Robert E. O'Neill's Tricks of the Trade - One

Robert E. O'Neill's Tricks of the Trade - One
(The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.)
by James Scanlan, Esq.

Robert E. O'Neill, since October 2010 United States Attorney for the Middle District of Florida, is one of the most important federal law enforcement officials in the country. He is also a gifted trial attorney. But he has shown himself to be a dishonest prosecutor, one, indeed, who could be considered a master of deceit. This is the first of a number of items describing certain deceitful tactics O'Neill employed as an Associate Independent Counsel in the 1993 prosecution of United States v. Deborah Gore Dean. These items should be useful reading for anyone representing someone prosecuted by O'Neill. Further, inasmuch as the United States Department of Justice is on record that the actions of O'Neill in the Dean case did not constitute outrageous government misconduct or even prosecutorial abuse of an exceptional nature and did not call into question O'Neill's fitness to prosecute federal cases, the items may well provide useful insight into the way other federal prosecutors sometimes operate. In any case, readers are likely to find the described conduct surprising if not remarkable, while leaving open the question of how commonplace it might be.

This item involves the way O'Neill and Deputy Independent Counsel Bruce C. Swartz caused a government agent to testify in a manner that would seem to categorically contradict truthful testimony of the defendant, thus enabling O'Neill to rely on the testimony to provocatively assert that the defendant lied on the witness stand. It is discussed at length in Section B.1 of the main Prosecutorial Misconduct page of jpscanlan.com and Section B of the Robert E. O'Neill profile. Most of the other matters that will eventually be treated here are also at least touched upon in that profile.

Most readers of this item are likely to regard Robert E. O'Neill and others involved in the described conduct and the subsequent efforts to cover it up as unfit to hold public office and to believe that at least O'Neill and Swartz should have been prosecuted and spent some time in prison for their actions. Persons disposed to regard the described conduct as clever or ingenious should keep in mind the involvement of Swartz in each aspect of the matter. Swartz, for the last decade the Deputy Assistant Attorney General in the Department of Justice Criminal Division in charge of international matters, is regarded to be quite brilliant and one can observe elements of an unprincipled ingenuity in Swartz's later efforts to cover up the matter in post-trial proceedings. Very likely the same ingenuity has been manifested in varied actions of Swartz in representing the Department of Justice to foreign nations. See Truth in Justice items of February 6, 2011 ("Bruce Swartz - Our Man Abroad") and March 10, 2011 ("Criminal Division Assistant Attorney General Bruce C. Swartz, Roman Polanski, and the Hiding of Exculpatory Material"). But O'Neill is no doubt ingenious enough in his own right.

A. Background

Count One of the Superseding Indictment in the Dean case alleged that the defendant Deborah Gore Dean caused the Department of Housing and Urban Development (HUD) to take certain actions concerning moderate rehabilitation subsidies in order to benefit clients of former Attorney General John N. Mitchell, a person Dean regarded as a stepfather. Mitchell had died in October 1988, about six months before the abuses of HUD's moderate rehabilitation program became public as a result of the April 1989 release of a report by the HUD Inspector General. A crucial issue in the case was whether Dean was aware that Mitchell earned HUD consulting fees while she was employed as Executive Assistant to HUD Secretary Samuel R. Pierce, Jr. between June 1984 and September 1987. No evidence suggested that while Dean was at HUD she was aware that Mitchell earned HUD consulting fees, and two immunized witness provided testimony suggesting that Dean was unaware of such fact.

Dean testified that she first became aware that Mitchell earned any HUD consulting fee from the HUD Inspector General's Report "on the day the report came out" in April 1989. The report, which was authored by HUD Supervisory Special Agent Alvin R. Cain, Jr., was dated April 17, 1989, and released to the public on April 27, 1989. Page 1d of an introduction to the report stated that Mitchell had earned a $75,000 consulting fee for assistance, commencing in January 1984, in securing funding for a 292-unit Dade County, Florida moderate rehabilitation project called Arama.

On October 12, 1993, during the fourth day of her direct examination, Dean testified that she called Agent Cain to secure a copy of the report on the day it was released, providing details of her then having Marti Mitchell deliver a check to Cain to pay for the report and pick up a copy. Dean then testified that on opening the report she saw the statement in the introduction that Mitchell had earned the consulting fee relating to the Arama project. After stating that she called Cain again when she found the entry concerning Mitchell, Dean provided the following testimony regarding her conversation with Cain:

"I told him that I considered him to be a friend and I couldn't believe that he wouldn't have told me about this before now and that I knew it wasn't true, that John would never have done that, and that he better be prepared, because I was really mad, and I wanted to see the check, and if there had been a check written to John Mitchell, Al better have a copy of it, and I was coming down there, and if I found out that he was, in any way had misinterpreted or had misrepresented John's actions, I was going to have a press conference and I was going to scream and yell and carry on.

"And Al said, Al told me that he -"

A hearsay object prevented Dean from testifying as what Cain told her about the check. Such testimony would have been that Cain told her that he was sure there was a check but he had not seen it himself because it was then maintained in the Regional Inspector General's Office in Atlanta. She would also have stated that Cain's inability to produce a check prompted her to contact Mitchell's partner, who then advised her that Mitchell's involvements in HUD matters went beyond the Arama project.

Regardless of what Dean might have testified about what Agent Cain had told her about the check, however, Dean's testimony about calling Cain did little to prove that prior to issuance of the Inspector General's report she was unaware that Mitchell earned HUD consulting fees. For she could have called Cain merely to divert suspicion. But the testimony did offer Independent Counsel attorneys an opportunity both to undermine Dean's credibility and to obliquely (though not exactly logically) demonstrate that Dean knew about Mitchell's HUD consulting before the release of the report. They would do so not by disputing Dean's account of some particular of the call, but my making it appear that Dean never made the call at all.

This course subjected Independent Counsel attorneys to considerable risk. Presumably they were willing to assume that risk because they believed that their case was in jeopardy and that the apparent contradiction of the white defendant by a black federal agent would carry particular weight before an all-black jury.

B. Three Pieces of False or Misleading Testimony

Dean remained on the stand for all or part of five more trial days, including three days of cross-examination by O'Neill. But O'Neill asked Dean no questions about the call to Cain. Meanwhile, however, O'Neill and Swartz were seen to take Agent Cain into a room on some number of occasions to pressure or persuade Cain, a person who had to that date regarded himself as highly principled, to provide testimony he was very reluctant to give. The end result was a three-part pattern of deception, involving testimony that most observers would maintain was false and perjurious, but that all observers would regard as calculatedly intended to lead the jury to believe things the prosecutors knew to be false. This occurred on October 18, 1993, when, approximately an hour after the conclusion of Dean's eight days of testimony, O'Neill called Agent Cain as the Independent Counsel's second rebuttal witness.

1. Deception 1 - the date the report was "published"

The first false or misleading testimony O'Neill elicited from Agent Cain concerned the date the report was published. After eliciting the testimony as to Cain's background and the fact that he had been involved with the HUD Inspector General's Report, O'Neill conducted the following questioning of Cain:

"Q. And did there come a point in time, as you recall, that it was published?
"A. Yes.
"Q And do you recall when approximately that was?"
"A. The Section Eight Mod Rehab investigative report was published April 17, 1989."

Given that to publish something commonly means making something available to the public, left to his own conscience, Agent Cain would probably have said the report was published April 27, 1989, or provided information regarding both the internal release of the document and its later public release. But Swartz and O'Neill had apparently persuaded Cain, or pressured him into accepting, that a permissible interpretation of the word "published" could cover the internal release of the document at HUD - or at least do so sufficiently to preclude a perjury charge.

2. Deception 2 - "at or about that time"

After Cain provided April 17, 1989 as the publication date for the IG report, O'Neill then conducted the following questioning:

"Q. At or about the time that was published, do you recall having a conversation with the defendant Deborah Gore Dean?
A. A telephone conversation."

Asked to describe the nature of the conversation, Cain explained that Dean had sought a copy of the report from him and that he had provided a copy to her. He provided details of providing the report to Dean that closely comported with those Dean had provided, making it clear to the jury that Cain had a clear recollection of the events.

Once again, left to his own conscience, Cain would likely have clarified that that Dean had not called him when the report was released internally at HUD, but did call him ten days later when the report was released to the public. But apparently Swartz and O'Neill had persuaded Cain that the phrase "at or about that time" could be read to encompass both April 17, 1989, and April 27, 1989.

3. Deception 3 - "at or about that date"

After Cain provided the description of providing Dean a copy of the report, O'Neill concluded his direct examination of Cain with the following three short questions.

"Q. At or about that date, do you recall any conversation with the defendant Deborah Gore Dean in which she was quite upset with you about the contents of the report?
"A. No, I do not
"Q. Do you recall her mentioning John Mitchell to you and the fact that he made money as a consultant being information in the report?
"A. No, I do not.
"Q. Do you recall her telling you that she was going to hold a press conference to denounce what was in the report?
"A. Absolutely not."

Given that the obvious antecedent of "that date" was the day just described by Cain when he provided a copy of the report to Dean, left to his own conscience, Cain would presumably have acknowledged that Dean called him after he provided her a copy of the report. But apparently Swartz and O'Neill had persuaded Cain both (a) that "that date" referred to April 17, 1989, the only date Cain had mentioned in his testimony and (b) that, whereas "at or about that time" was broad enough to encompass both April 17, 1989, and April 27, 1989, "at or about that date" was not. Hence, Cain was persuaded that he could provide a negative response that, though intended to lead the jury to believe that Dean had not called him after she received a copy of the report, would literally mean only that Dean had not called him at or about April 17, 1989.

One will note that, in the manner of a skilled trial attorney, O'Neill casts his questions to Cain in a manner to make Dean's testimony that Cain would seem to contradict very vivid to the jury. But O'Neill does not make Dean's testimony as vivid as he might. For he avoids any reference to the most salient aspects of the Dean's testimony - the several references to the check and the insistence that Cain have a copy of it. Presumably O'Neill avoided such references in order not to highlight to the jury, the court, or Dean's counsel the implausibility not only of Dean's fabricating a story about calling Cain, but her being willing also to fabricate a story about what Cain told about the check. Very likely, as with other aspects the crafting of Cain's testimony, the perverse brilliance of Bruce C. Swartz was involved in the decision to say nothing about the check in the questions posed to Cain.

In any case, nothing regarding the semantic issues was revealed during cross-examination and thus considerable relief and elation were observed among Independent Counsel attorneys in their offices later that day.

C. O'Neill's Use of Cain's Testimony in Closing Argument

Agent Cain's firm denial of any recollection of the call from Dean played a quite important role in prosecutor Robert E. O'Neill's closing argument with implications for Dean's credibility going far beyond the John Mitchell count. Asserting that Dean's defense rested entirely on her credibility, O'Neill repeatedly and provocatively stated that Dean had lied on the stand - using some form of the word "lie" over 50 times. Three quarters of the way through the first day of the closing, O'Neill started to press the attack on Dean's credibility with particular acerbity, stridently stating:

"Based on her lies, you should throw out her entire testimony. Her six days' worth of testimony is worth nothing. You can throw it out the window into a garbage pail for what it's worth, for having lied to you."

Moments later, O'Neill derisively turned to Dean's denial that she knew Mitchell had earned HUD consulting fees until she read about it in the HUD Inspector General's Report:

"Shocked that John Mitchell made any money. Remember she went into great length about that. That she was absolutely shocked. And the day the I.G. Report came out she called Special Agent Alvin Cain, who was at HUD at the time, and said I'm shocked. I can't believe it. I thought you were my friend. You should have told me John Mitchell was making money. You'd better be able to defend what you said and if you can't I'm going to hold a press conference and I'm going to do something, I'm going to rant and rave. That's exactly what she told you.

"So we had to call in Special Agent Alvin Cain for two minutes' of testimony. And you heard Mr. Cain. It didn't happen. It didn't happen like that. And he remembered Marty Mitchell picking up the report, bringing the money, but it didn't happen. They asked him a bunch of questions about the Wilshire Hotel, and you could see Mr. Cain had no idea what they were talking about. We had to bring him in just to show that she lied about that."

In rebuttal the following day, in pressing the attack on Dean's credibility with a virulence at least equal to that of the day before, O'Neill again turned to Cain, asserting:

"Shocked that Mitchell made any money. Al Cain told you, the Special Agent from HUD, that conversation never ever happened."

As in O'Neill's questioning of Cain, in recounting Dean's testimony to the jury on both days of his closing argument, O'Neill made no mention of Dean's testimony about the check. Nor did he say anything about the fact that Dean had actually started to say what Cain had told her when she asked about the check. Possibly out of concern about any mention of the word "check," O'Neill even referred to Marti Mitchell's "bringing the money" rather than bringing a check, as had been stated by both Dean and Cain.

Also notably, in line with the literal truth rationale underlying Cain's testimony, O'Neill's initial remarks contain a reference to the "day the report came." But in rebuttal, O'Neill abandoned any deference to the literal truth rationale, instead characterizing Cain's testimony as showing that "that conversation never ever happened." A few days later, in a post-trial memorandum on sufficiency of the evidence, in seeking to derive from Cain's seeming contradiction of Dean evidence that Dean was in fact aware of Mitchell's HUD consulting prior to release of the report, Independent Counsel attorneys similarly characterized Cain's testimony to the effect that the conversation never occurred.

After Dean was convicted on all counts, in a post-trial motion alleging pervasive prosecutorial abuse, Dean maintained that Cain committed perjury and prosecutor knew or should have known that he did. In support of her motion, Dean stated that Cain had told her the check was in the Regional Inspector General's Office, asserting that information on the whereabouts of the check in April 1989 (which she could have only learned from the called to Cain) would tend to corroborate her story.

Robert O'Neill had returned to the position of Assistant United States Attorney in the Middle District of Florida by the time Dean filed her motion. Thus, the task of responding to the motion was left to Deputy Independent Counsel Swartz, who rather than advise the court of the literal truth rationale underlying Agent Cain's testimony, would seek to lead the court and the probation officer to believe that the testimonies were irreconcilable and that Cain had told the truth while Dean had lied. In addition to the Bruce C. Swartz profile, this matter is addressed in the above-mentioned Truth in Justice items of February 6 and March 10, 2011, as well as a June 4, 2011 Truth in Justice item styled Willful Ignorance at the Department of Justice, and its Consequences." O'Neill, however, would later become involved in covering up the matter when it was raised in a District of Columbia Office of Bar Counsel Investigation. That investigation is the subject of the false statement on O'Neill's United States Attorney application, as most recently discussed in the June 23, 2011 Truth in Justice item styled "United States Attorney Robert E. O'Neill as Crusader Against Corrupt Public Officials."