David Ayres indicates that he won't testify on grounds that he may incriminate himself
According to a court document filed yesterday in USA v. Kevin A. Ring, attorneys for David and his wife, Laura Ayres, have indicated that, if subpoenaed by the defense, their clients may invoke their Fifth Amendment rights not to provide incriminating testimony about themselves.
Prosecutors allege that Mr. Ayres was involved in a 2002 Justice Department decision to release $16.3 million to build a jail for the Mississippi Band of Choctaw Indians, a Team Abramoff client. Mr. Ayres was Chief of Staff to then-Attorney General John Ashcroft at the time of the Choctaw jail grant.
Details to come ...
In a Motion for Relief filed in court Wednesday, attorneys for Kevin Ring revealed that certain individuals are likely to invoke their Fifth Amendment privilege against self-incrimination if called to testify:
This motion concerns two potential witnesses, David Ayres and Laura Ayres, whose testimony is indispensible [sic] to a fair trial. The government intends to suggest that Mr. Ayres, after being involved in an official decision benefiting one of Mr. Ring's clients, received a ticket to one sporting event and a set of tickets to a later event. Mr. Ring has a good faith basis to believe that Mr. Ayres and Ms. Ayres would each would [sic] provide critical exculpatory testimony regarding the circumstances of Mr. Ayres' receipt of those tickets and regarding Mr. Ring's contact with Mr. Ayres on relevant issues. As a result, the defense has indicated to Mr. and Mrs. Ayres' counsel an intention to subpoena them for the trial pursuant to his constitutional right to present a defense.
Counsel for Mr. Ayres and counsel for Ms. Ayres have indicated that each would invoke their Fifth Amendment privilege if subpoenaed.
Citations and footnotes omitted
At the time of the events described in Kevin Ring's indictment, David Ayres was Chief of Staff to then-Attorney General John Ashcroft. The government alleges that Mr. Ring attributes the full funding of a jail for the Mississippi Band of Choctaw Indians, a project that figures prominently in Mr. Ring's indictment, to actions performed by Mr. Ayres.
The language of the defense in this motion suggests that the defense knows how Mr. and Mrs. Ayres would testify. It isn't clear to the ACR Blog how the defense gained such knowledge, but Mr. Ring obviously wants Mr. and Mrs. Ayres on the witness stand.
The ACR Blog first noticed prosecutors' interest in Mr. Ayres in May 2008. Since then, we've written about Mr. Ayres here, here , here, and here.
Mr. Ayres' role in USA v. Kevin A. Ring relates to a Justice Department grant to build a jail for the Mississippi Band of Choctaw Indians, a Team Abramoff client. Tracy Henke, a Justice Department official in the Office of Judicial Programs, originally authorized $9 million for the Choctaw jail. Team Abramoff wanted $16.3 million. Contemporaneous emails indicate that Ms. Henke was steadfast in sticking with the lower figure. Team Abramoff was not satisfied with the decision and appealed to a more senior Justice Department official. On January 26, 2002, Mr. Ring emailed Todd Boulanger, another Team Abramoff lobbyist, telling Mr. Boulanger that Mr. Ayres "will get the joke. We'll see Monday." According to Mr. Boulanger, to "get the joke" means to receive something of value from Team Abramoff in exchange for access, an official action or granting some other favor. On January 30 or 31, 2002, the Justice Department abruptly changed its position and awarded the full $16.3 million grant to the Mississippi Choctaw. Prosecutors believe that Mr. Ring thought Mr. Ayres made the decision to award the higher amount for the Choctaw jail, and as a result, took subsequent actions to reward Mr. Ayres for assisting his client.
According to the Motion for Relief, prosecutors intend to show that Mr. Ayres "received a ticket to one sporting event and a set of tickets to a later event." The ACR Blog believes the government will show that Mr. Ayres received a ticket to the NCAA Basketball Tournament in Washington, DC on Friday, March 15, 2002 (Kevin Ring Indictment, paragraph 187). Furthermore, the ACR Blog believes that the "set of tickets" refer to a 2003 event where Mrs. Ayres received $3,100 worth of tickets for a "surprise birthday gift" (Government Exhibit List, Exhibit 597). In addition to the above events, the ACR Blog also believes that Team Abramoff hosted Mr. Ayres at the NCAA Basketball Tournament on Sunday, March 17, 2002 and a 2001 Washington Redskins football game where Mr. Ayres allegedly alerted Jack Abramoff of a pending immigration report for the Commonwealth of the Northern Mariana Islands.
The prosecution appears ready to argue that taken as a whole, these events are part of the greater conspiracy to commit honest services fraud.
Mr. Ring's attorneys would like to call Mr. and Mrs. Ayres to testify because the defense believes that they "would provide critical exculpatory testimony". The defense doesn't give any hint regarding how it knows what Mr. and Mrs. Ayres would say, though. Attorneys for Mr. and Mrs. Ayres are clear that it is the intent of their clients to invoke the Fifth Amendment if called to testify, suggesting that Mr. and Mrs. Ayres are fearful of criminal liability if they testify honestly and forthrightly. Therefore, the defense is asking for one of the following things to be granted by U.S. District Judge Ellen S. Huvelle:
1. Judge Huvelle should make a determination that Mr. and Mrs. Ayres face no legal liability in connection with their anticipated testimony on the basis of their claim that five-year statute of limitations has passed on the acts Mr. and Mrs. Ayres would testify about. If the statute of limitations period has passed, no Fifth Amendment privilege exists and Mr. and Mrs. Ayres could testify because they have no fear of prosecution.-if Judge Huvelle finds that the government could bring a viable case against Mr. and Mrs. Ayres, then-
2. Judge Huvelle should compel the government to grant immunity to Mr. and Mrs. Ayres so that Mr. Ring is not deprived of a fair trial by effectively denying Mr. Ring of the ability to call these witnesses to his defense.-if Judge Huvelle concludes she can't compel immunity, then-
3. Judge Huvelle should force the government to choose between granting immunity to Mr. and Mrs. Ayres or dismissing the case against Mr. Ring. -OR- Judge Huvelle should exclude all evidence regarding the subject matter Mr. and Mrs. Ayres would testify about.
As we discussed in a previous blog entry, Tracy Henke, although the point person on the Choctaw jail grant at DoJ at the time, has a terrible recollection of the events surrounding this incident. Apparently, the government does not intend to call Ms. Henke to testify, perhaps because her memory is so poor and her credibility as a witness leaves much to be desired. Instead, the government will rely on contemporaneous emails such as GX 559, an email chain between Ms. Henke and Patricia Thackston, Director of the Office of Budget and Management Services in the Office of Justice Programs:
GX 559: 01/31/2002 Email from Henke to Merkle and Thackston, "Re: Choctaw grant in 2002"
The ACR Blog has not seen this email chain, but a person familiar with this case has described it to us. The quotes below are paraphrased:Tracy Henke: "Hold off on the [Choctaw jail] appropriation until I give it one more try."
Patricia Thackston: "I'm so sorry. We all fought the good fight, but politics won out this time. Other forces have come to bear."
Tracy Henke: "My one last ditch effort regarding the Choctaw was unsuccessful."
The defense objected to this exhibit claiming this email consists of hearsay. Judge Huvelle declared that the "politics won out" phrase is hearsay, and it is must be redacted. The "other forces have come to bear" statement could be misinterpreted and must be redacted. Result: Admissible with redactions [This paragraph was added September 6, 2009.]
As we said, unfortunately, Ms. Henke doesn't remember "fighting the good fight" anymore. As a fiscal conservative, I like the 2002 Tracy Henke. I wonder what happened to her. The current Tracy Henke's sudden case of amnesia about the tumultuous events surrounding the Choctaw jail within the DoJ began in 2007, shortly after Ms. Henke accepted a job at the lobbying firm The Ashcroft Group. Coincidently, Mr. Ayres is one of the founders of the Ashcroft Group.
In addition to this email exchange with Ms. Thackston, the government will call Michael Deaver to testify. (The ACR Blog does not know if Ms Thackston will be called as a witness.) Mr. Deaver was another Henke subordinate, and presumably his memory is clear enough that he'll be able to corroborate the version of events described in GX 559 and similar emails.
The cumulative effect of emails during the time of the Choctaw grant and testimony of Mr. Deaver (and perhaps others) will support the government's version of events that Mr. Ayres made the decision to award the full $16.3 million grant to the Mississippi Choctaw. In the opinion of the ACR Blog, it is rather unlikely that the truthful testimony of Mr. Ayres (and his wife) would be beneficial to Mr. Ring's case. Ms. Henke's testimony would be worthless at best ("I don't recall!"), and in any case she is highly conflicted due to her current employment status at The Ashcroft Group.
Mr. Ring would like Judge Huvelle to determine that Mr. and Mrs. Ayres face no criminal liability (Motion for Relief, page 3). The defense claims that "the last event of relevance" to the testimony of Mr. and Mrs. Ayres occurred in or around February 2003, presumably the use of the "surprise birthday party" tickets. Therefore, the defense says, the statute of limitations has run on all of these events. This assumes, though, that the government can't bring a conspiracy charge against Mr. and Mrs. Ayres. If the government can bring a conspiracy charge, the statute of limitations ends five years after the last act in the conspiracy. It is plausible that the conspiracy extended to September 2004 or beyond. If so, Mr. and Mrs. Ayres would be justified in exercising their Fifth Amendment rights not to self-incriminate. And remember, Mr. and Mrs. Ayres obviously think they face possible criminal liability or they wouldn't be asserting their Fifth Amendment rights.
The defense doesn't seem to think that it is likely that Judge Huvelle will determine that Mr. and Mrs. Ayres don't face criminal liability. That is why the defense offers a couple other fallback positions. The next fallback position is for Judge Huvelle to compel the government to grant immunity to Mr. and Mrs. Ayres. Once given immunity, Mr. and Mrs. Ayres would be assured of no criminal liability unless they provided false testimony under oath (perjury). Mr. Ring ought to be careful what he wishes for. If Mr. and Mrs. Ayres truly did engage in a conspiracy to accept things of value for official action, their incentive to tell the truth would change drastically once given immunity. A grant of immunity for Mr. and Mrs. Ayres may backfire on Mr. Ring. In the final analysis, though, the ACR Blog finds it unlikely that Judge Huvelle would compel the government to grant immunity to Mr. and Mrs. Ayres if she has already determined that they indeed face possible criminal liability.
The last request of the Ring defense team is the most ridiculous. If Judge Huvelle won't grant immunity to Mr. and Mrs. Ayres and the government won't grant immunity voluntarily, the defense wants the charges against Mr. Ring dismissed. As Judge Huvelle said in response to Mr. Ring's Motion to Dismiss, "This indictment is not going away." It is also unlikely that Judge Huvelle would exclude evidence related to matters Mr. and Mrs. Ayres would testify about.
It is worth noting that according to the defense, the Justice Department has not named either Mr. or Mrs. Ayres as a co-conspirator. At least not yet ...