unindicted co-conspirators in an indictment charging a criminal conspiracy, when the identities may be
supplied, upon request, through a bill of particulars).
10 See Briggs, 514 F.2d at 805.
11 See 28 U.S.C. § 124(d) (setting forth the sevenjudicial divisions which comprise the Western
District of Texas).
10
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 11 of 35
Court entered the following documents under seal as to Ketner: (1) an "Order Setting Bond," (2)
a "Release Order," and (3) an executed "Appearance and Compliance Bond."
B. Defendant Elizabeth "Betti" Flores
On July 6, 2007, the Government filed a six-count Information [Rec. No. 11] against
Defendant Elizabeth "Betti" Flores ("Flores"). 12 Therein, the Government charged Flores with
conspiracy to commit mail, wire, and deprivation-of-honest-services fraud, in violation of 18
U.S.C. §§ 1341, 1346, and 1349. Accompanied by her counsel, Flores appeared before the Court
on the same day and entered a plea of guilty pursuant to a plea agreement and attached factual
basis filed under seal. Notice of Flores's plea hearing did not appear on the Court's public
calendar or the electronic docket for the case. The Court closed the plea proceeding to the
public. It additionally sealed the minutes and transcript of the plea proceeding. The Court
further entered the following documents under seal as to Flores: (1) an "Order Setting Bond," (2)
a "Release Order," and (3) an executed "Appearance and Compliance Bond."
C. Defendant Bernardo Lucero, Jr.
On August 17, 2007, the Government filed a two-count Information [Rec. No. 30] against
Defendant Bernardo Lucero, Jr. ("Lucero"), charging him with conspiracy to commit mail and
deprivation-of-honest-services fraud, in violation of 18 U.S.C. §§ 1341, 1346, and 1349 (Count
One); and conspiracy to make false statements to obtain credit, in violation of 18 U.S.C. §§ 371
and 1014 (Count Two).13 Accompanied by his counsel, Lucero appeared before the Court the
12 On the same day, Flores signed a written waiver relinquishing her right to be indicted by a
grand jury.
13 On the same day, Lucero signed a written waiver relinquishing his right to be indicted by a
grand jury.
11
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 12 of 35
same day and entered a plea of guilty pursuant to a plea agreement and attached factual basis
filed under seal. Notice of the hearing did not appear on the Court's public calendar or on its
electronic docket for the case. The Court closed the plea proceeding to the public. It additionally
sealed the minutes and transcript of the plea proceeding. The Court further entered the following
documents under seal as to Lucero: (1) an "Order Setting Bond," (2) a "Release Order," and (3)
an executed "Appearance and Compliance Bond."
D. Defendant Carlos Villa "Coach" Cordova
On November 28,2007, the Government filed a one-count Information [Rec. No. 33]
against Carlos Villa "Coach" Cordova ("Cordova"), charging him with conspiracy to commit
mail and deprivation-of-honest-services fraud, in violation of 18 U.S.C. §§ 1341, 1346, and
1349. Accompanied by his attorney, Cordova appeared before the Court the same day and
entered a guilty plea pursuant to a plea agreement and attached factual basis filed under seal.
14
Notice ofthe hearing did not appear on the Court's public calendar or the electronic docket for
the case. The Court sealed the minutes and transcript of the plea hearing. The Court additionally
entered the following documents under seal as to Cordova: (1) an "Order Setting Bond," (2) a
"Release Order," and (3) an executed "Appearance and Compliance Bond."
E. Defendants Roberto Gerardo "Bobby" Ruiz and Christopher "Chris" Chol-Su
Pak
On December 21,2007, the Government filed a four-count Information [Rec. No. 41]
against Roberto Gerardo "Bobby" Ruiz ("Ruiz"), charging him with conspiracy to commit mail,
wire, and deprivation-of-honest-services fraud, in violation of 18 U.S.C. §§ 1341, 1346, and
14 The same day, Cordova signed a written waiver relinquishing his right to be indicted by a
grand jury.
12
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 13 of 35
1349. The Government additionally filed an Information [Rec. No. 42] against Christopher
"Chris" Chol-Su Pak ("Pak"), charging him with one count of conspiracy to commit mail and
deprivation-of-honest-services fraud, in violation of 18 U.S.C. §§ 1341, 1346, and 1349.
Accompanied by their respective attorneys, Ruiz and Pak appeared before the Court the same day
at a closed hearing and entered guilty pleas pursuant to separate plea agreements and factual
bases which were filed under seal. IS Notice of the hearing did not appear on the Court's public
calendar or the electronic docket for the case. The Court sealed the minutes and transcript of the
plea hearing. The Court additionally entered the following documents under seal as to Ruiz and
Pak: (1) an "Order Setting Bond," (2) a "Release Order," and (3) an executed "Appearance and
Compliance Bond."
F Defendant RaymondR. Telles
On February 15,2008, the Government filed a two-count Information [Rec. No. 51]
against Raymond R. Telles ("Telles"), charging him with conspiracy to commit mail, wire, and
deprivation-of-honest-services fraud, in violation of 18 U.S.C. §§ 1341, 1346, and 1349.
Accompanied by counsel, Telles appeared before the Court the same day to enter a guilty plea,
pursuant to a plea agreement. The Court continued the hearing until March 14, 2008, on which
qate Telles actually entered his guilty plea. Neither hearing appeared on the Court's public
calendar or its electronic docket for the case. The Court sealed the hearing minutes and transcript
of the plea hearing. On March 14, 2008, the Court additionally entered the following under seal
as to Telles: (1) an "Order Setting Bond;" (2) a "Release Order," and (3) an executed
"Appearance and Compliance Bond."
15 Ruiz and Pak signed written waivers relinquishing their right to be indicted by a grand jury.
13
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Having recounted the pertinent procedural history of this cause, the Court now considers
the applicable law.
III. CONFIDENTIALITY OF JUDICIAL PROCEEDINGS
A. The Parties' Joint Requests for Confidentiality
Every proceeding described above was held confidentially and the filings sealed at the
joint request of the Government and defense counsel. During conferences preceding each plea
hearing, the parties articulated concerns regarding the potential disclosure of confidential
sources, the Government's investigatory methods, and the overall scope and progress of the
investigation, as well as the danger of witness intimidation and physical harm should the
information to be presented in court become public knowledge.
As a follow up to these conferences, on most if not all occasions, the Government made
an oral motion at each plea hearing for closure of the proceedings and sealing of records, without
objection from defense counsel. To preserve the integrity of the ongoing investigation, the Court
acceded to the parties' joint requests for closure.
B. Applicable Law
The following general principles govern the public's right of access to pre- and post-
indictment judicial proceedings and investigatory materials.
1. The Public's Right of Access to Proceedings and Materials During the
Pre-Indictment. Investigatory Stage of a Criminal Prosecution
United States Attorneys, as delegates of the executive branch, have broad discretion to
initiate and conduct criminal prosecutions. 16 '" [So] long as the prosecutor has probable cause to
16 See United States v. Armstrong, 517 U.S. 456, 464 (1996) (noting the broad discretion the
United States Attorney General and United States Attorneys, as the President's delegates, retain to
14
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Filed 05/28/2008 Page 15 of 35
believe that the accused committed an offense defined by statute, the decision whether or not to
prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his
discretion."'17 The United States Attorney's discretion encompasses not only the choice of what
specific charges to bring, if any, but the decision regarding when, how, and where to bring
them.
18
This broad discretion derives from the separation of powers doctrine as well as the fact
that prosecutorial decisions are especially ill-suited to judicial review. 19
Such factors as the strength of the case, the prosecution's general
deterrence value, the Government's enforcement priorities, and the
case's relationship to the Government's overall enforcement plan
are not readily susceptible to the kind of analysis the courts are
competent to undertake. Judicial supervision in this area,
moreover, entails systemic costs of particular concern. Examining
the basis of a prosecution delays the criminal proceeding, threatens
enforce the country's criminal laws and discussing the reasons for this latitude).
17 Wayte v. United States, 470 U.S. 598,607 (1985) (quoting Bordenkircher v. Hayes, 434 U.S.
357,364 (1978)).
18 See United States v. Labonte, 520 U.S. 751, 762 (1997) ("[T]he discretion a prosecutor
exercises when he decides what, if any, charges to bring against a criminal suspect ... is an integral
feature ofthe criminal justice system, and is appropriate, so long as it is not based on improper factors.");
United States v. Lovasco, 431 U.S. 783, 795-96 (1977) (holding it does not offend due process to defer
prosecuting a defendant where the prosecution's timing results from a bona fide investigative delay and
not from an attempt to gain a tactical advantage over the accused); United States v. McFarland, 264 FJd
557,559 (5th Cir. 2001) (concluding it was not improper for a federal prosecutor to bring charges in
federal court for a crime that had historically been prosecuted by the state system, in order to maximize
punishment for the offense); cf Imbler v. Pachtman, 424 U.S. 409, 430 nJ3 (1980) (stating, in the
context of determining whether the prosecutor was entitled to immunity from the plaintiffs lawsuit, "[a]
prosecuting attorney is required constantly, in the course of his duty as such, to make decisions on a wide
variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether
to file an information, whether and when to prosecute, whether to dismiss an indictment against
particular defendants, which witnesses to call, and what other evidence to present."); Marrero v. Hialeah,
625 F.2d 499, 505 n.7 (5th Cir. 1980) (quoting Imbler, 424 U.S. at 430 nJ3).
19 See Armstrong, 517 U.S. at 464; see also Wayte, 470 U.S. at 607 ("This broad discretion rests
largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.").
15
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to chill law enforcement by subjecting the prosecutor's motives
and decisionmaking to outside inquiry, and may undermine
prosecutorial effectiveness by revealing the Government's
enforcement policy.20
In sum, the prosecution's choices regarding enforcement of the criminal laws are
generally shielded from judicial scrutiny. Law enforcement enjoys a similar general privilege
barring interference with enforcement proceedings while its investigations are underway.21 "The
most obvious risk of 'interference' with enforcement proceedings ... is that ... [the ultimate
targets of the investigation] will coerce or intimidate [those individuals] who have given
statements, in an effort to make them change their testimony or not testify at all.'m Thus,
premature disclosure of witnesses' statements and other details may give the ultimate target of an
investigation earlier and greater access to the Government's case than the target would otherwise
have, and allowthe target to construct defenses which could allow alleged illegal conduct to go
unpunished.
23
The Supreme Court has concluded that it does not defeat the goals of maintaining
20 Wayte, 470 U.S. at 607.
21 Cf NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 239-43 (1978) (discussing the nature
of and rationale for the qualified law enforcement privilege against disclosure requests made pursuant to
the Freedom ofInformation Act ("FOIA"».
22 Robbins Tire, 437 U.S. at 239; Dickerson v. Dept. ofJustice, 992 F.2d 1426, 1433 (6th Cir.
1993) ("[T]he most obvious risk of interference with enforcement proceedings is that witnesses will be
coerced or intimidated into changing their testimony or not testifying at all."); North v. Walsh, 881 F.2d
1088, 1097 (D.C. Cir. 1989) (collecting cases in which courts concluded the forced disclosure of
Government documents would constitute impermissible investigatory interference).
23 See Robbins Tire, 437 at 241 ("In short, prehearing disclosure of witnesses' statements would
involve the kind of harm that Congress believed would constitute an 'interference' with NLRB
enforcement proceedings: that of giving a party litigant earlier and greater access to the Board's case than
he would otherwise have. As the lower courts have noted, even without intimidation or harassment a
suspected violator with advance access to the Board's case could 'construct defenses which would permit
violations to go unremedied. "').
16
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an informed citizenry and holding "the governors accountable to the governed" to defer
disclosure of sensitive investigatory material until after the Government has presented its case in
COurt.
24
Accordingly, the Government may withhold law enforcement records or other
information relating to a pending investigation where it demonstrates the release would "reveal
'the size, scope and direction of [the] investigation' and thereby 'allow for the destruction or
alteration of relevant evidence, and the fabrication of fraudulent alibis. ",25 The Government need
not show "a particularized risk of interference with a particular enforcement proceeding" but only
that disclosure would interfere with enforcement proceedings in genera1.
26
Further, the
Government need not show that the investigation in question will definitely result in prosecution;
the investigation need only be active.
27
In certain circumstances, the Government may continue
to withhold investigatory files even when the investigation in question has concluded:
It is clear that if investigatory files were made public subsequent to
the termination of enforcement proceedings, the ability of any
investigatory body to conduct future investigations would be
seriously impaired. Few persons would respond candidly to
24Id. at 243.
25 Boydv. Criminal Div. of u.s. Dept. ofJustice, 475 FJd 381,386 (D.C. Cir. 2007) (quoting
A/yeska Pipeline Servo Co. v. u.s. Envtl. Prot. Agency, 856 F.2d 309,312 (D.C. Cir. 1988) (brackets in
original).
26 See Dickerson, 992 F.2d at 1431 n.5 (stating that, in Robbins Tire, the "Supreme Court rejected
the contention that 'no generic determinations' of likely interference could ever be made, concluding
instead that 'Congress did not intend to prevent the federal courts from determining that, with respect to
particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while
a case is pending would generally 'interfere with enforcement proceedings. ''').
27 See id. at 1432 (concluding that, because it had adequately shown the investigation was still
active, the FBI was not required to comply with a newspaper's FOIA request for information regarding
the 1975 disappearance and presumed murder of union leader Jimmy Hoffa, even though more than a
decade had passed since Hoffa's disappearance and the Government had not filed charges against those
involved).
17
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investigators if they feared that their remarks would become public
record after the proceedings. Further, the investigative techniques
of the investigating body would be disclosed to the general
public.
28
2. The Public's Right of Access to Post-Indictment Judicial Proceedings and
Documents
a. Rights under the First Amendment
The First Amendment to the United States Constitution guarantees the public and the
press the right to attend criminal trials unless "it is demonstrated that some curtailment of that
right" is necessary '''to protect defendant's superior right to a fair trial or that some other
overriding consideration requires closure. ",29 When the proceeding at issue is not a criminal
trial, but rather some other associated criminal proceeding, a court decides the question of public
access accordingly, on a proceeding-by-proceeding basis.
30
First, the court must determine
whether the First Amendment right of access - and the accompanying presumption that the
proceeding will be open to the public - attaches to the particular proceeding at issue.
3l
To do so,
it considers: (1) "'whether the place and the process has historically been open to the press and
general public"'; and (2) "'whether public access plays a significant positive role in the
28 Blackv. Sheraton Corp. ofAmerica, 564 F.2d 531, 546 (D.C. Cir. 1977) (quoting Aspin v.
Dept. ofDefense, 491 F.2d 24,30 (D.C. Cir. 1973».
29 Chagra, 701 F.2d at 361 (quoting RichmondNewspapers v. Virginia, 448 U.S. 555, 564 (1980)
(Burger, C.1., joined by White and Stevens, J.1.».
30 Edwards, 823 F.2d at 115 & 119 (citing Press-Enterprise Co. v. Superior Court ofCal. ("Press
11'),478 U.S. 1,8 (1986), and Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 610 n.25 (1982),
respectively).
31 Edwards, 823 F.2d at 115.
18
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functioning of the particular process in question. ",32 If the court concludes a First Amendment
right of access and presumption of openness attaches to the proceeding in question, "the
presumption of openness can be overcome only by an overriding interest based on findings that
closure is essential to preserve higher values and is narrowly tailored to serve that interest."33
"'When limited closure is ordered[,] the constitutional values sought to be protected by
holding open proceedings may be satisfied later by making a transcript of the closed proceedings
available within a reasonable time. ",34 Under certain circumstances, the First Amendment
guarantees "a limited right of access to the record of closed [judicial] proceedings ... and raises
a presumption that the transcript of such proceedings will be released within a reasonable time.,,35
Atrial court should "avoid unnecessary delay in releasing the record ofclosed proceedings after
trial. When a motion is made for release of transcripts, the trial court should anticipate their
probable post-trial disclosure and endeavor to release them as soon after verdict as possible."36
In order for the required proceeding-by-proceeding resolution of issues concerning
closure ofpresumptively open proceedings to be effective, "'the press and general public must be
given an opportunity to be heard on the question of their exclusion. ",37 "Ifthe closure of a
33Id.
34Id. at 118 (quoting Press-Enterprise Co. v. Superior Ct. a/Cal. ("Press 1'),464 U.S. 501, 512
(1984)).
35 Cf Edwards, 823 F.2d at 118 ("We conclude that the first amendment guarantees a limited
right of access to the record of closed proceedings concerning potential jury misconduct and raises a
presumption that the transcript of such proceedings will be released within a reasonable time.").
36Id. at 119.
37Id. (quoting Globe, 457 U.S. at 610 n.25),
19
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presumptively open proceeding is to withstand a first amendment challenge," the trial court must
"make specific, on-the-record, factfindings demonstrating that a substantial probability exists that
an interest of a higher value will be prejudiced and that no reasonable alternatives to closure will
adequately protect that interest."38 "Similarly, if the presumption that transcripts will be released
is to be effective, once the press files a motion for disclosure, it must be given a meaningful
opportunity to be heard before any contrary decision is made.,,39 Permanent redaction of
transcripts may in certain circumstances represent a reasonable alternative to non-release.
40
b. The Public's Common-Law Right of Access
American courts recognize a general right to inspect and copy public records and
documents, including judicial records and documents.
41
"It is uncontested, however, that the
right to inspect and copy judicial records is not absolute. Every court has supervisory power over
its own records and files, and access has been denied where court files might have become a
vehicle for improper purposes.'>42
It is difficult to distill from the relatively fewjudicial decisions a
comprehensive definition of what is referred to as the common-law
right of access or to identify all the factors to be weighed in
determining whether access is appropriate. The few cases that
have recognized such a right do agree that the decision as to access
is one best left to the sound discretion of the trial court, a discretion
to be exercised in light of the relevant facts and circumstances of
38 Id. (relying on Press II, 478 U.S. at 13-14).
39 Id. (citing In re Washington Post, 807 F.2d 383 (4th Cir. 1986».
40 See id. at 120 (relying on Press I, 464 U.S. at 512).
41 Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).
42 Id. at 598.
20
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the particular case.
43
With these general principles in mind, the Court turns to Starr's Motion for Leave to Intervene.
IV. ANALYSIS
The Court is well aware of and understands the public's keen interest in the proceedings
and documents associated with this case. On every occasion in which a hearing and documents
have been held confidentially, the Court has weighed the public's right of access against the
Government's need to maintain the integrity ofits lengthy, complex, and ongoing investigation
into public corruption, which the media itself has conceded is critically important to the
community's future prospects.
44
As Texas Monthly columnist Paul Burka recently observed,
"[t]he FBI's investigation of corruption in El Paso isn't just another crime story. It's the latest
chapter in the frustrating saga of a city cheated of its destiny.'>45 Burka continues:
Corruption is a betrayal of civic virtue, and this scandal
could not have come at a worse moment for EI Paso. For the first
time since the old industries began shutting down, the city's
economic prospects are on the rise. Fort Bliss is booming, with
billions of dollars in new construction under way and thousands of
troops scheduled to relocate there, along with their dependents.
The Texas Tech medical school, which was recently accredited,
will begin admitting four-year students next year, and the hope is
that it will become a national leader in diseases that are
disproportionately suffered by Hispanics, such as diabetes. The
school will attract medical professionals and raise the quality of
health care; it may also attract health-related industries with jobs
43Id at 598-99; see also Belo Broadcasting Corp. v. Clark, 654 F.2d 423 (5th Cir. Unit A 1981)
("'Because no clear rules can be articulated as to when judicial records should be closed to the public,
the decision to do so necessarily rests within the sound discretion of the courts, subject to appellate
review for abuse."') (quoting United States v. Mitchell, 551 F.2d 1252, 1260 (D.C. Cir 1976».
44 See Paul Burka, Fed Up, TEXAS MONTHLY, April 2008, at 12 (discussing the significance of
the FBI's investigation of corruption in El Paso to the city's future).
45Id
21
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that pay more than the current norm. The University of Texas at El
Paso is rapidly growing as well.
Perhaps these developments will jolt El Paso's
somnambulent business community, whose leaders have been
generous with their philanthropy but largely indifferent to
improving the lot of the minority population here ...
For the moment, however, El Paso's future rests with the
FBI. Having started the crackdown on corruption, it must see
things through to the end or there will be anarchy and the longed-
for boom will not occur. No one is going to pour energy and effort
and dollars into a city with a crooked government.46
At stake in this matter is not secrecy for its own sake. The rights of the defendants are
not in peril, as they have each, through their respective counsel, asked for the plea proceedings to
be held confidentially. Each ofthem pleaded guilty freely and voluntarily. Rather, the Court
finds the need to respect prosecutorial discretion, preserve the integrity of the investigation, and
protect the due process rights ofunindicted co-conspirators overrides the public's right of access
and the presumption of open proceedings. It has accordingly granted the Government's and
defense counsels' joint requests to close certain hearings to the public and seal certain
documents, until such time as they may be unsealed without jeopardizing the Government's
investigation.
Against this backdrop, the Court now considers Starr's request to unseal these documents,
transcripts of the closed proceedings, and investigatory documents.
A. The Affidavits Underlying Search Warrants
Starr seeks access to affidavits underlying search warrants associated with the
Government's ongoing public corruption investigation. Briefly stated, the Court understands
Starr to argue that the public is entitled to these documents by virtue of a First Amendment right
46Id.at16.
22
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of access to affidavits underlying search warrants while an investigation is ongoing.
Alternatively, the Court understands that Starr seeks to enforce an alleged common law right of
access to the affidavits because they are "judicial records" and therefore presumptively open. As
discussed below, there is substantial legal authority casting doubt upon Starr's argument that the
public has either a First Amendment or common law right of access to the affidavits in question.
Further, assuming that the public has a right of access under either theory, the right is qualified
rather than absolute. The development of this case, as previously described in this Memorandum
Opinion, amply demonstrates that confidentiality is essential to preserve higher values.
The Court first examines whether the First Amendment gives the public a right of access
to affidavits underlying the search warrants associated with this case. For there to be a First
Amendment right of access to the proceeding in question, the place and the process must have
historically been open to the press and general public, and public access must playa significant
positive role in the functioning of the particular process in question.
47
If the court concludes a
First Amendment right of access and presumption of openness attaches to the proceeding in
question, "the presumption of openness can be overcome only by an overriding interest based on
findings that closure is essential to preserve higher values and is narrowly tailored to serve that
interest.,,48
Two of the three circuit courts of appeal to have directly considered the issue have
concluded that the First Amendment does not provide a right of access to affidavits because the
proceedings surrounding the issuance of search warrants have not historically been open to
47 Edwards, 823 F.2d at 115.
48Id.
23
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public scrutiny.49 In Baltimore Sun Co. v. Goetz, the Fourth Circuit Court of Appeals stated:
The [newspaper's] claimofa first amendment right ofaccess to the
affidavit [underlying the search warrant at issue] fails because it
does not satisfy the first prong of the [Supreme Court's] test [for
public access to judicial records]. Twice the Supreme Court has
recognized that proceedings for the issuance of search warrants are
not open.
50
In Times Mirror Co. v. United States, the Ninth Circuit Court of Appeals similarly found no
history of openness, and consequently, no first Amendment right of access:
In sum, we find no First Amendment right of access to search
warrant proceedings and materials when an investigation is
ongoing but before indictments have been returned. We ftnd no
history of openness at this stage in the warrant proceedings which
might argue in favor of a constitutionally protected right of access.
While public access would doubtless have some positive effect by
increasing the flow of information to the public about the workings
ofthe government and by deterring judicial and law enforcement
officers from abusing the warrant process, the incremental value in
public access is slight compared to the government's interest in
secrecy at this stage of the investigation. This is particularly true
given the other mechanisms - including suppression motions and
civil actions for violation ofconstitutional rights - that are already
in place to deter governmental abuses of the warrant process. In
addition, we believe that significant privacy interests would be
jeopardized if the public had access to warrant materials before
indictments are returned. Accordingly, we hold that members of
the public have no First Amendment right to attend warrant
proceedings or to obtain the documents relating to those
proceedings, while the investigation is ongoing but before
indictments have been returned.
51
49 See Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989) (no petition/or cert.filed)
(concluding that the newspaper's claim of a fITst amendment right of access to the affidavit underlying
the search warrant at issue failed because it did not satisfy the first prong of the Supreme Court's test for
public access to judicial records); Times Mirror Co. v. United States, 873 F.2d 1210, 1218 (9th Cir.
1989) (no petition/or cert.filed) (fmding no history of openness).
50 Baltimore Sun, 886 F.2d at 64.
51 Times Mirror Co., 873 F.2d at 1218.
24
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In contrast, In re Search Warrant/or Secretarial Area Outside Office o/Gunn, the Eighth Circuit
Court of Appeals determined the First Amendment provides a qualified right of access to the
affidavits underlying search warrants.52 Although it conceded that the process of issuing search
warrants has historically been shielded from public scrutiny, the Gunn Court noted that the
appellants did not seek access to the process of issuing the search warrants in question, but the
affidavits and other materials submitted in support of them. 53 In reaching its conclusion, the
Court reasoned:
First, although the process of issuing search warrants has
traditionally not been conducted in an open fashion, search warrant
applications and receipts are routinely filed with the clerk of the
court without seal. Under the common law[,] judicial records and
documents have been historically considered to be open to
inspection by the public. Second, public access to documents filed
in support of search warrants is important to the public's
understanding of the function and operation of the judicial process
and the criminal justice system and may operate as a curb on
prosecutorial or judicial misconduct.
Moreover, even though a search warrant is not part of the criminal
trial itself, like voir dire, a search warrant is certainly an integral
part of a criminal prosecution. Search warrants are at the center of
pre-trial suppression hearings, and suppression issues often
determine the outcome of criminal prosecutions. Pre-trial
suppression hearings, and other kinds of non trial proceedings in
criminal and civil cases, have been held to be subject to the [F]irst
[A]mendment right of public access by other federal courts of
appeals. These courts have also extended the [F]irst [A]mendment
right of public access to the documents filed in connection with
52 In re Search Warrant for Secretarial Area Outside Office ofGunn, 855 F.2d 569,573 (8th Cir.
1988) (cert. denied sub. nom. Pulitzer Pub. Co. v. Duggan, 488 U.S. 1009 (1989» (finding a limited First
Amendment right of public access to documents filed in support of search warrants, which may be
overcome by a showing that the government has a compelling interest in maintaining the documents
under seal and no less restrictive alternative will be effective to protect that interest).
53Id at 573.
25
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these protected proceedings.54
It noted, however, that its "recognition of a qualified First Amendment right of access" to the
affidavits did "not automatically mean that the papers must automatically be disclosed. ,,55 The
Court emphasized that:
[p]roceedings may be closed and, by analogy, documents may be
sealed if specific, on the record findings are made demonstrating
that closure is essential to preserve higher values and is narrowly
tailored to that interest. The party seeking closure or sealing must
show that such restriction of the [F]irst [A]mendment right of
public access is necessitated by a compelling government interest.
If the district court decides to close a proceeding or seal certain
documents, it must explain why closure or sealing was necessary
and why less restrictive alternatives were not appropriate. The
district court's findings must be specific enough to enable the
appellate court to determine whether its decision was proper; if the
district court decides that a restriction of the [F]irst [A]mendment
right of public access is warranted, the district court can even file
its statement of reasons and specific findings under seal.56
Although the Eighth Circuit's reasoning is substantially different from the Fourth and Ninth
Circuit Courts of Appeals', applying either reasoning to this case yields the same result. Even if
this Court were to follow the Eighth Circuit and determine there is a First Amendment right of
access to the affidavits in question, it fmds, with regard to every such request to seal the
affidavits, the Government amply demonstrated a compelling interest in maintaining the
confidentiality.
This same compelling interest leads the Court to conclude that, although there may be a
S4Id
S5 Id at 574 (internal quotation omitted).
S6 Id (internal citations and quotations omitted).
26
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qualified common law right of access to these affidavits inasmuch as they are judicial records
and presumptively open, it should exercise its discretion to maintain them under seal.
5
? There is
no doubt that disclosure of these documents at this point would seriously interfere with an
ongoing investigation. Specifically, the Court finds that disclosing these documents to public
view would pose a significant risk to the life or welfare of the cooperating witnesses and
defendants, and expose these same individuals to intimidation. Critical to this conclusion is that
the information at issue in this investigation can be accurately described with the exact same
language used by the Gunn court:
These documents describe inconsiderable detail the nature, scope and
direction of the government's investigation and the individuals and
specific projects involved. Many of the specific allegations in the
documents are supported by verbatim excerpts of telephone
conversations obtained through court-authorized electronic
surveillance or information obtained fromconfidential informants or
both. There is a substantial probability that the government's on-
going investigation would be severely compromised if the sealed
documents were released.58
Thus, the Court finds the public's right of access to documents filed in support of search warrants
should yield to such grave concerns.
B. The Plea Hearings to Date and Transcripts Thereof
At the outset, the Court finds it important to distinguish the public's right of access to
judicial proceedings occurring after a grand jury has returned indictments in a criminal
prosecution from its right of access, if any, to the pre-indictment investigatory proceedings in a
criminal prosecution such as the ones at issue in Starr's Motion for Leave to Intervene.
57 See Nixon, 435 U.S. at 597-98.
58 Gunn, 855 F.2d at 574.
27
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Like the Title mand search and seizure warrants, each of the seven pleas the Court has
taken in this case are part and parcel of the Government's ongoing investigation. The warrants,
guilty pleas, and plea agreements all require judicial approva1.
59
As there is no trial in sight, all
of the pleas and warrants resulted from the Government's decisions inherent to pursuing the
investigation.
While it could be argued that the Government should wait until indictments are filed
before beginning to accept guilty pleas, the authority to make that decision belongs exclusively to
the federal prosecutors.
60
Article II, section 3, of the Constitution vests the President of the
United States and his delegates, the Attorney General and United States Attorneys, with the
authority to exercise judgment in the enforcement of our Nation's laws.
6
\ Such authority is at the
heart of prosecutorial discretion.
In this complex and lengthy investigation, the Government has chosen to advance the
investigation by negotiating plea agreements to Informations with seven defendants and
executing numerous warrants. It is not for this Court or the public to seek to challenge this
exercise of prosecutorial discretion or to force disclosure of the information and rationale
prompting the United States Attorney's Office to pursue this particular course.
In simple terms, Starr's argument can best be understood as follows: Once a defendant
59 See 18 U.S.C. § 2518 (describing the procedure for obtaining a warrant to intercept wire, oral,
or electronic communications); FED. R. CRIM. P. 11 (b) (requiring judicial acceptance of a guilty plea);
FED. R. CRIM. P. ll(c) (requiring judicial approval of a plea agreement); FED. R. CRIM. P. 41 (setting
forth the procedure for obtaining a search and seizure warrant).
60 See Armstrong, 517 U.S. at 464 (discussing the United States Attorney General and United
States Attorneys' roles as the President's delegates in enforcing the country's criminal laws).
61 See U.S. CONST., art. II, § 3 (stating that the executive "shall take Care that the Laws be
faithfully executed.").
28
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freely negotiates a plea agreement with the Government, that decision creates a right ofpublic
access to the totality of the investigation. Not only there is no legal authority for such an
argument, but accepting this proposition would destroy the constitutional concept of
prosecutorial discretion. In essence, the Government would be limited to one way of prosecuting
a case, that is, by indictment and trial after the complete conclusion of its investigation, rather
than, as in this case, entering into plea agreements with cooperating defendants and continuing to
pursue the investigation.
For these reasons, the Court concludes it was proper to close the plea hearings which
have occurred to date in this case. It further concludes it should maintain the plea hearing
transcripts under seal at this time.
C. Other Documents Associatedwith the Plea Hearings
At this juncture, however, the Court finds it will not jeopardize the Government's
investigation to unseal redacted versions of the plea hearing minutes, "Order Setting Bond,"
"Release Order," and "Appearance and Compliance Bond" for each defendant. In contrast, the
Court fmds the plea agreements and associated factual bases filed in this cause contain extremely
detailed and sensitive information, such that opening these documents to public scrutiny at this
time would seriously undermine the viability ofthe Government's investigation for the same
reasons discussed in relation to the affidavits underlying the search warrants issued in this cause
and the plea hearing transcripts. Further, as the factual bases identify alleged unindicted co-
conspirators by name, the Court finds it would implicate their due process rights if it were to
unseal the plea agreements and accompanying factual narratives.
29
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 30 of 35
D. Future Proceedings
As with every single previous instance, the Court will continue to evaluate the need for
closure of any future hearings based on the information provided by the Government and defense
counsel. The Court will determine the need for closure only on an as-needed basis.
v. FACTUAL FINDINGS
In sum, the Court makes the following factual findings applying a clear and convincing
burden of proof.
62
It bases each of its factual findings on the documents filed in the case, the
parties' respective representations to the Court, reasonable inferences and deductions drawn
therefrom, and the undersigned's judicial experience. In the case of the probable cause affidavits
underlying the search warrants issued in this cause, the Court has also relied on the
Government's verbal responses to its inquiries.
A. There is an ongoing investigation into numerous and complex allegations of
public corruption, which the Government has investigated through the use of
multiple search and seizure warrants.
B. Each time the Government sought a search warrant from the Court, it
demonstrated by clear and convincing evidence through the information contained
in the associated probable cause affidavit that serious harm to the investigation
would result if the information were publicly revealed.
C. Each time the Government sought a search warrant from the Court, it
demonstrated by clear and convincing evidence that there was a serious risk of
62 See Gunn, 855 F.2d at 574 (applying a "substantial probability" standard of proof in
determining whether the Government had demonstrated that it was proper for the district court to seal the
documents in question).
30
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 31 of 35
witness intimidation if the infonnation contained in the associated probable cause
affidavits were publicly revealed.
D. The Government's compelling interest in protecting the integrity of its
investigation and preventing witness intimidation overrides the public's right of
access to the affidavits associated with the search warrants issued in this cause.
E. Each time a defendant entered a plea of guilty to an infonnation in this cause, the
infonnation the Government and defense counsel provided, as well as the
infonnation contained in associated documents, convinced the Court by clear and
convincing evidence that there was a serious risk of witness intimidation if the
plea hearing was open to the public and if the plea hearing transcript and
associated documents were publicly revealed.
F. Each time a defendant entered a plea of guilty to an infonnation in this cause, the
infonnation the Government and defense counsel provided, as well as the
infonnation contained in associated documents, convinced the Court by clear and
convincing evidence that there was a serious risk that the Government's ongoing
investigation would be compromised ifthe plea hearing was open to the public
and if the plea hearing transcript and associated documents were publicly
revealed.
G. As to the defendants who have pleaded guilty in this case thus far, the
Government's compelling interest in protecting the integrity of its investigation
and preventing witness intimidation overrides the public's right of access to the
plea hearings, plea hearing transcripts, and plea agreements.
31
Case 3:06-cr-01369-FM Document 60
VI. CONCLUSION AND ORDERS
Filed 05/28/2008 Page 32 of 35
The undersigned has endeavored to convey the extent and complexity of the
Government's investigation which has given rise to the numerous warrants and guilty pleas in
this case. In doing so, the undersigned has also explained the necessity for confidentiality in this
type of investigation. Briefly, such confidentiality is imperative to preserve the integrity of the
Government's investigation and prevent witness intimidation. While confidentiality, and
consequently, sealing of proceedings is required under these circumstances, detailed records of
every proceeding are being kept and are subject to review by higher courts. Therefore, the
concern with so-called "star chamber"63 justice or "secret dockets," commonly associated with
closed proceedings, are simply non-existent.
In summary, every defendant who has appeared before the Court in this case has done so
voluntarily and represented by able counsel. As to warrants, each has been supported by
substantial documentation of probable cause. This Court is not asking anyone to "trust me
because I say so." Instead, the Court is suggesting that the public should trust the system,
because the procedures in place have withstood the test of time. Although we tend to equate
transparency with openness, no investigation of this nature and magnitude can proceed
unimpeded without the level of confidentiality discussed in this Memorandum Opinion. Under
the circumstances, permitting the requested public scrutiny would obliterate the possibility of
conducting the investigation.
63 "A star chamber is a court that meets in secret and follows arbitrary and harsh procedures. The
name is most closely associated with a 17th century court appointed by the English Crown which sat in
closed session and pressured the accused in order to uncover uncharged offenses without corroboration."
Kevin E. Broyles, NCAA Regulation ofIntercollegiate Athletics: Time for a New Game Plan, 46 ALA. L.
REv. 487, 504 n. 131 (1995) (internal citations omitted).
32
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 33 of 35
For the reasons discussed above, the Court enters the following orders:
A. Starr's motion [Rec. No. 59] seeking leave to supplement his original Motion for
Leave to Intervene with summaries of two additional cases is GRANTED.
B. Starr's motion [Rec. No. 58] requesting an oral hearing on his Motion for Leave
to Intervene is DENIED.
C. Starr's Motion for Leave to Intervene [Rec. No. 57] is DENIED, with the
exception that the Court hereby ORDERS the District Clerk to post REDACTED
versions of the following documents on the Court's CMlECF system:
1. As to Defendant Ketner:
a. "Order Setting Bond," filed on June 18,2007;
b. "Release Order," filed on June 18,2007;
c. "Appearance and Compliance Bond," filed on June 18, 2007; and
d. Minutes for the June 8, 2007, plea hearing.
2. As to Defendant Flores:
a. "Order Setting Bond," filed on July 6,2007;
b. "Release Order," filed on July 6, 2007;
c. "Appearance and Compliance Bond," filed on July 6, 2007; and
d. Minutes for the July 6,2007, plea hearing.
3. As to Defendant Lucero:
a. "Order Setting Bond," filed on August 17, 2007;
b. "Release Order," filed on August 17,2007;
c. "Appearance and Compliance Bond," filed on August 17,2007;
33
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 34 of 35
and
d. Minutes for the August 17, 2007, plea hearing.
4. As to Defendant Cordova:
a. "Order Setting Bond," filed on November 28,2007;
b. "Release Order," filed on November 28, 2007;
c. "Appearance and Compliance Bond," filed on November 28,2007;
d. Minutes for the November 28,2007, plea hearing..
5. As to Defendant Ruiz:
a. "Order Setting Bond," filed on December 21,2007;
b. "Release Order," filed on December 21,2007;
c. "Appearance and Compliance Bond," filed on December 21,2007;
and
d. Minutes for the December 21, 2007, plea hearing.
6. As to Defendant Pale
a. "Order Setting Bond," filed on December 21,2007;
b. "Release Order," filed on December 21,2007;
c. "Appearance and Compliance Bond," filed on December 21,2007;
and
d. Minutes for the December 21, 2007, plea hearing.
7. As to Defendant Telles:
a. "Order Setting Bond," filed on March 14,2008;
b. "Release Order," filed on March 14,2008;
34
Case 3:06-cr-01369-FM Document 60 Filed 05/28/2008 Page 35 of 35
c. "Appearance and Compliance Bond," filed on March 14,2008; and
d. Minutes for the plea hearing which began on February 15,2008,
and concluded on March 14,2008.
D. The Court will proceed in this cause consistent with the legal principles set forth
in this Memorandum Opinion.
SO ORDERED.
SIGNED this 28
th
day of May, 2008.
' ~ L '
,""" I
( d ' < ~ ~ ,;r...•';/..> t{A....... .
FRANK MONTALVO
UNITED STATES DISTRICT JUDGE
35
Case No: 3:06cr1369
Filed: 10/14/08
Doc. #106
IN THE UNITED STATES DISTRICT COURT f II Ehl
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION ZUG8 on 14 PH 3: 42
UNITED STATES OF AMERICA,
v.
JOHN TRAVIS KETNER, et al.,
Defendants,
v.
EL PASO MEDIA GROUP, INC. dba
THE NEWSPAPER TREE,
Intervenor.
§
§
§
§
§
§
§
§
§
§
§
§
§
§
EP-06-CR-1369-FM
MEMORANDUM OPINION AND ORDER
REGARDING MOTION OF EL PASO MEDIA GROUP, INC. DBA THE NEWSPAPER
TREE TO INTERVENE TO UNSEAL COURT DOCUMENTS AND OPEN HEARINGS AND
REQUEST FOR HEARING ON THE MOTION AND
THE GOVERNMENT'S MOTION TO UNSEAL REDACTED TRANSCRIPTS
On this day, the Court considered EI Paso Media Group, Inc. dba The Newspaper Tree's
("Intervenor") "Motion ofEI Paso Media Group, Inc. dba The Newspaper Tree to Intervene to Unseal
Court Documents and to Open Court Hearings and Request for Hearing on the Motion" ("Motion to
Intervene") [Rec. No. 97], filed August 6, 2008. In its Motion to Intervene, Intervenor argues the
Court's sealing of documents and hearings by court order in this case is not narrowly tailored to
satisfy constitutional muster.
1
Intervenor avers "[s]ecrecy and silence on government corruption is
contrary to our nation's values and detrimental to the ability ofEI Paso's local governments to govern
themselves."2 Therefore, Intervenor requests the Court to "open court documents and hearings in this
I Intervenor's Mot. to Intervene at I.
case, and related cases, as well as hold a hearing with the parties and the press to evaluate the
necessity of such a high level of secrecy by the Court.,,3
On September 2,2008, the Government filed "Government's Response and Opposition to
Intervenor's Motion ofEI Paso Media Group, Inc. dba The Newspaper Tree to Intervene to Unseal
Court Documents and to Open Court Hearings and Request for Hearing on the Motion"
("Government's Response") [Rec. No. 99], opposing Intervenor's Motion to Intervene. On
September 4,2008, the Government filed "Government's Motion to Unseal Redacted Transcripts"
("Motion to Unseal") [Rec. No. 101].
Intervenor replied to the Government's Response in its "Reply to Government's Response and
Opposition to the Motion ofEI Paso Media Group, Inc. dba The Newspaper Tree to Intervene to
Unseal Court Documents and to Open Court Hearings and Request for Hearing on the Motion"
("Intervenor's Reply") [Rec. No.104], filed September 15, 2008, and "Intervenor's Supplement to Its
Reply to Government's Response and Opposition to the Motion ofEl Paso Media Group dba The
Newspaper Tree to Intervene to Unseal Court Documents and to Open Court Hearings and Request
for Hearing on the Motion" ("Intervenor's Supplemental Reply") [Rec. No. 105], filed September 19,
2008. Based upon the parties' briefs, argument, and the law, the Court denies Intervenor's Motion to
Intervene and grants Government's Motion to Unseal.
I. FACTUAL AND PROCEDURAL HISTORY
On March 26, 2008, Carl Starr filed apro se "Motion for Leave to File Motion to Intervene
for the Limited Purpose of Being Heard in Connection with Access to Certain Portions ofthe Record
and Hearings and Memorandum in Support" ("Motion for Leave to Intervene") [Rec. No. 57]. Starr
attached his proposed "Motion to Intervene for the Limited Purpose of Being Heard in Connection
with Access to Certain Portions of the Record and Hearings and Memorandum in Support" to his
3Id at 2.
2 ------- - -----------
Motion for Leave to Intervene, in which he requested the Court to unseal the plea agreements in this
matter, unseal documents filed in this matter, and open all hearings in this matter to the public and the
press. Starr also requested an oral hearing on his Motion for Leave to Intervene [Rec. No. 58], filed
April 7, 2008.
On May 28, 2008, the Court entered its "Memorandum Opinion and Order Regarding Motion
for Leave to Intervene" ("Memorandum Opinion and Order") [Rec. No. 60], denying Starr's motion
for an oral hearing and his Motion for Leave to Intervene, in part.
4
In the Court's Memorandum
Opinion and Order, the Court laid out the factual background of this case.
5
The Court adopts and
incorporates by reference the factual and legal bases from its May 28, 2008, Memorandum Opinion
and Order. For clarity, the Court briefly summarizes the contents of the Memorandum Opinion and
Order here.
For the past four years, the Government has undertaken a thorough investigation of public
corruption allegations throughout the County and City of EI Paso ("City"). As part of its
investigation, the Government has used electronic surveillance, which has enabled the Government to
acquire pertinent information regarding the public corruption allegations and has led to the
Government's interest in more than eighty persons. These "persons of interest" include current and
former public officials and noted community leaders.
To date, as a result of the Government's investigation, nine individuals associated with the
public corruption allegations have pled guilty, including John Travis Ketner ("Ketner"), Elizabeth
Flores ("Flores"), Bernardo Lucero, Jr. ("Lucero"), Carlos Villa Cordova ("Cordova"), Roberto
Gerardo Ruiz ("Ruiz"), Chrisotpher Chol-Su Pak ("Chol-Su Pak"), Raymond R. Telles ("Telles"),
4 Mem. Op. &Order Regarding Mot. for Leave to Intervene at 2, United States v. Ketner, EP-06-CR-1369-
FM (May 28, 2008).
5 See id. at2-14.
3
Antonio Dill ("Dill"), and Fernando Parra ("Parra") (collectively, "Defendants"). The Court's
Memorandum Opinion and Order documents how the prosecutorial stage for each of the first six
Defendants began with the use ofInformations, an alternative to grand jury indictments.
6
Each of the
Defendants, except Parra, entered a guilty plea at a closed hearing, notice of which did not appear on
the Court's calendar or in the electronic docket for the case. At many ofthe plea hearings, the
Government requested the Court to seal everything in the case except for the Informations for the
Defendants.
7
The Court sealed the hearing minutes and transcript for each of the plea hearings. Only
Parra's plea proceeding was open to the public or the press.
The Government continues to rely on these Defendants who have pled guilty to enhance its
investigation. The Government also relies on informants, who initially assisted the Government in
identifying the nine Defendants who have pled guilty, as well as numerous documents the
Government has seized as a result of the execution of numerous search and seizure warrants, which
6 See id. at 9-13.
7 See, e.g., Te. of Lucero Plea Hr'g at 17:18-21, United States v. Ketner, EP-06-CR-1369-FM (Aug. 17,
2007). On August 17,2007, at Bernardo Lucero's plea hearing, Assistant United States Attorney ("AUSA") Debra
Kanof("Kanof') asked the Court to seal the factual basis and to make the factual basis part of the plea agreement.
Id. Later in Lucero's plea hearing, Kanof asked the Court to seal everything in the case:
MS.KANOF:
THE COURT:
Your Honor, may I ask the Court to seal everything in this case with the
exception of the information,
including the transcript and the minutes?
Yes, we will do that.
Adriana, take note of that, please.
Id. at 14:23-15:3. Again, in December 2007, AUSA Kanofreiterated her previous request, asking the following:
MS.KANOF:
THE COURT:
Everything is to remain sealed with the exception of
the information. That would be the plea agreement, the
factual bases, the waiver. And the [G]ovemment would also ask
that the record that's being kept by the court reporter be
sealed as well.
Yes. In conformity to the other pleas in
this case, Nalene, we will do likewise with these two.
Te. of Ruiz and Chol-Su Pak Plea Hr'g at 17:12-16, UnitedStates v. Ketner, EP-06-CR-1369-FM (Dec. 21, 2007).
4
were amply supported by affidavits describing in exacting detail the probable cause for each search
and seizure. The affidavits contained information, which if exposed to the public, could both
compromise the Government's investigation and put numerous individuals who have cooperated with
the investigation at risk.
In its May 28, 2008, Memorandum Opinion and Order, the Court acknowledged law
enforcement's general privilege barring interference with its investigations and the dangers of
premature disclosure of statements and details ofthe Government's case prior to the time the
Government was prepared to prosecute its case.& Relying on the United States Supreme Court's
previous decisions, the Court described in depth the substantial interest law enforcement has in
safeguarding the information it acquires during the course of its investigation.
9
The Court also acknowledged the press's right of access to judicial proceedings.
10
The Court
found, however, "the need to respect prosecutorial discretion, preserve the integrity of the
investigation, and protect the due process rights of unindicted co-conspirators overrides the public's
right of access and the presumption of open proceedings."l1 The Court, therefore, granted
Government counsel's and defense counsel's joint requests to close hearings to the press and public
and to seal correlative documents, "until such time as they may be unsealed without jeopardizing the
Government's investigation.'>12
In a footnote of the Government's Response to the instant motion, the Government claims it
never made any oral motions to close proceedings in any of the plea hearings. While this is true, the
Court notes counsel for the Government and the Defendants met in chambers prior to each plea
8 Mem. Op. &Order at 16.
9Id. at 16-18.
10 Id. at 18-21.
11 Id. at 22.
12Id.
5
hearing. Every proceeding was preceded by a discussion in chambers with the Government's counsel
and defense's counsel. In every in-chambers discussion, issues regarding confidentiality, safety, and
the identity of informants were raised. Based upon these compelling interests, the undersigned
determined it was prudent to close the proceedings to the public. Indeed, the Government's efforts of
stemming the tide of impunity, which has flowed unchecked in the City for more than a generation, is
compelling enough.
In the Court's May 28,2008, Memorandum Opinion and Order, the Court also addressed the
Defendants' closed plea hearings and the sealed transcripts associated with the hearings,
distinguishing the public's right of access to judicial proceedings preceding grand jury indictment and
the public's right of access following grand jury indictment.B The Court noted the plea hearings were
part and parcel to the Government's ongoing investigation, and therefore the Government should be
afforded prosecutorial discretion and the privilege barring interference with the Government's
investigation.
14
The Court did find, however, the plea hearing minutes, the Defendants' "Order[s]
Setting Bond," "Release Order[s]," and "Appearance and Compliance Bond[s]" no longer posed a
risk to the Government's investigation and held unsealing redacted versions of these documents for
public access was warranted.
ls
On the other hand, the Court found the plea agreements themselves, as well as their factual
bases, posed a significant threat to the Government's investigation and the due process rights of
unindicted co-conspirators.
16
The Court stated it would continue to evaluate the need for further
closure of future hearings based upon the information provided by counsel for the Government and
13Id at 27.
14Id at 28-29.
15Id at 29.
16Id
6
any defendant on an "as-needed basis."17 Ultimately, the Court concluded the Government's
compelling interests in protecting the integrity of its investigation and preventing witness intimidation
outweighed the public's right of access to the proceedings and documents associated with this case.
IS
Accordingly, the Court denied Starr's Motion for Leave to Intervene and unsealed redacted versions
of numerous documents associated with the plea hearings.
I9
II. ANALYSIS OF PARTIES' ARGUMENTS BASED UPON APPLICABLE LAW
"[T]he First Amendment must be interpreted in the context of current values and conditions ..
. .,,20 First Amendment rights offreedom of speech and ofthe press "would be circumscribed were
those who wish to disseminate information denied access to it, for freedom to speak is of little value if
there is nothing to say.'>21 There is little doubt "that a major purpose of [the First] Amendment was to
protect the free discussion of governmental affairs. ,,22 "The Constitution specifically selected the
press ... to play an important role in the discussion of public affairs."23 Hence, "the press serves and
was designed to serve as a powerful antidote to any abuses of power by governmental officials and as
a constitutionally chosen means for keeping officials elected by the people responsible to all the
people whom they were selected to serve.,,24
With respect to judicial proceedings,
[a] responsible press has always been regarded as the handmaiden of effective judicial
administration, especially in the criminal field. Its function in this regard is documented by an
impressive record of service over several centuries. The press does not simply publish
17Id. at 30.
IS Id. at3!.
19Id. at 33-35.
20 United States v. Chagra, 701 F.2d 354,363 (5th Cir. 1983) (citations omitted).
21 In re Express-News Corp., 695 F.2d 807, 808 (5th Cir. 1982).
22 Millsv. Alabama, 384 U.S. 214, 218 (1966).
23 Id. at 219 (citation omitted).
24 Id.
7
information about trials but guards against the miscarriage ofjustice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny and criticism.
25
Despite the press's important role in reviewing the judicial processes for the benefit of the public,
"[t]he extraordinary protections afforded by the First Amendment carry with them something in the
nature of a fiduciary duty to exercise the protected rights responsibly a duty widely acknowledged but
not always observed by editors and publishers."26
Here, Intervenor is a member of the press, seeking to enforce its First Amendment right of
access to judicial proceedings and correlative documents. As a preliminary matter, the Court notes
Intervenor has standing to motion to intervene in this case.
27
Courts of this Circuit have recognized
the press's and public's right to object to judicial closure ofproceedings or sealing ofthe record or
documents in criminal cases using the procedural vehicle of a motion or petition filed in the
appropriate district court,28
A. The Court's Jurisdiction Over Intervenor's Motion to Intervene
1. Parties' Arguments
Intervenor requests the Court to allow its exercise of the presumptive First Amendment right
of access to the Court's criminal plea and preliminary pre-trial hearings in this case,29 Intervenor also
argues the case files must be opened fully in order to ensure the public can be fully apprised of public
25 Neb. Press Ass 'n v. Stuart, 427 U.S. 539, 559-60 (1976) (citation omitted) (internal quotation marks
omitted).
26Id. at 560.
27 See United States v. Gurney, 558 F.2d 1202, 1206 (5th Cir. 1977) (holding the press had standing to
address right of access to judicial proceedings because it had claimed an injury in fact and "the interest sought to be
protected is arguably within the zone of interests to be protected or regulated by the statute or constitutional
guarantee in question.").
28 See, e.g., id. (considering the press's petition challenging the district court's decision regarding the
press's right of access to case documents).
29 See Intervenor's Mot. to Intervene at 4.
8
corruption to preserve "[t]he public's interest in self-governance and a functioning democracy.,,3o
Intervenor contends the press gives justice a voice, which in tum engages the community in the
processes of self-governance.
31
The Government does not dispute the press and the public have a presumptive right of access
to criminal trials.
32
The Government argues, "[h]owever, th[e] right is not without exceptions.'m The
Government contends Intervenor's request to have open proceedings in the future is moot or,
alternatively, not yet ripe.J
4
In particular, the Government contends the Parra hearing, which the
Court listed on its calendar and made open to the public, moots Intervenor's request for open
proceedings.
35
The Government also argues Intervenor's "request for future open proceedings ... is
not ripe in that it assumes facts and requests ruling on a matter that has not happened, thus, not before
the Court.,,36 The Government further notes Intervenor's request for future proceedings to be open
presupposes any future proceedings that may occur in the case will be inappropriately closed to the
public and the press.
37
In reply, Intervenor argues the case is not moot simply because the Court has held one open
plea hearing.
38
Intervenor contends the voluntary opening of proceedings in this case does not
deprive the Court of its power to review Intervenor's Motion to Intervene.
39
Intervenor argues the
30Id at 5.
3! Id at 3.
32 Gov't's Resp. at 2.
33Id
34Id at 3-6.
35Id at 4-5. Fernando Parra pled guilty in an open plea hearing on July 15,2008.
36Id. at 5.
37Id.
38 Intervenor's Reply at 3.
39 Intervenor's Supplemental Reply at 1.
9
Government "has done nothing to demonstrate that it will not return to its 'old ways,"'40 and
therefore, "[a] court order is required to ensure the cessation of this practice in the future.,,41
2. Applicable Law
In evaluating whether an issue is moot, the Fifth Circuit held when the issue presented is of a
continuing nature, the "case ... presents a controversy 'capable of repetition yet evading review. ",42
The Supreme Court repeatedly recognized "jurisdiction is not necessarily defeated by the practical
termination of a contest which is short-lived by nature.,,43 "[T]rial closure issues fall within that
category of disputes that are 'capable of repetition, yet evading review.",44 "More often than not,
criminal trials will be of sufficiently short duration that a closure order 'will evade review ....",45
This is because "'the underlying criminal proceeding would almost always terminate before the
appellate court hears the case. ",46
"[T]he 'ripeness doctrine is drawn both from Article III limitations on judicial power and
from prudential reasons for refusing to exercise jurisdiction. ",47 According to the Fifth Circuit, "[t]he
'basic rationale [behind the ripeness doctrine] is to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements.'''48 The Court "'should dismiss a
case for lack of "ripeness" when the case is abstract or hypothetical. ",49 In determining whether a
40 Id. at 2.
41 Intervenor's Reply at 3.
42 Gurney, 558 F.2d at 1207 (citations omitted).
43 RichmondNewspapers, Inc. v. Virginia, 448 U.S. 555, 563 (1980) (citations omitted).
44 United States v. Edwards, 823 F.2d 111, 114 (5th Cir. 1987)(citations omitted).
45 RichmondNewspapers, Inc., 448 U.S. at 563 (citation omitted).
46 Gurney, 558 F.2d at 1207 (citations omitted).
47 Roark & Hardee LP v. City ofAustin, 522 FJd 533,544 (5th Cir. 2008) (citation omitted).
48 Id. (citation omitted).
49 Monkv. Huston, 340 FJd 279,282 (5th Cir. 2003) (citation omitted).
10
case is ripe, the Court should examine "the fitness of the issues for judicial decision and the hardship
to the parties of withholding court consideration."50 "A case is generally ripe if any remaining
questions are purely legal ones; conversely, a case is not ripe if further factual development is
required."51
3. Discussion
The Government's argument Intervenor's Motion to Intervene is moot or, alternatively,
unripe, is unavailing. The Court finds Intervenor's Motion "presents a controversy 'capable of
repetition yet evading review.",52 The Court's exercise ofjurisdiction over Intervenor's Motion is not
defeated because the Government has held one open plea hearing, which the press and the public
were able to attend.
53
Intervenor requests the Court calendar the proceedings in this matter, open the
proceedings to the public and the press, and unseal documents related to the proceedings in this case.
Ifthe Court continued to keep closed plea hearings offthe calendar at the request ofthe Government,
Intervenor would have no notice the proceedings occurred in the first instance to be able to request an
opportunity to be heard on the issue of closing or opening proceedings to the public and the press.
This case remains active and ongoing. The Government could request the Court to close a
plea hearing. Such a request could potentially result in a First Amendment violation ifthe press
cannot intervene to learn why the proceedings will be closed to the press and the public or if the press
cannot argue the Government's interests are no longer compelling. That the Government could do
this in the future seems speculative, but it does not negate this is a type of harm that is "'capable of
repetition yet evading review.",54 Furthermore, there are numerous documents the Government has
50 Id (citation omitted) (internal quotation marks omitted).
51 Id (citation omitted) (internal quotation marks omitted).
52 Gurney, 558 F.2d at 1207 (citation omitted).
53 See RichmondNewspapers, Inc., 448 U.S. at 563.
54 Gurney, 558 F.2d at 1207 (citation omitted).
11
not released to the public or the press related to the Government's ongoing investigation and the
closed plea hearings. To the extent the Court's decision on the Government's Motion to Unseal does
not reach the documents Intervenor requests the Court unseal in the instant motion, Intervenor's
Motion to Intervene is not moot as to those documents.
The Court also finds Intervenor's Motion is ripe for review. While the Government contends
Intervenor's "request for future open proceedings ... is not ripe in that it assumes facts and requests
ruling on a matter that has not happened,"55 this argument is simply without merit. The Court is
tasked with undertaking a case-by-case analysis when a request to open or close a proceeding is
made.
56
Here, the Court deals with the same case it dealt with in its May 28, 2008, Memorandum
Opinion and Order. The issue of opening proceedings in the future and unsealing documents in the
case is neither abstract nor hypothetical, as the Court has dealt with these issues numerous times
already.57 Intervenor previously endured the Court's closure of numerous plea hearings and a lack of
notice of their occurrences in order to protect the integrity ofthe Government's investigation. There
is a danger to the press this may occur again in the future in this case. That it could occur raises the
purely legal question of whether the interests the Government has propounded in its Response are
sufficiently compelling to warrant future closure.
Thus, this is a matter of law the Court can now find, absent no new factual development.58
The Government has presented the same concerns regarding its investigation and due process rights of
unindicted co-conspirators as it has previously for the Court. Intervenor has not offered any new
55 Gov't's Resp. at 5.
56 See Edwards, 823 F.2d at 119 (citation omitted).
57 See Monk, 340 FJd at 282.
58 See id
12
factual developments to contest the Government's interests, leaving the Court with a purely legal
issue. Therefore, the Court finds Intervenor's Motion to Intervene is neither moot nor unripe.
59
B. First Amendment Presumption ofOpenness ofJudicial Proceedings andNarrowly
Tailoring the Closure Order and Order to Seal
1. Parties' Arguments
Intervenor next contends the extent of closure in the case "is much broader than [the
Government's interests] can excuse.,,60 The Government proffers "law enforcement's right and need
to conduct investigations without interference; the negative effect premature disclosure of details of
the investigation would have on [the] investigation; or the right of an uncharged subject or target to
maintain confidentiality" as compelling interests.
6
\ The Government also contends it has a qualified
privilege to withhold the identity of its informants.
62
The Government further argues its interest in
presenting sufficient evidence to warrant a guilty plea required the closure of the plea hearings and
sealing of the correlative documents.
63
Finally, the Government contends unsealing the documents
relevant to this matter would violate the due process rights of unindicted individuals named in the
relevant documents.
64
Specifically, the Government states "[w]ithout a forum by which the uncharged
can defend themselves, an unsealing of their identit[ies] would violate their [c]onstitutional right[s] to
due process and might expose them to public scrutiny with a possible result of physical, social[,] and
financial harm.,,65
59 This fmding today does not preclude either Intervenor or the Government in the future from revisiting the
issue of whether proceedings should be closed or open, if new facts arise or the Government's interests shift.
60 Intervenor's Reply at I.
61 Govt.'s Resp. at 8.
62Id
63Id at 9.
64 Id at 9-10.
65Id at I I.
13
Intervenor argues "[the Govennent's] interests can excuse some limited encroachment and
may exist in this case, but they are not sufficiently strong enough to justify the breadth and length of
the suppression of infonnation which has occurred.,,66 Intervenor argues "the Court's sweeping
actions evidence that the closure is neither narrowly tailored nor have documents been released within
a reasonable time.,,67 Intervenor contends "closure of eight out of nine proceedings does not indicate
such narrow tailoring as required by the Constitution."68 Intervenor further avers "[t]he widespread
use of closure here indicates broad application, the opposite of narrow tailoring."69
Intervenor also argues that because the Court has released some of the documents related to
this proceeding, the Court's Order is not narrowly tailored.
70
Intervenor contends the documents that
were unsealed as a result of Starr's intervention in this matter were insufficient to meet constitutional
muster because "[t]here are more documents that remain sealed, which should be released to the
public.,,7' Intervenor argues the Court's order is not narrowly tailored because the Court can redact
infonnation or use pseudonyms in order to release the documents to the press.
Intervenor also contends the Court's release of the documents after one year is not
reasonable.
72
Intervenor argues a '''[r]easonable time' cannot mean indefinitely or until a lawsuit is
filed to unseal the documents ... .'>73 Intervenor also contests the Government's assertion that some
sealed infonnation in documents warrants withholding of the entire document.
74
Intervenor states
66 Intervenor's Reply at 1.
67 Intervenor's Mot. to Intervene at 9.
68 Intervenor's Reply at 2.
69Id.
7°Id. at 3.
71Id.
72 Intervenor's Mot. to Intervene at 8.
73 Intervenor's Reply at 2.
74Id at 3-4.
14
"even a document which has been heavily redacted may have some value to the public."75 Finally,
Intervenor raises its concern over the procedures that will be utilized in future proceedings for new
defendants in the case and whether the proceedings will be listed on the docket sheets.
76
Intervenor
contends "no notice of court hearings is not narrowly tailored to the [G]overnment's interests, as
required by the First Amendment.,m
2. Applicable Law
a. Presumption ofOpenness
The First Amendment bars the Court "from summarily closing courtroom doors which had
long been open to the public at the time th[e] Amendment was adopted.'078 Presumptive open access
to criminal trials is founded on the notion trials historically have been open to the press and public,
which "plays a particularly significant role in the functioning of the judicial process and the
government as a whole."79 The Supreme Court observed "[openness] gave assurance that the
proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of
participants, and decisions based on secret bias or partiality."so
The history of open judicial proceedings "in part reflects the widespread acknowledgment,
long before there were behavioral scientists, that public trials had significant community therapeutic
value."Sl Access to the judicial process "serve[s] an important prophylactic purpose, providing an
outlet for community concern, hostility, and emotion."s2 Each step in ajudicial proceeding, '''as much
75Id
76 Intervenor's Mot. to Intervene at 9.
17/d
78 RichmondNewspapers, Inc., 448 U.S. at 576.
79 Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 606 (1982).
80 Richmond Newspapers, Inc., 448 U. S. at 569 (citations omitted).
81Id at 570.
82Id at 571.
15
perhaps as the execution of punishment, operat[es] to restore the imbalance which was created by the
offense or public charge, to reaffirm the temporarily lost feeling of security ....",83 "[N]o
community catharsis can occur ifjustice is 'done in a comer [or] in any covert manner. ",84
When a court closes ajudicial proceeding, "an unexpected outcome can cause a reaction that
the system at best has failed and at worst has been corrupted.,,85 "[T]he means used to achieve justice
must have the support derived from public acceptance of both the process and its results.,,86 The
presence of the media at court proceedings "'contribute[s] to public understanding of the rule of law
and to comprehension of the functioning of the entire criminal justice system ....",87 Fundamental
to First Amendment access to judicial proceedings "is the common understanding that 'a major
purpose of that Amendment was to protect the free discussion of governmental affairs.' ,,88
Accordingly, "[p]ublic scrutiny of a criminal trial enhances the quality and safeguards the integrity of
the factfinding process ...."89 "Moreover, public access to the criminal trial fosters an appearance of
fairness, thereby heightening public respect for the judicial process,,,90 and in tum "ensur[ing] that the
individual citizen can effectively participate in and contribute to our republican system of self-
government.,,91
Nonetheless, the First Amendment right of access to judicial proceedings is not absolute.
92
83Id. (citations omitted).
84Id. (citation omitted).
85 Id.
86Id.
87Id. at 573 (citation omitted).
88 Globe Newspaper Co., 457 U.S. at 604 (citation omitted).
89 I d. at 606.
90Id. (citations omitted).
91Id. at 604 (citations omitted).
92Id. at 606 (citations omitted).
16
The First Amendment "does not 'guarantee journalists access to sources of information not available
to the public generally."'93 The Court must balance countervailing concerns with the press's right of
access to judicial proceedings.
94
The Court has a duty to ensure its proceedings are not subject to
external prejudicial influences.
95
"'Neither prosecutors, counsel for defense, the accused, witnesses,
court staff nor enforcement officers coming under the jurisdiction ofthe [C]ourt should be permitted
to frustrate its function. ",96 The Court may limit access to judicial proceedings based upon a
defendant's right to a fair trial and "'the needs of [G]overnment to obtain just convictions and to
preserve the confidentiality of sensitive information and the identity of informants. ",97
According to the Supreme Court, "[c]losed pretrial proceedings have been a familiar part of
the judicial landscape in this country.,,98 Closing judicial proceedings "is often one of the most
effective methods [the Court] can employ to attempt to insure that the fairness of a trial will not be
jeopardized by the dissemination of such information throughout the community before the trial itself
has even begun.,,99 Nonetheless, "[c]losed proceedings ... must be rare and only for cause shown that
outweighs the value of openness."IOO In determining whether there exists a First Amendment right of
access to a particular criminal proceeding, the Supreme Court considers "whether the place and
93 United States v. Brown, 250 F.3d 907,914 (5th Cir. 2001) (citations omitted).
94 See In re Express-News Corp., 695 F.2d at 809.
95 See Neb. Press Ass'n, 427 U.S. at 553 (citing Sheppardv. Maxwell, 384 U.S. 333, 362-63 (1966)).
96Id at 553-54 (citing Sheppard, 384 U.S. at 362-63).
97 Chagra, 701 F.2d at 364 (citing Gannett Co. v. DePasquale, 443 U.S. 368, 398 (1979) (Powell, J.,
concurring)).
98 Gannett Co., 443 U.S. at 390.
99Id at 379 (citation omitted).
100 Press-Enterprise Co. v. Superior Court ofCal. , 464 U.S. 501, 509 (1984) ("Press-Enterprise Co. f').
17
process have historically been open to the press and general public"lol and "whether public access
plays a significant positive role in the functioning of the particular process in question."I02
The Supreme Court observed "there are some kinds of government operations that would be
totally frustrated if conducted openly.,,103 However, the Government's interest in having a proceeding
closed "must be a weighty one.,,104 In order to permissibly close a presumptively open judicial
proceeding, "it must be shown that the denial is necessitated by a compelling governmental interest,
and is narrowly tailored to serve that interest.,,105 Furthermore, when the Court finds closure of
proceedings to be appropriate, it must articulate "findings specific enough that a reviewing court can
determine whether the closure order was properly entered."I06 Accordingly,
[a] court may not impose a restraint that sweeps so broadly and then require those who
would speak freely to justify special treatment by carrying the burden of showing
good cause. The [F]irst [A]mendment right to gather news is 'good cause' enough. If
that right is to be restricted, the [G]overnment must carry the burden of demonstrating
the need for curtailment. 107
If the Government can provide no countervailing interest to open proceedings, the Court must abstain
from closure, 108 "'[r]egardless of how beneficent-sounding the purposes of controlling the press
might be ....",109
101 Press-Enterprise Co. v. Superior Court ofCa!., 478 U.S. 1,8 (1986) (citations omitted) ("Press-
Enterprise Co. If').
102Id. (citation omitted).
I03Id. at 8-9.
104 Globe Newspaper Co., 457 U.S. at 606.
105Id. at 606-07 (citations omitted).
106 Press-Enterprise Co. 1,464 U.S. at 510.
101 In re Express-News Corp., 695 F.2d at 810 (citation omitted).
108 RichmondNewspapers, Inc., 448 U.S. at 581.
109 Neb. Press Ass 'n, 427 U.s. at 560 (citing Miami Herald Publ 'g Co. v. Tornillo, 418 U.S. 241, 259
(1974) (White, J., concurring)).
18
The Fifth Circuit has upheld closure of records identifying jurors in the important interest of
maintaining jury anonymity. I 10 The Fifth Circuit has also denied public access to bench
conferences.
lll
The Fifth Circuit observed "although the media generally have a right to publish
information that they obtain, '[n]either the First Amendment nor the Fourteenth Amendment
mandates a right of access to government information or sources of information within the
[G]ovemment's control. ",112 Nonetheless, the Fifth Circuit noted "closure of an entire [lengthy]
proceeding would rarely be warranted.... [] [A]ny limitation must be narrowly tailored to serve that
interest."113
With respect to docket sheets, the Second Circuit held "docket sheets enjoy a presumption of
openness and that the public and the media possess a qualified First Amendment right to inspect
them,"1l4 as did the Eleventh, llS Fourth,1l6 and Eighth Circuits.
ll7
According to the Second Circuit,
however, "this 'presumption is rebuttable upon demonstration that suppression "is essential to
preserve higher values and is narrowly tailored to serve that interest.""'ll8 The Eleventh Circuit found
the district court's "maintenance of a public and a sealed docket is inconsistent with affording the
various interests ofthe public and the press meaningful access to criminal proceedings."ll9 The Eight
Circuit stated "[t]he fact that a closure or sealing order has been entered must itself be noted on the
110 See Brown, 250 FJd at 914.
III See Edwards, 823 F.2d at 116 (citation omitted).
112 Brown, 250 FJd at 915 (citation omitted).
113 Press-Enterprise Co. II, 478 U.S. at 15 (citation omitted) (internal quotation marks omitted).
114 Hartford Courant Co. v. Pellegrino, 380 FJd 83, 96 (2d Cir. 2004) (emphasis added).
115 See United States v. Valenti, 987 F.2d 708 (11th Cir. 1993).
116 Seein re State-Record Co., 917 F.2d 124 (4th Cir. 1990).
117 See In re Search Warrant, 855 F.2d 569 (8th Cir. 1988).
118 Hartford Courant Co., 380 FJd at 96 (citing Grove Fresh Distrib., Inc. v. Everfresh Juice Co., 24 FJd
893, 897 (7th Cir. 1994) (quoting Press-Enterprise Co. 1,464 U.S. at 510)).
119 Valenti, 987 F.2d at 715 (citation omitted).
19
court's docket, absent extraordinary circumstances.,,120 The Fourth Circuit found sealing the docket
entry sheet as part ofthe district court's order sealing the entire record was constitutionally
impermissible, noting "[s]uch overbreadth violates one of the cardinal rules that closure orders must
be tailored as narrowly as possible."121
With respect to plea agreements, the D.C. Circuit found "plea agreements have traditionally
been open to the public, and public access to them 'enhances both the basic fairness of the criminal
[proceeding] and the appearance offairness so essential to public confidence in the system."'122 The
D.C. Circuit requires procedural prerequisites to be followed "before a motion to seal a plea
agreement may be granted in all but the extraordinary case, for example where the physical safety of
an individual may be at risk."123 The D.C. Circuit's procedure for sealing a plea included filing notice
of a motion to close the proceeding in the public docket and requiring the district court to articulate
specific findings demonstrating sealing the plea agreement is narrowly tailored to meet the compelling
governmental interest.
124
b. Narrowly Tailoring the Closure Order and Order to Seal
The Court must ensure any order to close or seal ajudicial proceeding is narrowly tailored to
serve the Government's compelling interests.
125
The Court must "articulate findings with the
requisite specificity but ... also ... consider alternatives to closure and to total suppression of the
120 In re Search Warrant, 855 F.2d at 575 (emphasis added).
121 In re State-Record Co., 917 F.2d at 129.
122 Washington Post v. Robinson, 935 F.2d 282,288 (D.C. Cir. 1991) (citations omitted).
123 Id. at 289 (emphasis added).
124 Id.
125 Globe Newspaper Co., 457 U.S. at 606-07 (citations omitted).
20
transcript."126 Accordingly, the Court "should seal only such parts ofthe transcript as necessary to
preserve the anonymity of the individuals sought to be protected."121
When a court does not present findings supporting "prolonged closure" or does not consider
alternatives available to protect privacy interests, the closure is constitutionally impermissible.
128
However, when a proceeding is closed to the press or public, "the constitutional values sought to be
protected by holding open proceedings may be satisfied later by making a transcript of the closed
proceedings available within a reasonable time, if the [Court] determines that disclosure can be
accomplished while safeguarding the [individual]'s valid privacy interests."129 According to the Fifth
Circuit, "the availability of the transcript is the key to satisfying the constitutional values of public
scrutiny."130
Redaction of "names or portions of the transcript may constitute a reasonable alternative ...
and yet preserve the competing interests served by disclosure."131 The Fifth Circuit observed "[t]he
transcripts will reveal the substance and significance of the issues.,,132 If a court does release a
redacted transcript, the court must still explain why portions of the transcript merit continued
privacy.133 Nevertheless, the Fifth Circuit cautioned against "unnecessary delay in releasing the record
of closed proceedings after trial."134 The Fifth Circuit recognized
the worth oftimely news reported on the front page and, by contrast, the diminished
value of noteworthy, but untimely, news reported on an inside page. Implicit in that
126 Press-Enterprise Co. 1,464 U.S. at 513.
121Id
128 See id. at 510-11.
129Id. at 512.
130 Edwards, 823 F.2d at 118.
131 Id. at 120.
132 Id.
133 Press-Enterprise Co. I, 464 U.S. at 513.
134 Edwards, 823 F.2d at 119.
21
assessment, however, is the fair assumption that significant news will receive the
amount of publicity it warrants. The value served by the [F]irst [A]mendment right of
access is in its guarantee of a public watch to guard against arbitrary, overreaching, or
even corrupt action by participants in judicial proceedings. Any serious indication of
such an impropriety, would, we believe, receive significant exposure in the media,
even when such news is not reported contemporaneously with the suspect event. 135
Accordingly, "[w]hen a motion is made for release of transcripts, the [] [C]ourt should anticipate their
probable post-trial disclosure and endeavor to release them as soon after verdict as possible.,,136 If a
party questions the Court's release of a redacted transcript, the unredacted transcripts are subject to
Fifth Circuit review.
137
If the Court only temporarily denies the press access to ajudicial proceeding, no constitutional
violation has occurred because the closure order was narrowly tailored.
138
On the other hand, if a
change of venue is a feasible alternative to closure, the Court's order closing the proceeding will not
be considered narrowly tailored to meet the Government's compelling interest.
139
In considering the
feasibility of a change of venue, the Court will consider "impediments to a fair trial that would be
created by a change of venue, including the additional cost to the defendant and the [G]overnment,
the additional difficulty to the defendant of conducting his defense in a distant venue, and whether
publicity would be equally intensive in the alternative venue.,,140
3. Discussion
The May 28, 2008, Memorandum Opinion and Order addressed an argument similar to
the argument Intervenor presents here.
141
In the instant motion, Intervenor relies on the presumption
135 Id.
136 Id.
137 Id. at 119-20.
138 See Gannett Co., 443 U.S. at 393.
139 See Chagra, 701 F.2d at 365.
14°Id.
141 See Mem. Op. & Order at 21-27.
22
that plea hearings and correlative documents should be open to the public and the press, and if they
are not, the Court's order of closure must be narrowly tailored to serve the Government's compelling
interests. Intervenor contends the Court's orders regarding closure of plea hearings and unsealing of
the transcripts and other documents from the previous plea hearings have not been narrowly tailored
to meet the Government's compelling interests. The Government, on the other hand, maintains it still
has compelling interests, which warrant continued sealing of some of the documents related to this
matter, to the extent those documents are not implicated by the Government's Motion to Unseal
Transcripts.
The Court has already acknowledged the Government has compelling interests in conducting
its investigation without interference, keeping secret the subjects of its investigation in order to further
the investigation and prevent witness intimidation, maintaining the due process rights of targets of the
investigation, and withholding the identity of its informants.
'42
The Court explained these compelling
interests, as a matter of law, warranted closure of plea hearings and sealing of correlative documents.
Intervenor asks the Court in the instant Motion to Intervene to alter the Court's previous decision and
find the Government's interests are no longer compelling enough to warrant future closure, or,
alternatively, find the Court's previous order unsealing redacted transcripts and other documents was
not sufficiently narrow or accomplished within a reasonable amount of time.
Based upon the historical openness of plea proceedings, and the significant role the press
plays in enhancing the public's understanding of such proceedings, the Court affirms Intervenor's
presumptive right to access the plea hearings that have transpired in the past fifteen months.
'43
The
Court recognizes the importance ofIntervenor's presence at plea hearings to assure each proceeding is
142 See id at 14-16.
143 See Press-Enterprise Co. II, 478 U.S. at 8.
23
conducted fairly for the Defendants, the Government, Intervenor, and the City's residents.
144
The
presumptive openness of these proceedings exists so the residents of the City can receive the
vindication they deserve, can heal from the offenses the residents have endured, and can "restore the
imbalance" that has been created as a result of the ongoing public corruption scandal.
145
The Court
recognizes Intervenor's contribution of making the City's residents aware ofthe crisis that plagues the
City and appreciates its efforts to include the City's residents in the City's governmental affairs, our
republican system of government, and the judicial processes. Nonetheless, Intervenor's right of
access is not absolute.
146
The Court's task is to balance countervailing concerns with the press's and public's right of
access to judicial proceedings.
147
The Government has demonstrated the need to curtail Intervenor's
First Amendment freedom.
148
The First Amendment does not guarantee Intervenor the right to access
information the Government holds as part of its investigation.
149
Based upon the information
presented to the Court at this time, the Court finds the Government's compelling interests would be
frustrated if the documents Intervenor requests were unsealed to the extent Intervenor requests.
150
The plea agreements, as well as the other documents, contain factual information so detailed that even
substantial redaction would still allow contextual inferences to be drawn. The probable result would
be disclosure of crucial information that would significantly undermine the Government's
investigation and endanger individuals involved with it.
144 See RichmondNewspapers, Inc., 448 U.S. at 569; see also Washington Post, 935 F.2d at 288.
145 See RichmondNewspapers, Inc., 448 U.S. at 571 (citation omitted).
146 See Globe Newspaper Co., 457 U.S. at 606.
147 See In re Express-News Corp., 695 F.2d at 809.
148 See id at 810.
149 See Brown, 250 FJd at 915.
150 See Press-Enterprise Co. 11,478 U.S. at 8-9.
24
The Government has been pursuing this investigation for more than four years now. Because
of the sensitive nature of its investigation, the subjects of which include community leaders, secrecy is
an essential component to bringing many of these individuals to justice. By closing the previous plea
hearings, removing notice of them from the calendar, and sealing the record for this case, the Court
tailored closure and sealing in order for the Government to maintain the integrity of its investigation
and the due process rights of unindicted co-conspirators, while simultaneously providing the public
the necessary catharsis it needs as the Government brings corrupt public officials to justice. These
Court ordered restraints were as narrowly confined as possible in order to protect the Government's
compelling interests.
The nature of the closure and sealing has been essential to preserving the integrity of the
Government's investigation and to allowing the Government to direct the course and scope of its
investigation. 151 This is an extraordinary case, and many individuals face economic and safety risks if
the Government is not permitted to close the proceedings and seal the record.
152
The Government's
efforts of reigning in the pervasive corruption which has plagued the City for years is of the utmost
importance in moving the City forward and is no less than compelling. If the Court had calendared
the plea proceedings, the targets of the Government's investigation would have been made aware of
the nature of the investigation of them prior to the time the Government was ready to pursue its
prosecution ofthem. It is emphatically not the province and duty ofthe Court to interfere with the
Government's executive power to prosecute its own case.
153
In these extraordinary circumstances, the
Court's closure of the plea proceedings and the sealing of the docket sheet and correlative documents
151 See Hartford Courant Co., 380 FJd at 96.
152 See Washington Post, 935 F.2d at 289.
153 Cf Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of
the judicial department to say what the law is.").
25
were necessary to serve the compelling Government interests at stake.
154
In as much as the
Government needed to maintain the anonymity ofthe targets of its investigation, as well as its
informants, places to be searched, and items and monies to be seized, closure ofthe plea proceedings
and sealing of the docket sheet and other documents was absolutely necessary and as narrowly
confined as possible.1
55
The Court has explored alternatives to closure, but in dealing with an investigation of this
magnitude, the Court has not found any means other than those it has employed to date to adequately
protect the Government's compelling interests.
156
The Government indicates in its Motion to Unseal
that certain aspects of its investigation no longer require particular documents to be kept under seal.
Accordingly, the Court will uphold the constitutional values of Intervenor. 157 Those records and
documents will no longer be sealed. In keeping with the Court's findings, necessary redactions
suggested by the Government were made.
15S
The Court is satisfied the suggested redactions are
necessary and the information redacted is essential to the Government's investigation and therefore
should remain private.
159
While the Court understands Intervenor's frustration at not having ready access to the
Government's information in order to timely report on the ongoing corruption scandal, it notes Fifth
Circuit precedent takes such timeliness concerns under consideration. Intervenor's belated reports
154 Cf In re Search Warrant, 855 F.2d at 575 (noting only "extraordinary circumstances" would warrant
sealing docket sheet).
155 Cf Brown, 250 FJd at 914 (affIrming the procedure of sealing the record to safeguard the anonymity of
the jurors).
156 Cf Press-Enterprise Co. 1,464 U.S. at 513 (fmding district court erred in failing to consider alternatives
to closure and suppressing transcript).
157 See id at 512.
158 See Edwards, 823 F.2d at 119.
159 Cf Press-Enterprise Co. 1,464 U.S. at 513 (fmding the district court sealed more information than was
necessary).
26
will receive the publicity they merit.
160
The limitations the Court has imposed serve to meet the
Government's compelling interests.
161
The Court has made and will make available documents
related to the plea hearings and this case as soon as reasonably possible, keeping in mind at all times
the Government's compelling interests.
162
To the extent that the Government may, in future
proceedings, move to close the proceedings, the Court maintains the compelling interests the
Government has proffered today warrant closure. To the extent the Government's interests change
and Intervenor can establish new facts to bear regarding the opening or closing of proceedings, a
factual dispute would exist and therefore would require the Court to review anew any motion to
intervene Intervenor might file.
C. Prior Restraint
1. Parties' Arguments
Intervenor next claims "the press has been issued a de facto gag order" because the Court
closed Defendants' plea hearings without notice to the press or public.
163
Intervenor argues "[t]he
Court's overwhelming secrecy and barricade against the press mirrors a prior restraint."164 In
particular, Intervenor notes the lack of grand jury indictment, stating "it appears that a judge alone is
administrating justice in a way that is secretive to the public and El Paso community."165 Intervenor
declares "[t]he Court's veil of secrecy abrogates the special First Amendment function of the press in
the absence of an indicting grand jury, creating a great risk" because "public opinion is an effective
160 See Edwards, 823 F.2d at 119.
161 Cf Press-Enterprise Co. II, 478 U.S. at 15 (fmding closure unwarranted where limitations were not
sufficiently narrow).
162 See Press-Enterprise Co. I, 464 U.S. at 513.
163 Intervenor's Motion to Intervene at 5.
164 Id.
165 Id. at 6.
27
restraint on possible abuse ofjudicial power.,,166 Intervenor requests the Court "announce
proceedings on the docket, unseal documents, and open hearings"167 in light of "no grand jury issuing
indictments in these cases and a change of venue implemented."168
The Government responds to Intervenor's questions regarding the grand jury by declaring the
Government's use ofInformations in this case "does not mean a grand jury has not heard evidence
against [the Defendants]."169 The Government argues Intervenor misunderstands the grand jury's role
and contends the "potential evil" Intervenor lays out does "not demonstrate a need to grant the
requested relief."170 Intervenor, in reply, notes the Government has not actually confirmed "[w]hether
or not a grand jury actually considered evidence,"17l and further notes "the theory that the absence of
ajury to act as a moderating influence on the government and the court heightens the public
constitutional interest in accessing court proceedings" applies to this case.
172
Intervenor also argues
there are alternatives to avoid prior restraints.
173
2. Applicable Law
The First Amendment "afford[s] special protection against orders that prohibit the publication
or broadcast of particular information or commentary orders that impose a 'previous' or 'prior'
restraint on speech.,,174 The Supreme Court has made clear "[a]ny system of prior restraints of
166Id. (citation omitted) (internal quotation marks omitted).
167Id. at 7.
168Id.
169 Govt. 's Resp. at 6-7.
17°Id. at 7.
171 Intervenor's Reply at 3.
172 Id. at 2.
173 Intervenor's Mot. to Intervene at 6.
174 Neb. Press Ass 'n, 427 U.S. at 556.
28
expression comes ... bearing a heavy presumption against its constitutional validity.,,175 Accordingly,
the Government "carries a heavy burden of showing justification for the imposition of such a
restraint"176 and "the barriers to prior restraint remain high ...."177
"[P]rotection against prior restraint should have particular force as applied to reporting of
criminal proceedings, whether the crime in question is a single isolated act or a pattern of criminal
conduct.,,178 "[A] whole community cannot be restrained from discussing a subject intimately
affecting life within it.,,179 The Court must "determine whether ... 'the gravity of the "evil,"
discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the
danger. ",180 In order to balance these factors the Court must consider "(a) the nature and extent of
pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of
unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the
threatened danger. The precise terms of the restraining order are also important.,,181
Generally, "'a prior restraint ... will be upheld only if the [G]overnment can establish that
"the activity restrained poses either a clear and present danger or a serious and imminent threat to a
protected competing interest.'''''182 Alternatives to prior restraint may include
(a) change of trial venue to a place less exposed to the intense publicity that seemed
imminent ... ; (b) postponement of the trial to allow public attention to subside; (c)
searching questioning of prospective jurors ... to screen out those with fixed opinions
175 New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (citations omitted) (internal quotation
marks omitted).
176Id. (citation omitted) (internal quotation marks omitted).
177 Neb. Press Ass'n, 427 U.S. at 561.
178Id. at 559.
179Id. at 567.
180Id. at 562 (citations omitted).
181Id.
182 Brown, 250 FJd at 915 (citation omitted).
29
as to guilt or innocence; (d) the use of emphatic and clear instructions on the sworn
duty of each juror to decide the issues only on evidence presented in open court.
183
Alternative measures to prior restraint may also include "limit[ing] what the contending lawyers, the
police, and witnesses may say to anyone.,,184 The Court "may refuse to allow the media to inspect
documents not a matter of public record, including jurors' names and addresses; such orders are
distinct from prior restraints."185
3. Discussion
Intervenor's argument the Court has imposed a prior restraint and issued a de facto gag order
is meritless. The Court has in no way ordered Intervenor or other media outlets not to report on the
proceedings related to the ongoing public corruption scandal that come before it, and in fact,
Intervenor continues to report on various aspects ofthe scandal.
I86
The Court has explained in its
May 28, 2008, Memorandum Opinion and Order, as well as here, that the closure and sealing it has
undertaken in this matter is directly and narrowly tailored to the Government's compelling interests.
If the Court has created a veil of secrecy, thereby shrouding the matter from Intervenor and the media,
it is because the Government's compelling ir;terests have warranted the protection the Court has
provided to preserve those interests. Intervenor's right of access, the Court reiterates, is not absolute.
Even if it could rightly be said that the closure and sealing the Court has imposed are prior
restraints, the Government has more than carried its burden of showing any such restraint is
constitutionally valid.
18
? The gravity of the Government's critical investigation being undermined by
183 Neb. Press Ass 'n, 427 U.S. at 563-64.
184Id. at 564 (citation omitted).
185 Brown, 250 FJd at 914-15 (citation omitted).
186 See, e.g., D. Crowder, Government raises Mena stakes by $46, 000, NEWSPAPER TREE, Oct. 2,2008,
http://newspapertree.comlnews/2906-government-raises-mena-stakes-by-46-000 (last visited Oct. 8, 2008)
(discussing Sal Mena, who has been implicated in the public corruption scandal and was originally indicted on
September 25, 2008).
187 See New York Times Co., 403 U.S. at 714.
30
the media reporting crucial aspects of the Government's case, which it learns from attending these
plea hearings and having access to the correlative documents, is far weightier than postponing the
media's access to this information until the time when the Government is ready to exercise its
discretion and prosecute its case.
188
The Court's closure ofthe plea hearings and its sealing ofthe
record and docket sheet prevents this threatened danger.
189
As the Court has already stated, it has
found no alternatives which could otherwise mitigate the curtailment ofthe media's access.
190
Regardless, the Court finds it has not issued a de facto gag order, nor has it imposed a prior restraint
on Intervenor or any other media source.
D. Opportunity to Be Heard
1. Parties' Arguments
Finally, Intervenor requests the Court for an opportunity to be heard on the issue of access
to open court proceedings.
191
The Government argues the Court's previous Memorandum Opinion
and Order does not "supply legal authority for a hearing in this matter."I92 Instead, the Government
contends "[t]here are no factual issues to be resolved in Intervenor's Motion."193 The Government
further notes it has tried to moot any factual disputes by filing a motion to unseal redacted transcripts,
which results in "a legal dispute which has been and can be contested by pleadings," thereby negating
the requirement of a hearing.
194
ISS See Neb. Press Ass 'n, 427 U.S. at 562.
IS9 See id at 563-64.
190 Cfid at 563-65 (noting no record existed to determine whether alternatives to prior restraint were
available).
191 Intervenor's Mot. to Intervene at 9-10.
192 Govt.'s Resp. at 11.
193 Id
194 Id. at 12.
31
2. Applicable Law
The Court must undertake a case-by-case analysis to determine whether closing proceedings
comports with the First Amendment presumption of access to judicial proceedings.
195
A
"fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.,,196 "[T]he press and general public must be given an opportunity to be heard on
the question of their exclusion"197 from judicial proceedings. When there are no disputed issues of
fact, but rather only questions of law, the Local Court Rules for the Western District of Texas permit
the Court to decide a motion based upon the parties' briefs and filings, rather than requiring an oral
hearing. 198
When the press has requested disclosure of a transcript from a sealed proceeding, the Fifth
Circuit required the press "be given a meaningful opportunity to be heard before any contrary
decision is made.,,199 The Fifth Circuit commanded a court to "make specific, on-the-record,
factfindings demonstrating that a substantial probability exists that an interest of a higher value will be
prejudiced and that no reasonable alternatives to closure will adequately protect that interest.,,2oo If a
court does not permit a transcript from a sealed proceeding to be released, the court "must make
specific, on-the-record factfindings demonstrating a substantial probability that higher values will be
prejudiced and that reasonable alternatives cannot adequately protect those values.,,201
195 See Edwards, 823 F.2d at 119.
196 Merriman v. Sec. Ins. Co. ofHartford, 100 FJd 1187, 1191 (5th Cir. 1996)(citing Mathews v. Eldridge,
424 U.S. 319, 333 (1976) (quoting Armstrongv. Manzo, 380 U.S. 545, 552 (1965))).
197 Edwards, 823 F.2d at 119 (citation omitted) (internal quotation marks omitted).
198 LCVR-7(g); see also Crestview Parke Care Ctr. v. Thompson, 373 FJd 743, 750 (6th Cir. 2004)
("[F]ederal district courts can decide cases as a matter oflawwithout an oral hearing when it is clear there are no
genuine material [factual] disputes to be resolved ....").
199 Edwards, 823 F.2d at 119 (citation omitted).
200Id (citation omitted).
201Id
32
Simply because due process requires a party have a meaningful opportunity to be heard does
not "imply that the [C]ourt must hold a hearing and write redundant findings of fact that merely
reiterate truisms."zoz According to the Fifth Circuit, a court's redaction of names from a transcript is
"within [the Court's] discretion and need not be the subject of a hearing."zo3 That the court permits
the individual the opportunity to explain his side through paper filings comports with the due process
requirement of the opportunity to be heard.
zo4
In the habeas context, the Fifith Circuit held "a hearing
on the merits may be satisfied by a 'paper hearing' rather than by an in-court evidentiary hearing."zo5
Likewise, in the petty criminal contempt context, the Fifth Circuit found a "paper hearing" to be
sufficient.Z06
3. Discussion
The Court finds Intervenor has been given a meaningful opportunity to be heard on its Motion
to Intervene to open judicial proceedings and access documents related to this matter,z07 Intervenor
briefed the Court on what Intervenor believes to be its First Amendment right to access the Court's
proceedings. Intervenor had the opportunity to review the Government's proffered compelling
interests in sealing the record in this case and closing plea hearings. In addition, Intervenor had two
opportunities to reply to the Government's assertions. The Court finds Intervenor has fully
expounded its argument for inclusion in future proceedings in this case and to unseal the record of
202Id (citation omitted).
203Id. (citation omitted).
204 See Fahle v. Cornyn, 231 FJd 193, 196 (5th Cir. 2000).
205Id (citing Armsteadv. Scott, 37 FJd 202, 206 (5th Cir. 1994).
206Id
207 See Edwards, 823 F.2d at 119.
33
this case,208 and therefore does not require an oral hearing in addition to the written submissions the
Court has already considered.
209
III. FINDINGS OF FACT
With respect to this hearing on Intervenor's Motion to Intervene, the Court makes the
following findings of fact:
1. Intervenor has a presumptive right to access plea hearings in this case because such a
proceeding is of a type that has been historically open to the public;
2. The Government has compelling interests in maintaining the integrity of its
investigation and the due process rights of unindicted co-conspirators;
3. The Government has a compelling interest in preventing witness intimidation, so as to
prevent obstruction of its ongoing investigation into pervasive corruption in the City;
4. The Government also has a compelling interest in safeguarding the identities of its
informants, so that it can continue to collect information to further its investigation
and ultimately prosecute this case;
5. The Government has a compelling interest in ending the decades-long corruption that
has eaten away at the City's government and community;
6. The Court has a duty to weigh the Government's compelling interests against
Intervenor's presumptive right of access to the proceedings associated with this case,
as well as the record which correlates with the proceedings;
7. The Court finds the Government's compelling interests outweigh Intervenor's First
Amendment rights of access to the proceedings and record of this case;
8. The Court has narrowly tailored its closure and sealing of the record to safeguard the
compelling Government interests and to insure that Intervenor's First Amendment
right of access will be restored as soon as the Government's compelling interests
abate;
9. The Court has narrowly tailored its closure order to safeguard the Government's
compelling interests by not calendaring plea hearings so the Government could
conceal the identities of its informants to further its investigation;
10. The Court has narrowly tailored its closure order to safeguard the Government's
compelling interests by closing plea hearings to conceal the identities ofthe
208 See id at 119 (noting the district court need not "hold a hearing and write redundant [mdings offact").
209 See Fahle, 231 FJd at 196.
34
Government's informants and to keep secret the Government's information regarding
aspects of its investigation it is not yet ready to prosecute;
11. The Court has narrowly tailored its closure order to safeguard the Government's
compelling interests by sealing the record to keep secret the Government's
information regarding aspects of its investigation it is not yet ready to prosecute, to
protect the due process rights of unindicted co-conspirators, to prevent witness
intimidation based upon that information, and to prevent serious risk of physical and
economic harm to those who might be implicated with the public corruption scandal
based upon the record;
12. As of this date, documents, including affidavits in support of search warrants and plea
agreements and the plea agreements themselves, contain factual information, which,
even with substantial redaction, could still be deciphered and imperil the investigation
and welfare of many;
13. The redacted documents the Government moves to unseal no longer warrant the
Court's protection because the Government no longer has a compelling interest in
safeguarding the information contained in them;
14. The redacted portions of the documents the Government moves to unseal still require
the Court's protection because the redacted portions relate to parts ofthe
Government's investigation, which still require secrecy so the Government can pursue
its investigation and choose when to prosecute its case, with the exception of one of
the suggestions the Government makes, which the Court disagrees with and therefore
will unseal.
IV. CONCLUSION AND ORDERS
Every decent person deeply laments the corruption and hypocrisy that have become
intertwined with the City's government.
2lO
As Intervenor so aptly stated, "secrecy and silence on
government corruption is contrary to our nation's values and detrimental to the ability ofEI Paso's
local governments to govern themselves.'>2Il Indeed, in the City, "secrecy and silence" was present
before the Government began its investigation. "Secrecy and silence" was at the heart of the
210 See C. Raj Kumar, Corruption and Human Rights: Promoting Transparency in Governance and the
Fundamental Right to Corruption-Free Service in India, 17 COLUM. J. ASIAN L. 31, 32 (2003) (quoting Mohandas
Karamchand Gandhi (1869-1948» ("Corruption and hypocrisy ought not to be inevitable products of democracy, as
they undoubtedly are today.").
211 Intervenor's Mot. to Intervene at 1.
35
impunity, which has been the target of the Government's investigation. And "if[this] vice and
corruption prevail, liberty cannot subsist."212
Free government cannot be preserved without a return to fundamental principles.
213
Fundamental principles are, as is the case here, at times incompatible. Intervenor's presumptive right
of access to judicial proceedings directly conflicts with the Court's longtime duty to safeguard the
integrity of those proceedings and the individuals who are a part of them. 214 While the Court
recognizes Intervenor's First Amendment right, it must allow the right to give way to the
Government's compelIing interests to maintain the integrity of its investigation, affirm the
Government's executive power to prosecute the case in a manner of its own choosing, protect
witnesses from intimidation, safeguard the due process rights of unindicted co-conspirators, and allow
the Government to complete the task at hand.
For more than a generation, the corruption that enwraps the City has been cloaked in secrecy,
but today, the confidentiality which the Government requires to undertake its investigation has been
narrowly confined in order to unveil it.
215
To date, the court proceedings and filings for this case have
been, to a great extent, held confidentially. Some documents related to the case are being unsealed
this day. The rest remain confidential. As to future proceedings and filings, the Court will continue
to carefully and rigorously address them one at a time. The press will not be disregarded. Disclosures
will be made when the risks are diminished. Premature disclosure could very well deprive the City of
much needed relieffrom the repression of public corruption. Just as "a reporter's ability to keep the
212 ALGERNON SIDNEY, DISCOURSES CONCERNING GOVERNMENT 241-42 (3d ed., printed for A. Millar 1751)
(1698).
213 See Patrick Henry, Virginia Bill ofRights, '15 (June 12, 1776), available at
http://www.nhinet.org/ccs/docs/va-76.htm ("[N]o free government, or the blessings of liberty, can be preserved to
any people but by a fIrm adherence to justice, moderation, temperance, frugality, and virtue; and by a frequent
recurrence to fundamental principles.").
214 See Neb. Press Ass 'n, 427 U.S. at 569-70.
215 See SISSELABOK, SECRETS: ON THE ETHICS OF CONCEALMENT AND REVELATION (1982) ("[W]hile all
deception requires secrecy, all secrecy is not meant to deceive.") .
36
bond of confidentiality often enables him to learn the hidden or secret aspects of government,"216 so,
too, does the Government's ability to maintain the confidentiality of its investigation enable it to
unshroud the "veil of secrecy" which obscures public corruption in the City today.
Therefore, based upon the foregoing discussion and analysis, the Court enters the following
orders:
1. The Court concludes Intervenor's "Motion ofEl Paso Media Group, Inc. dba The
Newspaper Tree to Intervene to Unseal Court Documents and to Open Court Hearings
and Request for Hearing on the Motion" [Rec. No. 97] should be and is hereby
DENIED, except to the extent the Court grants the Government's Motion to Unseal.
2. The Court concludes the "Government's Motion to Unseal Redacted Transcripts"
[Rec. No. 101] should be and is hereby GRANTED.
3. Pursuant to Federal Rule of Criminal Procedure 49.1 and the United States District
Court for the Western District of Texas' May 8, 2008, "General Order Regarding
Electronic Filing of Transcripts," particularly Part LF, the Court Reporter is instructed
to REDACT the transcripts of the Ketner, Flores, Cordova, Lucero, Ruiz, Chol-Su
Pak, Telles, and Dill plea hearings, as suggested by the Government and amended by
the Court, and to FILE them on the Western District of Texas CM/ECF system for the
above-captioned case number.
SO ORDERED.
SIGNED this Ii day of October, 2008.
C ; ; ~ t : ~ _
FRANK MONTALVO
UNITED STATES DISTRICT JUDGE
216 Interview with Bob Woodward, Author ofALL THE PRESIDENT'S MEN, (June 17, 1997), available at
http://discuss.washingtonpost.com/zforumi97/woodward.htm.
37
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You are here: Home / News / Details of El Paso public corruption cases remain hidden
Details of El Paso public corruption cases remain
hidden
By Ramon Bracamontes
El Paso Times
More than two weeks after El Pasoan Carl Starr filed a motion to increase the openness in the ongoing public
corruption case public by making more files public, he has yet to hear from the court or the U.S. attorney’s
office, and no hearing has been scheduled.
“I don’t even know if the court has decided to allow my motion to be entered,” Starr said. “I don’t know if it is
the judge or the U.S. attorney who will answer my request.”
While some defense lawyers and some of the people implicated in the public corruption case have complained
privately about the ongoing three-year investigation and the enormous amounts of sealed documents filed in the
case, only Starr, a civil-rights activist, has filed a public motion asking for more court documents to become
public.
On March 23 he filed a motion to intervene in the public corruption case in order to find out why access to
records and hearings is being denied. This week he filed a second motion asking for a hearing.
1/20/2011 Details of El Paso public corruption cas…
www.texascivilrightsproject.org/?p=235 2/7
elpasotimes.aam news
U.S. District Judge Frank Montalvo who is presiding over the case did not return a phone call seeking comment.
Shana Jones, special assistant to the U.S. Attorney, said, “There is no legal authority for a third party to intervene
in a criminal prosecution and as a result it is unlikely the government will respond to the intervener’s motion.”
Starr, who is not a lawyer, said he is hopeful that a public hearing on his motion will be held, unlike some of the
past rulings.
“They are taking their time, though,” he said.
Some of the sealed rulings or secret court proceedings Starr wants open to the public are:
When the government and Frank Apodaca were scheduled to argue in court over who should keep Apodaca’s
seized money, Montalvo two days before signed a separate warrant allowing the government to get the money
out of the lawyer’s bank account, thus making the scheduled hearing moot.
When U.S. Magistrate Judge Norbert Garney granted Fernando Parra the right to be released on bond during a
public arraignment, Montalvo immediately signed an order in private halting his release. A public bond hearing
was later held, but the order halting Garney’s approval remains unavailable.
All seven people who have pleaded guilty in this case went before Montalvo without their hearing being listed on
the judge’s public docket. Their pleas remain sealed and none were arrested or sentenced.
When El Paso lawyer Martie Jobe asked Montalvo to recuse himself from the case, Montalvo did not ask
another judge to rule, instead he ruled that he would not recuse himself and no public hearing was held.
When El Paso lawyer Mary Stillinger was told she could not represent three people implicated in the case,
Montalvo ruled against her without holding a public hearing. Stillinger was allowed to present her case in filings
and she has appealed to the Fifth Circuit Court of Appeals.
And, 10 months after the first person pleaded guilty in case, several orders, motions and rulings remain sealed
and the reasons why these documents should remain sealed have never been made public, according to the court
records available.
The lack of a public order or opinion stating why the documents must remain sealed is one of the reasons Starr
filed his motion.
Jim Harrington, director of the Texas Civil Rights Project and a law professor at the University of Texas Law
School in Austin, said his group is aware of the public corruption case but they have not been asked to intervene.
The Texas Civil Rights Project is a non-profit based in Austin with an office in El Paso that protects against civil
rights violations.
“I’m astounded that a judge is exercising any type of secret docket,” Harrington said. “I can understand keeping
documents sealed for a brief period, but what is happening there is amazing.”
Harrington said the perception problem in this case revolves around the fact that this is a public corruption
investigation.
“When you have public corruption cases, officials are investigating deals and meetings that occurred in secret
1/20/2011 Details of El Paso public corruption cas…
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away from the public’s view,” Harrington said. “The irony in this case is that the judge is hiding some of the
courtroom’s activities from the public’s view. This is amazing.”
Ramon Bracamontes may be reached at 546-6142; rbracamontes@elpasotimes.com.
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October 17, 2008
Montalvo denies NPT but unseals court's
corruption case transcripts
by David Crowder
Federal District Judge Frank Montalvo, in a ruling released Thursday, acknowledged a clash of compelling
interests in denying El Paso Media Group and Newspaper Tree’s motion to intervene in the ongoing public
corruption prosecutions to open court hearings and dockets and to unseal hearing transcripts.
But, in doing so, Montalvo granted the U.S. attorney’s office's request to unseal edited transcripts from the
closed hearings of all eight defendants who have pleaded guilty to public corruption charges – a motion that
came in response to the August lawsuit by Newspaper Tree. (Download ruling below)
El Paso Media Group and Newspaper Tree were represented by Jim Harrington of nonprofit Texas Civil
Rights Project Texas Civil Rights Project in Austin in filing the lawsuit that sought access to those transcripts
as well as a ruling that future plea hearings would be open.
In an earlier memorandum of opinion, Montalvo strongly sided with the government’s argument that too
much sensitive information about the public corruption investigation was disclosed at those hearings to
release the unedited transcripts.
He cited the government’s “compelling interest in safeguarding the identities of its informants, so that it can
continue to collect information to further its investigation and ultimately prosecute this case.”
Even so, he granted the government’s motion to release edited transcripts of those hearings while
reserving the right to close future hearings if the government was able to show a compelling need to do so.
In his ruling, Montalvo wrote at length about the nature of the ongoing investigation, the price El Paso has
paid for a generation of unprosecuted corruption and the need to protect that investigation by closing
hearings and keeping documents secret until they can be released without harming the investigation.
But such practices, he noted, are controversial and often dimly viewed by the courts because of the
questions and public perceptions raised by extended secrecy.
“Based upon the historical openness of plea proceedings, and the significant roll the press plays in
enhancing the public’s understanding of such proceedings, the Court affirms Intervenor’s presumptive right
to access the plea hearings that have transpired in the past 15 months,” Montalvo wrote. “The Court
recognizes the importance of Intervenor’s presence at plea hearings to assure each proceeding is
conducted fairly for the Defendants, the Government and the City residents.
“The presumptive openness of these proceedings exists so the residents of the City can receive the
vindication they deserve, can heal from the offenses the residents have endured, and can ‘restore the
imbalance’ that has been created as a result of the ongoing public corruption scandal.
“The Court recognizes Intervenor’s contribution of making the City’s residents aware of the crisis that
plagues the City and appreciates its efforts to include the City’s residents in the City’s governmental affairs,
our republican system of government and the judicial processes.
“Nevertheless, Intervenor’s right of access is not absolute.”
1/20/2011 Montalvo denies NPT but unseals court…
newspapertree.com/…/2957-montalvo-… 1/2
Montalvo said his task “is to balance countervailing concerns with the press and the public’s right of access
to judicial proceedings.”
In this case, he said, “The Government has demonstrated the need to curtail Intervenor’s First Amendment
freedom.”
It appears that the first edited transcript to be released will be the June 2007 hearing of the first person who
pleaded guilty to public corruption charges, Travis Ketner, the former chief of staff to County Judge Anthony
Cobos. That document showed up Thursday on the federal courts’ electronic document system but could
not be downloaded.
Since Ketner’s plea, seven other defendants have appeared in closed hearings to enter guilty pleas to
offenses that were disclosed afterward in information documents.
The pattern was broken in the case of a former El Paso district clerk employee, Fernando Parra, who
pleaded guilty to participating in a scheme to deprive residents of El Paso County of the "honest services"
of public officials, who received bribes for votes.
Recently, four individuals have been indicted on corruption charges.
To reach David Crowder, write to dcrowder@epmediagroup.com or call (915) 351-0605
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NEWS MEDI A UPDATE Tex as · Oc t ober 2 0 , 2 0 0 8 · Sec r et c our t s
Court unseals more documents in secret El Paso corruption case
A feder al cour t on Thur sday denied a newspaper ’s r equest t o int er vene and unseal r ecor ds in
a sweeping cor r upt ion invest igat ion in El Paso, Tex., but agr eed t o unseal some of t he document s
in r edact ed for m.
Feder al Dist r ict J udge Fr ank Mont alvo issued a 37 -page r uling t hat denied El Paso
Media Gr oup’s mot ion t o int er vene in t he long-r unning public cor r upt ion
invest igat ion for t he pur pose of challenging t he blanket secr ecy t hat has
char act er ized t he case, Unit ed St at es v . Ket ner. So far t he inquir y has included mor e
t han 80 "per sons of int er est ," including dozens of El Paso public officials and t hr ee
cur r ent or for mer judges.
Mont alvo did make clear t hat t he pr ess had a r ight t o challenge t he sealing of cour t r ecor ds and
closing of hear ings, wr it ing t hat he must “balance count er vailing concer ns wit h t he pr ess and t he
public’s r ight of access t o judicial pr oceedings.” Mont alvo r eject ed t he ar gument put for t h by t he
gover nment in it s r esponse t o t he media gr oup t hat t he r equest could not be decided at t his t ime
because t he closur e issue was bot h moot and unr ipe, or not r eady for r eview.
The cour t found t hat , because of t he r isk t hat t he gover nment might ask t he cour t t o close fut ur e
pr oceedings, t he issue of public access t o t he case “pr esent s a cont r over sy capable of r epet it ion
but evading r eview.”
Ult imat ely, t he cour t concluded t hat t he compelling int er est in pr ot ect ing an on-going
invest igat ion just ified limit ing public access t o t he cr iminal pr oceedings. At t he same t ime, t he
cour t gr ant ed a separ at e r equest fr om t he U.S. At t or ney’s office t o unseal r edact ed t r anscr ipt s
fr om t he closed hear ings of eight defendant s who pleaded guilt y t o public cor r upt ion char ges.
The r uling also addr essed a puzzling issue -- whet her t he gover nment had asked t he cour t t o close
t he plea hear ings in t he fir st place. I n an ear lier or der , Mont alvo said t he pr osecut ion and defense
t eams had joint ly r equest ed secr ecy dur ing plea hear ings, and t hat “on most if not all occasions,
t he Gover nment made an or al mot ion at each plea hear ing for closur e of t he pr oceedings and
sealing of r ecor ds, wit hout object ion fr om defense counsel.”
The gover nment disagr eed wit h t his char act er izat ion in it s next filing, saying a "r eview of t he
t r anscr ipt s of t he eight closed plea hear ings r eflect s t he gover nment made no such mot ions.”
I n Thur sday’s opinion, Mont alvo r eplied, “While t his is t r ue, t he Cour t not es counsel for t he
Gover nment and t he Defendant met in chamber s pr ior t o each plea hear ing,” and t he compelling
int er est s discussed in t hose meet ings led t he cour t t o close pr oceedings.
—Ror y Ea st bu r g, 5 : 2 2 pm
Copy r i ght 2 0 0 8 The Repor t er s Commi t t ee for Fr eedom of t he Pr es s .
Co m m e n t s : ( 1)
Co m m e nt b y Al U Ma n n , Mo n , Oct 2 7 , 2 0 0 8 , 6 : 4 0 a m
A pr im a r y r ea son for sea lin g r ecor ds: i s i t n ot m i n er s . . [ ?]

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Shar e:
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Pr i nt
Li nk
THE NEWS MEDI A & THE LAW FEA TURE · Nov ember 1 , 2 0 0 8 · Sec r et c our t s
Sealed in t he heart of Texas
Fr om t h e Fa ll 2 0 0 8 issu e of The New s Media & The Law , pa ge 3 8 .
By Rory East burg
Since 20 0 4, feder al aut hor it ies in Texas have conduct ed a sweeping public
cor r upt ion inquir y t hat involves mor e t han 80 “per sons of int er est .” Almost half of
t hose may be public officials. The t r ickle of infor mat ion out of t he feder al
cour t house in El Paso suggest s mult iple public officials wer e pr osecut ed ent ir ely
behind closed door s, t heir cour t appear ances wiped off t he public docket .
I ndeed, despit e nine guilt y pleas t aken and dozens of public officials ensnar ed in t he pr obe, t he
cour t kept all pr oceedings and filings secr et . Only aft er t wo at t empt s t o cr ack a window on t he
case, one by a local act ivist and anot her by t he El Paso Media Gr oup, did t he public lear n t he full
scope of t he invest igat ion int o br iber y and cor r upt pr act ices in El Paso.
I t is st ill unclear who was behind t his unpr ecedent ed level of secr ecy.

Cr i m i n a l c a s e s p r e s u m e d o p e n
Secr ecy in cr iminal pr oceedings has been shar ply cr it icized by t he U.S. Supr eme Cour t . I n a 1980
case or iginat ing in Vir ginia, t he Cour t r ecognized t hat t he public and pr ess have a const it ut ional
r ight of access t o pr oceedings in cr iminal cases. This r ight , t he Cour t said in Richmond
Newspaper s v. Vir ginia, was based on t he “unbr oken” hist or y of public cr iminal pr oceedings as
well as t he fact t hat public access helps cour t s r un mor e fair ly and effect ively.
Because of t his access r ight , t he Supr eme Cour t has said no st at e or feder al judge in t he Unit ed
St at es may shut t er pr oceedings in a cr iminal case wit hout making specific, on-t he-r ecor d findings
t hat “closur e is essent ial t o pr eser ve higher values” t han t he public’s r ight of access and is
“nar r owly t ailor ed t o ser ve t hat int er est .” Thus, t he cour t must find t hat t her e is a compelling
need for secr ecy in or der t o close a cr iminal cour t r oom, and also t hat t her e is no ot her way of
dealing wit h t he pr oblem. This is oft en called t he Pr ess-Ent er pr ise st andar d, since it was cr eat ed
in t wo cases, fr om 1984 and 1986, br ought by t he River side, Cal. Pr ess-Ent er pr ise.

An a c t i v i s t ’s c h a l l e n ge
Even wit h t hat pr esumpt ion of openness in cr iminal pr oceedings, t he El Paso pr osecut ions
r emained almost t ot ally sealed unt il Mar ch 20 0 8, when local civil r ight s act ivist Car l St ar r
object ed.
Sit o Negr on, edit or of The Newspaper Tr ee, said St ar r “deser ves t he most cr edit ” for chipping
away at t he secr ecy sur r ounding t he El Paso invest igat ion. Though not an at t or ney, St ar r
r epr esent ed himself and asked t he cour t for per mission t o int er vene for t he pur pose of unsealing
t he r ecor ds and opening fut ur e hear ings. St ar r not ed t hat t he public int er est in t he El Paso case
“cannot be over st at ed,” adding t hat “so far as t he public docket r eveals … t he public has not had
an oppor t unit y t o object and be hear d on [t he] sealing.”
The cour t lar gely r eject ed St ar r ’s r equest t o unseal, concluding t hat t he unusual secr ecy was
r equir ed in or der for t he invest igat ion t o succeed. Ant icipat ing cr it icism, J udge Fr ank Mont alvo
said “t his cour t is not asking anyone t o ‘t r ust me because I say so.’ I nst ead, t he cour t is
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The News Media And The Law
suggest ing t hat t he public should t r ust t he syst em, because t he pr ocedur es in place have
wit hst ood t he t est of t ime.”
Though t he cour t r efused t o unseal all t he r ecor ds in t he case, it t ook t wo act ions t hat St ar r and
ot her s consider ed par t ial vict or ies. Fir st , t he cour t pr ovided it s fir st public just ificat ion for t he
sealing of t he document s in t he El Paso invest igat ion, acknowledging t hat it must weigh “t he
public’s r ight of access against t he gover nment ’s need t o maint ain t he int egr it y of it s lengt hy,
complex, and ongoing invest igat ion int o public cor r upt ion.”
Second, t he cour t r evealed det ails about t he invest igat ion for t he fir st t ime: That mor e t han 80
“per sons of int er est ” had been swept up in t he pr obe; t hat 35 of t hem wer e public officials; and
t hat t hr ee wer e cur r ent or for mer judges. The phr ase “per sons of int er est ” has no st andar d legal
definit ion, t hough it is incr easingly common. I n t his case, it r efer r ed t o “someone wit h per sonal
knowledge of t he conduct under invest igat ion, but who is not necessar ily suspect ed of cr iminal
conduct .” Ther e was also infor mat ion about t he defendant s who had pleaded guilt y.
Mont alvo wr ot e t hat t he invest igat ion “has allegedly uncover ed syst emic and wide-spr ead public
cor r upt ion and ot her fr audulent act ivit ies dir ect ed by individuals wit hin t he gr eat er El Paso
communit y.” This allegedly included awar ding gover nment cont r act s and assigning cases t o
specific judges in exchange for payment s.
The cour t also disclosed t hat it had issued a war r ant t o t ap t hr ee t elephone lines which t hen
capt ur ed “t housands of conver sat ions and t ext messages,” and t hat t he FBI had seized mor e t han
2,30 0 boxes of evidence, including 16 boxes fr om t he office of an El Paso count y judge. As of
Mont alvo’s r uling, seven defendant s had pleaded guilt y in t he case; now, t hat number is up t o
nine.
For t he fir st t ime, Mont alvo or der ed t he dist r ict cour t cler k t o post r edact ed ver sions of sever al
document s r elat ed t o t he plea hear ings.

Me d i a gr o u p i n t e r v e n e s
St ill, t he cour t shot down much of St ar r ’s r equest . Next t he El Paso Media Gr oup, publisher of The
Newspaper Tr ee, st epped in wit h a mot ion t o int er vene and unseal t he r ecor ds.
“We’r e a ver y small media gr oup, and we had t o use all t he r esour ces t hat wer e available just t o
get t his done,” owner and publisher Keit h Mahar said in The Newspaper Tr ee. “This is a
monument al t ask for us, but we believe in what we’r e doing. I t ’s impor t ant .”
The gr oup’s at t or ney, J im Har r ingt on of t he Texas Civil Right s Pr oject , ar gued t hat t he pr ess and
public have a r ight t o be pr esent in pr oceedings t hat t r adit ionally have been open and wher e
“public access plays a significant posit ive r ole in t he funct ioning of t he par t icular pr ocess in
quest ion.” The gr oup ar gued t hat t he blanket secr ecy or der in t he El Paso invest igat ion was not
nar r owly t ailor ed and t hat , cont r ar y t o what Mont alvo wr ot e, “‘Tr ust me’ doesn’t wor k, and
hasn’t wor ked in hist or y, which is why our Founder s set up our for m of self-gover nment in t he
way t hey did.”
I n r esponse, t he gover nment ar gued t hat t he gr oup’s r equest should be denied because it would
be inappr opr iat e for Mont alvo t o r ule on t he openness of hear ings t hat hadn’t come up yet . I t
also ar gued t hat t he r equest was moot because when t he nint h defendant , Fer nando Par r a,
pleaded guilt y in J uly, he did so in an open hear ing.
The gover nment also signaled t hat it would, of it s own accor d, seek t o unseal mor e document s. I t
did so on Sept . 4, filing a mot ion saying it want ed “t o unseal r edact ed ver sions of t he t r anscr ipt s
t o t he sealed hear ings since t he pur pose for t he closed pr oceedings in t he eight hear ings has been
amelior at ed.”
Since t hen, t he gover nment and t he dist r ict cour t in El Paso have shown signs of pr ogr ess on
openness. The cour t has made on-t he-r ecor d findings in suppor t of it s sealing or der , and t he
gover nment has signaled t hat closur e will be t he except ion r at her t han t he r ule in t he fut ur e.
When for mer El Paso school t r ust ee Salvador M. Mena was indict ed, unlike near ly all pr evious
hear ings in t he case, his Sept . 9 appear ance was conduct ed in open cour t .
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Most r ecent ly, t he cour t on Oct ober 14 denied t he media gr oup’s r equest t o int er vene in or der t o
challenge t he secr ecy sur r ounding t he El Paso invest igat ion. I n t he same or der , however , it
gr ant ed t he gover nment ’s mot ion t o unseal t he r edact ed t r anscr ipt s of plea hear ings.

A s p r a wl i n g i n v e s t i ga t i o n i n s e c r e t
The t hick veil shr ouding t he El Paso invest igat ion, which would be unusual in any case, seemed
par t icular ly sur pr ising given t he scope of t he invest igat ion — last ing so many year s,
encompassing so many public officials.
The char ges t hemselves var ied by defendant . Mena, for example, was char ged wit h accept ing
br ibes in exchange for vot ing t o awar d mult imillion-dollar cont r act s t o vendor s. J ohn Tr avis
Ket ner was char ged, among ot her t hings, wit h involvement in a scheme t hat gamed t he
ot her wise-r andom syst em used t o assign cases t o judges.
Some in El Paso found t he dr ast ic secr ecy measur es just ified, in par t because t he climat e of
per vasive cor r upt ion was an obst acle t o t he cit y’s economic development . For example, as J udge
Mont alvo not ed in a May 28 or der , Texas Mont hly wr ot e in Apr il t hat “having st ar t ed t he
cr ackdown on cor r upt ion, (feder al aut hor it ies) must see t hings t hr ough t o t he end or t her e will
be anar chy and t he longed-for boom will not occur .” But ot her s ar gued t hat t he impor t ance of t he
pr osecut ions only height ened t he need for openness.
“I t r aises all kinds of quest ions about undue influence,” Bill Weaver , polit ical science pr ofessor at
Univer sit y of Texas at El Paso, t old The Newspaper Tr ee in May. “I s it polit ically mot ivat ed? We
just don’t know because not hing’s being exposed.”
I n any event , even if t he case moves for war d wit h gr eat er t r anspar ency now, one myst er y does
linger : t he quest ion of who, exact ly, want ed t he hear ings closed in t he fir st place.
I n his May or der , Mont alvo said t he pr osecut ion and defense t eams had joint ly r equest ed
secr ecy dur ing plea hear ings, and t hat “on most if not all occasions, t he Gover nment made an
or al mot ion at each plea hear ing for closur e of t he pr oceedings and sealing of r ecor ds, wit hout
object ion fr om defense counsel.”
Because t he par t ies t hemselves r equest ed t he sealing, he added, t her e was no r eason t o wor r y
t hat secr ecy might impinge on t he fair t r ial r ight s of t he defendant s.
But t ucked away in a foot not e of it s r esponse t his fall t o t he El Paso Media Gr oup, t he pr osecut ion,
at least , disagr eed: “A r eview of t he t r anscr ipt s of t he eight closed plea hear ings r eflect s t he
gover nment made no such mot ions.” I n his Oct . 4 opinion, Mont alvo r eplied, “While t his is t r ue,
t he Cour t not es counsel for t he Gover nment and t he Defendant met in chamber s pr ior t o each
plea hear ing.” Based on t he compelling int er est s discussed in chamber s, t he cour t said, it decided
t o close t he pr oceedings.
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Pet er J. Henni ng
Print This Article >> STORI ES & GRI EVA NCES
Publ i c Cor r upt i on i n El Paso, Texas, Reaches $2.1 Bi l l i on,
and Mor e
" Don' t forget t ax dollars come out of people' s pocket s," said Pet er Henning, a law professor
at Wayne St at e Universit y Law School. " The nat ional value is over $2 billion, but t he real
cost comes in t he reput at ion suffered by t he government ." The public corrupt ion
invest igat ion began in 2004 and has branched int o 12 separat e invest igat ions, according t o
court document s. So far nine people have pleaded guilt y t o various public corrupt ion and
fraud charges. Four ot hers have been indict ed on fraud and bribery charges, and are await ing
t rial. I n every case so far, t hose implicat ed were working wit h government cont ract s. ...my
quest ion is, " when can you look at New York Cit y?" Bet sy Combier
$2. 1 bi l l i on i n cont ract s i nvol ved i n FBI i nqui ry
By Ram on Bracam ont es / El Paso Ti m es, 11/ 23/ 2008
LI NK
More on publ i c corrupt i on
EL PASO - - The governm ent cont ract s at t he cent er of t he FBI ' s publ i c
corrupt i on i nvest i gat i on add up t o sl i ght l y l ess t han $2. 1 bi l l i on,
accordi ng t o an El Paso Ti m es revi ew of publ i c records i n t he case.
" Don' t f orget t ax dol l ars com e out of peopl e' s pock et s, " sai d Pet er
Henni ng, a l aw prof essor at Wayne St at e Uni versi t y Law School . " The
nat i onal val ue i s over $2 bi l l i on, but t he real cost com es i n t he
reput at i on suf f ered by t he governm ent . "
The publ i c corrupt i on i nvest i gat i on began i n 2004 and has branched i nt o
12 separat e i nvest i gat i ons, accordi ng t o court docum ent s. So f ar ni ne
peopl e have pl eaded gui l t y t o vari ous publ i c corrupt i on and f raud
charges. Four ot hers have been i ndi ct ed on f raud and bri bery charges, and are awai t i ng t ri al .
I n every case so f ar, t hose i m pl i cat ed were work i ng wi t h governm ent cont ract s.
A revi ew of publ i c records i n t hi s case shows t hat :
# The i nvest m ent f i rm Bear St earns was doi ng $1. 5 bi l l i on wort h of work f or El Paso governm ent s
when t wo of i t s i nvest m ent bank ers pl eaded gui l t y t o bri bi ng el ect ed of f i ci al s i n ex change f or
cont ract s.
# Access Heal t hSource l ost t hree governm ent cont ract s t ot al i ng $332 m i l l i on af t er i t s of f i ces were
searched by t he FBI and i t s f orm er presi dent was i m pl i cat ed i n t he case.
# A f orm er count y com m i ssi oner pl eaded gui l t y t o accept i ng
Advert i sem ent
$10, 000 i n ex change f or her vot e on a $20 m i l l i on park i ng garage cont ract . " The park i ng garage
m i ght have onl y cost $19 m i l l i on i f i t wasn' t f or what was goi ng on, " sai d Henni ng, who speci al i zes i n
publ i c corrupt i on cases.
I n regard t o t he FBI i nvest i gat i on, Count y At t orney José Rodríguez responded t o i nqui ri es f rom t he
El Paso Ti m es by sayi ng, " Duri ng t he past 18 m ont hs, t he Count y At t orney' s Of f i ce has been
revi ewi ng al l t he t ransact i ons and cont ract s t hat we bel i eve have been i m pl i cat ed i n t he FBI
corrupt i on i nvest i gat i on, and we have f i l ed l i t i gat i on rel at ed t o som e of t hose cont ract s wi t h t he
purpose of recoveri ng f unds t hat shoul d be ret urned t o El Paso t ax payers. However, due t o t he f act
t hat t he l i t i gat i on i s pendi ng, i t woul d be i nappropri at e t o di scl ose m ore det ai l s. El Paso resi dent s
shoul d rest assured t hat we are aggressi vel y pursui ng al l l egal recourses t o prot ect t he i nt erest s of
t he Count y of El Paso. "
FBI of f i ci al s wi l l not com m ent on t he st at us of t he i nvest i gat i on, ot her t han t o say t hat i t i s
cont i nui ng and t hat t here i s no t i m el i ne.
The onl y i nsi ght as t o t he scope of t he i nvest i gat i ons and t he am ount of peopl e bei ng i nvest i gat ed
was provi ded by U. S. Di st ri ct Court Judge Frank Mont al vo ( see bel ow - Ed. ) I n an court opi ni on
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Mont al vo reveal ed t hat :
# The i nvest i gat i on began i n 2004.
# 12 di f f erent i nvest i gat i ons are i n progress.
# Of t he 80 persons of i nt erest i m pl i cat ed, 35 are past or present el ect ed of f i ci al s, 13 are l awyers
and t hree are f orm er or current j udges.
# 2, 300 box es of evi dence have been sei zed by t he FBI .
# 154 peopl e were t ol d t hei r t el ephone conversat i ons were i nt ercept ed.
# And t housands of dol l ars have been sei zed f rom several El Paso busi nessm en.
Am ong t he ni ne who have pl eaded gui l t y were f orm er Bear St earns i nvest m ent bank ers Robert o
" Bobby" Rui z and Chri st opher Chol - Su Pak . Bot h pl eaded gui l t y Dec. 21 i n U. S. Di st ri ct Court i n El
Paso t o conspi racy t o com m i t m ai l f raud, wi re f raud and t he depri vat i on of honest servi ces.
Rui z, t hrough hi s pl ea, adm i t t ed bei ng part of bri bery schem es i nvol vi ng El Paso I ndependent
School Di st ri ct t rust ees, El Paso Com m uni t y Col l ege t rus t ees, El Paso Ci t y Counci l represent at i ves
and El Paso Count y Com m i ssi oners Court m em bers. The pl ot s cal l ed f or ex changi ng vot es f or
m oney.
Chol - Su Pak , bet t er k nown i n El Paso as Chri s Pak , adm i t t ed, as part of hi s pl ea, t hat he and
ot hers agreed t o gi ve an El Paso Count y com m i ssi oner m oney i n ex change f or t he com m i ssi oner' s
vot e on a cont ract .
Bear St earns hel ped several governm ent ent i t i es i n El Paso sel l m ore t han $1. 5 bi l l i on i n bonds.
" How m uch of t hat m oney was m i sused or how m uch of t hat was goi ng t o be sol d anyway, we wi l l
never k now, " Henni ng sai d. " But t here were addi t i onal cost i nvol ved because of what was
happeni ng. "
Form er FBI Speci al Agent - i n- charge Ri chard Schwei n, sai d t he i nvest i gat i on i s cruci al t o t he
com m uni t y because i t i nvol ves t ax payer m oney. .
" I t has cost us, t he t ax payers, a l ot of m oney, " Schwei n sai d. " And f rom what I underst and, t here i s
a l ot m ore t o com e, wi t h a l ot m ore t ax payer m oney at st ak e. "
Am ong t he ot her governm ent cont ract s t hat have been i m pl i cat ed i n t he case are:
# A $9 m i l l i on cont ract t o provi de prof essi onal servi ces f or t he Border Chi l dren' s Ment al Heal t h
Col l aborat i ve, a f ederal grant program .
# The $235 m i l l i on wort h of cont ract s t he Nat i onal Cent er f or t he Em pl oym ent of t he Di sabl ed had
wi t h t he f ederal governm ent .
Ram on Bracam ont es m ay be reached at rbracam ont es@el pasot i m es. com ; 546- 6142.
Judge Fr ank Mont al v o t ak es posi t i on i n West er n Di st r i ct
Ki k o Mart i nez, La Prensa de San Ant oni o, August 10, 2003
Judge Frank Mont al vo of t he 288t h Judi ci al Di st ri ct Court of Tex as i s m ak i ng hi s way t o El Paso, TX.
He, al ong wi t h Judge Xavi er Rodri guez was chosen by t he U. S. Senat e t o be Di st ri ct Judges f or t he
West ern Di st ri ct of Tex as. The new bench was creat ed by t he l egi sl at ure i n Novem ber 2000.
Mont al vo, who was recom m ended by Senat or John Cornyn and Kay Bai l ey Hut chi son f or t he
posi t i on, i s ex ci t ed about hi s new vent ure. He was surpri sed t hi s past Wednesday ni ght by f ri ends
and col l eagues who t hrew a surpri se goi ng away part y t o wi sh hi m wel l i n hi s m ove.
" Here i s a m an who has been abl e t o represent not onl y i n hi s const i t uency but al so t he port i on of
our popul at i on t hat i s Hi spani c and f eel s pri de i n hi m , " sai d Roger Fl ores Jr. , ci t y counci l m an. " I t i s
goi ng t o be sad t o see hi m go but ex ci t i ng t o see hi m m ove on t o bi gger and bet t er t hi ngs. He i s a
m an of pri nci pal and st rong et hi cs. I hope t hat i s a part of what he t ak es wi t h hi m . "
Al ong wi t h t ak i ng hi s pri nci pal s and i deal s t o West Tex as, Mont al vo sai d he' l l never f orget what San
Ant oni o has t aught hi m about work i ng t oget her as a com m uni t y.
" The m ost rem ark abl e t hi ng about San Ant oni o i s t he great hum an rel at i ons t hat i t has, " Mont al vo
sai d. " We do not break down by et hni c or rel i gi ous groups. We al l work t oget her t o i m prove t he
com m uni t y and we em brace whoever com es t o t hi s ci t y, regardl ess of where t hey com e f rom , t o
hel p us.
I am l i vi ng proof of t hi s. I wi l l carry t hi s af f ect i on, support and desi re i n m y heart when I l eave San
Ant oni o. "
I n El Paso, Mont al vo wi l l t ak e som e of t he work l oad of f t he j udges and qui ck l y becom e a
com m odi t y t o t he West ern Di st ri ct .
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" The El Paso di vi si on i s t he busi est di vi si on of al l t he Federal court s i n t he count ry, " Mont al vo sai d.
" The t wo j udges t here ri ght now are great guys, but t he am ount of work t hat t hey have i s so
overwhel m i ng. I am goi ng t o go and carry t he l oad and i m prove t he com m uni t y. What I wi l l bri ng
f rom here i s m y ex peri ence i n com m uni t y work . Thi s wi l l be m y cont ri but i on when I get t here. "
Art i cl e copyri ght La Prensa de San Ant oni o.
For m er Nat i onal Cent er f or t he Em pl oy m ent of t he Di sabl ed Ex ecut i v es ROBERT EDWA RD JONES,
ERNESTO A LONZO LOPEZ A nd PA TRI CK WOODS A r r est ed On Em bezzl em ent Char ges
Oct 17t h, 2008
by adm i n.
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The f orm er CEO and Presi dent of Nat i onal Cent er f or t he Em pl oym ent of t he Di sabl ed ( NCED)
ROBERT EDWARD JONES, a. k . a. , Bob Jones; f orm er NCED Chi ef Operat i ons Of f i cer ERNESTO
ALONZO LOPEZ, a. k . a. Erni e Lopez; and f orm er NCED Of f i cer and m em ber of t he NCED Board of
Di rect ors PATRI CK WOODS, a. k . a. , Pat Woods, were arrest ed wi t hout i nci dent t hi s m orni ng on
f ederal charges rel at ed t o em bezzl i ng m i l l i ons of dol l ars i n governm ent program f unds. The arrest s
st em f rom t wo separat e f ederal grand j ury i ndi ct m ent s ret urned i n El Paso–a t hi rt y- seven count
supersedi ng i ndi ct m ent on Oct ober 9, 2008, and a f i ve- count i ndi ct m ent on Sept em ber 25, 2008.
The charges i n t he supersedi ng i ndi ct m ent ari se f rom act i ons on t he part of t he def endant s whi l e
t hey were em pl oyed by NCED. The al l egat i ons det ai l schem es t o l i e t o t he Com m i t t ee f or Purchase
f rom t he Bl i nd and Severel y Di sabl ed, f al sel y cl ai m i ng NCED was i n com pl i ance wi t h t he Javi t s -
Wagner- O’ Day Act ( JWOD) , t hus ent i t l ed t o recei ve no- bi d cont ract s f rom governm ent agenci es,
whi ch cont ract s are set asi de f or not - f or- prof i t organi zat i ons who em pl oy bl i nd or ot her severel y
handi capped i ndi vi dual s f or not l ess t han 75 percent of t he m an- hours of di rect l abor requi red f or
t he product i on or provi si on of t he goods or com m odi t i es requi red on t he governm ent cont ract .
Accordi ng t o t he i ndi ct m ent , NCED never em pl oyed suf f i ci ent num bers of bl i nd or severel y di sabl ed
work ers t o qual i f y f or JWOD cont ract s. The i ndi ct m ent f urt her al l eges t hat t he def endant s st ol e or
em bezzl ed at l east $5, 000 f rom NCED, an organi zat i on t hat recei ved at l east $10, 000 i n f ederal
governm ent program m oney i n each year charged and, wi t hout aut hori zat i on of t he NCED Board of
Di rect ors, di rect ed t he m oney f or t he use of t hem sel ves or ot hers. Fi nal l y, t he i ndi ct m ent al l eges
t hat cert ai n def endant s l i ed t o f ederal l y i nsured f i nanci al i nst i t ut i ons t o obt ai n l oans and ot her
f orm s of credi t t o f urt her t hei r personal use of NCED f unds.
I n t he supersedi ng i ndi ct m ent , Jones i s charged i n al l t hi rt y- seven count s i ncl udi ng charges of
conspi racy t o com m i t t hef t or em bezzl em ent of governm ent program f unds; t hef t or em bezzl em ent
of governm ent program f unds; conspi racy t o m ak e f al se st at em ent s t o a f ederal l y i nsured f i nanci al
i nst i t ut i on t o obt ai n credi t ; f al se st at em ent s t o a f ederal l y i nsured f i nanci al i nst i t ut i on t o obt ai n
credi t ; conspi racy t o com m i t bank f raud; conspi racy t o m ak e f al se st at em ent s and def raud t he
Uni t ed St at es; f al se st at em ent s and def raudi ng t he Uni t ed St at es; conspi racy t o com m i t m ai l and
wi re f raud; m ai l f raud; and wi re f raud.
Lopez i s charged i n sevent een count s i ncl udi ng conspi racy t o m ak e f al se st at em ent s and def raud
t he Uni t ed St at es; f al se st at em ent s and def raudi ng t he Uni t ed St at es; conspi racy t o com m i t m ai l
and wi re f raud; m ai l f raud; and wi re f raud. Woods i s charged i n seven count s i ncl udi ng conspi racy t o
com m i t t hef t or em bezzl em ent of governm ent program f unds; t hef t or em bezzl em ent of
governm ent program f unds; conspi racy t o m ak e f al se st at em ent s t o a f ederal l y i nsured f i nanci al
i nst i t ut i on t o obt ai n credi t ; f al se st at em ent s t o a f ederal l y i nsured f i nanci al i nst i t ut i on t o obt ai n
credi t ; and conspi racy t o com m i t bank f raud.
The supersedi ng i ndi ct m ent al so i ncl udes a Not i ce of Forf ei t ure i n whi ch t he Governm ent request s
t hat m oney and/ or asset s be f orf ei t ed f rom each of t he charged def endant s i n t he f ol l owi ng
am ount s: Jones- $58, 950, 526. 50; Lopez- $51, 215, 526. 50; and Woods- $4, 235, 000.
I n t he i ndi ct m ent ret urned on Sept em ber 25, 2008, Jones and Woods are charged wi t h one count
each of conspi racy t o m ak e f al se st at em ent s t o a f ederal l y i nsured f i nanci al i nst i t ut i on t o obt ai n
credi t , conspi racy t o com m i t m ai l and wi re f raud, f al se st at em ent s t o a f ederal l y i nsured f i nanci al
i nst i t ut i on t o obt ai n credi t , m ai l f raud and wi re f raud. Accordi ng t o t he i ndi ct m ent , i n 2003, Jones
and Woods m ade f al se st at em ent s t o a f ederal l y i nsured f i nanci al i nst i t ut i on t hat Jones owed
Woods $975, 000 as a resul t of Woods’ const ruct i on of Jones’ hom e i n 2001, so t hat t he f i nanci al
i nst i t ut i on woul d approve and f und a $975, 000 m echani c’ s l i en on Jones’ house, when no m oney
was act ual l y owed t o Woods by Jones.
An i ndi ct m ent i s a f orm al accusat i on of cri m i nal conduct , not evi dence of gui l t . The def endant s are
presum ed i nnocent unl ess and unt i l convi ct ed t hrough due process of l aw.
Publ i c cor r upt i on i nv est i gat i on t i m el i ne
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El Paso Ti m es St af f
Post ed: 10/ 14/ 2008 11: 54: 17 PM MDT
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More on publ i c corrupt i on
The FBI ' s publ i c corrupt i on i nvest i gat i on report edl y began at t he Nat i onal Cent er f or Em pl oym ent of
t he Di sabl ed, or NCED, now k nown as ReadyOne I ndust ri es. Here i s how i t has unf ol ded:
# Federal court docum ent s show t he i nvest i gat i on began i n t he sum m er of 2004.
# Novem ber 2005: U. S. Senat e opens an i nvest i gat i on i nt o NCED and al l eged abuses by
governm ent cont ract ors, and i t i s ci t ed as one of t he worst ex am pl es i n t he nat i on.
# Novem ber 2005: The Com m i t t ee f or Purchase f rom Peopl e who are Bl i nd or Severel y Di sabl ed
opens a new i nvest i gat i on i nt o NCED' s operat i ons.
# January 2006: A t eam of f ederal i nvest i gat ors arri ves i n El Paso t o begi n a revi ew of em pl oym ent
records at NCED t o det erm i ne whet her t he com pany m eet s f ederal l abor requi rem ent s f or
governm ent cont ract s.
# March 2006: Robert " Bob" Jones, presi dent and CEO of NCED, resi gns af t er a new f ederal
i nvest i gat i on f i nds t he ci t y' s l ast m aj or garm ent m anuf act urer vi ol at ed l abor requi rem ent s f or
di sabl ed work ers on f ederal cont ract s.
# May 9, 2006: About 65 agent s f rom t he FBI and t hree ot her f ederal agenci es search t he m ai n
of f i ces of NCED.
# May 10, 2006: FBI searches cont i nue at NCED of f i ces; NCED- owned of f i ces of Physi ci ans
Heal t hcare Managem ent are al so searched. More t han 1, 000 box es of docum ent s and com put er
i nf orm at i on are t ak en.
# Sept em ber
Advert i sem ent
Quant cast
2006: Fi f t y FBI agent s and i nvest i gat ors search t he of f i ces of Access Heal t hSource and several ot her
com pani es wi t h t i es t o ReadyOne I ndust ri es, f orm erl y NCED. Agent s al so search t he condom i ni um
hom e and of f i ce of l awyer Lut her Jones, a f orm er El Paso Count y j udge and count y at t orney, and
t he hom e of Access Presi dent Frank Apodaca.
# Oct ober 2006: FBI quest i ons m em bers of t he Ysl et a I ndependent School Di st ri ct Board of
Trust ees, possi bl y about t he cont roversi al m ul t i - m i l l i on- dol l ar cont ract t he di st ri ct awarded t o Access
Heal t hSource.
# Novem ber 2006: YI SD Superi nt endent Hect or Mont enegro i s subpoenaed by a f ederal grand j ury
m eet i ng i n San Ant oni o.
# Decem ber 2006: EPI SD Superi nt endent Lorenzo García says t he FBI ask ed f or paperwork
concerni ng bot h Access and St rat egi c Governm ent al Sol ut i ons I nc. - - a cont ract or t hat provi des
Medi care- Medi cai d rei m bursem ent servi ces and ot her speci al - educat i on servi ces f or t he di st ri ct .
# Decem ber 2006: FBI searches t he Mont ana Avenue of f i ces of El Paso I ndependent School Di st ri ct
board m em ber Sal Mena Jr.
# May 2007: FBI searches t he of f i ces of Count y Judge Ant hony Cobos, Count y Com m i ssi oners
Mi guel Terán and Lui s Sari ñana and Thom ason Hospi t al board m em ber Art uro Duran.
# June 2007: Form er El Paso Count y chi ef of st af f Travi s Ket ner, who work ed f or Cobos, pl eaded
gui l t y t o t hree count s of conspi racy t o com m i t m ai l or wi re f raud and one count of conspi racy t o
com m i t bri bery i n at t em pt s t o m ani pul at e di st ri ct court s. He was rel eased on $5, 000 bond and has
not been sent enced. I n t he " i nf orm at i on" docum ent used t o charge hi m , he i dent i f i es m ore t han 20
co- conspi rat ors.
# June 2007: The U. S. at t orney' s of f i ce, i n an at t em pt t o di squal i f y an El Paso l awyer f rom
represent i ng t hree m en i m pl i cat ed i n t he case, f i l ed a f ederal court m ot i on nam i ng school board
m em bers Charl es Roark and Mi l t on " Mi ck ey" Dunt l ey as t arget s, al ong wi t h Erni e Lopez, f orm er CFO
at NCED.
# Jul y 2007: Form er Count y Com m i ssi oner El i zabet h " Bet t i " Fl ores pl eaded gui l t y t o si x count s of
m ai l and wi re f raud and adm i t t ed t radi ng her vot es f or m oney.
# August 2007: El Paso archi t ect Bernardo Lucero Jr. pl eaded gui l t y t o one count of conspi racy i n
get t i ng an el ect ed of f i ci al a $25, 000 l oan.
# Nov. 2007: Carl os " Coach" Cordova, f orm er El Paso I ndependent School Di st ri ct t rust ee, pl eaded
gui l t y i n f ederal court , adm i t t i ng he ex changed hi s vot e f or m oney.
# Dec. 2007: Two Dal l as i nvest m ent bank ers pl eaded gui l t y t o f our count s of conspi racy t o com m i t
m ai l f raud, wi re f raud and a schem e t o bri be el ect ed of f i ci al s.
# March 2008: Raym ond Tel l es, an El Paso l awyer and f orm er ci t y represent at i ve, pl eaded gui l t y t o
t wo count s of m ai l and wi re f raud f or at t em pt i ng t o bri be El Paso Count y com m i ssi oners and Socorro
I ndependent School Di st ri ct t rust ees.
# June 2008: El Paso l obbyi st and pol i t i cal consul t ant Ant oni o " Tony" Di l l pl eaded gui l t y t o
conspi ri ng wi t h ot hers t o bri be a current m em ber of El Paso Count y Com m i ssi oners Court .
# August 2008: Form er El Paso I ndependent School Board Di st ri ct t rust ee Sal vador " Sal " Mena Jr.
was arrest ed by t he FBI and charged wi t h si x count s of accept i ng bri bes and bri bi ng ot hers. He has
pl eaded not gui l t y.
# Oct ober 2008: Two f orm er NCED of f i cers, Robert " Bob" Jones and Erni e Lopez, are arrest ed al ong
wi t h NCED board m em ber Pat ri ck Woods by t he FBI .
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I nf orm at i on com pi l ed by Ram on Bracam ont es
The Mart i e Jobe Fi l e: Recusal Request Deni ed
August 17, 2007
A not her Publ i c Cor r upt i on Gui l t y Pl ea
by NPT St af f
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Archi t ect Bernardo Lucero Jr. pl eaded gui l t y t o t wo count s of conspi racy t o def raud t he El Paso
I ndependent School Di st ri ct and t he ci t i zens of El Paso. Count one i s conspi racy t o com m i t m ai l
f raud and t he depri vat i on of honest servi ces and count t wo i s conspi racy t o m ak e f al se st at em ent s
t o obt ai n credi t .
The pl ea cam e t hi s m orni ng bef ore U. S. Di st ri ct Judge Frank Mont al vo, U. S. At t orney Johnny Sut t on
announced i n a news rel ease.
" By pl eadi ng gui l t y, Lucero adm i t t ed t hat f rom January 2002 t o Jul y 24, 2007, he agreed t o assi st
an el ect ed of f i ci al secure a $25, 000 hom e i m provem ent l oan f rom Uni t ed Bank of El Paso Del Nort e
by provi di ng f al se and f raudul ent i nf orm at i on, " st at ed t he news rel ease. " I n addi t i on, Lucero
adm i t t ed t o conspi ri ng t o provi de and hel p ot hers provi de m oney t o an el ect ed t rust ee of t he EPI SD
i n ex change f or act s on t he part of t he of f i ci al i n hi s or her of f i ci al capaci t y. "
From t he web page of t he com pany: " The f i rm was f ounded i n 1988 as Lucero / Mel endez Archi t ect s
com bi ni ng t he f i rm s of B. Lucero Archi t ect s and Jose Mel endez Archi t ect s. Si nce t hen, t he Fi rm has
grown f rom a f our- person f i rm t o a t eam of t wel ve; l i censed archi t ect s, graduat e archi t ect s, CADD
t echni ci ans, and adm i ni st rat i ve personnel . Al l cont ri but e t o provi de qual i t y archi t ect ural servi ces t o
t he com m uni t y.
" Lucero / Mel endez has m ai nt ai ned i t s ex cel l ent reput at i on by consi st ent l y provi di ng archi t ect ural
desi gn servi ces i n t he hi ghest t radi t i on of t he prof essi on. " ( l i nk )
The pl ea docum ent st at es t hat Lucero " conspi red t o subm i t a l et t er and a m echani cs l i en t o Uni t ed
Bank of El Paso Del Nort e . . . f or t he purpose of i nf l uenci ng t he bank t o f und a $25, 000 l oan whi ch
purport ed t o be a hom e i m provem ent l oan f or t he rem odel i ng of t he resi dence of a f am i l y m em ber
of an el ect ed of f i ci al , when t he def endant k new t he m oney was not i nt ended f or t hat purpose. "
The El Paso Ti m es report ed t hat t he a m echani cs l i en cont ract f i l ed by by Uni t ed Bank of El Paso
Del Nort e i n February 2006 " shows t hat Lucero work ed on a $25, 000 proj ect at t he hom e of
Kat heri ne E. Mena i n t he 3200 bl ock of Al t ura Avenue.
" Kat heri ne Mena i s t he daught er of EPI SD Trust ee Sal Mena Jr. . . . whose of f i ces were searched by
f ederal i nvest i gat ors i n Decem ber 2006, " report ed t he El Paso Ti m es.
El Paso I ndependent School Di st ri ct m i nut es i ndi cat e t hat Lucero recei ved a cont ract wort h about $1
m i l l i on f or prof esi sonal servi ces i n rel at i on t o t he Nort hwest Mi ddl e School on June 8, 2004. The
i t em was on t he consent agenda.
Lucero al so was a consul t ant on t he Aoy El em ent ary School proj ect .
Lucero i s t he t hi rd person t o pl ead gui l t y t o a cri m e i n connect i on wi t h t he wi de FBI publ i c corrupt i on
i nvest i gat i on.
Travi s Ket ner, f orm er chi ef of st af f f or Count y Judge Ant hony Cobos, was t he f i rst person t o pl ead
gui l t y. Hi s pl ea cam e i n June, i n a det ai l ed docum ent t hat gave i nf orm at i on but di d not nam e
m ul t i pl e uni ndi ct ed co- conspi rat ors. The i nf orm at i on was det ai l ed enough t hat t he i dent i t i es of
m any of t he co- conspi rat ors coul d easi l y be guessed. ( k et ner pl ea)
Ket ner' s gui l t y pl ea and t he event s t hat f ol l owed have i m pl i cat ed l eaders of El Paso' s pol i t i cal , l egal
and busi ness com m uni t i es i n a web of back room deal i ngs t hat resul t ed i n govrnm ent cont ract s and
personal f avors. However, because of t he vol um e of i nf orm at i on bei ng processed by i nvest i gat ors,
i t has been di f f i cul t f or t he publ i c and f or t hose i nvol ved t o assess who i s part of t he web, and who
i s m erel y caught i n t he second- hand sm ok e.
Form er Count y Com m i ssi oner Bet t i Fl ores pl eaded gui l t y ( see bel ow - Ed) i n earl y Jul y t o vari ous
charges of publ i c corrupt i on. ( st ory) ( pl ea docum ent )
I n addi t i on t o t he gui l t y pl eas, several hi gh- rank i ng of f i ci al s of vari ous com pani es t hat do busi ness
wi t h governm ent al ent i t i es i n El Paso have l ef t t hei r com pani es.
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On Thursday ( Aug. 16, 2007) , The Bond Buyer, whi ch t ags i t sel f as " The Dai l y Newspaper of Publ i c
Fi nance, " report ed i n a st ory dat el i ned out of Dal l as t hat RBC Capi t al Mark et s m anagi ng di rect or
Mel Schonhorst and vi ce presi dent St even Ful l er no l onger were wi t h t he com pany. " I t i s our pol i cy
not t o com m ent on personnel m at t ers, " t he com pany st at ed, al so not i ng t hat i t " underst ands t hat i t
i s not a subj ect or t arget of t he i nvest i gat i on. "
Accordi ng t o t he art i cl e, Schonhorst previ ousl y work ed f or Fi rst Sout hwest . That com pany has
represent ed m ost of El Paso' s m aj or governm ent i nst i t ut i ons. The art i cl e al so not ed t he recent
depart ures of Hect or Zaval et a, a vi ce presi dent of Fi rst Sout hwest who sai d t hrough hi s l awyer he i s
cooperat i ng i n t he i nvest i gat i on, and Robert o " Bobby" Rui z, m anagi ng di rect or of Bear, St earns &
Co.
I n addi t i on, t he El Paso Ti m es report ed t hat Frank Apodaca, presi dent and CEO of Access
Heal t hSource, was f i red, accordi ng t o t he com pany' s quart erl y report f i l ed t hi s week .
There al so has been l egal act i on surroundi ng t he FBI i nvest i gat i on.
Mary St i l l i nger, who represent s t hree peopl e nam ed as t arget s i n t he i nvest i gat i on, was rul ed t o
have a conf l i ct i n represent i ng al l t hree. She has appeal ed. ( back ground)
And Mart i e Jobe, who has sai d i n court f i l i ngs t hat she i s one of t he co- conspi rat ors nam e di n
Ket ner' s pl ea, has f i l ed a def am at i on l awsui t agai nst Ket ner and has ask ed Judge Mont al vo t o
recuse hi m sel f f rom heari ng any i ssues rel at ed t o her. ( back ground)
August 8, 2007
Judge Rel eases Or der on St i l l i nger Mot i on
by NPT St af f , LI NK
Judge Frank Mont al vo repl i ed t o l awyer Mary St i l l i nger' s request f or cl ari f i cat i on of hi s rul i ng
di squal i f yi ng her f rom represent i ng t hree pot ent i al t arget s of t he FBI publ i c corrupt i on i nvest i gat i on.
[ back ground]
Read hi s f our- page order here.
Jul y 6, 2007
Bet t i Fl or es Pl eads Gui l t y
by NPT St af f
LI NK
Form er Count y Com m i ssi oner Bet t i Fl ores pl eaded gui l t y Fri day af t ernoon ( Jul y 7, 2007) t o m ul t i pl e
charges of t radi ng vot es f or cash. Hers was t he second pl ea i n what t he FBI and f ederal prosecut ors
have cal l ed a wi despread publ i c corrupt i on case i nvol vi ng t he busi ness com m uni t y, t he court s and
pol i t i ci ans.
Fi l ed Fri day, t he " I nf orm at i on, " a chargi ng docum ent si m i l ar t o an i ndi ct m ent , i ncl udes si x count s i n
whi ch Fl ores pl eads gui l t y t o a vari et y of cri m es. The si x count s i nvol ve conspi racy t o com m i t wi re
f raud and t he depri vat i on of honest servi ces, and carry a possi bl e sent ence of 20 years and a
$250, 000 f or each count . No sent enci ng dat e has been set . Fl ores pl eaded i n f ront of U. S. Di st ri ct
Judge Frank Mont al vo i n El Paso.
The i nf orm at i on carri es t he sam e case num ber as t hat used i n t he I nf orm at i on docum ent chargi ng
Travi s Ket ner, whose gui l t y pl ea t o charges of bri bery and m ai l f raud, rel eased June 8, m ade publ i c
t he FBI publ i c corrupt i on case. ( k et ner pl ea)
A bri ef sum m ary of t he Fl ores charges, al ong wi t h som e back ground based on news report s and
publ i c records:
COUNT 1
- - Fl ores pl eaded gui l t y t o arrangi ng wi t h ot hers, who are not nam ed, t o recei ve paym ent s di sgui sed
as cam pai gn cont ri but i ons i n ex change f or ex t endi ng t he heal t hcare benef i t s adm i ni st rat i on
cont ract wi t h t he Count y of El Paso.
Access i s t he adm i ni st rat or f or t he count y. The CEO of Access, Frank Apodaca, recent l y was pl aced
on pai d l eave by t he parent com pany of Access, whi ch ci t ed t he i nvest i gat i on i n an SEC f i l i ng. ( l i nk )
“ Al t hough no i ndi ct m ent s have occurred and no def i ni t i ve al l egat i ons have been m ade or present ed
t o us or Mr. Apodaca, we bel i eve t hat t he i nvest i gat i on i nvol ves al l egat i ons of of f i ci al corrupt i on
rel at i ng t o cont ract procurem ent by Access Heal t hsource and ot her com pani es f rom t hese l ocal
governm ent al ent i t i es, ” st at ed t he f i l i ng. “ We are conduct i ng our own i ndependent i nvest i gat i on i nt o
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t hose m at t ers and are f ul l y cooperat i ng wi t h t he of f i ci al s conduct i ng t he i nvest i gat i on. Mr. Apodaca
i s on pai d l eave pendi ng t he resul t s of t he i nvest i gat i on, al l owi ng hi m t i m e t o address t he i ssues
he f aces personal l y. ”
Apodaca coul d not be reached l at e Fri day. The FBI has searched hi s of f i ce and hom e, and sei zed
som e of hi s asset s.
The court vot ed unani m ousl y Feb. 13, 2006, t o ex t end t he Access cont ract f or t wo years, f rom Jan.
1, 2007 t o Dec. 31, 2008. Com m i ssi oner Mi guel Teran m ade t he m ot i on, wi t h Fl ores secondi ng.
COUNT 2
- - Fl ores pl eaded gui l t y t o accept i ng cash bri bes i n ex change f or her vot e on an underwri t i ng
cont ract f or a bond i ni t i at i ve f or Thom ason Hospi t al , an underwri t i ng cont ract f or bond i ssues at t he
Count y of El Paso, and f i nanci al advi sory cont ract s at t he count y and f or t he Thom ason bond
i ni t i at i ve.
“ The Count y Judge and Com m i ssi oners have never been i n t he habi t of t el l i ng t he Hospi t al Di st ri ct
who or who has not cont ri but ed t o t hei r cam pai gns or m ade ot her donat i ons t o t hem . So I cannot
speak t o who m ay have at t em pt ed t o i nf l uence any i ndi vi dual Court m em ber’ s vot es, ” sai d
Thom ason spok eswom an Margaret Al t hof f - Ol i vas i n a prepared st at em ent . She sai d Monday
m orni ng ( Jul y 9) t hat t he hospi t al woul d have a news conf erence Monday af t ernoon t o di scuss t he
i ssues i n m ore det ai l .
“ I can say t hat al l of t he act i ons t ak en by t he Hospi t al Di st ri ct ’ s Board concerni ng Thom ason’ s bond
i ni t i at i ve were done i n open sessi on i n com m i t t ee m eet i ngs, and subsequent l y, by t he Board- as- a-
whol e, i n accordance wi t h t he l aw and were conduct ed f ai rl y and l egal l y.
“ I f ot hers were engaged i n ot her act i vi t i es wi t h i ndi vi dual m em bers of t he Court , t he Di st ri ct was
unaware of t hat , ” Al t hof f - Ol i vas st at ed.
“ We bel i eve Thom ason’ s bond i ni t i at i ve was approved on i t s m eri t s. I t was and rem ai ns an
i m port ant com m uni t y proj ect t hat wi l l great l y enhance t he qual i t y heal t hcare servi ces t he Hospi t al
Di st ri ct m ak es accessi bl e t o al l El Pasoans. And I woul d l i k e t o add t hat i t was approved by a
unani m ous vot e of t he Court . ”
The Court ’ s approval of t he bond proj ect occurred on Nov. 21, 2005.
Thom ason Hospi t al had a news conf erence Monday t o di scuss t he i ssues rai sed by Fl ores’ pl ea. Ji m
Val ent i , Thom ason CEO, sai d t hat t he di st ri ct t ook every act i on af t er ex t ensi ve revi ew, and t he
Count y Court ’ s approval t ook pl ace af t er num erous report s and publ i c m eet i ngs of t he Hospi t al
Di st ri ct . He al so sai d t he di st ri ct i s revi ewi ng i t s act i ons, as are t he com pani es i nvol ved, som et hi ng
he cal l ed “ st andard procedure” whenever seri ous al l egat i ons are rai sed.
The bond underwri t ers f or t he $120 m i l l i on, 2005 bond i ssue were UBS and Bear St erns as t he
pri nci pal underwri t ers, and Wel l s Fargo and Chase as l ocal underwri t ers, Val ent i sai d.
COUNT 3:
- - Accordi ng t o t he pl ea, Fl ores st at ed t hat unnam ed co- conspi rat ors pai d her $10, 000 i n ex change
f or a vot e i n f avor of t he El Paso Count y Park i ng Garage Annex and t o advocat e change orders t o
t he cont ract .
The cont ract or on t he Count y Park i ng Garage Annex was CF Jordan. Fl ores m ade a m ot i on t o
approve change orders t o t he cont ract on Feb. 7, 2005, accordi ng t o t he count y m i nut es.
Com m i ssi oner Dan Haggert y seconded t he m ot i on. The m i nut es do not i ndi cat e t he am ount of t he
change order. The i t em was post ed as an addendum t o t he agenda, and was post ed as “ di scuss
and t ak e appropri at e act i on on i ssues pert ai ni ng t o t he st at us and progressi on of t he new park i ng
garage current l y under di scussi on. ” No back up i nf orm at i on was i ncl uded.
Accordi ng t o a docum ent f i l ed as an at t achm ent t o an i t em f or t he June 12, 2006 m eet i ng, t he
cont ract was $7. 598 m i l l i on, wi t h $175, 000 i n change orders. [ l i nk ] Fl ores m ade t he m ot i on t o
approve t he i t em at t he June 12, 2006 m eet i ng. The m ot i on was seconded by t hen- Count y Judge
Dol ores Bri ones.
A represent at i ve f or CF Jordan coul d not be reached l at e Fri day. The com pany has not been
charged wi t h any wrongdoi ng.
COUNT 4:
- - Fl ores pl eaded gui l t y t o conspi ri ng wi t h ot hers t o benef i t hersel f i n her m i sdem eanor case i n
ex change f or her vot e t o set t l e a l awsui t .
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Fl ores was i ndi ct ed on 18 count s of f i l i ng l at e or i ncom pl et e pol i t i cal report s i n 2005. She event ual l y
was acqui t t ed of t he charges. Lawyer Mart i e Jobe, who represent ed t he El Paso Count y Sheri f f ’ s
Depart m ent deput i es i n a l awsui t t o f orce overt i m e pay, recent l y f i l ed a l awsui t agai nst Ket ner.
I n hi s pl ea, Ket ner cl ai m s som eone conspi red wi t h a Count y Com m i ssi oner t o ex change t he
com m i ssi oner’ s vot e f or represent at i on i n a personal m at t er. The El Paso Ti m es i dent i f i ed t he
com m i ssi oner as Fl ores and wrot e t hat t he ot her person “ appears t o be” Mart i e Jobe, who has not
been nam ed by t he FBI or charged wi t h any cri m es. Jobe f i l ed a def am at i on l awsui t agai nst Ket ner,
not i ng, am ong ot her argum ent s, t hat t he set t l em ent wi t h t he Sheri f f ’ s deput i es t ook pl ace bef ore
t he i ndi ct m ent agai nst Fl ores.
COUNT 5:
- - Fl ores pl eaded gui l t y t o t ak i ng m oney i n ex change f or a vot e t o set t l e a l awsui t agai nst t he
Count y over a t ract of l and owned by t he count y and t hen t o sel l t hat l and t o “ cl i ent s of anot her
k nown but not nam ed herei n. ”
Cat al i na Devel opm ent , represent ed by Lut her Jones and Davi d Escobar, sued t he count y t o enf orce
a sal e of 302 acres of l and i n East El Paso. The count y i ni t i al l y had agreed t o sel l t he l and, and
t ook st eps t o sel l , but st opped short of ex ecut i ng t he cont ract . The l awsui t , t i t l ed Gregory W. Col l i ns
v. Count y of El Paso, was set t l ed by t he count y at a speci al m eet i ng Dec. 22, 2003. Al t hough t he
count y had won t he l awsui t wi t h a deci si on by t he Tex as Suprem e Court t hat i t was not bound t o sel l
t he l and, t he count y agreed on a m ot i on by Fl ores, and seconded by Haggert y, t o sel l t he l and f or
$3. 04 m i l l i on.
For back ground on t he Cat al i na l awsui t , check t hi s NPT f i l e. ( l i nk )
The onl y com m i ssi oner t o vot e agai nst t he sal e was f orm er Com m i ssi oner Charl es Scruggs. Read
t hi s i nt ervi ew f rom t he NPT f i l es. ( l i nk )
He sai d Sat urday t hat he t hought t he sal e “ was a m i st ak e. ”
“ I t di dn’ t m ak e any sense t o m e. We f ought f or 10 years t o k eep i t , we wi n, t hen a f ew m ont hs
l at er we sel l i t , ” Scruggs sai d.
COUNT 6:
- - Fl ores pl eaded gui l t y t o conspi ri ng wi t h ot hers t o m ak e paym ent s t o her i n t he f orm of cam pai gn
cont ri but i ons i n ex change f or a vot e t o secure a cont ract f or di gi t i zat i on of court records f or t he
Di st ri ct Cl erk ’ s of f i ce.
Com m i ssi oner Haggert y, who served wi t h Fl ores on t he court , sai d he was surpri sed at Fl ores’ gui l t y
pl eas on a vari et y of i ssues.
“ I l i k e Bet t i . I t hought she was a l ot of f un, we had som e good di scussi ons, ” Haggert y sai d. “ I ’ m
shock ed, I real l y f eel bad f or her, I f eel bad f or her f am i l y. ”
Haggert y sai d he never has been of f ered a bri be, “ but I m ade i t k now i f anyone ever di d of f er m e
t hat I ’ d go ri ght out and say ‘ guess who of f ered m e $10, 000, $20, 000. ’ ”
I n addi t i on t o t he t wo gui l t y pl eas, ot her act i on i n t he case i nvol ves t he f ederal governm ent f i l i ng a
m ot i on t o di squal i f y l awyer Mary St i l l i nger, who represent s t hree cl i ent s t he governm ent has sai d
are pot ent i al “ t arget s” of t he i nvest i gat i on. ( st ory)
Jul y 5, 2007
Docum ent Rev i ew: U. S. A t t or ney A t t em pt s t o Di squal i f y St i l l i nger
by NPT St af f
LI NK
One bat t l e i n t he FBI publ i c corrupt i on i nvest i gat i on i s t he governm ent ’ s m ot i on t o di squal i f y not ed
El Paso at t orney Mary St i l l i nger f rom represent i ng t hree cl i ent s, nam ed i n t he governm ent m ot i on
as Ysl et a School Board Trust ee Mi l t on “ Mi ck ey” Dunt l ey, El Paso School Board Trust ee Charl es
Roark , and f orm er NCED Chi ef Operat i ng Of f i cer Erni e Lopez.
The governm ent m ot i on f i l ed June 4 i n U. S. Di st ri ct Court , West ern Di st ri ct of Tex as, cal l s t hem
“ t arget s, ” al t hough i n a June 20 El Paso Ti m es st ory ( l i nk ) St i l l i nger deni ed t hat her cl i ent s have
recei ved not i f i cat i on f rom t he governm ent t hat her cl i ent s are “ t arget s. ” St i l l i nger f i l ed t wo
responses t o t he governm ent m ot i on, one a response f i l ed June 18, and t he ot her a m ot i on t o
st ri k e t he governm ent ’ s m ot i on, f i l ed June 19.
I nt erest i ngl y, St i l l i nger’ s f i rst response cont ai ns a f oot not e st at i ng t hat “ t he prosecut ors have
i ndi cat ed t hat t hey wi l l be f i l i ng si m i l ar m ot i ons wi t h respect t o ot her at t orney’ s m ul t i pl e
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represent at i ons. ”
The m ost recent docum ent s avai l abl e on t he governm ent docum ent st orage and ret ri eval syst em ,
cal l ed PACER, are t he governm ent ’ s June 28 response t o St i l l i nger’ s f i rst m ot i on, and a Jul y 3
m ot i on ask i ng f or m ore t i m e t o assess St i l l i nger’ s second m ot i on.
Thi s seri es of docum ent s present s onl y a t i ny f ract i on of t he paper t hat cert ai nl y wi l l be generat ed
as t hi s case devel ops, and t he i ssues t hat m ost observers bel i eve wi l l engul f El Paso’ s pol i t i cal ,
busi ness and l egal com m uni t i es. Thi s coul d happen by t hi s week , as t he buzz i s growi ng l ouder t hat
i ndi ct m ent s and/ or pl ea agreem ent s wi l l becom e publ i c.
Meanwhi l e, Newspaper Tree present s a sum m ary of t he docum ent s t hus f ar, and l i nk s t o t he
ori gi nal docum ent s, as a m at t er of publ i c record:
JUNE 4, 2007: THE BEGI NNI NG ( l i nk )
The governm ent ’ s ori gi nal f i l i ng, on June 4, 2007, i s t i t l ed “ Mot i on t o Di squal i f y Counsel f or Conf l i ct
of I nt erest , and Bri ef i n Support Thereof . ”
The Cause Num ber i s gi ven as EP- 06- CR- 1369FM, t he sam e num ber assi gned t o t he “ I nf orm at i on
Docum ent ” – a chargi ng docum ent si m i l ar t o an i ndi ct m ent - - descri bi ng Travi s Ket ner’ s gui l t y pl ea.
The I nf orm at i on was f i l ed June 8, whi l e t he m ot i on t o di squal i f y St i l l i nger was f i l ed June 4.
The June 4 f i l i ng opens wi t h a “ St at em ent of Fact s” – t hat t he FBI and t he U. S. At t orney’ s of f i ce
have been i nvest i gat i ng whi t e col l ar cri m e and pol i t i cal corrupt i on i n El Paso f or approx i m at el y t hree
years. The i nvest i gat i on i ncl uded i nt ercept i ng el ect roni c and wi re com m uni cat i ons.
Part 2 of t he docum ent i s t i t l ed “ Dunt l ey/ Lopez Conf l i ct . ” I t al l eges t hat i n 2004, whi l e Lopez was at
NCED, t he heal t h care servi ces com pany Access was seek i ng a cont ract wi t h t he Ysl et a School Board,
of whi ch Dunt l ey was a t rust ee. The nat i onal com pany Preci s m erged wi t h Access, and NCED CEO
Bob Jones because a Preci s board m em ber, NCED becam e a m aj or sharehol der i n Preci s, and
Access presi dent Frank Apodaca becam e Presi dent and CEO of Preci s.
On Sept . 8, 2004, accordi ng t o t he governm ent , Apodaca sent em ai l s t o t hree peopl e, i ncl udi ng
Lopez, seek i ng “ em pl oym ent wi t h any NCED rel at ed com pany f or Dunt l ey’ s son. ” The em ai l s were
copi ed t o ei ght ot hers, accordi ng t o t he governm ent ’ s f i l i ng.
Dunt l ey’ s son was f i red, accordi ng t o t he f i l i ng. On Oct . 11, 2005, Dunt l ey and som eone i dent i f i ed
as “ Schwart z” ( no f i rst ref erence i s gi ven) di scuss t he i ssue i n an i nt ercept ed com m uni cat i on.
Accordi ng t o t he governm ent , Schwart z t ol d Dunt l ey t hat Jones woul d ensure Dunt l ey’ s son had a
j ob: “ Bob sai d, I j ust want you t o l et t he young m an k now he’ s i n our pl ans, ” t he governm ent
al l eges Schwart z t ol d Dunt l ey.
“ I f LOPEZ want ed t o cooperat e, he woul d be pl aced i n t he posi t i on of addressi ng t hi s i ssue, ” t he
governm ent docum ent st at es.
Part 4 of t he docum ent i s t i t l ed “ Lopez/ Roark Conf l i ct . ” The governm ent st at es t hat Roark was not
i nt ercept ed on wi re t ap, but t hat hi s posi t i on as a t rust ee on t he El Paso School Board and as
ex ecut i ve di rect or of Hospi ce of El Paso present ed a conf l i ct . Hospi ce was run by a board of
di rect ors, wi t h Bob Jones, NCED CEO, on t he board. Hospi ce was l ocat ed i n an NCED bui l di ng,
accordi ng t o t he governm ent .
NCED, Jones, and Roark are t he f ocus of i nvest i gat ors i n a wi re f raud i nvest i gat i on regardi ng a
Chi cago- based chari t y, accordi ng t o t he governm ent docum ent . On Jul y 25, 2003, t he subj ect of
Hospi ce cam e up at an NCED board m eet i ng, at whi ch Lopez appears as present i n t he m i nut es.
“ Cl earl y, Lopez i s a pot ent i al wi t ness i n a case agai nst Roark , i f one shoul d be f i l ed, ” st at es t he
governm ent ’ s m ot i on t o di squal i f y St i l l i nger.
The governm ent ’ s m ot i on ends wi t h a sect i on t i t l ed “ Law and Argum ent , ” i n whi ch t he basi c t hrust of
t he argum ent i s t hat i f St i l l i nger’ s cl i ent s are i ndi ct ed i n t he sam e case, t hei r i nt erest s m ay conf l i ct
i f one of f ers t est i m ony agai nst anot her. The governm ent ci t es t he Federal Rul es of Cri m i nal
Procedure, Rul e 44( c) , whi ch addresses cl i ent s who have been charged. However, t he governm ent
argues t hat t he i nt ent of t he rul e “ pl aces t he i nst ant si t uat i on squarel y wi t hi n t he Court ’ s
responsi bi l i t i es. ” The governm ent al so ci t es Rul e 1. 06 of t he Tex as Di sci pl i nary Rul es of
Prof essi onal Conduct .
I f St i l l i nger’ s cl i ent s are charged i n separat e i ndi ct m ent s, t he governm ent argues, “ di squal i f i cat i on
i s requi red where successi ve represent at i on i nvol ves ‘ subst ant i al l y repl at ed m at t ers. ’ ”
JUNE 18, 2007: STI LLI NGER’ S FI RST RESPONSE ( l i nk )
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Fi rst , St i l l i nger not es t hat Rul e 44( c) pert ai ns onl y once a cl i ent has been charged. She
ack nowl edges t hat Rul e 1. 06 appl i es, but st at es t hat “ t hose rul es do not gi ve t he Governm ent a
cause of act i on t o i nt erf ere wi t h counsel ’ s rel at i onshi p wi t h her cl i ent s. …Short of an al l egat i on t hat
counsel i s obst ruct i ng j ust i ce, t he Governm ent has no abi l i t y t o bri ng an act i on bef ore t he Court t o
di squal i f y counsel . ” St i l l i nger suggest s t hat t he governm ent f i l e a gri evance wi t h t he St at e Bar, “ as
t hi s i s t he appropri at e f orum t o hear such a concern. ”
She al so argues t hat i t i s specul at i ve t o assum e t hat her t hree cl i ent s wi l l be charged t oget her.
Furt her, St i l l i nger chal l enges t he not i on t hat one cl i ent m ay be i n conf l i ct wi t h anot her. For ex am pl e,
i n t he governm ent ’ s al l egat i on of a conf l i ct bet ween Lopez and Roark , t he evi dence i s board
m i nut es. “ ( Lopez) t ypi cal l y st ayed f or hi s own present at i on and l ef t , ” St i l l i nger st at es. “ There i s no
al l egat i on Mr. Lopez ever di scussed Hospi ce, was act ual l y present when Hospi ce was di scussed, or
part i ci pat ed i n any correspondence or docum ent at i on of any k i nd regardi ng Hospi ce. ”
St i l l i nger cl ai m s t he governm ent i s at t em pt ed t o coerce her cl i ent s i nt o gi vi ng i nf orm at i on.
“ The Governm ent i s f i shi ng f or i nf orm at i on t o whi ch i t i s not ent i t l ed at t hi s t i m e, and i s f urt her
at t em pt i ng t o i nt erf ere i n t he hi ghl y prot ect ed at t orney- cl i ent rel at i onshi p of t hese t hree
i ndi vi dual s, ” she wri t es.
As a f oot not e, she adds t hat “ t he prosecut ors have i ndi cat ed t hat t hey wi l l be f i l i ng si m i l ar m ot i ons
wi t h respect t o ot her at t orney’ s m ul t i pl e represent at i ons. ”
JUNE 19, 2007: STI LLI NGER’ S SECOND RESPONSE ( l i nk )
St i l l i nger f i l ed t hi s docum ent June 19, ask i ng t hat t he Court t hrow out t he governm ent ’ s m ot i on
because i t was i m properl y f i l ed. The governm ent f i l ed i t s m ot i on wi t h t he Ket ner case num ber, and
her cl i ent s have not hi ng t o do wi t h Ket ner and are not am ong t he uni ndi ct ed co- conspi rat ors
m ent i oned i n t he I nf orm at i on docum ent t hat l ai d out t he charges agai nst Ket ner.
She al so not es probl em s wi t h t he el ect roni c f i l i ng syst em f or f i l i ng her m ot i on, whi ch i ncl uded t he
f i l i ng syst em ’ s f ai l ure t o recogni ze her because she i s not an at t orney ei t her f or t he Uni t ed St at es
or Ket ner. St i l l i nger not es t hat she f i l ed as an at t orney f or t he U. S. A. , and “ i ncl uded a l engt hy not e”
i ndi cat i ng i t was her, not t he U. S. A. , f i l i ng her m ot i on.
She suggest s t he governm ent al l ow i t s i ni t i al m ot i on t o be st ruck as i m properl y f i l ed, and re- f i l ed
under i t s own case num ber, “ i f t he Governm ent shoul d choose t o do so. ”
* * *
JUNE 28, 2007: GOVERNMENT RESPONSE TO STI LLI NGER’ S FI RST RESPONSE ( l i nk )
The governm ent argues t hat t here i s precedent f or f i ndi ng a conf l i ct of i nt erest at t he grand j ury
st age, even when cl i ent s have not been charged. The governm ent al so ci t es a previ ous rul i ng t hat
di d not f i nd a conf l i ct , but t hat suggest ed a conf l i ct coul d ex i st i f “ a grant of i m m uni t y was of f ered
i n ex change f or a cl i ent ’ s t est i m ony” or i f a l awyer m i ght recei ve “ wi t ness A i nf orm at i on t hat was
det ri m ent al t o t he i nt erest of wi t ness B. ”
The governm ent al so argues t hat t he e- m ai l sent t o Lopez on Sept . 8, 2004 regardi ng em pl oym ent
f or Dunt l ey’ s son i s suf f i ci ent t o est abl i sh a connect i on bet ween t he t wo. The governm ent st at es
t hat St i l l i nger’ s cl ai m t hat Lopez l i k el y wasn’ t present at t he NCED board m eet i ng of Jul y 25, 2003,
i n whi ch t he board di scussed t he Hospi ce l ease, “ does not negat e t he connect i on bet ween t he Chi ef
Operat i ng Of f i cer of NCED and t he Ex ecut i ve Di rect or of Hospi ce’ s connect i on t o a rent f ree schem e
provi ded by NCED f or Hospi ce. ”
JULY 3, 2007: GOVERNMENT RESPONSE TO STI LLI NGER’ S MOTI ON TO STRI KE ( l i nk )
The governm ent ask s t o have unt i l Jul y 13 t o respond t o St i l l i nger’ s Mot i on t o St ri k e.
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Public Corruption 101: The archives
by NPT Staff
Get up to speed on the players and issues with NPT archives and other sources: Stories, primary documents and
some reading about public corruption cases elsewhere to provide a little context.
Posted on July 2, 2009
The public corruption case -- which saw its first guilty plea June 8, 2007 -- is very complex and involves the legal,
political and business communities of El Paso. Get back up to speed on the players and issues with NPT archives
and other sources: Stories, primary documents and some reading about public corruption cases elsewhere to
provide a little context.
***
Twelve people have pleaded guilty to public corruption charges. Here are their guilty pleas, filed in the
form of a document called an "information":
-- Travis Ketner
-- Betti Flores
-- Bernardo Lucero
-- Carlos Cordova
-- Bobby Ruiz
-- Chris Pak
-- Raymond Telles
-- Tony Dill
-- Fernando Parra
-- Bob Jones (wire fraud conspiracy) and Bob Jones (tax evasion)
-- In addition, Sal Mena became the first person to be indicted, on Aug. 14. His indictment became public when he
was arrested Aug. 29. He held out but ended up pleading guilty in February. [indictment]
-- On Oct. 14, 2008, Bob Jones and others connected to NCED were arrested. From a public standpoint, the
public corruption investigation that has seen nine individuals plead guilty to charges and one indicted began with the
April 2006 search warrant raid by three federal agencies on NCED’s Eastside headquarters and main plant on
Allen Bradley. [link]
-- On June 5, 2009, former El Paso County Judge Luther Jones and District Clerk Gilbert Sanchez were indicted
together on charges of colluding to rig a bid for digitizing services for the district clerk's office. [link]
Here are the NPT stories regarding the guilty pleas:
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-- Travis Ketner, June 8, 2007
-- Betti Flores, July 7, 2007
-- Bernardo Lucero, Aug. 17, 2007
-- Carlos Cordova, Nov. 28, 2007
-- Bobby Ruiz and Chris Pak, Dec. 21, 2007
-- Raymond Telles, March 18, 2008
-- Tony Dill, June 18, 2008
-- Fernando Parra, July 15, 2008
-- Fernando Parra hearing, July 15, 2008 (see related stories below)
-- Sal Mena indictment and arrest, Aug. 29, 2008
-- On Feb. 18, 2009, Mena and a surprise defendant, Gary William Lange, a former executive with two companies
Strategic Government Solutions Inc. and its subsidiary, ESP, pleaded guilty
-- Bob Jones to plead guilty to new offenses and charges in last year's indictment, July 1, 2009
***
Some of the other court action revolves around efforts to disqualify one lawyer, efforts by another
lawyer to disqualify the judge hearing the cases, a request to open files and proceedings by activist Carl
Starr, the indictment of a target on unrelated charges of child pornography, and a dispute over a land
deal mentioned in the Betti Flores plea:
-- Fernando Parra was arrested in February and charged with counts related to child pornography. An FBI agent
testified at the bond hearing that the agency came across the pornography when searching Parra's computer. During
the hearing, Parra's relationships with various politicians and other targets of the investigation came to light. [Feb. 6,
2008, Parra Indicted, Bond Granted, Then Appealed] [Parra indictment]
-- Carl Starr filed a lawsuit against the government in March to challenge the secrecy measures. “The level of public
interest and concern with the substantial issues regarding corruption and administration of justice presented by the
case cannot be overstated,” Starr wrote in his motion to intervene in the string of cases. [march 26, 2008 npt
background] [motion to intervene] [may 12, 2008, closed courts, public corruption] [may 28, 2008, corruption
court stays closed, but judge offers new information ]
-- Newspaper Tree filed in federal court to seek a hearing on opening files and proceedings. On Sept. 3 and 4, the
government responded by requested that some files be opened. [aug. 6, 2008, npt files motion to open corruption
court] [sept. 3, 2008, government pledges to open some corruption court documents] [sept. 4, 2008, government
moves to open some corruption court documents ]
-- Lawyer Martie Jobe has filed a lawsuit against Travis Ketner, claiming he defamed her in his guilty plea. Then she
tried to force recusal of District Judge Frank Montalvo, who is hearing the public corruption cases. [Aug. 7, 2007,
Jobe argument] [Aug. 10, 2007, decision on the recusal]
-- Montalvo disqualified lawyer Mary Stillinger from representing three clients who were called targets. They were
Ysleta school district Trustee Mickey Duntley, El Paso school district trustee Charles Roark, and NCED Chief
Operating Officer Ernie Lopez. In early July, Stillinger argued the case before the Fifth Circuit Court, and won the
right to continue representing her clients. [July 27, 2007, disqualification] [Aug. 8, 2007, clarification of issues] [July
fifth court transcript]
-- County Attorney Jose Rodriguez and the Bowling family of developers are battling in court over a land deal
raised in the Betti Flores guilty plea. [March 11, 2009, Developers attempt to pre-empt county lawsuit over land
deal raised in Betti Flores guilty plea] [April 8, 2009, Rodriguez public corruption suit, which names names, could
push into investigation; Bowlings call the case political] [April 20, 2009, Judge finds holes in county's suit over 2003
East Side land sale tainted by commissioner's bribes]
***
1/20/2011 Public Corruption 101: The archives - N…
newspapertree.com/…/3916-public-cor… 2/6
NPT stories on various events and issues:
-- May 16, 2007, FBI raids county
-- June 14, 2007, FBI focuses on district clerk
-- May 18, 2007, explanation of search warrant process
-- June 29, 2007, business as (mostly) usual in the County Courthouse
-- Aug. 10, 2007, interview with District Clerk Gilbert Sanchez
-- Aug. 21, 2007, interview with FBI SAC Manuel Mora
-- July 24, 2008, What about Bob? Grand jury to convene soon, sources say
-- Aug. 8, 2008, Luther Jones, once a courthouse fixture, stays low key
-- July 1, 2009, A Bob Jones guilty plea serves justice only if it leads investigators to Washington
***
Although not linked to the El Paso case, a South Texas public corruption case involving some El Pasoans
has some elements in common.
-- April 2, 2008, Business Leaders Sambrano, Guzman Indicted in South Texas
-- The pair pleaded guilty in January in South Texas. January 5, 2009, Guzman, Sambrano plead guilty to
conspiracy in South Texas corruption case
***
Public corruption is prevalent in the United States, most often appearing in the news in relation to local
politics. Some stories to provide context:
-- Christian Science Monitor writing in 2005 about Chicago
-- Wikipedia page on Orlando politician Ernest Page
-- Times-Picayune 2007 story about New Orleans
-- American Heritage magazine history of New York City corruption
-- Memphis Commercial Appeal writing in 2007 about a "culture of corruption" in Memphis
Public corruption also is a Texas tradition:
-- City Hall bribery indictments 'a sad day for Dallas', Dallas Morning News, October 2, 2007
-- Undercover Project in Houston Leads to Corruption Charges, New York Times, Aug. 3, 1997
1/20/2011 Public Corruption 101: The archives - N…
newspapertree.com/…/3916-public-cor… 3/6
photograph of Luther Jones by Víctor Ramírez and Jorge Jiménez/ El Diario de El Paso
photograph of Gilbert Sanchez by Víctor Ramírez and Jorge Jiménez/ El Diario de El Paso
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Human Rights Alert
PO Box 526, La Verne, CA 91750
Fax: 323.488.9697; Email: jz12345@earthlink.net
Blog: http://human-rights-alert.blogspot.com/
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10-02-02 El Paso Corruption Spotlight: JUDGE BONNIE RANGEL



El Paso Corruption Spotlight: JUDGE BONNIE RANGEL
Comments
Feb2, 2010


This is an excerpt from a story done on the corruption of Judge Bonnie Rangel who is up for re-election this year. After
reading this, do a little fact-finding for yourself and then you be the judge. These judges that judge cannot be corrupt in
any way. How dare they?
Woodall & Coutta are filing documents to have Judge Rangel removed from the case; and reported to the Judicial
Grievance Committee and The Texas Bar Association. According to Naked Harem Owners Judge Bonnie Rangel
allegedly attempted to solicit one of the Naked Harem’s Female Dancers, into a 3 way sex liaison for money; with herself
and an undisclosed male, after a wedding reception which all three attended.
The Dancer refused the threesome, but felt that Judge Rangel continued to harbor animosity toward her and the Naked
Harem after the refusal. Woodall & Coutta felt Judge Rangel knowing the Dancer at the Naked Harem was witness in
the case, she should have removed herself because of potential personal conflicts. Not doing so has likely cost Woodall
a 16 year sentence, & almost 2 years in jail; plus hundreds of thousands of dollars in legal fees, and a denial of basic civil
right of a fair and unbiased trial.
This kind of corruption can not be allowed to stand in El Paso; It is time for the Widow’s Daughter (Woodall), to find a
Square deal in a Court of Law. Not corrupt favoritism and manipulation of the Judicial System for personal revenge or
gain. So many aspect of the case against the Naked Harem held inconsistencies, which Judge Rangel refused to allow
into evidence. Now with these allegations and the fact that Judge Rangel herself is known to frequent El Paso Strip
Clubs, there seems to be a clear appearance of moral and legal impropriety, with the Judge herself being the Guilty
Party.
Now 04/17/2008 Judge Rangel has ordered Coutta arrested and held on a $300,000 bail in an attempt to silence her
about these allegations, as well as tape recordings Coutta has in her possession confirming her first defense attorney
(Jesse Herrera), saying that Judge Rangel and he were intimately close, and she would make sure Coutta did no jail
time (with proper motivation).
Coutta attempted to hire a new defense attorney David Botsford of Austin, but Judge Rangel refused to allow it, and
instead appointed a “over worked” Public Defender (Bruce Ponder) at the City’s expense,(when Coutta could well afford,
and wanted to hire her own Private Attorney).
Public Defender: Bruce Ponder upon learning the allegations Judge Rangel tried to have sex with one of the Club’s
Dancers, and Tape Recordings of Attorney Herrera’s conversations concerning Judge Rangel; in addition to the Judge
forcing him to be ready on such a complicated case by May 16th., resigned from the case.
This case is fastly snowballing into a major corruption scandal, and needs an FBI Investigation. The City of El Paso will
have a black eye behind this one! It only make you ask: Is El Paso the “MOST CORRUPT” City In Texas?
Feb2, 2010

Lawyers top donors in judicial races
By Adriana M. Chávez / El Paso Times
Posted: 01/24/2010 12:00:00 AM MST

EL PASO -- Attorneys and their associates are the biggest and most reliable contributors to candidates for judgeships,
who so far have received almost $88,000 in donations.

tOplX
Human
Rights
Alert
z Page 2/2 January 20, 2011
In the Democratic primary election for County Court at Law No. 1, incumbent Judge Ricardo Herrera has received nearly
half of all the contributions in judicial races --$42,100. He has spent $17,934.
His challenger, Beto Acosta Jr., an assistant district attorney, said he had raised $14,078 and spent $10,277.
Among Herrera's top contributors were his relatives. Grace Herrera, a court coordinator in District Criminal Court No. 1,
donated $4,000, and Michael Herrera, a runner for attorney Sib Abraham Jr.'s law office, donated $17,000.
Abraham himself gave $1,000 to Herrera.
Acosta listed his top contributor as Maria Acosta, who donated $1,000.
Several people donated $500 to Acosta. They included attorneys Darron Powell, Luis Gutierrez, Israel Parra and the
Lozano Walker law firm. Also contributing $500 were Maria Christina Gonzalez, a professor at El Paso Community
College, and homemaker Malinda Collie.
Three people seeking judgeships -- Luis Labrado, Marcos Lizarraga and Christine Pacheco -- have not yet submitted
campaign reports because the did not make their candidacies official until Jan. 4. They have until Feb. 1 to file.
Lizarraga and Pacheco are running as Democrats for the 168th District Court judgeship, a position held by Republican
Chris Antcliff.
Antcliff listed only one Advertisement contribution of $1,500. It was from his father, Robert Antcliff.
Labrado is running against Judge Bonnie Rangel for the 171st District Court judgeship. Both are Democrats.
Rangel has raised $3,790 in addition to the $14,426 already in her campaign fund.
Her top contributors were attorneys Derek Wyatt, who donated $2,500, and James Scherr, who gave $1,000.
Abraham donated $500 to each of the Democratic candidates for the judgeship of County Court At Law No. 2. They are
attorney Frank Macias and incumbent Judge Julie Gonzalez.
Macias has raised $12,425 and spent $50,614. Gonzalez listed $14,101 in donations and expenditures of $21,258. But
she said she had $7,500 remaining in a campaign fund.
Macias said in other years he probably would have raised more money, but the poor economy has translated to low
donations.
"I think this is a real, real low turnout as far as money is concerned," he said.
Macias said it was common for attorneys to contribute the same amount of money to competing judicial candidates.
"I think that all of them want the best judge in there, but they're afraid if they contribute only to one judge and the other
person wins, the one they didn't give to will take it out on them, not that it would happen," Macias said.
Certain attorneys, though, donate to only one candidate because of a friendship or professional admiration. Defense
attorney Gary Hill donated $1,250 to Gonzalez, whom he has known since she was in high school.
"She's kind of been like family," Hill said. "She's a real good judge, too. She's pretty strict."
Gonzalez's other top do nors include Ramon and Dionicia Gonzalez, who contributed $1,000, and attorneys Ray
Velarde and Kenneth Del Valle. Law firms Lozano Walker and Delgado Acosta Spencer Linebarger & Perez also
donated $500 each.
Macias' top contributor was David Lujan, an attorney in Agana, Guam, who donated $2,000. Macias said he and Lujan
served together in the Navy.
Samuel Streep, a private investigator, donated $1,000 to Macias.
Those who donated $500 included attorneys Antonio Muñoz, Robert Ramos, Jesse Herrera and Kenneth Del Valle, and
the Wyatt & Underwood law firm.
They all take care of themselves. Leaving us out in the cold...like always. Time for CHANGE!



Human Rights Alert
PO Box 526, La Verne, CA 91750
Fax: 323.488.9697; Email: jz12345@earthlink.net
Blog: http://human-rights-alert.blogspot.com/
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10-02-04 El Paso judge convicted in sex, bribe case




Houston & Texas News


El Paso judge convicted in sex, bribe case
AssociatedPress
Feb. 4, 2010, 1:16PM
Share

EL PASO — A state judge accused of offering court favors for sex and cash is guilty.
A federal jury in El Paso convicted state District Judge Manuel Barraza of three corruption charges today, two counts of wire fraud and one court of lying to a federal agent. The El Paso judge was acquitted of one mail-fraud charge.
FBI agents and federal prosecutors accused Barraza of accepting more than $5,000 from a defendant's sister to steer the case to his courtroom so he could help her. Prosecutors said Barraza also asked for sexual favors from women to help with the
case.
Barraza is scheduled to be sentenced April 28.

*chron
Human
Rights
Alert
David Lohr
Contributor
CRIME
Texas Ex-J udge Convicted in Sex-Bribe
Case
Feb 5, 2010 – 6:46 PM
(Feb. 5) – A former Texas criminal court judge was found guilty of federal
char ges for soliciting cash and sexual favors in exchange for his help in
felony cases.
Between December 2008 and February 2009, El Paso Cr iminal District
Court Judge Manuel Joseph Barraza, 53, received more than $5,000 in
cash bribes from defendants, in exchange for his help in felony cases,
prosecutors said.
"These acts were all committed in exchange for his influence and exercise of discretion in his
official capacity as an elected judge," said U.S. Attorney John E. Murphy. "In carrying out his
bribery scheme, Judge Barraza promised to intervene in a felony criminal case filed by the state of
Texas pending in state district court in order to influence the outcome of the case."
One of t he women from whom Barraza solicited a bribe was an undercover FBI agent. Prosecutors
said he offered to intervene in a felony case filed against her friend and would have the case
transferred to his court, in exchange for sex. Unbeknownst to Barraza, the entire conversation was
recorded.
Within those recordings, which were played in court, jurors heard Barraza and the undercover
agent arraigning the sexual liaison and discussing which one of them would bring the condoms.
Barraza's attorney, Mervyn Mosbacker, denied that his client accepted "cash bribes" and accused
the FBI of entrapping him.
"Mr. Barraza never created a scheme, never adopt ed a scheme and never participated in someone
else's scheme," Mosbacker said.
Despite Mosbacker's ar gument s, the six men and six women on the jury were able to r each their
decision is less t han t hree hours Thursday, finding Barraza guilty of two counts of wire fraud and
the depr ivation of honest services and one count of making false statements. The jury acquitt ed
Barraza of one count of mail fraud.
Sentencing is scheduled for April 28. Barraza faces up to 20 years in prison and a $250,000 fine on
each of the two fraud counts, and up to three years in prison and a $250,000 fine on the false
statements charge.
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Barraza was appointed to the bench three mont hs before his arrest. Before that, he worked for 30
years as a defense attorney. In 1985, he received national media attention when he was hired to
help defend Califor nia serial killer Richard "The Night Stalker" Ramirez. Bar raza ultimately
withdrew from the case and worked as a liaison between Ramir ez's family and his attorney. In 1989,
Ramirez was convicted of 13 murders and sentenced to death.
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Filed under: Nation, Crime
Tagged: bribery, cash bribes, CashBribes, El Paso Criminal District Court, ElPasoCriminalDistrictCourt, Judge
Manuel Jospeh Barraza, JudgeManuelJospehBarraza, judicial corruption, JudicialCorruption, sex bribes,
SexBribes
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Begi n n i n g of en d for FBI p r obe?
Su p r eme Cou r t r u l es on ‘h on est ser vi ces’
By Timot h y Rober t s
Two defen da n t s in t h e FBI’s in v est iga t ion of cor r u pt ion in El Pa so sa y a r ecen t U. S. Su pr eme
Cou r t decision sh ou ld en d t h e gov er n men t ’s ca se a ga in st t h em.
At t h e v er y lea st , t h e r u lin g h a s pr ov ided a n open in g for Adr ia n Edwa r d Pen a a n d J ose
Ga llegos, wh o a r e fa cin g t r ia l.
At it s widest , it cou ld u pen d t h e lon g-r u n n in g in v est iga t ion in t o polit ica l cor r u pt ion in El Pa so
Cou n t y .
Pen a an d Ga llegos fa ce t r ia l t h is fa ll in U. S. Dist r ict Cou r t on ch ar ges t h ey br ibed a n El Pa so
In depen den t Sch ool Boa r d t r u st ee.
Bu t t h ey a r e n ot t h e on ly defen da n t s wh o cou ld ben efit fr om t h e r u lin g, wh ich limit s
gov er n men t pr osecu t ion s of pu blic miscon du ct .
For mer Cou n t y J u dge Lu t h er J on es a n d Cou n t y Dist r ict Cler k Gilber t Sa n ch ez, wh o a r e
ch a r ged wit h con spir a cy t o commit wir e a n d ma il fr a u d a n d depr iv a t ion of h on est ser v ices,
cou ld a lso ben efit fr om t h e r u lin g.
In fa ct , ma n y of t h e 18 ca ses br ou gh t by t h e U. S. At t or n ey for t h e West er n Dist r ict of Texa s
u se t h e pr ov ision of la w alt er ed by t h e Su pr eme Cou r t decision .
En r on r i p p l e s
Th a t decision ca me in J u n e in t h e a ppea l of for mer En r on CEO J effr ey Skillin g, wh o wa s
con v ict ed of 19 cou n t s, in clu din g con spir in g t o depr iv e En r on a n d it s sh a r eh older s of t h e
in t a n gible r igh t of h is h on est ser v ices.
It wa s t h is “h on est ser v ices” ph r a se t h at t h e cou r t scr u t in ized. Sin ce t h e 19 4 0 s, t h e cou r t s
h a v e expa n ded t h e defin it ion of br iber y a n d kickba cks t o in clu de cr imes in wh ich t h e
per pet r a t or of t h e cr ime pr ofit ed, bu t t h e v ict im ma y n ot h a v e lost a n y mon ey .
An example migh t be a con t r a ct or pa y in g a n elect ed officia l t o v ot e for h is bid for a br idge
pr oject . Un der h on est -ser v ices fr a u d t h is wou ld be a cr ime, ev en t h ou gh t h a t bid wa s t h e
lowest on e offer ed.
In essen ce, t h e cr ime wa s t h e fa ilu r e t o r ev ea l t o cit izen s or st ockh older s t h a t someon e h a d
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1/20/2011 Beginning of end for FBI probe?<br>S…
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.. 0 one compares to
Texas MUlual v.1Jen it <:omes
to the di idend program?"
SPECIAL SECT ON:
2008 Medicine
in EI Paso
been pa id t o v ot e a cer t a in wa y .
Bu t in it s r ecen t decision , t h e Su pr eme Cou r t r u led t h at t h is expa n sion of t h e mea n in g of
fr a u d h a d gon e t oo fa r , ma kin g it v a gu e a n d con fu sin g.
“A pen a l st a t u e mu st defin e t h e cr imin a l offen se wit h su fficien t defin it en ess t h a t or din a r y
people ca n u n der st a n d wh a t con du ct is pr oh ibit ed a n d in a ma n n er t h a t does n ot en cou r a ge
ar bit r a r y a n d discr imin a t or y en for cemen t , ” t h e cou r t wr ot e.
Fr om n ow on , t h e depr iv a t ion of h on est ser v ices h a s t o in clu de a br ibe or a kickba ck. It sen t
t h e Skillin g ca se ba ck t o t h e t r ia l cou r t for r ev iew u n der t h e n ew, mor e limit ed defin it ion .
Too b r oa d
Ev en befor e t h e Su pr eme Cou r t r u lin g, J on es a n d Sa n ch ez wer e a r gu in g t h at t h eir ch a r ges in
t h e sch ool dist r ict br iber y ca se wer e ba sed on a mu ch t oo br oa d defin it ion of h on est ser v ices.
In a mot ion seekin g t h e dismissa l of t h e fiv e cou n t s again st h is clien t s, at t or n ey St eph en Pet er s
wr ot e ba ck in Sept ember t h a t t h e $7 50 ch eck J on es wr ot e t o Sa n ch ez wa s n ot a br ibe bu t a
polit ica l don a t ion t h at Sa n ch ez fa iled t o r ecor d as su ch .
Per h aps Sa n ch ez sh ou ld h a v e in for med t h e cou n t y t h a t h e h a d r eceiv ed a ch eck fr om J on es,
wh o wa s r epr esen t in g a bidder for a cou n t y con t r a ct . Bu t wit h ou t t h e act u al br ibe, t h er e is n o
ca se, Pet er s a r gu ed.
Assist an t U. S. At t or n ey La u r a Fr an co Gr egor y r espon ded t o Pet er s, wr it in g t h at t h e
gov er n men t h a d ca r efu lly followed cou r t pr eceden t a n d h a d ch a r ged J on es a n d Sa n ch ez
u n der clea r Texa s la w.
U. S. Dist r ict J u dge Fr a n k Mon t a lv o r eject ed t h e a r gu men t by Sa n ch ez a n d J on es, fin din g t h a t
t h e ju r y sh ou ld be en t it led t o decide if J on es’ ch eck wa s a br ibe or a lega l polit ica l don a t ion .
“Wh et h er t h e exch an ge wa s a polit ica l con t r ibu t ion or a br ibe t u r n s on in t en t , wh ich is a
qu est ion of fa ct for t h e ju r y , ” Mon t a lv o wr ot e.
Bu t t h e ju dge wen t on t o t h r ow ou t br iber y ch ar ges again st t h e t wo, sa y in g t h a t t h e st a t u t e of
limit a t ion s h a d r u n ou t on t h em. He also dr opped a ch a r ge of ma il fr a u d, sa y in g t h a t t h e
ev iden ce wa s t oo flimsy .
Th a t leav es ju st t wo cou n t s:
con spir a cy t o commit wir e fr a u d a n d con spir a cy t o commit ma il fr a u d, bot h of wh ich in clu de
t h e ch a r ge of depr iv a t ion of h on est ser v ices.
Br own b a g b r i b e
Tom St an t on , a t t or n ey for Adr ian Pen a , wa st ed n o t ime in filin g a mot ion t o dismiss aft er t h e
J u n e 2 4 Su pr eme Cou r t r u lin g. Th r ee da y s la t er , h e filed h is a r gu men t t h at u n der t h e
Skillin g decision , t h e gov er n men t n o lon ger h a s a ca se.
Pen a , a for mer employ ee of C. F. J or da n Con st r u ct ion , is a ccu sed of br ibin g t h en -Cou n t y
Commission er Eliza bet h “Bet t i” Flor es wit h $10 , 0 0 0 in 2 0 0 4 t o secu r e h er v ot e for C. F.
J or da n ’s r equ est for $3 8 2 , 158 in ch a n ge or der s t o t h e con st r u ct ion of t h e cou n t y ’s pa r kin g
ga r a ge a n n ex.
Pen a is ch a r ged wit h con spir a cy t o commit ma il fr a u d a n d t h e depr iv a t ion of h on est ser v ices.
Flor es h a s plea ded gu ilt y t o t h is an d ot h er ch a r ges.
In a sepa r a t e in dict men t , Pen a is a ccu sed a lon g wit h Ga llegos of con spir a cy t o commit ma il
fr a u d a n d t h e depr iv a t ion of h on est ser v ices in con n ect ion wit h a pa y men t of $13 , 0 0 0 t o El
Pa so In depen den t Sch ool Dist r ict Tr u st ee Sa l Men a .
Th e br ibe, a llegedly deliv er ed in a br own pa per ba g, wa s in t en ded t o be in exch a n ge for
Men a ’s v ot e on sch ool boa r d con t r a ct s wor t h $3 . 2 million , a ccor din g t o t h e in dict men t . Men a
h a s plea ded gu ilt y t o t h e ch a r ge.
In bot h ca ses, Pen a a r gu es t h at t h e accu sa t ion t h at h e defr a u ded El Pa so Cou n t y t a xpay er s of
“t h e in t a n gible r igh t t o h on est ser v ices of a pu blic ser v a n t ” is n o lon ger v a lid, post -Skillin g.
Th e pr osecu t ion sh ou ld h a v e t o sh ow a n a ct u a l br ibe t ook pla ce.
At t or n ey St a n t on a t t empt s t o ca st dou bt on t h e br ibe allega t ion in t h e pa r kin g a n n ex ca se,
a r gu in g t h a t t h e ch a n ge or der sou gh t by C. F. J or da n didn ’t r equ ir e a br ibe. It wa s a lr ea dy a
v a lid r equ est .
Pl a i n a s p i k e s t a ff
In defen din g t h e Pen a a n d Ga llegos in dict men t s, Assist a n t U. S. At t or n ey Willia m Lewis qu ot es
t h e Su pr eme Cou r t decision , wh ich sa y s, “It h a s a lwa y s been a s pla in a s a pikest a ff t h a t br ibes
an d kickba cks con st it u t e h on est -ser v ices fr au d. ”
U. S. At t or n ey J oh n Mu r ph y did n ot r espon d t o a r equ est for a n in t er v iew.
1/20/2011 Beginning of end for FBI probe?<br>S…
elpasoinc.com/readArticle.aspx?issueid… 2/3
Th e Su pr eme Cou r t decision ma y be so in t egr al t o t h e cor r u pt ion alleged in El Pa so Cou n t y
t h at ev en t h e dozen defen da n t s wh o h a v e plea ded gu ilt y ma y con sider askin g t h e cou r t t o set
a side t h eir gu ilt y plea s, sa y s Su sa n Klein , wh o h olds t h e Alice McKea n You n g Regen t s Ch a ir in
La w a t t h e Un iv er sit y of Texa s Sch ool of La w.
An d in t h e fu t u r e, sh e sa id, t h e Skillin g decision will limit t h e br iber y a n d kickba ck ca ses t h e
gov er n men t ca n br in g, somet h in g t h a t cou ld ma ke it t ou gh er for t h e feds t o figh t cor r u pt ion .
“Th e gov er n men t will n o lon ger be a ble t o ch a r ge someon e ba sed on sh owin g t h a t a n officia l
didn ’t r ev ea l somet h in g of impor t a n ce, ” sh e sa id.
“Con gr ess wou ld h a v e t o pa ss a la w t h a t specifica lly ou t la ws dea ls t h a t a r e less t h a n kickba cks
a n d br iber y , ” Klein sa id. “Cr imin a l la w sh ou ld be wr it t en down so t h a t pu blic officia ls ca n look
at it an d see if wh a t t h ey abou t t o do is lega l or n ot . ”
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KFOXTV. com
El Paso Publ i c Cor r upt i on Ti me Li ne
Relat ed St ories/ Links
MORE I NFO
Vi deo: 11
I ndict ed in FBI
El Paso
Corrupt ion
Case
Vi deo: Willie
Gandara Sr.
Asked To St ep
Down as Mayor
Li nk : Read
Public
Corrupt ion
I ndict ment -
Sept . 2010
Vi deo: Presser:
Federal Grand
Jury I ndict s 11
I n Corrupt ion
I nvest igat ion
Vi deo:
I ndividuals Turn
Themselves I n
To FBI
Sl i deshow :
Frank Apodaca,
Former
President of
Access
Sl i deshow :
Linda Chavez,
Current YI SD
Trust ee
Sl i deshow : Ray
Rodriguez,
Former SI SD
Trust ee, Former
Mayor of
Socorro
Sl i deshow :
Milt on " Mickey"
Dunt ley, Former
YI SD Trust ee
Sl i deshow :
Larry Medina,
Former Cit y
1/20/2011 El Paso Public Corruption Time Line - P…
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Rep., Count y
Commissioner
Sl i deshow :
David Escobar,
El Paso Lawyer,
Former Cit y
Rep.
Sl i deshow :
Lut her Jones, El
Paso Lawyer,
Former Legal
Adviser t o YI SD
Sl i deshow :
Gilbert
Sanchez,
Dist rict Clerk
Sl i deshow :
Marc Schwart z,
Former
Spokesman for
NCED
Sl i deshow :
Guillermo
" Willie"
Gandara Sr.,
Socorro Mayor
Jessica Molinar/ KFOX Weekend Assignment s Edit or/ Associat e Producer
Post ed: 8: 19 pm MDT Sept ember 2, 2010Updat ed: 9: 30 pm MDT Sept ember 2, 2010
EL PASO, Tex as - - Federal court document s said t he FBI public corrupt ion invest igat ion began in t he summer of
2004. I n November of 2005, t he U.S. Senat e opened an invest igat ion int o NCED, t he Nat ional Cent er for
Employment of t he Disabled, and alleged abuses by government cont ract ors.
Federal invest igat ors arrived in El Paso in January 2006 t o begin reviewing employment records at NCED.
On May 9, 2006, four federal agencies searched t he main offices of NCED.
I n Sept ember of t hat year, invest igat ors searched t he offices of Access Healt hsource and several ot her
companies wit h t ies t o NCED.
The FBI also quest ioned members of t he Yslet a I ndependent School Dist rict board of t rust ees, possibly about t he
cont ract awarded t o Access Healt hsource.
I n 2007, t he FBI ent ered t he El Paso Count y Court house, raiding t he offices of count y Judge Ant hony Cobos, and
t hen-Commissioners Luis Sarinana and Miguel Teran.
At t he t ime, t he FBI confirmed t he raid was linked t o t he invest igat ion of NCED.
Cobos, Sarinana, and Teran all denied any wrongdoing and have not been indict ed or charged.
Just days aft er t he raid, Travis Ket ner resigned as Cobos' chief of st aff and a mont h lat er, pleaded guilt y t o
charges of conspiracy t o commit fraud and bribery.
The U.S. at t orney at t he t ime, Johnny Sut t on, said Ket ner plead guilt y for his role in a conspiracy t o defraud El
Paso Count y by fraudulent ly securing vendor cont ract s.
I n July 2007, former Count y Commissioner Bet t i Flores plead guilt y t o six count s of mail and wire fraud and also
admit t ing t o t rading her vot es for money.
Archit ect Bernardo Lucero Jr. pleaded guilt y t o one count of conspiracy in get t ing an elect ed official a $25,000
loan.
I n November, former El Paso I ndependent School Dist rict t rust ee Carlos Cordova pleaded guilt y and admit t ed t o
exchanging his vot e for money.
Former cit y represent at ive Raymond Telles also pleaded guilt y t o t wo count s of mail and wire fraud for at t empt ing
t o bribe commissioners and school t rust ees.
Ant onio Dill plead guilt y t o conspiring wit h ot hers t o bribe a current Count y Commissioner.
1/20/2011 El Paso Public Corruption Time Line - P…
kfoxtv.com/print/24864058/detail.html 2/3
Sal Mena Jr. was arrest ed in August 2008, and plead not guilt y t o six count s of accept ing bribes and bribing
ot hers.
Then in Oct ober of 2008, t wo former NCED officers were arrest ed along wit h board member Pat rick Woods.
Copyright 2010 by KFOXTV.com. All right s reserved. This mat erial may not be published, broadcast , rewrit t en or
redist ribut ed.
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Department of Justice Press Release
For Immediate Release
September 2, 2010
United States Attorney’s Office
Western District of Texas
Contact: (915) 534-6884
Federal Grand Jury in El Paso Indicts 11 in Corruption Investigation
Charges Include Racketeer Influenced and Corrupt Organizations Act Violation
United States Attorney John E. Murphy and Federal Bureau of Investigation Special Agent in
Charge David Cuthbertson announced today that a federal grand jury has indicted 11 individuals in
connection with the El Paso corruption investigation.
The indictment, returned on Tuesday and unsealed today, charges 47-year-old El Paso business
executive Francisco "Frank" Apodaca, Jr. and 53-year-old El Paso public relations consultant Marc
Schwartz with a Racketeer Influenced and Corrupt Organizations (RICO) Act conspiracy violation as
well as two counts of conspiracy to commit mail fraud and deprivation of honest services; two
counts of mail fraud, aiding and abetting, and deprivation of honest services; and two counts of
conspiracy to commit mail and wire fraud and deprivation of honest services. The indictment also
charges 51-year-old former El Paso County Commissioner Larry Medina with a RICO violation, one
count of conspiracy to commit mail fraud and deprivation of honest services, and one count of mail
fraud, aiding and abetting, and deprivation of honest services. Also, 64-year old El Paso attorney
Luther Edward Jones, 42-year-old former El Paso County District Clerk Gilbert Sanchez, 62-year-old
attorney David Escobar, 64-year-old former president of the board of trustees for the Ysleta
Independent School District (I.S.D.) Milton "Mickey" Duntley, 61-year-old Soccoro I.S.D. Trustee
Charles "Charlie" Garcia, and 57-year-old Soccoro I.S.D. Trustee Raymundo "Ray" Rodriguez are
charged with a RICO violation and one count of conspiracy to commit mail and wire fraud and
deprivation of honest services. Finally, the indictment charges 60-year-old Soccoro I.S.D. Trustee
Guillermo "Willie" Gandara, Sr. and 60-year-old Ysleta I.S.D. Trustee Linda Chavez with one count
of conspiracy to commit mail and wire fraud and deprivation of honest services
The indictment centers around a now-defunct vender, ACCESS Health Source. ACCESS, among
other things, was a third party administrator of healthcare benefits for self insured entities. Between
1998 and 2007, ACCESS contracted with self-insured local (El Paso) government entities, including
the county and three school districts, to provide administrative services for their health insurance
programs. The indictment alleges that, in order to obtain and maintain these lucrative healthcare
services contracts, ACCESS conspired to engage in a pattern of racketeering activity, including
mail fraud, wire fraud, and bribery, through it’s owner, Robert Jones, CEO/President Frank Apodaca,
and public relations contractor Marc Schwartz. This indictment alleges ACCESS conspired to
commit fraud and bribery with elected and appointed members of the El Paso County
Commissioners Court and elected Trustees of the El Paso, Ysleta, and Soccoro Independent
School Districts.
The indictment further alleges that ACCESS’ corrupt activity was assisted, at the Ysleta
Independent School District by conspirators Luther Jones, Gilbert Sanchez and David Escobar, who
negotiated with ACCESS to influence YISD Trustees to vote for contacts with ACCESS and with a
local law firm. Once the contracts were in place, Jones and Escobar allegedly received a portion of
a fifteen percent kickback of the total proceeds YISD paid the law firm for legal services. In July of
2009, Robert Jones pleaded guilty to criminal conduct arising out of the same transactions as this
indictment.
"The indictment returned by the grand jury demonstrates that schemes to corrupt our elected
officials for private gain will not be tolerated. The charges allege a deliberate and long term effort to
bribe elected officials in order to buy their votes to award contracts to ACCESS resulting in private
1/20/2011 Federal Bureau of Investigation - The El…
elpaso.fbi.gov/…/ep090210.htm 1/2
Accessi bi l i ty | eRul emaki ng | Freedom of Informati on Act | Legal Noti ces | Legal Pol i ci es and Di scl ai mers | Li nks
Pri vacy Pol i cy | USA.gov | Whi te House
FBI.gov i s an offi ci al si te of the U.S. Federal Government, U.S. Department of Justi ce.
financial benefits to the defendants. The people of El Paso are entitled to the honest services of
their public officers, motivated only by the best interests of the citizens they are supposed to serve,
not by the officers’ personal profit," stated United States Attorney John E. Murphy.
Each of the charges contained in the indictment call for up to 20 years in federal prison and a
maximum $250,000 fine upon conviction.
"This investigation exemplifies the FBI’s commitment to investigating and seeking prosecution of
individuals who devise schemes and facilitate others in defrauding governmental entities, as well as
preserve the intangible right of citizens to the honest services of their elected and appointed public
officials," stated FBI Special Agent in Charge David Cuthbertson. "It also sends a message that the
citizens of El Paso have the right to benefit from fair and open competition between vendors, who
seek to provide governmental entities with millions of dollars in goods and services, which are
funded through taxpayer dollars."
This is the seventh indictment stemming from a large scale FBI investigation which began in 2004.
To date, 13 individuals have pleaded guilty to criminal conduct stemming from the investigation. The
seven indictments include a total of 17 charged defendants. Assistant United States Attorneys
Debra Kanof, Antonio Franco, and Laura Franco Gregory, are prosecuting this case on behalf of the
government.
An indictment is merely a charge and should not be considered as evidence of guilt. The defendants
are presumed innocent until proven guilty in a court of law.
Press Releases | El Paso Home
1/20/2011 Federal Bureau of Investigation - The El…
elpaso.fbi.gov/…/ep090210.htm 2/2
“Power is the great evil with which we are contending. We have divided power between three branches of government and erected checks and
balances to prevent abuse of power. However, where is the check on the power of the judiciary? If we fail to check the power of the judiciary, I
predict that we will eventually live under judicial tyranny.” – Patrick Henry
Posted by Corrupt Courts of Collin County at 10:45 PM
Shades of what ' s t o come: Cuyahoga
Count y Corrupt ion Scandal
Editor: El Paso, Cuyahoga County Ohio....seems like the dominos are starting to fall,
does it not? From a distance, it is easy to sit back and watch these horror shows and
wonder how such obvious corruption could go unchecked for so long. How could
the citizens of these cities and counties elect such amoral crooks? Now look in the
mirror and ask yourself the same question.
From the Cleveland Plain Dealer
Jimmy Dimora at center of one of biggest
local corruption cases in U.S. history

Publ i shed: Wednesday, September 15, 2010, 7:16 AM Updated: Thursday, September 16, 2010, 6:26
AM
Tony Brown and Peter Krouse / Plain Dealer Reporters
CLEVELAND, Ohio -- It is a shocking and emblematic photograph that could be of New
York City's Boss Tweed, 140 years later: Jimmy Dimora, the most powerful man in
Cuyahoga County politics, led away in manacles to FBI headquarters, to federal court,
and into infamy.
But the picture painted by the 177 pages in indictments made public Wednesday against
eight suspects -- including Cuyahoga County commissioner Dimora and two county
judges -- is even more shocking, alleging what could be one of the biggest local political-
machine corruption cases in recent U.S. history.
It also, for the first time, implicates a second commissioner, Peter Lawson Jones, in the
broad pay-for-play scandal that has infected local government and garnered almost three
dozen guilty pleas.
Jones is not charged, or named, but as "Public Official 9" he has now entered the alpha-
numeric lexicon of those who are accused of trading jobs for bribes and campaign
donations.
The focus of the grand jury indictments paints Dimora, the gruff, often crude
commissioner, as a high-on-the-hog crook indulging himself in goodies at public
expense as the boss of a complex corruption scheme in a county that is home to one of
the poorest big cities in America.
According to the FBI investigation, Dimora, until last year the chairman of the local
Democratic party, helped himself to:
Sex on demand with top-dollar call girls, and with a woman who sought his
help to get a job.
Pricey lunches at fancy restaurants such as Delmonico's Steakhouse.
A high-flying gambling junket to Las Vegas and more nights of partying at a
Stonebridge condominium overlooking Cleveland's Flats.
A four-figure discount on a Rolex watch.
Free or deeply-discounted improvements to his $438,000 home, which the
indictments seek to seize in forfeiture actions against Dimora and other
defendants.
The indictments, sprinkled with four-letter words and denigrating and obscene
references to women, or "broads," also show a Dimora who was sometimes irritated
when those from whom he received favors asked for quid pro quo favors in return.
"How many times am I going to do you a f-ing favor," Dimora asked Robert Rybak, an
executive with a local plumbers and pipe-fitting union who was also charged in
Wednesday's indictments.
Shades of what's to
come: Cuyahoga
County Corruption
Scandal
Sep 16, 2010
DMN: Special
prosecutor appointed
to investigate Collin
County DA's office
Sep 16, 2010
Rule 11 Agreements
and "Agreed"
Temporary Orders
Sep 08, 2010
dallaslouie wrote...
The City of Richardson
courts are a bunch
crooks too, there courts
system are a money
racket they...
Continue >>
Anonymous wrote...
The City of Richardson
courts are just as bad
they do not care what
you say all they want is
your...
Continue >>
Lmweatherly2003@ya
wrote...
I want to give you and all
your readers a
Christmas present.
Upon docketing of cases
like ours in...
Continue >>
Hom e
Mi chel l e Neel y and
Col l i n Count y CPS
FRAUD
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Corrupt i on Forum
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Col l i n Count y
Cor r upt
Cour t s of
Col l i n
Count y
Col l i n
Count y, TX
Our Mi ssi on:
To prot ect our chi l dren
and f am i l i es f rom t he
parasi t es and
scoundrel s who wal k t he
hal l s of our l ocal court s
and governm ent
agenci es. We dem and
account abi l i t y f rom
t hose who vi ol at e t he
publ i c t rust and t he
pri nci pl es of j ust i ce.
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prof i l e
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Posted by Corrupt Courts of Collin County at 8:51 PM
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4 comments
DMN: Special prosecut or appoint ed t o
invest igat e Collin Count y DA' s office
Editor: Does anyone still believe that justice is even possible in Collin County? The
unfortunate truth is that there are no "good guys" in what is happening...merely the corrupt
against the corrupt. As they say, there is no honor among thieves. Truly pathetic and
disgusting.
Special prosecutor appointed to investigate Collin County
DA's office
06:54 PM CDT on Thursday, September 16, 2010
By ED HOUSEWRIGHT / The Dallas Morning News
ehousewright@dallasnews.com
A special prosecutor has been appointed to investigate “possible criminal wrongdoing”
in Collin County District Attorney John Roach’s office.
The grand jury that requested the prosecutor was impaneled by state District Judge
Suzanne Wooten, who has been under investigation by Roach’s office.
Roach said Thursday, “I have the utmost confidence that every person in my office has
acted honorably and within the bounds of the law in the performance of their duties.”
For more than a year, Roach said, the district attorney’s office has investigated Wooten,
elected in 2008, for alleged campaign law violations.
Of the special prosecutor’s appointment, Roach said, “It is no wonder that I have
concerns about the integrity of the entire process in impaneling Judge Wooten’s grand
jury and its subsequent actions to date.”
Wooten’s attorney, Peter Schulte, said the judge recused herself from overseeing the
grand jury in late June, when she learned that Roach was still investigating her. Another
judge signed the order dated Wednesday appointing attorney Terence Hart of Dallas as
special prosecutor. The judge’s signature on the order is unclear.
“Grand jury proceedings are supposed to be secret,” Schulte said. “I’ve talked to Judge
Wooten. She has no idea what this is about.”
Hart, a former FBI agent and federal prosecutor, has a history of being involved in high-
profile investigations.
Posted by Corrupt Courts of Collin County at 1:32 AM
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Rule 11 Agreement s and "Agreed"
Temporary Orders
Over the last several months, we have browsed through hundreds of divorce/child
custody case dockets online. As mentioned in our previous post regarding the OCA, there
seems to be a certain group of lawyers and court-appointed "neutrals" who appear again
and again in particularly nasty cases.
Shortly after the original petition or petition to modify is opened, the whores of the court
make their entrance. You know who you are...the "court-appointed" custody evaluators,
psychologists, and other assorted parasites who pour gasoline on the fire and literally
feed themselves and their wretched offspring on the misery of others. All of the sudden
things like social studies, psychological evaluations, and parenting facilitators are thrown
into the equation. The value of these "services" is questionable at best...particularly in
light of the dubious methods used by the aforementioned whores of the court.
But I digress...
Another theme that seems to be quite common in the early stages of these cases is the
request for a "protective order" by one party against the other. A "Temporary Orders"
hearing is set, and let me tell you, quite a show is put on by the attorneys to make it
appear as though they are really fighting tooth and nail for their clients. But then
something odd often happens: once all of the attorney showmanship and courtroom
pageantry dies down, an "agreed temporary order" is entered into the court record.
Happy New Year,
brothers and
sisters. This is the
year we take the
fight to them. :-) 19
days ago
Mq 88 days ago
BREAKING:
SITTING JUDGE,
OTHERS INDICTED
IN COLLIN
COUNTY!
http://bit.ly/9Mkf8B
(Wish I could say
the cavalry had
arrived, but it
hasn't. ) 96 days ago
Fol l ow me on Twi tter
1/20/2011 The Corrupt Courts of Collin County
http://exposecollincounty.blogspot.com/ 2/5
Posted by Corrupt Courts of Collin County at 11:17 PM
Public corrupt ion: Feds allege bribery,
kickbacks
Lawyers, judges, schoold board members, county commisioners taking bribes? I'm
shocked, I tell you. SHOCKED. I'm sure nothing like this is happening here in our
county. What a relief. The worst we have are some of Hannah Kunkle's employees
stealing some unearned vacation time, right?
From the El Paso Times
Public corruption: Feds allege bribery, kickbacks
http://www.el pasoti mes.com/ci _15979435?source=most_vi ewed

By Ramon Bracamontes and Gustavo Revel es Acosta/ El Paso Ti mes

09/03/2010 12:00:00 AM MDT

Investigation into public corruption

Eleven people -- including the mayor of Socorro, two lawyers and several current and
former elected officials -- used a scheme of bribes and kickbacks to obtain contracts for
Access HealthSource, a local health-care provider, federal prosecutors allege.

The workings of the enterprise were unveiled in a 27-page indictment that became public
Thursday. The indictment charges all of them with six counts of bribery and fraud. Most of
them are also charged with one count of violating the Racketeer Influenced and Corrupt
Organizations act, known as RICO.

The RICO charge is commonly used by the government to fight criminal organizations.

Those indicted Tuesday and arrested on Thursday are:
Frank Apodaca Jr., 47, former president of Access, a health-care provider. He
is charged with six counts of racketeering and fraud, as well as a RICO
violation. He was released on $40,000 bond.
Marc Schwartz, 53, the former spokesman for Access and the National
Center for Employment of the Disabled (NCED). He faces six fraud charges,
as well as a RICO violation. He was released on $40,000 bond.
Luther Jones, 64, an El Paso lawyer and former county judge and state
representative. He is charged with a RICO violation and one count of fraud.
Gilbert Sanchez, 42, the current El Paso County district clerk. He is charged
with a RICO violation and one count of fraud.
David Escobar, 62, an El Paso lawyer and a former city representative. He is
charged with a RICO violation and one count of fraud.
Milton "Mickey" Duntley, 64, a retired El Paso police officer and a former
Ysleta Independent School District trustee. He is charged with a RICO
violation and one count of fraud.
Charles Garcia, 61, a former Socorro Independent School District board
president. He is charged a RICO violation and one count of fraud.
Ray Rodriguez, 57, a former SISD trustee and former mayor of Socorro. He is
charged with a RICO violation and one count of fraud.
Larry Medina, 51, a former city representative and county commissioner. He
is charged with a RICO violation and two counts of fraud. He was released on
$20,000 bond.
Linda Chavez, 60, a current Ysleta Independent School District board
member. She is charged with one count of fraud.
Willie Gandara Sr., 60, the mayor of Socorro and a former SISD trustee. He is
charged with one count of fraud.
All of them are expected to plead not guilty next week in federal court.
Joe Spencer, the attorney for Gandara, said he is confident his client will be exonerated.
The charge against Gandara is linked to when he was an SISD trustee and he voted to
give Access the district's health insurance contract.
"He is named in one count and is accused of taking a $1,000 bribe in the form of a
campaign contribution," Spencer said. "As a matter of practice, the Gandaras do not
accept campaign contributions. He is not a man that needs a $1,000 contribution."
The heart of the indictment centers on the allegation that four of the men indicted --
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Apodaca, Schwartz, Jones and Escobar -- bribed and made arrangements with the other
seven to approve contracts for Access, the indictment states.
Access HealthSource eventually lost all of its public contracts and was sold. It is now
known as Foresight TPA.
Medina, Chavez, Duntley, Garcia, Rodriguez, Sanchez and Gandara are accused of
accepting bribes, some of which were masked as campaign contributions, the
indictment states.
Federal prosecutors said the indictment is a part of a six-year investigation they dubbed
"Operation Poisoned Pawns."
"That's exactly what happened," said John Murphy, the U.S. attorney for the Western
District of Texas in El Paso. "We had some people come into the county and the school
districts to poison the system in which fair and equitable contracts are awarded."
Investigators said the elected officials indicted on Thursday took sums of money from "as
little as under $1,000 and as much as many thousands" to award the third-party health
insurance contract to Access, which was sold and renamed.
Assistant U.S. Attorney Debra Kanof said the investigation began in 2004 when an FBI
special agent, whom she didn't name, was transferred into the public corruption
investigation office.
What the agent uncovered, she said, led to a wide-range investigation aided by at least
three wiretaps and thousands of hours of recorded conversations.
David Cuthbertson, the FBI special agent in charge in El Paso, said Access
"manipulated" public officials in order to secure contracts worth up to $150 million. He
added that other victims of these allegations were the companies that also competed for
the health-care and legal contracts in the school districts and the county.
"There are legitimate vendors who were deprived of their rights to compete in a fair and
accurate manner," Cuthbertson said.
For years, Access was a third-party administrator of health-care benefits for local
governments. Between 1998 and 2007, Access had contracts with the city, county and the
three major school districts.
This is the seventh indictment stemming from a large-scale FBI investigation, which
began in 2004. To date, 13 individuals have pleaded guilty to criminal conduct stemming
from the investigation. The seven indictments contain a total of 17 charged defendants.
El Paso lawyer Tom Stanton, who is representing Charles Garcia, said that Thursday
was a sad day for all of El Paso.
"My client is innocent, and I feel sad for him and for his family because he is being put
through this," he said. "It's also a sad day for El Paso because a lot of people are being
unjustly accused."
Ramon Bracamontes may be reached at rbracamontes@ elpasotimes.com; 546-6142.
Gustavo Reveles Acosta may be reached at greveles@elpasotimes.com; 546-6133.

Posted by Corrupt Courts of Collin County at 1:51 AM
Collin Count y Cust ody/ Divorce Cases
are ADMI NI STRATI VE PROCESSES! ! ! !
If there is still doubt in your mind about how your divorce/custody case is being handled,
then I am going to put it to rest for good. THE REASON THE SYSTEM SEEMS SO
CROOKED AND RIGGED IS BECAUSE...IT IS!
Your case is being conducted under a "quasi-administrative" process in which the
normal rules of procedure are tossed out the window. That is why "orders" are rendered
that seem to defy common sense and logic. That is why evidence that supports your side
is ignored. That is why your lawyer and your (ex)spouses lawyer have their informal
conversations out of your earshot in the halls of the courthouse and decide what the
outcome of your case will be. That is why there are so many RULE 11 AGREEMENTS in
your case. That is why the JUDGE NEVER REALLY ORDERS ANYTHING and you end up
with an AGREED ORDER at the end of your case.
When it's all over and you're sitting at home wondering what you did to deserve losing
your children, your home, your property, and quite possibly your liberty, you decide to
appeal your case. The Appeals Court won't let this INJUSTICE stand! And then you lose
your appeal. Look at the opinions coming out of the Texas Appellate Courts and you will
see that REVERSALS ARE RARE!
But don't take my word for it...I'll let the US Government and the State of Texas speak for
me:
The first document is taken from "Essentials for Attorneys in Child Support Enforcement"
1/20/2011 The Corrupt Courts of Collin County
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from the Administration for Children & Families division of the US Department of Health &
Human Services. This is Chapter 6: EXPEDITED JUDICIAL AND ADMINISTRATIVE
PROCESSES. You can view/download the entire document directly from the agency's
website here. It is a few years old, but it provides an excellent overview in layman's
terms of how this bastardization of justice evolved. The entire document is available for
download here.
The second document is current hrough this year and is specific to the STATE OF
TEXAS. It consists of questions and answers about the state's Title IV-D Child Support
Enforcement Program. (This link will download a PDF copy of the page - the page can
also be accessed directly by going to http://www.acf.hhs.gov/programs/cse/ and selecting
the "Intergovernmental Referral Guide").
The fact that your case is being heard administratively (except in limited cases) is
explicitly stated:
Question: I1. Does your State use an administrative, a judicial or a
combined process to establish a support obligation?
Answer: While Texas does do some establishment actions judicially, a
quasi-administrative process is normally used to establish obligations.
Interstate responding cases are most frequently handled judicially.
Here is the real kick in the crotch...IT IS ALMOST A CERTAINTY THAT YOUR LAWYER
KNOWS this already. Oh, he hasn't told you? Go ahead...ask him about it. Read these
documents and make him explain the process. I'd love to hear what about how they
respond. I already heard from one person who did this. Her attorney, who demanded a
$50,000 retainer to represent this poor woman, screamed at her for asking too many
questions and hung up the phone on her. Needless to say, this person has opted not to
retain this scumbag.
The good news is that there are remedies under the rules of administrative law which
can protect your rights. You can start by firing your dirtbag lawyer...
Did someone say CLASS ACTION???
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KVI A. com
2 Mor e I ndi ct ed I n El Paso Feder al Cor r upt i on
I nv est i gat i on
St aff Report
POSTED: 5: 04 pm MST November 9, 2010
UPDATED: 5: 08 pm MST November 9, 2010
EL PASO, Tex as - - Unit ed St at es At t orney John E. Murphy and Federal Bureau of I nvest igat ion Special
Agent in Charge David Cut hbert son announced Tuesday aft ernoon t hat a federal grand j ury has indict ed
62-year-old New York businessman Joseph O' Hara and 55-year-old former El Paso I ndependent School
Dist rict Associat e Superint endent Tomas Gabaldon in connect ion wit h t he El Paso corrupt ion invest igat ion.
The indict ment , ret urned last week and unsealed on Monday, charges t he defendant s wit h one count of
conspiracy t o commit mail fraud and deprivat ion of honest services; one count of conspiracy t o commit wire
fraud and deprivat ion of honest services; and, one count of mail fraud.
The indict ment alleges t hat bet ween February 2003 and Oct ober 2007, O' Hara and an unindict ed co-
conspirat or bribed Gabaldon as well as an EPI SD t rust ee in order t o secure and maint ain a lucrat ive EPI SD
cont ract .
Each of t he charges cont ained in t he indict ment call for up t o 20 years in federal prison and a maximum
$250,000 fine upon convict ion.
Gabaldon, who t urned himself int o FBI agent s in El Paso on Monday, is current ly on a $25,000 unsecured
bond. O' Hara, who t urned himself int o aut horit ies in New York on Monday, is current ly on a personal
recognizance bond. No t rial dat e has been scheduled.
Gabaldon' s arraignment is set for Nov. 18
This is t he eight h indict ment st emming from a large scale FBI invest igat ion which began in 2004. The
Depart ment of Educat ion Office of I nspect or General assist ed in t his port ion of t he invest igat ion. To dat e,
13 individuals have pleaded guilt y t o criminal conduct st emming from t his invest igat ion.
The eight indict ment s include a t ot al of 19 charged defendant s. Assist ant Unit ed St at es At t orneys Laura
Franco Gregory and Ant onio Franco are prosecut ing t his case on behalf of t he Government . An indict ment
is merely a charge and should not be considered as evidence of guilt . The defendant s are presumed
innocent unt il proven guilt y in a court of law.
Copyright 2010 KVI A. All right s reserved. This mat erial may not be published, broadcast , rewrit t en or
redist ribut ed.
1/20/2011 2 More Indicted In El Paso Federal Corr…
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