Review of Russian Helo Conviction Sought

Source: Wired Magazine
By Sharon Weinberger
April 29, 2009, 10:52 am

For those who want a lesson in the perils of buying foreign weapons for the U.S. government, it makes sense to take note of an appeal that is currently winding its way through the federal courts. Last week, a magistrate judge issued a “show cause” order in response to an emergency motion filed on behalf of Jeffrey Stayton, a federal prisoner who was once a top U.S. government expert on Russian helicopters.

At issue is a little known trial that took place in Alabama in 2007, when Stayton, then an Army official, and William Childree, a defense contractor, were convicted of a scheme to defraud the government. The contract in question was for the purchase of two Russian Mi-17 helicopters.

The Justice Department accused Childree, whose firm was under contract to buy the helicopters for the Army, of paying about $61,000 to Stayton in exchange for favorable treatment. To support its claim that the money was a personal loan—not a bribe or payoff—the defense submitted a note, dated 2002, written by Stayton thanking Childree for the loan and promising repayment. The government, which asserted the note was an obvious fraud written years later to cover the defendants’ tracks, submitted the document to the FBI for forensic testing. After DOJ received the lab reports, it told the defense that the results were “inconclusive,” but declined to release the actual report.

In December 2007, both Stayton and Childree were convicted and later sentenced to prison.

This case is worth highlighting in the context of more recent revelations that the U.S. Army steered $500 million in limited and no-bid contracts to ARINC to purchase Mi-17s for Iraq and Afghanistan. Russian helicopters seem to attract a lot of intrigue.

But what’s interesting about this case right now is not the helicopters per se, but the involvement of theDepartment of Justice Public Integrity section, which has until May 4 to respond to allegations that it withheld exculpatory FBI forensic testing (a separate claim is that the government failed to produce a key witness; I’ll also get to that another time).

This has a familiar ring to it. The DOJ’s Public Integrity section is currently under the spotlight for its bungling of the prosecution of Ted Stevens, the former Alaskan senator who turned pork barrel politics into a form of high art during his four decades in Congress. A federal judge recently tossed Steven’s conviction for failing to report gifts (such as a nifty massage chair) after it was discovered that attorneys in the Public Integrity section withheld potentially exculpatory evidence. Six DOJ lawyers are themselves now under investigation.

Getting back to the Russian helicopter case, which involves the same section of DOJ, I was curious why the government attorneys would so steadfastly refuse to turn over the forensic analysis, since they argued back in 2007 that they did “not believe this document is even arguably exculpatory of the charges…”

This raises an obvious question: if that claim were true, then why not release the analysis?

For the moment, I’m going to set aside the merits of this court case, and deal strictly with the forensic testing, since it’s the subject of multiple Freedom of Information Act (FOIA) requests I have filed dating back over six months.

When I first filed a request last year to see the forensic analysis, the FBI, amusingly, told me they could not locate any files on Stayton or Childree (an interesting response considering that the FBI took part in the multi-year investigation). After I traveled to Alabama to examine court records and obtained the FBI case file number for the analysis, the FBI located the relevant documents. It has now been sitting with the FBI’s FOIA office for several months waiting to be assigned for disclosure review; weekly calls from my research assistant have showed little progress on that front (a separate FOIA, to the Department of Justice, has also yielded nothing).

In February, attorneys at Frohsin & Barger in Birmingham, Alabama took up the Stayton case pro bono and filed an appeal on his behalf, noting the withheld FBI analysis, among other issues. They also asked DOJ for a copy of the FBI testing, initially with no response. (An appeal has also been filed by the co-defendant, Childree, on separate grounds.)

Since neither the FBI nor DOJ have shown any indication of moving forward with my FOIA requests, I decided to take the direct approach: I called DOJ and told them I would be writing on this issue for Danger Room. Within minutes, DOJ somehow managed to locate the file—at least some of it—and release it to Stayton’s new defense team (who, in turn, released the analysis to me).

Reading the forensic analysis, it’s pretty clear why DOJ would hold on to it like a 10-year old with a bad report card; testing performed by the Secret Service for the FBI confirmed the ink used in the note was indeed in production in 2002, the year the note is dated. This does not prove when the note was written, but it does discount one obvious sign of fraud, which was the sole purpose of the test.

DOJ has declined all requests for interviews on this case. I e-mailed and called again last week to ask why the department is still refusing to release the in-house FBI tests. So far, I have received no reply. But several months ago, in response to a written question about the forensic analysis, the department replied: “The government complied with all of its discovery obligations under the Federal Rules of Criminal Procedure and Evidence.”

But treating the Federal Rules of Criminal Procedure and Evidence as a game of hide and seek has its drawbacks, as the Stevens case demonstrates. It’s perhaps even more troubling in the Russian helicopter case, because DOJ at trial and sentencing specifically argued that the note in question was fraudulent, yet refused to disclose testing that showed no evidence of fraud.

The Justice Department, according to Stayton’s defense attorneys, has still not released the rest of the testing results. “In the wake of Public Integrity outrage, it is not at all surprising that the Ashcroft/Gonzales Era DOJ elected to suppress such key evidence to avoid the prospect of a jury acquittal,” Henry Frohsin, an attorney for Stayton, told Danger Room.

“What is so disturbing now is the same denials seem to be emanating from the prior prosecutors without a new review or fresh oversight,” he said. “ How in the world can one justify withholding a forensic laboratory result that lends credence or corroborates the position of defendant?”

[Speaking of missing documents; I’m also still waiting for the Army to locate the very, very special letter outlining ARINC’s unique relationship with the Russian manufacturer of Mi-17s, as well as a purported market survey the Army says it conducted to justify the outrageous price it paid for Iraq’s helos. I'm guessing I'll get the FBI lab reports first, because at least I know those really exist. Also, tune in later this week as I finally get to writing about the oh-so mysterious Threat Systems Management Office, and its strange role in buying Russian helicopters.]