In the Supreme Court of the United States
MICHAEL HARTMAN, ET AL., PETITIONERS
v.
WILLIAM G. MOORE, JR.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
JOINT APPENDIX
(VOLUME 1)
PAUL D. CLEMENT
Solicitor General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
Counsel of Record
for Petitioners
PAUL MICHAEL POHL
Jones Day
One Mellon Bank Center
500 Grant Street, 31st Floor
Pittsburgh, PA 15219
(412) 391-3939
Counsel of Record
for Respondent
No. 04-1495
PETITION FOR A WRIT OF CERTIORARI FILED: MAY 9, 2005
CERTIORARI GRANTED: JUNE 27, 2005
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
No. 3:91-cv-02491
WILLIAM G. MOORE, JR., ET AL., PLAINTIFFS
v.
JOSEPH B. VALDER, ET AL., DEFENDANTS
DOCKET ENTRIES
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DATE NUMBER PROCEEDINGS
11/19/1991 1 COMPLAINT filed; Filing Fee $120.00 Receipt # 40410 (15+) (cle) (Entered: 11/21/1991)
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02/19/1992 26 MOTION by Joseph B Valder, Michael Hartman, Frank Korman, Pierce McIntosh, Robert Edwards, Unknown Robbins, Daniel Harrington to dismiss. (3) (cxb) (Entered:
02/25/1992)
02/19/1992 27 MEMORANDUM by Joseph B Valder, Michael Hartman, Frank Korman, Pierce McIntosh, Robert Edwards, Un
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DATE NUMBER PROCEEDINGS
known Robbins, Daniel Harrington in support of [26-1] motion to dismiss. (15+) (cxb) (Entered: 02/25/1992)
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04/14/1992 42 BRIEF/MEMORANDUM by Blanche K Moore, William G Moore Jr in opposition to [26-1] motion to dismiss. (15+) (RECEIVED APPENDIX, 2 volumes, 15+, under separate cover) (cxb) (Entered:
04/15/1992)
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05/08/1992 47 REPLY MEMORANDUM by USA, John Does 1-25, Unknown Robbins, Daniel Harrington, Pierce McIntosh, Robert Edwards, Frank Korman, Michael Hartman, Joseph B Valder to response to [26-1] motion to dismiss. (15+) (cxb) (Entered: 05/12/1992)
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DATE NUMBER PROCEEDINGS
05/27/1992 50 SUR-REPLY by Blanche K Moore, William G Moore Jr to reply to response to [26-1] motion to dismiss. (15+) (cxb) (Entered: 05/28/1992)
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09/21/1992 55 MEMORANDUM ORDER granting in part, denying in part [26-1] motion to dismiss
. . . that defts' motion to dismiss all constitutional claims brought by Mrs. Moore against the defts is GRANTED; their mtn to dismiss Moore's constitutional claims against Valder is GRANTED; their mtn to dismiss Moore's constitutional claims against Hartman, Korman, Edwards, McIntosh, Harrington, Robbins & other unnamed defts is GRANTED as to the fifth amendment/due process & fair & impartial grand jury claims but is DENIED as to the malicious prosecution and first amendment claims; & their mtn to
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DATE NUMBER PROCEEDINGS
dismiss for want of personal jurisdiction will be denied in favor of transfer to the District of Columbia . . . accordingly, all claims are transferred to the district of Columbia. (See order for specifics) ( signed by AJF) Copies to counsel: 9/21/92 Page(s): 15 (grj) (Entered: 09/22/1992)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No. 1:92-cv-02288-RMU
WILLIAM G. MOORE, JR., ET AL., PLAINTIFFS
v.
MICHAEL HARTMAN, ET AL., DEFENDANTS
DOCKET ENTRIES
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DATE NUMBER PROCEEDINGS
10/09/1992 1 ORIGINAL FILE, certified copy of transfer order and docket sheet received from USDC Northern District of Texas, Dallas Division (3-91 CV2491-G); volumes (4) (dot) (Entered: 10/13/1992)
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11/30/1992 25 MOTION filed by defendant USA to dismiss for lack of jurisdiction; exhibits (3) (dot) (Entered: 12/01/1992)
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DATE NUMBER PROCEEDINGS
12/14/1992 28 RESPONSE by plaintiff(s) WILLIAM G. MOORE JR., plaintiff(s) BLANCHE K. MOORE in opposition to motion to dismiss for lack of jurisdiction [25-1] by USA; Exhibits (2) (dcn) (Entered: 12/15/1992)
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12/21/1992 32 REPLY by defendant USA in support of motion to dismiss for lack of jurisdiction [25-1] by USA (cjp) (Entered:
12/24/1992)
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03/03/1993 38 STIPULATED ORDER by Judge Norma H. Johnson: consolidating cases (N) (lpp) (Entered: 03/08/1993)
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07/29/1993 43 MOTION filed by defendant in 1:92-cv-02288 to dismiss the inspector defendants (Michael Hartman, Frank Korman, Robert Edwards, Pierce McIntosh, Daniel Harrington and Norman Robbins) (lpp) (Entered: 07/30/1993)
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DATE NUMBER PROCEEDINGS
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08/20/1993 45 RESPONSE by plaintiffs BLANCHE K. MOORE in 1:92-cv-02288, and WILLIAM G. MOORE JR. in 1:92-cv-02288 in opposition to motion to dismiss the inspector defendants (Michael Hartman, Frank Korman, Robert Edwards, Pierce McIntosh, Daniel Harrington and Norman Robbins) [43-1] by USA. (bm) (Entered: 08/25/1993)
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09/03/1993 48 REPLY by postal inspector defendants in 1:92-cv-02288, in support of motion to dismiss the inspector defendants (Michael Hartman, Frank Korman, Robert Edwards, Pierce McIntosh, Daniel Harrington and Norman Robbins) [43-1] by USA (bm) (Entered: 09/07/1993)
09/24/1993 49 MEMORANDUM OPINION by Judge Norma H. Johnson (N) (ab) (Entered: 09/28/1993)
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DATE NUMBER PROCEEDINGS
09/24/1993 50 ORDER by Judge Norma H. Johnson: granting motion to dismiss for lack of jurisdiction [25-1] by USA in 1:92-cv-02288, 1:93-00324; granting motion to dismiss the inspector defendants (Michael Hartman, Frank Korman, Robert Edwards, Pierce McIntosh, Daniel Harrington and Norman Robbins) [43-1] by USA in 1:92-cv-02288; denying as moot all other pending motions in these consolidated cases; dismissing these consolidated cases (N) (ab) Modified on 09/28/1993 (Entered: 09/28/1993)
10/22/1993 51 NOTICE OF APPEAL by plaintiff(s) WILLIAM G. MOORE JR. from order dismissing [50-1], order [50-2], entered on: 9/28/93.; $5.00 filing fee and $100.00 docketing fee paid; copies mailed to James E. Anklam, Esq., Richard Montague, Esq, Matthew T. Fricker, Esq. (dmb) (Entered: 10/27/1993)
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DATE NUMBER PROCEEDINGS
03/07/1996 52 CERTIFIED COPY of judgment filed in USCA dated 9/22/95, on appeal [51-1], affirming the judgment of USDC in part., and reversing the judgment of USDC in part, and remanding for further proceedings in part. OPINION USCA # 93-5341 (cjp) (Entered: 03/07/1996)
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04/24/1996 56 SUGGESTION OF DEATH of defendant DANIEL HARRINGTON. . (JMF) (Entered: 04/26/1996)
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05/20/1996 63 ANSWER TO COMPLAINT by defendant FRANK KORMAN. (adc) (Entered: 05/28/1996)
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05/20/1996 65 ANSWER TO COMPLAINT by defendant MICHAEL HARTMAN. (adc) (Entered: 05/28/1996)
05/20/1996 66 ANSWER TO COMPLAINT by defendant ROBERT EDWARDS. (adc) (Entered: 05/28/1996)
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DATE NUMBER PROCEEDINGS
05/20/1996 67 ANSWER TO COMPLAINT by defendant USA. (adc) (Entered: 05/28/1996)
05/20/1996 68 ANSWER TO COMPLAINT
by defendant PIERCE MCINTOSH. (adc) (Entered: 05/ 28/1996)
05/20/1996 69 ANSWER TO COMPLAINT by defendant ROBBINS. (adc) (Entered: 05/28/1996)
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09/13/1996 94 MOTION filed by defendant USA in 1:92-cv-02288 for judgment on the pleadings, or, in the alternative to dismiss for lack of subject matter jurisdiction; Exhibits (5). (lkn) (Entered: 09/16/1996)
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10/15/1996 103 MOTION filed by defendant ROBBINS in 1:92-cv-02288, defendant PIERCE MCINTOSH in 1:92-cv-02288, defendant ROBERT EDWARDS in 1:92-cv-02288, defendant FRANK KORMAN in 1:92-cv-02288,
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DATE NUMBER PROCEEDINGS
defendant MICHAEL HARTMAN in 1:92-cv-02288 for summary judgment; Exhibit (1). (lkn) (Entered: 10/17/1996)
10/22/1996 104 RESPONSE by plaintiff WILLIAM G. MOORE JR. in 1:92-cv-02288 in opposition to motion for judgment on the pleadings [94-1] by USA, motion to dismiss for lack of subject matter jurisdiction [94-2] by USA; Statement of material facts and attachments (8). (lkn) (Entered: 10/23/1996)
10/22/1996 105 ANSWER TO COMPLAINT by defendant JOSEPH B. VALDER in 1:92-cv-02288. (lkn) (Entered: 10/23/1996)
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11/01/1996 108 REPLY by defendant USA in 1:92-cv-02288 to plaintiff's opposition to motion for judgment on the pleadings [94-1] by USA, motion to dismiss for lack of subject matter jurisdiction [94-2] USA (lkn) (Entered: 11/04/1996)
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11/22/1996 109 RESPONSE by plaintiff WILLIAM G. MOORE JR. in 1:92-cv-02288 in opposition to motion for summary judgment [103-1] by MICHAEL HARTMAN, FRANK KORMAN, ROBERT EDWARDS, PIERCE MCINTOSH, ROBBINS; Attachments (39). (lkn) (Entered: 11/25/1996)
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01/15/1997 115 REPLY by defendant ROBBINS in 1:92-cv-02288, defendant PIERCE MCINTOSH in 1:92-cv-02288, defendant ROBERT EDWARDS in 1:92-cv-02288, defendant FRANK KORMAN in 1:92-cv-02288, defendant MICHAEL HARTMAN in 1:92-cv-02288 in support of motion for summary judgment [103-1] by MICHAEL HARTMAN, FRANK KORMAN, ROBERT EDWARDS, PIERCE MCINTOSH, ROBBINS; Attachments (6). (lkn) (Entered: 01/ 16/1997)
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DATE NUMBER PROCEEDINGS
03/28/1997 126 MOTION filed by defendant JOSEPH B. VALDER in 1:92-cv-02288 for summary judgment (lkn) (Entered:
03/31/1997)
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05/02/1997 132 RESPONSE by plaintiff WILLIAM G. MOORE JR. 1:92-cv-02288 in opposition to motion for summary judgment [126-1] by JOSEPH B. VALDER.; exhibits (34) (dam) (Entered: 05/05/1997)
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05/19/1997 137 REPLY by defendant JOSEPH B. VALDER in 1:92-cv-02288 to response to motion for summary judgment [126-1] by JOSEPH B. VALDER (dam) (Entered: 05/20/1997)
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06/23/1997 141 MEMORANDUM by plaintiff BLANCHE K. MOORE in 1:92-cv- 02288, plaintiff WILLIAM G. MOORE JR. in 1:92-cv-02288 in connection with the pending summary judgment motions (dam) (Entered: 06/ 24/1997)
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DATE NUMBER PROCEEDINGS
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10/14/1997 144 RESPONSE (SUPPLEMENTAL) by plaintiff BLANCHE K. MOORE in 1:92-cv-02288, plaintiff WILLIAM G. MOORE JR. in 1:92-cv-02288 in opposition to motion for judgment on the pleadings [94-1] USA. (dam) (Entered: 10/16/1997)
10/30/1997 145 RESPONSE by defendant USA in 1:92-cv-02288 to opposition to UNITED STATES motion for judgment on the pleadings [144-1] by WILLIAM G. MOORE JR., BLANCHE K. MOORE (dam) (Entered: 11/04/1997)
02/05/1998 146 ORDER by Chief Judge Norma H. Johnson: granted in part and denied in part the motion to strike affidavit and amended local rule 108(h) statement [131-1] by MICHAEL HARTMAN, FRANK KORMAN, ROBERT EDWARDS, PIERCE MCINTOSH, ROBBINS, granting in part and denying in part
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DATE NUMBER PROCEEDINGS
motion to strike affidavit and plaintiff's local rule 108 (h) statement [136-1] by JOSEPH B. VALDER, granting motion for summary judgment [126-1] by JOSEPH B. VALDER, denying motion to clarify Order of September 16, 1996, staying discovery [125-1] by WILLIAM G. MOORE JR., denying as moot the motion for summary judgment [103-1] by MICHAEL HARTMAN, FRANK KORMAN, ROBERT EDWARDS, PIERCE MCINTOSH, ROBBINS, granting motion for judgment on the pleadings [94-1] by USA denying as moot the motion to dismiss for lack of subject matter jurisdiction [94-2] by USA; ORDERED that discovery on plaintiff's Bivens claim of retaliatory prosecution against the postal inspectors proceed as indicated in this Opinion; and it is further ORDERED by the Court, sua sponte, that plaintiff's Bivens claim of
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DOCKET
retalitory prosecution against the postal inspectors be, and hereby is, referred to Magistrate Judge Kay for discovery and pretrial. Unless otherwise ordered by this Court, contested preliminary motions within Local Rule 209 will likewise be heard by Magistrate Judge Kay. All other motions will be heard by the Court. (N) (dam) (Entered: 02/06/1998)
02/05/1998 147 MEMORANDUM OPINION by Chief Judge Norma H. Johnson (N) (dam) (Entered: 02/06/1998)
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06/22/1998 170 MOTION filed by plaintiff BLANCHE K. MOORE in 1:92-cv-02288, plaintiff WILLIAM G. MOORE JR. in 1:92-cv-02288 for reconsideration of order [146-1] , or in the alternative for entry of final judgment; exhibits (4) (tlh) Modified on 06/25/1998 (Entered: 06/25/1998)
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DATE NUMBER PROCEEDINGS
08/14/1998 186 MEMORANDUM by defendant USA in 1:92-cv-02288, defendant JOSEPH B. VALDER in 1:92-cv-02288 in opposition to motion for reconsideration of order [146-1] [170-1] by WILLIAM G. MOORE JR., BLANCHE K. MOORE and in response to motion for entry of final judgment [170-2] by WILLIAM G. MOORE JR., BLANCHE K. MOORE (cjp) (Entered: 08/20/1998)
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09/18/1998 190 REPLY by plaintiff WILLIAM G. MOORE JR. in 1:92-cv-02288 to response to motion for reconsideration of order [146-1] [170-1] by WILLIAM G. MOORE JR., BLANCHE K. MOORE, motion for entry of final judgment [170-2] by WILLIAM G. MOORE JR., BLANCHE K. MOORE (tlh) (Entered: 09/23/1998)
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05/06/1999 200 MEMORANDUM OPINION by Chief Judge Norma H. Johnson (N) (dot) (Entered: 05/07/ 1999)
05/06/1999 201 ORDER by Chief Judge Norma H. Johnson: denying motion for reconsideration of order [146-1] [170-1] by WILLIAM G. MOORE JR., BLANCHE K. MOORE in 1:92-cv-02288, granting motion for entry of final judgment [170-2] by WILLIAM G. MOORE JR., BLANCHE K. MOORE in 1:92-cv-02288 (N) (dot) (Entered: 05/07/1999)
05/06/1999 202 JUDGMENT by Chief Judge Norma H. Johnson in favor of defendant JOSEPH B. VALDER in 1:92-cv-02288 as to plaintiff's BIVENS claim of retaliatory prosecution; judgment in favor of the USA as to plaintiff's claims of malicious prosecution and abuse of process under the Federal Tort Claims Act. (dot) (Entered: 05/07/1999)
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DATE NUMBER PROCEEDINGS
06/04/1999 204 NOTICE OF INTERLOCUTORY APPEAL by plaintiff WILLIAM G. MOORE JR. in 1:92-cv-02288 from judgment order [202-1] , entered on: 05/07/99; $105.00 FILING FEE PAID; copies mailed to Richard Montague, Andrea W. McCarthy, James E. Anklam, Daniel H. Bromberg, Paul M. Pohl, David F. Legge & Joseph M. David (tb) Modified on 06/07/1999 (Entered:
06/07/1999)
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07/28/2000 219 CERTIFIED COPY of Order filed in USCA dated 6/2/00, referencing appeal [204-1] in 1:92-cv-02288, appeal [34-1] in 1:93-cv-00324, affirming the judgment of USDC in part, and reversing the judgment of USDC in part OPINION USCA # 99-5197 & 99-5198 (cjp) (Entered: 07/28/2000)
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DATE NUMBER PROCEEDINGS
07/30/2001 253 MOTION filed by defendant USA in 1:92-cv-02288 for summary judgment and oral argument requested; exhibits (60) (cjp) (Entered: 07/31/2001)
07/30/2001 254 MOTION filed by defendant ROBBINS in 1:92-cv-02288, defendant PIERCE MCINTOSH in 1:92-cv-02288, defendant ROBERT EDWARDS in 1:92-cv-02288, defendant FRANK KORMAN in 1:92-cv-02288, defendant MICHAEL HARTMAN in 1:92-cv-02288 for summary judgment and oral argument requested; exhibits (60) (cjp) (Entered: 07/31/2001)
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12/07/2001 267 MEMORANDUM by plaintiffs in 1:92-cv-02288 in opposition to motion for summary judgment and oral argument requested [254- 1] by MICHAEL HARTMAN, FRANK KORMAN, ROBERT EDWARDS, PIERCE MCINTOSH, ROBBINS; (FILED UNDER SEAL IN ROOM 1800) Volumes 1-10 (bjsp) (Entered: 12/13/2001)
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DATE NUMBER PROCEEDINGS
12/07/2001 268 MEMORANDUM by plaintiffs in 1:92-cv-02288 in opposition to motion for summary judgment and oral argument requested [253-1] by USA; (FILED UNDER SEAL IN ROOM 1800); volumes 1-10 (bjsp) (Entered: 12/13/2001)
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02/28/2002 272 REPLY by defendant ROBBINS in 1:92-cv-02288, defendant PIERCE MCINTOSH in 1:92-cv-02288, defendant ROBERT EDWARDS in 1:92-cv-02288, defendant FRANK KORMAN in 1:92-cv-02288, defendant MICHAEL HARTMAN in 1:92-cv-02288 in support of motion for summary judgment and oral argument requested [254-1] by MICHAEL HARTMAN, FRANK KORMAN, ROBERT EDWARDS, PIERCE MCINTOSH, ROBBINS; exhibits (1) (cdw) (Entered: 03/04/2002)
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DATE NUMBER PROCEEDINGS
02/28/2002 273 REPLY by defendant USA in 1:92-cv-02288 in support of motion for summary judgment and oral argument requested [253-1] by USA; exhibits (2) (cdw) (Entered: 03/04/2002)
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08/05/2003 283 ORDER by Judge Norma H. Johnson: denying defendant's motion for summary judgment (N) (adc) (Entered:
08/06/2003)
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09/04/2004 284 NOTICE OF APPEAL by defendant ROBBINS in 1:92-cv-02288, defendant PIERCE MCINTOSH in 1:92-cv-02288, defendant ROBERT EDWARDS in 1:92-cv-02288, defendant FRANK KORMAN in 1:92-cv-02288 from order [283-1], entered on: August 05, 2003. No fee paid. U.S. Gov't. (jf) (Entered: 09/08/2003)
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DATE NUMBER PROCEEDINGS
03/31/2004 291 First MOTION for ruling re [271] Motion to Strike by UNITED STATES OF AMERICA. (Attachments: # 1 Text of Proposed Order) (McCarthy, Andrea) (Entered: 03/31/2004)
03/31/2004 292 MOTION for Reconsideration re 283 Order denying defendant's motion for summary judgment (for scanned image, see Doc. 291) by UNITED STATES OF AMERICA. (cp,) (Entered: 04/01/2004)
04/14/2004 293 Memorandum in opposition to motion re 291 ruling on motion to strike and reconsideration of order entering summary judgment filed by WILLIAM G. MOORE JR.. (Attachments: #1 Exhibit A
#2 Text of Proposed Order) (Bromberg, Daniel) (Entered: 04/14/2004)
04/23/2004 294 REPLY to opposition to motion re 291 filed by UNITED STATES OF AMERICA. (McCarthy, Andrea) (Entered: 04/23/2004)
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DATE NUMBER PROCEEDINGS
08/30/2004 295 ORDER denying 291 Motion for Ruling, denying [292] Motion for Reconsideration. Signed by Judge Ricardo M. Urbina on 8/30/04. (Entered: 08/30/2004)
08/30/2004 296 MEMORANDUM OPINION. Signed by Judge Ricardo M. Urbina on 8/30/04. (Entered: 08/30/2004)
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04/04/2005 306 USCA JUDGMENT (certified copy) as to [284] Notice of Appeal, filed by FRANK KORMAN,, ROBERT EDWARDS,, PIERCE MCINTOSH,, ROBBINS; It is hereby ordered and adjudged that the judgment of the District Court appealed from in this cause is hereby affirmed and case remanded; USCA#03-5241 (jsc) (Entered: 04/11/2005)
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UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 03-5241
WILLIAM G. MOORE, JR., PLAINTIFF-APPELLEE
v.
MICHAEL HARTMAN, ET AL., DEFENDANT-APPELLANTS
DOCKET ENTRIES
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DATE PROCEEDINGS
9/8/03 CIVIL-US CASE docketed. Notice of Appeal filed by Appellant Michael Hartman, Appellant Frank Korman, Appellant Robert Edwards, Appellant Pierce McIntosh, Appellant Norman Robbins. [770895-1] (sha)
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10/27/03 MOTION filed (with an attached appendix) by the Appellee William G. Moore, Jr. (certificate of mail service dated 10/27/03) to dismiss this appeal for want of jurisdiction [781120-1]. Response due by 11/10/03. (jth)
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11/17/03 OPPOSITION filed [785550-1] (5 copies) by the Appellants Michael Hartman, et al., (certificate of mail service dated 11/17/03) to plantiff/appellee's motion to dismiss appeal for want of jurisdiction [781120-1]. (jth)
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DATE PROCEEDINGS
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12/12/03 REPLY filed [791284-1] (5 copies) by Appellee William G. Moore (certificate of mail service dated 12/12/03) to a response to the motion dismiss case lack/jurisdiction [781120-1]. (sha)
2/20/04 PER CURIAM ORDER filed [804620] referring motion to dismiss to the merits panel to which this case is assigned. The parties are directed to address in their briefs the issues presented in the motion to dismiss rather than incorporate those arguments by reference. The Clerk is instructed to calendar this case for presentation to a merits panel. Before Judges Sentelle, Rogers. [Entry Date: 2/20/04] (jlp)
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5/3/04 BRIEF filed by Appellant Michael Hartman, et al. [820319-1]. Copies: 8. Certificate of mail service date 5/3/04. (sha)
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6/16/04 BRIEF filed by the Appellee William G. Moore [829741-1]. (Copies: 7). Certificate of mail service dated 6/16/04. (jth)
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DATE PROCEEDINGS
7/2/04 CORRECTED REPLY BRIEF filed by Appellants Michael Hartman, et al., [834108-1]. (Copies: 7). Certificate of service by mail dated 7/2/04. (jth)
7/7/04 FINAL BRIEF filed by Appellants Michael Hartman, et al., [834427-1]. (Copies: 15). Certificate of service by mail dated 7/7/04. (jth)
7/7/04 FINAL BRIEF filed by Appellee William G. Moore [834428-1]. (Copies: 15). Certificate of mail service dated 7/7/04. (jth)
7/7/04 FINAL REPLY BRIEF filed by Appellants Michael Hartman, et al., [834430-1]. (Copies: 15). Certificate of mail service dated 7/7/04. (jth)
7/7/04 DEFERRED APPENDIX (VOLUMES I - II) filed by the Appellants Michael Hartman, et al., [834431-1]. (Copies: 10). Certificate of mail service dated 7/7/04. (jth)
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9/15/04 ORAL ARGUMENT HELD before Sentelle, Tatel, Williams. (set)
11/9/04 JUDGMENT that the decision of the district court be affirmed and the case remanded for the reasons in the accompanying opinion. Before Judges Sentelle, Tatel, Williams. [Entry Date: 11/9/04] (mcm)
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DATE PROCEEDINGS
11/9/04 OPINION filed [858768] (26 pgs) for the Court by Judge Tatel (mcm)
11/9/04 CLERK'S ORDER filed [858770] The Clerk is directed to withhold issuance of the mandate [858770-1] pending disposition of any timely petition for rehearing. [Entry Date: 11/9/04] (mcm)
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11/22/04 MOTION filed (5 copies) by Appellant Michael Hartman, et al. (certificate of mail service dated 11/22/04) for clarification [863886-1] of clerk order withholding mandate [858770-1]. (sha)
12/7/04 PER CURIAM ORDER filed [863989] granting motion clarify filed by Michael Hartman, et al. [863886-1]. Any petition for rehearing and/or petition for rehearing en banc is due on December 27, 2004. An explanation will issue at a later date. Before Judges Sentelle, Tatel, Williams. [Entry Date: 12/7/04] (mcm)
12/27/04 PETITION filed (Copies: 19) by Appellants Michael Hartman, et al. (certificate of service dated 12/27/04) for rehearing en banc [868240-1]. (mcm)
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DATE PROCEEDINGS
1/31/05 PER CURIAM ORDER, In Banc, filed [873717] denying petition rehearing en banc [868240-1] filed by Michael Hartman, Kormann, Robert Edwards, Pierce McIntosh, Norman Robbins. (Mandate may issue on or after 2/8/05). Before Judges Ginsburg, Edwards, Sentelle, Henderson, Randolph, Rogers, Tatel, Garland,* Roberts, Williams. (Circuit Judge Garland did not participate in this matter) [Entry Date: 1/31/05] (mcm)
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2/4/05 MOTION filed (5 copies) by Appellants Michael Hartman, et al., (certificate of service by mail dated 2/4/05) for stay of issuance of the mandate [875542-1]. Response due by 2/22/05. (jth)
2/16/05 RESPONSE filed [878670-1] (5 copies) by Plaintiff/Appellee William G. Moore (certificate of mail service date 2/16/05) to appellants' motion for stay of issuance of the mandate [875542-1]. (jth)
2/28/05 REPLY filed [880891-1] (5 copies) by Federal Appellants Michael Hartman, et al., (certificate of service by mail dated 2/28/05) in support of their motion for stay of the issuance of the mandate [875542-1]. (jth)
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DATE PROCEEDINGS
3/8/05 PER CURIAM ORDER filed [882336] granting motion stay mandate filed by Michael Hartman, et al. [875542-1]. The Clerk is directed to withhold issuance of the mandate [882336-1] until 3/17/05. Before Judges Sentelle, Tatel, Williams. [Entry Date: 3/8/05] (mcm)
3/14/05 MOTION filed (5 copies) by Appellants Michael Hartman, et al., (certificate of mail service dated 3/14/05) to extend the stay of issuance of mandate [884312-1]. Response due by 3/28/05. (jth)
3/16/05 PER CURIAM ORDER filed [884340] denying motion stay mandate [884312-1] filed by Michael Hartman, et al. Before Judges Sentelle, Tatel, Williams. [Entry Date: 3/16/05] (mcm)
3/31/05 MANDATE ISSUED to Clerk, District Court [886985-1] (mcm)
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5/13/05 NOTICE filed by Clerk, Supreme Court advising of the filing on 5/9/05 & docketing on 5/10/05 of a petition for writ of certiorari [894713-1]. Supreme Court Docket No. 04-1495. (jth)
_______________________________________________ _
DATE PROCEEDINGS
7/1/05 NOTICE filed by William K. Suter, Clerk, informing the court that the petition for writ of certiorari was granted limited to Question 1 presented by the petition, No. 04-1495 [908623-1]. (lvs)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
Civil Action No. 3-91CV2491-G
WILLIAM G. MOORE, JR. AND
v.
JOSEPH B. VALDER, MICHAEL HARTMAN, FRANK KORMAN, ROBERT EDWARDS, PIERCE MCINTOSH, DANIEL HARRINGTON, (FIRST NAME UNKNOWN) ROBBINS, AND OTHERS AS OF YET UNKNOWN,
HEREBY DESIGNATED AS JOHN DOE
DEFENDANTS 1-25
[Filed: Nov. 19, 1991]
ORIGINAL COMPLAINT
I. JURISDICTION AND VENUE
1. The jurisdiction of this Court is invoked under Title 28 U.S.C. §§ 1331 and 1367(a). This suit is authorized by the First, Fourth and Fifth Amendments of the Constitution of the United States and such other State and Federal laws as may be applicable. Venue in this action is properly situated in the United States District Court for the Northern District of Texas pursuant to 28 U.S.C. §§ 1391(b) and (e). Plaintiffs seek damages in excess of $50,000 for injuries sustained by them which were caused by the actions of the defendants.
II. PARTIES
2. Plaintiff William G. Moore, Jr. is a citizen of the United States who resides in Dallas, Texas. Plaintiff is the former Chairman, President and Chief Executive Officer of Recognition Equipment Incorporated ("REI").
3. Plaintiff Blanche K. ("Chelen") Moore is the wife of Plaintiff William G. Moore, Jr. and resides with him in Dallas, Texas.
4. Defendants are employees of the United States Government and its agencies, including the United States Department of Justice and the United States Postal Service ("USPS"), who, acting in their ministerial and individual capacities, did conspire to interfere with and violate, and did interfere with and violate, plaintiffs' rights and privileges, and did deprive Plaintiff William G. Moore, Jr. of his liberty and both plaintiffs of their property without due process of law, in conflict with the laws and Constitution of the United States and the laws of the State of Texas and the District of Columbia, as more fully appears herein below. Such defendants include:
a. Defendant Joseph Valder, who was at all relevant times an Assistant U.S. Attorney for the District of Columbia. Said defendant was responsible for the investigation and the overseeing of the Grand Jury investigation which culminated in the wrongful indictment of Plaintiff William G. Moore, Jr. Defendant Valder, acting individually and/or in concert with the other defendants, also was responsible for the pre-trial activities and trial of the case against Plaintiff William G. Moore, Jr. Said defendant is sued in his individual capacity.
b. Defendants Frank Korman, Michael Hartman, Robert Edwards, Pierce McIntosh, Daniel Harrington (first name unknown) Robbins, and Postal Inspectors and other employees of the USPS who are presently unknown to plaintiffs (and hereinafter are referred to as "John Doe defendants 1-25"), and who were at all relevant times Postal Inspectors of the United State Postal Inspection Service or otherwise employed by the USPS. Defendants Korman and Hartman oversaw the investigation and were involved at all relevant stages. Each defendant Postal Inspector is sued in his own individual capacity. All of the defendant Postal Inspectors, whether known or unknown, shall be referred to collectively as "Postal Inspectors."
III. NATURE OF THIS CASE
5. The incidents on which plaintiffs' lawsuit is based occurred as a result of malicious, deliberate, intentional, reckless and negligent misconduct by Assistant United States Attorney Joseph Valder and the U.S. Postal Inspection Service and its agents, as named and/or described above, before, during, and after a Grand Jury investigation which culminated in an indictment being returned against Plaintiff William G, Moore, Jr., REI, and another employee of REI on October 6, 1988 in Washington, D.C. All defendants in the indictment were acquitted of all charges by United States District Judge George Revercomb on November 20, 1989. It became apparent that the investigation, Grand Jury proceedings and handling of the post-indictment proceedings by the defendants were punctuated by gross violations and abuses of plaintiffs' rights as detailed below.
6. This action is brought to seek fair compensation for the catastrophic financial injury, humiliation, mental suffering and anguish inflicted upon plaintiffs as a result of the wrongful acts of defendants. This action is also filed to ensure that these defendants and others are deterred from engaging in such wrongful activity again.
IV. FACTS
7. Plaintiff William G. Moore, Jr. is the former Chairman, Chief Executive Officer and President of REI. He is a graduate of Georgetown University and has served on its Board of Regents. He served in the U.S. Army, obtaining the rank of Captain, and saw service in Vietnam. REI was a manufacturer of, among other products, optical character recognition ("OCR") systems. The Company was at all relevant times headquartered in Irving, Texas. At the time Moore joined REI in 1982, the company, which had suffered losses for five years, had lost $14.2 million in the preceding year and was on the verge of bankruptcy. Within one year, Moore had turned REI around, and REI reported net income of $9.5 million. By 1985, REI had reached $241.8 million in revenues, and it was considered one of-the most dynamic and successful publicly-held corporations in the Dallas area. Because of his success, Moore was the recipient of various significant honors from organizations across the country, including being named Dallas Business Man of the Year. He served as Chairman of the American Electronics Association and or the Boards of various civic and charitable organizations.
8. REI had developed multi-line optical character reading ("MLOCR") equipment which would automatically read several lines of an address to code and assign a nine-digit zip code to a piece of mail. REI desired to sell the product to USPS. REI believed it would speed up the mail system and save USPS millions of dollars per year.
9. At the time relevant to the charges in the indictment, USPS was employing single-line OCR equipment which could only read the bottom line of an address, and the efficiency of single-line technology was dependent upon the public use of the nine-digit zip code. The, single-line OCR technology was not successful because the public use of the nine-digit zip code did not meet LISPS' expectations. Since the indictment, USPS has converted its automated sorting equipment to multi-line technology.
10. At the time of Moore's arrival at REI, there had been a longstanding conflict between REI and various senior managers within USPS. In late 1983, then, Postmaster General William Bolger announced that there would be no future for multi-line technology in the automation plans of USPS. One high-ranking postal manager stated that REI would never receive any multi-line production awards as long as he was with USPS.
11. After the single-line decision by USPS, Plaintiff William G. Moore, Jr. informed Postmaster General Bolger that single-line technology was an unsound strategy, and that Moore intended to go directly to USPS Board of Governors, the media, and the United States Congress to try and stop the ineffective and wasteful single-line implementation. Moore did, in fact, -as he was Constitutionally permitted to do-communicate about the subject with various Congressmen and Senators, including Texas Congressmen Jack Brooks and the late Mickey Leland, Missouri Congressman Richard Gephardt and Alaska Senator Ted Stevens. As previously noted, USPS now uses the multi-line approach advocated by REI.
12. In the course of REI's efforts to obtain contracts from USPS, which was supposed to review in an open, fair and impartial manner all competing technologies for mail scanning and sorting equipment, REI hired the consulting firm of Gnau and Associates, Inc. ("GAI"). John Gnau was a principal of GAI. The use of this consulting firm had been suggested to REI by a member of the USPS Board of Governors.
13. In early 1985, the U.S. Postal Inspection Service began an investigation into possible illegal payments from Gnau to Peter E. Voss, then a member of the USPS Board of Governors. It was later determined that a conspiracy in which Gnau made illegal payments to Voss existed between Voss, John Gnau, Michael Marcus (the Treasurer of GAI) and William Spartin (President of GAI). Voss, Gnau and Marcus pled guilty to criminal charges. Spartin and Sharon Peterson, an administrative assistant to Voss, agreed to cooperate in exchange for immunity from prosecution. Frank Bray, REI's Vice President of Distributor Sales, also received immunity.
14. During the investigation, Defendant Valder and the Postal Inspectors, including at least Defendants Hartman and Korman as well as various other unknown defendants, desperately tried to find a way to link William G. Moore Jr., to the conspiracy. However, the evidence clearly and unequivocally demonstrated that Moore knew absolutely nothing about the conspiracy. None of the thousands of documents subpoenaed by the Grand Jury during the investigation indicated that Moore, or for that matter REI, had knowledge of the conspiracy and related unlawful activities. Moore repeatedly informed the Postal Inspectors and AUSA Valder that he had no knowledge of the conspiracy. None of the five admitted conspirators-Voss, Gnau, Marcus, Peterson and Spartin-gave any testimony even remotely indicating that Moore knew of, or participated in, that conspiracy. In fact, several conspirators testified at trial that they actively tried to disguise the conspiracy from Moore and had previously told that to Valder and certain of the other defendants.
15. The obvious issue in any criminal action against Moore would be whether he had knowledge of and participated in the conspiracy or the unlawful acts of the consultants and Voss. The evidence gathered in the massive investigation showed clearly and without exception that Moore had no knowledge of the conspiracy or the unlawful acts. The Postal Inspectors and AUSA Valder knew that such lack of knowledge would prevent the return of any proper indictment against Moore. Notwithstanding the above, Defendants Valder, Hartman, Korman, Edwards, McIntosh, Harrington, Robbins, and the John Doe defendants who are presently unknown to plaintiffs, deliberately, systematically and without regard to Moore's Constitutional right to fair investigation and fair consideration by the Grand Jury, concealed from the Grand Jury crucial and extensive exculpatory testimony from the co-conspirators (Gnau, Peterson, Marcus, Spartin and Voss) that Moore was not told about, and did not know about, the unlawful scheme to pay kickbacks to Voss.
16. Defendants engaged in unusual, unlawful and unconstitutional investigative techniques to intimidate and coerce witnesses to try to implicate Moore and to control the flow of information to the Grand Jury in order to mislead the Grand Jury to return an indictment when none was warranted. These activities were done in clear disregard of the defendants' obligations as employees of the United States; these activities were done by defendants with malice and in clear violation of Moore's right to a fair investigation; these activities were done by defendants in an attempt to obtain publicity for themselves and seek career advancement; and these unlawful activities were done by defendants in an attempt to "punish" Moore for exercising his constitutionally-protected rights to criticize USPS procurement decisions.
17. By concealing and distorting the evidence as they did, AUSA Valder and the Postal Inspectors acted outside their discretion, violated their employer's policies and procedures, and knowingly violated plaintiffs' clearly established Constitutional rights. The methods designed by the defendants to withhold key exculpatory evidence and to manufacture false and misleading testimony are detailed below.
18. AUSA Valder and the Postal Inspectors drafted and used written "witness statements" to shape the evidence presented to the Grand Jury. These misleading "witness statements" were false, inaccurate, incomplete and misleading and were presented to the Grand Jury even though live witnesses were available to testify. Even though all the witnesses told AUSA Valder and the Postal Inspectors that Moore was unaware of the conspiracy, not one single witness statement written by the Postal Inspectors included this crucial, exculpatory statement. Additionally, AUSA Valder and the Postal Inspectors refused to allow witnesses to amend these statements, even though it was supposedly the witnesses', not the Postal Inspectors', statements. These statements were thereafter presented to the Grand Jury as the witnesses' own statements. For example, Frank Bray was interviewed several times in an intimidating fashion by the Postal Inspectors, including Inspectors Edwards and Harrington, in an attempt to have him change his testimony that Moore was unaware of the conspiracy. Incredibly, AUSA Valder and the Postal Inspectors refused to allow Bray to include in "his" statement that, to his knowledge, REI and Moore were not aware of the payoffs. Bray and his attorney Ellen Huvelle (now a Judge on the Superior Court of the District of Columbia) amended their version of Bray's statement to include such language, but the Postal Inspectors refused to change it. Moreover, Bray and Ms. Huvelle were not permitted to take the amended version of Bray's statement with them after their meeting with the Postal Inspectors, and the amended version mysteriously disappeared by the time of trial. The Grand Jury was thereafter read the statement written by the Postal Inspector, which purported to be Bray's statement, without the exculpatory statement. Additionally, AUSA Valder promised Bray and Ms. Huvelle that he would ask Bray the key questions about Moore's knowledge in the Grand Jury, but Valder thereafter refused to do so.
19. John Gnau and Peter Voss were the two leaders of the conspiracy. Gnau repeatedly told the Postal Inspectors that he never told Moore about his illicit relationship with Voss. However, "his" statement written by the Postal Inspectors deliberately omitted this fact. Voss, who was serving a prison sentence on these charges and was clearly available to the Government, was never called by the Government to testify at trial.
20. Despite the fact that Postal Inspectors are trained to take detailed notes, virtually none of the notes taken by Postal Inspectors during their interviews of various witnesses contained the witnesses' crucial statements to the effect that Moore was not told of the conspiracy. These key statements were deliberately omitted by the Postal Inspectors in order to avoid their responsibility to conduct a fair investigation and to preserve exculpatory material.
21. AUSA Valder and the Postal Inspectors threatened and intimidated William Spartin in an attempt to coerce incriminating testimony from him after he repeatedly told the Government that to his knowledge, Moore did not know of the payoffs to Voss. Such tactics included a pre-planned tearing-up of Spartir's immunity letter in front of him and threats to prosecute Spartin's son. This was despite the fact that a lie detector test had indicated that Spartin was being truthful when he said Moore and REI were not informed of the conspiracy. Moreover, unbeknownst to Spartin, the lie detector test was conducted by Inspector Robbins, who repeatedly tried to trick and coerce Spartin into giving incriminating testimony against Moore.
22. AUSA Valder and the Postal Inspectors, including Inspector McIntosh, violated Federal Rule of Criminal Procedure 6(e)(2), which protects the secrecy of Grand Jury proceedings, by giving Spartin and former Postmaster General Paul Carlin access to the Grand Jury testimony of other witnesses for the purpose of influencing Spartin's testimony and for the apparent purpose of assisting Carlin, a private plaintiff, to pursue civil litigation in connection with his dismissal from the Postal Service. The Postal Inspectors even gave Carlin a copy of a draft indictment for his review.
23. AUSA Valder deliberately withheld Brady v. Maryland exculpatory material from attorneys for Moore and REI before and during their trial, despite
a court order to turn over even "borderline" Brady material. Such Brady material included the results of lie detector tests in which Mr. Spartin made 19 references to Moore's and REI's lack of knowledge as to the conspiracy, and the amended version of Frank Bray's statement in which he added a paragraph that to his knowledge, Moore and REI were unaware of the payoffs. If this material had been turned over to the defense as it should have been, Moore would likely have been spared the expense and humiliation of a long, extensively publicized trial.
24. Through the use of the above malicious, improper and unconstitutional tactics, AUSA Valder and the defendant Postal Inspectors were able to obtain an indictment against William G. Moore, Jr. However, nowhere in the 46-page conspiracy charge-nowhere in its 10 objects, 58 means and methods or 96 overt acts- did the charge allege that Moore or REI even know that GAI was paying bribes to Voss, much less that they agreed to these payments. This deliberate attempt to hide the only real issue in the indictment by pure volume and verbosity was not successful. Following the Government's presentation of its case at trial, Judge George Revercomb acquitted Moore and all other defendants.
25. After the indictment, REI was debarred from all postal procurements. The United States forced REI to place Moore on leave of absence and to sever him from any management involvement with REI. As a result of the indictment, the Company began to flounder and the stock price plunged. The company was eventually the subject of a takeover attempt, had a change of control and Plaintiff William G. Moore, Jr. lost his job. The wrongful investigation/indictment and prosecution prevented REI from bidding, and in all probability winning, hundreds of millions of dollars in postal automation contracts. The wrongful investigation/indictment caused the plaintiffs to sustain severe financial injury.
26. Following the indictment, Plaintiff William G. Moore, Jr. was subjected to the various aspects of criminal justice system processing, including arraignment and fingerprinting. He was processed not once, but twice; one time by the Postal Inspectors, and the second time by the District of Columbia police. He was briefly jailed in the District of Columbia during this processing.
27. There was a tremendous amount of media publicity during the unlawful investigation, following the indictment and during the trial, all of which caused plaintiffs humiliation, physical and mental suffering and anguish, and which required medical treatment for both plaintiffs.
28. The indictment named as part of the overt acts of the conspiracy such Constitutionally protected actions as the plaintiffs' lobbying of Congress for changes to the mail system. The defendants also sought to prosecute Plaintiff William G. Moore, Jr. for suggesting qualified candidates for the position of Postmaster General, even though he had been requested to do so by the White House and was Constitutionally entitled to do so.
29. As a result of the above-described unlawful activity and violations of plaintiffs' Constitutional rights, plaintiffs suffered and continue to suffer great financial losses, humiliation, embarrassment, physical and mental suffering, as well as loss of reputation in and among business associates, friends, and family.
30. As a result of the above-described unlawful activity and violations of plaintiffs' Constitutional rights, including voluminous unreasonable requests for personal and business documents, including tax returns and bank records, and alleged surveillance and possibly wiretaps, defendants did invade the privacy of the plaintiffs and cause them injury.
31. AUSA Valder and the Postal Inspectors are not entitled to official immunity for the following reasons:
a. The actions of AUSA Valder and the Postal Inspectors and the John Doe defendants violated clearly established Constitutional rights which a reasonable person would have known and recognized.
b. AUSA Valder and the Postal Inspectors and the John Doe defendants took the described actions with the malicious intention to cause injury to plaintiff and to cause deprivation of plaintiffs' constitutional rights.
c. AUSA Valder and the Postal Inspectors had no discretion to act as they did since they violated, ignored and otherwise failed to comply with regulations and policies designed to guide their actions. The investigative tactics used were so extreme that no reasonable person would accept them as fair and lawful.
d. The Postal Inspectors undertook certain unlawful and improper actions on their own accord without direction from their supervisors or the United States Attorney's Office, including the disclosure of secret Grand Jury material or witnesses, as stated in the United States Department of Justice Office of Professional Responsibility's letter dated May 30, 1991.
e. AUSA Valder acted in an investigative capacity during the course of the investigation, thereby losing his objectivity and violating his duty to fairy uphold the laws of the United States.
f. AUSA Valder acted in a non-advocatory role during the investigation, especially when he withheld, and failed to preserve, exculpatory evidence.
g. AUSA Valder continually provided inaccurate and misleading legal advice to the Postal Inspectors investigating the case.
FIRST CAUSE OF ACTION
32. By the aforesaid withholding of exculpatory evidence and by the presentation of false and misleading evidence to the Grand Jury, the defendants deprived the plaintiffs of their rights to due process and to an informed, fair and impartial Grand Jury as guaranteed by the Fifth Amendment of the United States Constitution.
SECOND CAUSE OF ACTION
33. The aforesaid actions of defendants constituted a slander and defamation of Plaintiff William G. Moore, Jr. The actions taken also constituted an unlawful invasion of plaintiffs' privacy, false arrest and abuse of process and malicious prosecution, all in violation of the laws of the State of Texas and of the District of Columbia, which this court may adjudicate as pendant to the other four, causes of action.
THIRD CAUSE OF ACTION
34. By the aforesaid improper and malicious activities, the defendants deprived the plaintiffs of their property without due process of law as guaranteed by the Fifth Amendment to the United States Constitution.
FOURTH CAUSE OF ACTION
35. By the aforesaid improper and malicious activities, the defendants deprived the plaintiffs of their rights to be free from unreasonable seizures as guaranteed by the Fourth Amendment of the United States Constitution, in that Plaintiff William G. Moore, Jr. was seized as he awaited processing, and furthermore, plaintiffs were forced to post bond and attend a trial based upon the improperly obtained indictment.
FIFTH CAUSE OF ACTION
36. By the aforesaid improper and malicious activities, which caused plaintiffs to deplete financial and human resources, the defendants attempted to punish Plaintiff William G. Moore, Jr. because he directed criticism against the USPS, thereby depriving the Plaintiffs of their rights to free expression and to petition the government for redress of grievances guaranteed by the First Amendment of the United States Constitution.
DAMAGES
37. As a result of the investigation and indictment, REI stock, of which Plaintiff William G. Moore, Jr. owned more than 100,000 shares, dropped from about $22 per share to about $5 per share. A change of control at REI occurred during the trial which would not have taken place if there had not been an indictment. As a result, Plaintiff William G. Moore, Jr. lost his job and suffered extensive financial injury.
38. In the three years prior to the indictment, Plaintiff William G. Moore, Jr.'s average compensation was more than $1 million per year. After the indictment, the value of Moore's stock ownership declined from $2 million to $500,000. Plaintiff William G. Moore, Jr.'s stock options decreased in value by at least another $2 million, and his annual income was, and has been, greatly reduced.
39. As further result of the indictment, Plaintiff William G. Moore, Jr. has been unable to find a position comparable to his previous employment. Plaintiff's reputation has been damaged, and he has been forced to resign from a number of boards and appointments.
40. The ordeal of investigation, indictment and trial has exacted a terrible physical and emotional toll on plaintiffs. Shortly after being notified of the impending indictment in late summer of 1988, Plaintiff William G. Moore, Jr. was treated at the emergency room at Parkland Hospital in Dallas for symptoms which were subsequently diagnosed as an acute stress reaction. Since the investigation began, Plaintiff Blanche Moore has suffered from chronic insomnia combined with Temporomandibular joint disorder (often called TMJ). She is currently under physician's care for chronic neck, back and leg pains.
41. WHEREFORE, Plaintiffs request this Court to assess compensatory damages against each defendant, jointly and severally, in at least the following amounts, and which amounts will be proven in detail at trial of this action:
(a) Lost Earnings-$17 million;
(b) Decrease in value of stock and stock options -$5 million;
(c) Personal suffering, humiliation and emotional distress-$10 million; and
(d) An amount adequate to compensate Mr. Moore for defense costs incurred during the investigation and trial.
42. In order to deter defendants and others from engaging in such unlawful and unconstitutional activities, Plaintiffs further request punitive damages against each defendant, plus costs and attorneys' fees, and any other and further relief as the Court may deem just and equitable.
DEMAND FOR JURY TRIAL
43. P1aintiffs hereby demand a trial by jury of all issues so triable in this cause of action.
Respectfully submitted,
JONES, DAY, REAVIS &
POGUE
/s/ JEAN M. PERRON
JEAN M. PERRON
Texas State Bar No. 14085400
2300 Trammell Crow Center
2001 Ross Avenue
Dallas, Texas 75201
(214) 220-3939
(214) 969-5100 (Facsimile)
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 92cv2288 (NHJ) (AK)
(consolidated with No. 93cv0324(NHJ)(AK))
WILLIAM G. MOORE, JR., PLAINTIFF
v.
JOSEPH B. VALDER, ET AL., DEFENDANTS
DEFENDANT POSTAL INSPECTORS'
CONCISE STATEMENT OF MATERIAL FACTS
NOT GENUINELY IN DISPUTE
Pursuant to District of Columbia Local Civil Rule ("LCvR") 7.1(h), the defendants Michael Hartman, Frank W. Korman, Pierce McIntosh, Robert Edwards and Norman Robbins submit in support of their Motion for Summary Judgment the following concise statement of material facts not genuinely in dispute:
1. The United State Postal Inspection Service investigated allegations of procurement fraud in connection with the Postal Service's acquisition of optical character reader equipment for use in processing mail. Hartman Declaration ("Decl."), Exhibit (Ex.) B ¶ 3: Korman Decl. (Ex. K) ¶ 3; Edwards Decl. (Ex. D) ¶ 12.
2. The investigation began in July, 1985 when Deputy Postmaster General Jackie Strange made to the Chief Inspector allegations about United States Postal Governor Peter E. Voss. Ex. D¶¶ 3, 7 - 8.
3. Strange told Chief Inspector Clauson that she thought Voss was showing an unusual degree of interest in automation and OCR acquisition and seemed suspicious. Id. ¶ 7.
4. Chief Clauson told Inspector Robert Edwards, then working on an audit project regarding the OCR program, to keep a close watch on the procurement. Id.¶ 2.
5. The Inspection Service received in the Fall, 1985, an allegation from officials of AEG Telefunken that plaintiff Moore proposed splitting two pending OCR procurements. Ex. B ¶¶ 11-13, Ex. D, ¶¶ 9-10.
6. Moore was President, CEO and eventually Chairman of the Board of REI. Reedy was a Senior Vice President, who reported directly to Moore. Complt. ¶ 2; Ex. B ¶¶ 5-6 and Ex. 1 thereto.
7. Inspectors learned in their investigation that in 1984, the Postal Service elected to purchase "single line" OCRs and to wait until 1987 to decide whether to deploy "multi-line" OCRs. Ex. D ¶ 4.
8. Inspectors learned in their investigation that in mid-1985, Postmaster General ("PMG") Paul N. Carlin announced that the Postal Service would immediately take steps to move to a multiline OCR environment. Inspectors also learned that PMG Carlin also announced that the Postal Service would obtain multiline read capability through competitive procurements. Ex. D ¶ 6; Carlin Trial Testimony (Ex. F) at 2099, 2106-07.
9. Inspectors also learned that the Postal Service announced new procurements for both multiline OCRs ("Phase III" procurement) and for kits to retrofit newly-acquired single line OCRs (acquired in "Phase II). The latter procurement was the "Phase IIA" procurement. Ex. D, ¶ 6. Ex. F, ¶ 5. The total value of the potential contracts was between $250 and $400 million. Ex. D, ¶ 17.
10. Inspectors learned that Electrocom Automation ("ECA") of Arlington. Texas had won the 1984 "Phase II" single line competition and that the ECA single line OCR employed technology licensed from AEG Telefunken, a West German company. Inspectors also learned that ECA had entered the Phase IIA retrofit competition along with the Phase III competition. Ex. D, ¶ 9.
11. Inspectors also learned that REI entered the Phase IIA and Phase III competitions. Id.
12. Inspectors learned that REI had competed in the Phase II single line procurement, but was not awarded a contract. Id.
13. Inspectors learned that REI required some technical information if it was to develop a kit to retrofit the ECA Phase II single line OCR. Ex. B, ¶ 10.
14. Inspectors learned that a meeting between REI and AEG was called in the Fall, 1985 with the topic being the technical information REI claimed to need. Id.
15. AEG officials subsequently alleged to the Inspection Service that at this meeting Moore proposed that the two companies split the pending procurements with ECA and Telefunken getting the contract to retrofit the single line machines and REI getting the contract to manufacture new multiline OCRs. The AEG officials also alleged to the Inspection Service that Moore also threatened to use his political clout to kill the retrofit program if AEG did not go along with his proposal. Ex. B, ¶¶ 11-13, Ex. D, ¶¶ 9-10.
16. Inspector Hartman and Inspector Robert Edwards interviewed the German businessmen as well as REI's Moore, Reedy and Bray. Ex. B, ¶¶ 11-13, Ex. D, ¶ 10.
17. After conducting their interviews, Hartman and Edwards met with Attorneys William Hardy and Allen Carver of the United States Department of Justice Criminal Division. Hardy was a the Supervisor of the Fraud Section, and Carver a Public Integrity Section supervisor. Ex. B. ¶¶ l 4-20, Ex. D, ¶ 11.
18. In their meetings with prosecutors, Inspectors Hartman and Edwards shared Deputy Postmaster General Stange's allegations about Voss and the OCR program and AEG's contact splitting allegations against Moore. The prosecutors indicated that there did not at that point appear to be direct evidence of a federal crime, but advised that the Inspection Service should continue to investigate. Id.
19. Mr. Hardy told the Inspectors that in his opinion the possibility of payment of illegal gratuities would be a "forthcoming" line of inquiry and that they should research financial statements and other evidence for possible payment of illegal gratuities. Id.
20. Hardy and Carver also encouraged the inspectors to follow up on the possibility that Moore and REI had committed, or were committing crimes. They raised the possibility REI had made a false official statement, see 18 U.S.C. § 1001, and suggested investigating REI's intention and capability of actually competing on the Phase II conversion program. The prosecutors told Hartman and Edwards to be alert for a pattern of irregular, possibly unethical, behavior, that the should examine postal contracting regulations for sole source procurement and their relevance to the multiline OCR procurement issue and that they should have further discussions with Strange regarding her original allegations. Id.
21. Edwards and Hartman subsequently sent a memorandum to Chief Clausen advising him of their discussions with Hardy and Carver and the prosecutors' advice to continue investigating the OCR matter and Voss' and REI's respective roles. They advised the Chief Inspector that "the approach we would be taking [to the investigation] points towards a conspiracy, mail fraud and ethics violations," and that an investigation of this sort would require full time attention. The Chief Inspector approved, and eventually a task force was established to look into the Postal Service's conduct of OCR procurement. Ex. B ¶ 20; Ex. D ¶ 12 and Ex. 1 thereto.
22. The memorandum in general terms outlined the nature and scope of the investigation that followed. Ex. B, ¶¶ 20-22, Ex. D, ¶ 12.
23. Inspectors subsequently learned that by claiming excessive amounts on his travel vouchers Voss defrauded the government of over $44,000. A grand jury investigation commenced and subpoenas turned up checks from John Gnau to Voss. Ex. D,¶¶ 15-16
24. Postal Inspectors learned in their investigation that John Gnau operated a consulting firm known as Gnau & Associates Incorporated ("GAI"). Ex. B ¶ 4; Ex. K ¶ 7.
25. Postal Inspectors learned in their investigation that Gnau paid kickbacks of money received from REI to U.S. Postal Governor Peter Voss. Ex. B ¶5; Ex. K
¶ 4. Inspectors also learned that William Spartin bribed Voss with airline tickets and that Voss helped Spartin receive executive recruiting contracts from the Postal Service, including a contract to search for a new Postmaster General to replace Paul N. Carlin. Ex. B ¶¶ 37, 56.
26. Postal Inspectors learned in their investigation that on or around Labor Day, 1984, REI vice president Reedy dined with Governor Voss. Ex. B ¶ 29; Ex. K
¶ 7.
27. Postal Inspectors learned in their investigation that at the dinner referred to above, Voss recommended to Reedy that REI hire Gnau and his firm as consultants. Id.
28. Inspectors learned in their investigation that Reedy informed Moore of the dinner with Voss and Voss' recommendation of Gnau. Ex. B ¶ 29 & Ex. 4 thereto.
29. Postal Inspectors subsequently concluded that Gnau was paying kickbacks to Voss. Ex. B ¶ 24; Ex. K ¶ 4.
30. On or around April 8, 1986. Reedy was questioned by Postal Inspectors regarding the circumstances under which REI had come to hire Gnau. Reedy said that he learned of Gnau from Bob John Robison during an inadvertent meeting at the Republican National Convention in 1984. Ex. B ¶ 32.
31. Postal Inspectors learned in their investigation that soon after his April 8, 1986 meeting with Inspectors, Reedy called William Spartin. Spartin Statement (Ex. M) at 28.
32. Postal Inspectors learned in their investigation that Reedy did not actually obtain Gnau's name from Robison but rather from Peter Voss. Ex. B ¶ 32.
33. Postal Inspectors concluded that Reedy lied in his April 8, 1986 interview when he stated that he obtained Gnau's name from Voss. Ex. B ¶ 32; Ex. K ¶ 9.
34. Postal Inspectors learned in their investigation that Reedy did not immediately hire Gnau, and that Voss called Moore regarding Voss' recommendation of a consultant to Reedy. Ex. B ¶ 29 & Ex. 4 thereto.
35. Postal Inspectors learned in their investigation that Moore raised Voss' referral of Gnau with Reedy and told Reedy not to "drop the ball." Ex. B ¶ 30 & Ex. 5 thereto.
36. Inspectors' review of telephone records obtained in the investigation led them to observe at least 20 telephone calls between REI's offices and Governor Voss' office between July, 1984 and December, 1984. Ex. B ¶ 31.
37. When interviewed by Inspectors, Voss' administrative assistant, Sharon Peterson estimated that between September, 1984 and December, 1984, Voss made five to ten follow-up telephone calls relating to REI's hiring of GAI. Ex. B ¶ 30.
38. Inspectors obtained in the investigation notes by Moore that appeared to be dated December 18, 1984 and included the following: "Get John Knau [sic] involved have broad scale association with John-get together." Ex. B ¶ 19 & Ex. 4 thereto.
39. Inspectors learned in their investigation that in early 1985, REI retained the consulting firm Gnau & Associates, Incorporated ("GAI"). Ex. B ¶ 31.
40. In reviewing telephone records, Inspectors noticed that after early January, 1985, there were no indications of further calls between REI's offices and Voss' office. Id.
41. During the investigation, Inspectors obtained notes authored by Moore that appeared to reflect Postal Service Board of Governors discussions under what appeared to be a heading "Closed Session." Inspectors concluded that the information recited in notes described in the foregoing paragraph appeared to reflect information from a closed session of the United States Postal Service Board of Governors. Ex. K ¶ 11.
42. Inspectors obtained during the investigation notes authored by Moore notes dated April 29, 1985 containing the following entry: "Consultant-wired (Peter Voss)." Ex. B ¶ 34 & Ex. 6 thereto.
43. In their investigation, Inspectors learned that in 1985 REI was attempting to obtain from the Postal Service a sole source contract for production of OCRs. Ex. B ¶ 34: Ex. K ¶ 10.
44. Michael Marcus told inspectors that Voss attempted to undermine PMG Carlin's decision to acquire multiline OCR technology by competitive procurement and that Voss pressed for the immediate acquisition of multi-line OCRs from REI. Inspectors also learned that around the same time Moore and REI mounted an intense media and lobbying campaign to reverse the Postal Service's OCR strategy and obtain a sole source contract. Ex. B. ¶ 8; Ex. D ¶ 7; Ex. E ¶¶ 5, 10; Ex. J at 14; Complt.,¶ 10.
45. Michael Marcus of GAI told Inspectors that during a meeting with Gnau and Moore and Reedy, either Moore or Reedy remarked "[w]hy don't you get Peter Voss to order sole source.'" Ex. B ¶ 34; Ex. J at 15.
46. Marcus also told Inspectors that he received information from Voss and passed it on to REI's Reedy and Frank Bray and he would write, with assistance from Reedy and Bray, documents on OCR-related topics. Ex. J at 13-14.
47. Marcus also told Inspectors that the documents he authored were favorable to REI and that Voss passed Marcus' work product within the Postal Service as Voss' own work product. Id. at 14.
48. John Gnau told Postal Inspectors of a conversation in which Reedy asked him "what's your arrangement with Peter Voss" to which Gnau replied "[i]t's better you not know." Gnau also told Inspectors that on October 12, 1984, he met Reedy at the Admirals Club in the Dallas-Fort Worth airport. Gnau told Inspectors that Reedy said "Peter Voss said you can do great things. Peter and Bill have a friendship and we need help in getting a Postal Service contract." Gnau at 8. Gnau told Inspectors that he suggested to Reedy that they refer to Voss as "our friend" and Reedy said "I understand." Gnau Statement (Ex. O) at 8-9, 12. Gnau told Inspectors that on another occasion when discussing REI payments to Gnau's firm, Reedy said to Gnau "I know you have people to take care of." Gnau told the grand jury that he understood Reedy to refer to Voss. Ex. Q at 10-13.
49. REI employee Frank Bray told Inspectors that Moore devised a marketing strategy that was designed to allow REI to characterize the award of the Phase IIA contract to retrofit single line OCRs as a de facto sole source award and help create a climate favorable to an immediate sole source award to REI for new multi-line machines. Bray Grand Jury Transcript (Ex. L) at 71.
50. Bray also told Inspectors that REI requested more technical information from AEG than REI needed to develop a retrofit kit for the Phase I single line OCRs. Ex. B ¶ 23.
51. Bray's information led the Inspection Service to doubt that REI had competed in the Phase IIA procurement in good faith.
52. When interviewed by Postal Inspectors on July 25, 1986, Moore stated that he was uncertain what role William Spartin was playing in GAI's efforts in representing REI to the Postal Service. Moore stated "[w]e kind of ignored him." Ex. B ¶ 41 & Exhibit 5 thereto at 11.
53. During their investigation, Postal Inspectors obtained a memorandum from Reedy to Moore dated April 8, 1985:
Five weeks have elapsed since we presented "in camera" for the USPS Board of Governors in early March. Things continue to look as though we could get a significant order relatively soon. I don't have to tell you how fragile the situation is. I think you got some sense of this from talking to Spartin; however, I think the basic tactics are correct, the economics are on our side and we have chosen well, so let's see where it goes.
Ex. B ¶ 44 & Ex. 10 thereto; Ex. K ¶ 12.
54. Postal Insepctors learned during their investigation that William Spartin was the president of MSL International, an executive recruiting firm, and that in late 1985 Spartin was given a contract to search for a candidate to replace Paul N. Carlin as Postmaster General of the United States. Inspectors also learned that Spartin was the president of GAI. Ex. B ¶¶ 4, 37-38; Ex. K ¶ 12.
55. Postal Inspectors learned in their investigation that Spartin called Moore and requested that Moore provide him names of candidates for the office of Postmaster General. Ex. B ¶¶ 39-41 & Ex. 5 thereto at 13-14.
56. Postal Inspectors learned in their investigation that Moore provided Spartin with three names, including Albert V. Casey. Ex. B ¶ 41 & Ex. 5 thereto at 14.
57. Postal Inspectors learned in their investigation that Moore also agreed to call Casey and see if Casey would take a call from Spartin and that Moore did call Casey. Ex. B ¶ 41 & Ex. 5 thereto at 14. Carlin's replacement by Dallas businessman Albert V. Casey caused speculation in the media and concern in Congress of corruption relating to REI's efforts to obtain an OCR contract. Ex. B ¶ 36 and exhibits 8 and 9 thereto.
58. Moore told Inspectors that he did not at first believe that Spartin was recruiting for a new postmaster general to replace Carlin. Ex. B ¶ 41 & Ex. 5 thereto at 13. Moore's explanations regarding the nature and extent of his contact with Spartin caused Inspectors to question Moore's candor. Ex. B ¶¶ 40-44; Ex. K ¶ 12.
59. William Spartin told Postal Inspectors that he and Moore agreed to say that Moore had called Spartin recommending candidates for Postmaster General. Ex. B ¶ 40.
60. Gnau told Postal Inspectors that about the time he received a grand jury subpoena, he received a phone call from Reedy. Gnua told Inspectors that he wanted to get together to discuss a couple of issues. Gnau told Inspectors that the meeting occurred at the Maison Blanche Restaurant in Washington, D.C. with Moore and Reedy and that the following was discussed: Gnau told Inspectors that Moore and Reedy said "[o]ur attorneys are nervous about this meeting, but we aren't trying to do anything wrong." Moore said he was nervous about Spartin's attempted cover up. Moore and Reedy wanted to know about the involvement of Gnau and Voss in any illegal activity that they should know about. Gnau told Inspectors that he responded "[i]t's better you not know." Ex. O at 21. Gnau also told Inspectors of a conversation with Moore in late May, 1986 on the White House lawn in which Moore stated that he was uncomfortable with the cover-up Moore and Spartin had agreed upon.
61. Michael Marcus told Inspectors that on March 28, 1986, Marcus was contacted by William Spartin. Marcus told Inspectors that Spartin said he (Spartin) had a meeting scheduled with Postal Inspectors. Marcus also told Inspectors that Spartin said that a full scale investigation was under way and described Marcus as the "loose cannon on deck." Marcus told Inspectors that Spartin also stated that Moore, Reedy, Gnau and Voss had already met and developed a story to cover up their involvement. Marcus told Inspectors that Moore, Reedy, Gnau and Voss had purged their files and that Spartin urged Marcus to meet with Gnau to develop their story. Ex. B ¶ 40; Ex. K ¶ 13; Ex. J at 22.
62. REI was not able to locate the following records: Moore's telephone log for the period October 19, 1984 to January 15, 1985 (identified as Log No. 4); Telephone toll records for Moore for January, February, April, November and December 1984 and January 3 and 4, 1985; Reedy's telephone toll records for January-February, April-May and December, 1984 and January, March and April, 1985. Carol S. Lyons Grand Jury Transcript (Ex. Q) at 19-25: Ex. K ¶ 13; Ex. B ¶ 46.
63. REI turned over to the grand jury Moore's "Postal" Notebook. On its cover is the following: "80 Sheets 11" x 8 1/2" College Ruled." Inspectors reviewed the notebook and found it contained 44 sheets. Ex. B ¶ 47 and Ex. 1 thereto (Moore's "Postal" Notebook); Ex. K ¶ 13 Inspectors also found that it contained no dates for entries between January 6, 1986 and June 24, 1986. Ex. B ¶ 47.
64. Inspectors reviewed another of Moore's Moore's notebooks and found it contained an entry for January 27, 1987 as follows:
"A lot of homework; drive a wedge between people"
"(intimidate)",
"Answer I don't know, I really can't remember",
"Excitable".
"All kinds of scenarios",
"Ask same questions over and over",
"Don't relax", "Long interrogation, tough questions at end)",
"Possible subpoena".
Ex. B ¶ 48 & Ex. 11 thereto; Ex. K ¶ 14.
65. REI employees subsequently testified to the grand jury that Moore made comments to this effect in a staff meeting that day. Ex. B ¶ 49; Ex. K ¶ 14.
66. Prior to January 27, 1987, Inspector Hartman had made arrangements with REI's general counsel for Inspectors to interview REI employees in the week following January 27, 1987. Id.
67. REI competed in 1987 in a test of potential vendors' multiline OCR machines. Unisys Corporation teamed with REI after REI's October 1988 indictment submitted REI's machine and test results in an unsuccessful bid for a multiline OCR procurement contract. Unisys Corp. v. United States Postal Service, Civ. No. 89-331 LON (D. Del. 1989), Ex. S.
68. In rejecting Unisys' challenge to the contract award to ECA, the United States District Court for the District of Delaware concluded, among other things, that "[s]ince the REI machine performed so poorly in relation to the ECA machine in terms of total life cycle cost analysis, the record indicates that Unisys would have had to lower its original bid from $233.6 million to $3,805,585 in order to win the contract." Id. at 22.
69. Inspector Norman Robbins only role in respect of the investigation at issue in this case was to administer a polygraph examination to William Spartin. Robbins Decl. (Ex. X).
70. Inspector Robert Edwards worked on the investigation from mid-1985 to January 1987, and did not participate in any recommendation to prosecute Moore, Reedy or REI. Ex. D ¶¶ 3, 20.
71. Inspector Pierce McIntosh worked on the investigation from November 1985 to August 1987 and did not participate in any recommendation to prosecute Moore, Reedy or REI. McIntosh Decl. (Ex. Y) ¶¶ 2-3.
72. Inspector Michael Hartman worked on the investigation from November, 1985 through the trial of Moore, Reedy and REI. Inspector Hartman had no personal or professional stake in what kind of OCRs the Postal Service purchased, who they purchased them from, or how any procurement of OCRs might be structured. Ex. B ¶¶ 3,7.
73. Inspector Frank W. Kormann worked on the investigation from December 1985 through the trial of Moore, Reedy and REl. Inspector Kormann had no personal or professional stake in what kind of OCRs the Postal Service purchased, who they purchased them from, or how any procurement of OCRs might be structured. Ex. K ¶¶ 3,5.
74. No one instructed or suggested to the Inspectors working on the investigation that Moore be prosecuted to retaliate for his criticism of the Postal Service. Ex. B ¶ 7; Ex. K ¶ 5; Ex. Y ¶ 10; Ex. D ¶ 13.
75. AUSA Joseph B. Valder made the decision to use summaries of witness statements before the Grand jury. AUSA Valder had used this procedure in past cases. Valder Decl. (Ex. C) ¶ 10.
76. Inspectors working on the investigation drafted the summaries based on their interviews with the witness. The draft was reviewed for accuracy with the witness and his or her attorney prior to presentation to the grand jury. Id.
77. Before the grand jury, the summary statement was used as follows: the witness whose testimony was presented in this manner was summoned before the grand jury; was present during the reading of the summary to the grand jury; was asked read along; and was asked to vouch both that the summary was read correctly and that it was true and accurate. Mr.Valder asked any questions he had, and the grand jurors asked their questions. Id.
78. AUSA Valder provided excerpts of summary statements of certain witnesses and other material to Brian Gettings, an attorney representing William Spartin. Ex. C ¶ 13; Ex. B ¶ 64.
79. AUSA Valder provided the materials referred to in the foregoing paragraph at Mr. Gettings' request. Ex. C ¶ 13; Ex. B ¶ 64.
80. Mr. Gettings informed Mr. Valder that he needed the materials referred to above for the purpose of refreshing Mr. Spartin's recollection and assisting Mr. Spartin in fulfilling Mr. Spartin's obligations under his non-prosecution agreement with the United States. Ex. C ¶ 13; Ex. K ¶ 19.
81. AUSA Valder determined what materials would be provided to Mr. Gettings. Ex. C ¶ 13.
82. Postal Inspectors working on the OCR procurement investigation did not provide the excerpts of summary statements or other materials referred to in the foregoing paragraph to Mr. Gettings, or to Mr. Spartin. Ex. C ¶ 13; Ex. B ¶ 19.
83. Postal Inspectors working on the OCR procurement investigation did not provide transcripts of grand jury testimony to Mr. Gettings or to Mr. Spartin. Ex. C ¶ 13; Ex. B ¶ 19.
84. The meeting at which a copy of William Spartin's non-prosecution agreement was torn in half occurred in the United States Attorney's Office on October 24, 1986. Mr. Spartin was accompanied by his attorney, Brian Gettings.
85. The Postal Inspection Service administered a polygraph examination to William Spartin, which occurred on December 5, 1986. Ex. X ¶ 4.
86. The conclusion of the polygraph examination was that Spartin indicated no deception on the question of whether he told, or was present when anyone else told anyone at REI of the Voss payoffs. Id. ¶¶ 6, 8.
87. Inspectors Hartman and Kormann did not give former Postmaster General Paul Carlin a copy of a draft indictment to review. In late September, 1988, AUSA Valder asked Inspectors Hartman and Kormann to verify certain facts in a draft indictment that had been prepared. The Inspectors interviewed Mr. Carlin at his home on September 20, 1988. They had a copy of the draft indictment provided by Mr. Valder. They did not show it to Mr. Carlin. They did not identify the document to Mr. Carlin and they did not tell Mr. Carlin that it was a draft indictment. They did not tell Mr. Carlin that any indictment was being considered. The Inspectors interviewed Carlin, verified the accuracy of the factual matters in question and, departed. Ex. B ¶ 67; Ex. K ¶ 22.
87. In December, 1987, Inspector McIntosh received a phone call from former Postmaster General Carlin inquiring about the results of Inspectors' inquiry relating to a memorandum and a copy thereof authored by Deputy Postmaster General Strange. Ex. Y ¶ 8.
88. Carlin had been interviewed in this inquiry as had Ms. Strange, Albert Casey and John McKean. An Inspection Service laboratory analysis also was obtained in an effort to determine if the memorandum and copy thereof were prepared contemporaneously. Id.
89. Inspector McIntosh informed Carlin of the Inspection Service's conclusion that there was no evidence that the memorandum and copy had not been prepared contemporaneously. Id. ¶¶ 8-9.
Respectfully submitted,
STUART E. SCHIF'FER
Acting Assistant Attorney General
Civil Division
KENNETH WAINSTEIN
Acting United States Attorney
HELENE M. GOLDBERG
Director, Torts Branch,
Civil Division
ANDREA W. McCARTHY
Senior Trial Counsel
Torts Branch, Civil Division
/s/ RICHARD MONTAGUE
RICHARD MONTAGUE
DENNIS C. BARGHAAN, JR.
Trial Attorneys
Constitutional & Specialized Tort
Litigation Staff
Torts Branch, Civil Division
Department of Justice
Box 7146 Washington, D.C. 20044
(202) 616-4158
Attorneys for the Defendants
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civ. No. 92-2288 (NHJ)(AK)
[consolidated with Civ. No. 93-0324 (NHJ) (AK)]
WILLIAM G. MOORE, JR., ET AL., PLAINTIFFS
v.
JOSEPH B. VALDER, ET AL., DEFENDANTS
DECLARATION OF MICHAEL HARTMAN
Pursuant to 28 U.S.C. § 1746, I Michael Hartman hereby make the following unsworn declaration in support of the United States Postal Inspector Defendants' Motion for Summary Judgment.
1. I have personal knowledge of the following facts and if called as a witness could competently testify thereto.
2. I am employed by the United States Postal Inspection Service as a Postal Inspector. I have been continuously so employed since February, 1979. The Postal Inspection Service is responsible for safeguarding the integrity of the United States mails and the integrity of United States Postal Service systems, operations and property.
3. In November, 1985, I was assigned to an investigation relating to alleged irregularities with the Postal Service's efforts to procure automated mail processing equipment, in particular optical character reader (OCR) equipment.
4. The investigation into irregularities in OCR procurement led to guilty pleas and convictions of several persons. Most prominent among those to plead guilty was United States Postal Governor Peter E. Voss. In addition to Governor Voss, John Gnau and Michael Marcus also pled guilty to federal crimes. Mr. Gnau and Mr. Marcus were employed as consultants by Recognition Equipment, Incorporated ("REI") in an effort to obtain contracts for the production of multiline optical character reader ("OCR") machines. Depending upon how the Postal Service might structure its procurement, the contracts that REI sought were worth between $250,000,000 to $400,000,000. In addition to Mr. Gnau and Mr. Marcus, William Spartin was the president of Mr. Gnau's consulting firm, Gnau and Associates, Incorporated, "GAI". In April, 1986, Mr. Spartin entered into a non-prosecution agreement with the United States Attorney in which he agreed to provide truthful and complete information and testimony for the government.
5. Our investigation revealed that Mr. Gnau paid Mr. Voss kickbacks in exchange for Mr. Voss' efforts to help win OCR production contracts for REI. We learned that in addition to advocating actions that would aid REI, Governor Voss applied pressure to Postal Service management in effort to have them take steps favorable to REI. Voss also leaked internal confidential Postal Service information to GAI's Michael Marcus. Marcus told us that he used this information to provide memoranda, position papers and other written materials for Voss to use within the Postal Service to build support for actions favorable to REI. Marcus told us that on several occasions, Voss passed Marcus' work off within the Postal Service as Voss' own work product. Marcus also told us that REI vice president Robert Reedy and REI employee Frank Bray helped prepare some of these memoranda and position papers using internal and confidential Postal Service information leaked by Voss. Marcus also told us that he provided information leaked by Voss to REI. A review of Moore's Postal Notebook showed what appeared to be his notes regarding a closed meeting of the Board of Governors. A true and complete copy of Moore's Postal Notebook as received by us during the investigation is attached hereto as Exhibit 1.
6. As the result of our further investigation of these contents, I concluded, as did other Postal Inspectors who participated in the investigation, that Moore and REI vice president Robert Reedy knew about the Voss-Gnau kickback scheme and also participated in a scheme to corruptly influence Postal Service personnel decisions. Because Moore, Reedy and REI came to know of the scheme and continued to use the Gnau firm with such knowledge, I concluded that they joined in a conspiracy to defraud the United States.
7. The actions I took in relation to the investigation of the OCR procurement were taken solely in an effort to uncover the full extent of the criminal conspiracy and to bring to justice those, including Moore, Reedy and REI, whom I and other Inspectors believed knowingly participated in the conspiracy. At no time did I take any action for the purpose of punishing or retaliating against Moore, Reedy or REI for any criticism of Postal Service procurement decisions. At no time did anyone, from the Inspection Service or anywhere else in the Postal Service, suggest to me that Mr. Moore should be prosecuted for his criticism of the Postal Service. I had no personal or professional stake in what kind of OCRs the Postal Service purchased, who they purchased them from, or how any procurement of OCRs might be structured. I was interested in OCR procurement only to understand how the conspiracy we uncovered operated and how it might have corrupted the decision making process. Everything I did in relation to Mr. Moore and his company I did based on my understanding and analysis of the evidence we obtained and in a good faith effort to uncover the full extent of the criminal activity.
8. As the result of my work on the investigation, I learned that in July 1985, Deputy Postmaster General Jackie A. Strange approached the Chief Postal Inspector and alleged that she believed that Governor Peter E. Voss was acting improperly with respect to the Postal Service's procurement of OCR equipment. I learned that Ms. Strange had told the Chief Inspector of her belief that Governor Voss was exerting unusual and unwarranted pressure on her and other Postal Service officials with respect to OCR procurement. I also learned that Ms. Strange told the Chief Inspector that, although she had no proof, she tended to suspect that Voss had some personal interest in the OCR procurement. I understood these facts to be a basis on which the Inspection Service had first come to focus on OCR procurement as a potential subject for criminal investigation.
9. Sometime in the Fall, 1985, I became aware of an allegation of attempted contract splitting made against REI president William G. Moore, Jr. I also learned that the Postal Service had decided in approximately July, 1985 to acquire multi-line OCR machines as part of its program to automate mail sorting. I learned that prior to deciding to acquire multi-line OCR machines, the Postal Service had procured, and was taking steps to deploy, single-line OCR machines (in a procurement referred to as "Phase II"). I also learned that as a result of a management decision referred to as the "mid-course correction" Phase II machines were to be retrofitted to multiline capability (a procurement referred to as "Phase IIA"). I also learned that the Postal Service was undertaking a procurement for original equipment multiline systems, a procurement referred to as "Phase III."
10. The contract splitting allegation against Moore related to the procurement of Phase IIA retrofit kits for the single line OCR machines. I learned that the single line machines that were to be retrofitted were sold by Electrocom Automation ("ECA") of Arlington, Texas and employed technology licenced to ECA by AEG Telefunken, a West German concern. I also learned that both ECA and Recognition Equipment, Incorporated were competing to retrofit the ECA single line machine to multiline capability. I learned that a dispute had arisen between AEG and REI regarding the sharing of technical information that REI claimed to need in order to retrofit the ECA single line machine to multiline capability. I further learned that on October 17, 1985, representatives of AEG and REI had met to discuss the dispute and that the contract splitting allegation had arisen from this meeting.
11. When interviewed by Inspector Robert Edwards and me on November 7, 1985 about the contract splitting allegations, Dr. E. Leopold Dieck of Telefunken said that during the October 17, 1985 REI-AEG meeting, Moore made various statements that Dieck said clearly indicated to him Moore's desire that AEG and REI split the multiline OCR procurement so that ECA (AEG's licensee) would receive the Phase IIA contract to retrofit the ECA single line machine and REI would receive a contract to produce new original equipment multiline machines in the "Phase III" procurement. Dr. Diech also said that Moore referred to his (Moore's) political influence and that he could get the retrofit procurement killed if AEG did not go along. Dr. Diech also stated that Moore said that "he [Moore] spent $70 million on the USPS and never got a contract, but I'll be damned of I don't get this one." Dr. Diech said that he was sufficiently upset by Moore's comments that he reported them to the West German embassy.
12. On November 6 , 1985, Inspector Edwards and I also interviewed Dr. Kurt Scheidhauer of AEG regarding the contract splitting allegation against Moore and REI and the October 17, 1985 meeting between Diech and Scheidhauer of AEG and Moore, Reedy and Bray of REI. Dr. Scheidhauer was interviewed in part because of an exchange of correspondence between REI and AEG. AEG alleged in this correspondence that it was willing to provide the technical support REI needed, but that REI was not really interested in competing on the conversion program, and was attempting to discredit the Postal Service's intention of creating a competitive environment for both its Phase IIA and Phase III multiline programs. Scheidhauer's letter on behalf of AEG further stated that AEG's impressions were "straightened by Mr. Moore's ideas about splitting the multi line procurement between Electrocom (for the Conversion Program) and REI (for the Phase III Program)." Dr. Scheidhauer gave an account of the AEG- REI meeting similar to that provided by Dr. Diech.
13. On November 20 1985, Inspector Robert Edwards and I also interviewed REI's Moore, Reedy and Bray regarding AEG's contract splitting allegation. Moore denied the allegation and stated in essence that he was merely relating to the AEG officials what he (Moore) would do about OCR procurement if he were postmaster general. Moore indicated that he made his comments in response to a question from the AEG officials. Near the end of the interview, I asked Moore, Reedy and Bray if any of them had met or spoken, individually with a member of the Board of Governors. At the time, I asked this question because of the allegations that had been made by Deputy Postmaster General Strange with respect to Mr. Voss' behavior. We did not know at that time that Voss was accepting kickbacks from REI's consultant working on the OCR procurement. Reedy answered my question by saying no. Moore and Bray non-verbally indicated agreement with Reedy's response.
14. After conducting our interviews regarding the contract splitting allegation, Inspector Edwards and I had meetings in November, 1985 with Attorneys William Hardy and Allen Carver of the United States Department of Justice ("DOJ") Criminal Division. At that time, Mr. Hardy was the supervisor of the Fraud Section. Mr. Carver was a supervisor in the Public Integrity Section. Mr. Hardy met with us for over two hours. In our meetings, we shared with Mr. Hardy and Mr. Carver Deputy Postmaster General Strange's allegation about Voss and the MLOCR program. Both Mr. Hardy and Mr. Carver were positive and supportive regarding our investigative efforts. Neither Mr. Hardy nor Mr. Carver felt that there was direct evidence of a federal crime, but both advised us to continue our inquiry and low key gathering of information.
15. In our meeting, Mr. Hardy stated that in his opinion the possibility of payment of illegal gratuities would be a "forthcoming" line of inquiry and he advised that we should research financial statements and other evidence for possible payment of illegal gratuities. Mr. Carver advised that we should obtain and review financial statements and other data from the Office of Government Ethics or other appropriate source.
16. Mr. Hardy and Mr. Carver also advised that we should investigate the possibility of a false official statement in violation of 18 U.S.C. § 1001 by investigating REI's intention and capability of actually competing on the Phase IIA conversion program.
17. Mr. Hardy and Mr. Carver also advised that we should review and analyze comments, meetings, testimony, transcripts and other information to detect and establish a pattern of irregular, possibly unethical behavior and possible perjury regarding an Executive Order potentially relevant to the inquiry.
18. Mr. Hardy and Mr. Carver also advised us to examine postal contracting regulations for sole source procurement and their relevance to the multiline OCR procurement issue.
19. Mr. Hardy also advised us, in light of Jackie Strange's later comments retracting her allegations of possible personal interest on Voss' part, to have another discussion with her regarding the events prior to her testimony before any grand jury.
20. Immediately following our meeting with Mr. Hardy and Mr. Carver, Inspector Edwards drafted and we both reviewed and signed, a memorandum to the Chief Inspector advising him of our discussions with DOJ's Fraud and Public Integrity Sections and the advice they had given us. Based on our discussions with Mr. Hardy and Mr. Carver, we advised the Chief Inspector that "the approach we would be taking [to the investigation] points toward a conspiracy, mail fraud and ethics violations." We advised the Chief Inspector that based on our discussions with Hardy and Carver we should try to develop further evidence and that the matter appeared to require our full time attention. We also outlined other investigative steps to pursue. I have reviewed a copy of the memorandum we prepared for the Chief Inspector, and it truthfully and accurately reports our conversations with Mr. Hardy and Mr. Carver.
21. In our memorandum to the Chief Inspector, Inspector Edwards and I also outlined steps that we believed collectively would allow us to develop any potential case. Those steps included: going to Chicago to review Phase II OCR acceptance tests and to view the REI OCR machine then operating in the Chicago Post Office; creating a complete chronological document file on the OCR issue; creating a complete subject file on the OCR issue, including Congressional testimony, REl correspondence and other potentially relevant documents; and preparing a narrative brief of the salient points. Our interest in these matters at this early stage and throughout our investigation related solely to the need to investigate possible corruption in the Postal Service's procurement process and to ascertain the motives of those involved in the procurement issues under investigation. Our purpose was not to retaliate for anyone's First Amendment-protected activity
22. Inspector Edwards' and my meeting with Mr. Hardy and Mr. Carver occurred soon after I had been assigned to the investigation. The plan of action we developed in light of Mr. Hardy's and Mr. Carver's comments set in a very broad way the direction of our investigation. Consistent with Mr. Hardy's and Mr. Carver's suggestions, we looked for the possibility that someone at the Postal Service was being paid illegal gratuities. Also consistent with Mr. Hardy's and Mr. Carver's suggestions, we considered the possibility that REI was not competing in good faith in the Phase IIA OCR conversion procurement and might be illegally trying to undermine that procurement. That is why we began to investigate Moore and REI. We did not begin to investigate Moore and REI out of any hostility to Moore's public speech. By the time I became involved in the investigation the issue of whether to procure single line or multiline OCR equipment had been settled by Postmaster General Carlin in favor of multiline acquisition. My sole concern was to determine the full extent to which the decision making process had been corrupted.
23. Mr. Hardy's prediction that gratuities would be "'forthcoming" was correct. We eventually learned that Governor Voss was accepting illegal gratuities from John Gnau of Gnau and Associates, Incorporated ("GAI"), a consulting firm hired by REI to lobby the Postal Service in an effort to sell the REI multiline OCR machine. We also learned that GAI president William Spartin was bribing Governor Voss with airline tickets. In exchange for Voss' ordering and billing of travel tickets to an account Spartin controlled, Voss helped steer Postal Service executive recruiting contracts to Spartin's executive recruiting firm MSL International. We also learned from REI employee Frank Bray that REI President William Moore had devised a "marketing strategy" that was designed to undercut the competitive procurement of retrofit kits ("Phase IIA") and create a political climate conducive to REI's receiving a sole source contract for a complement of original equipment multiline OCR machines. In particular, Mr. Bray acknowledged that, at Mr. Moore's direction, REI had demanded more in the way of technical information from AEG than REI needed for the purpose of developing a retrofit kit. In my view, this later confirmation by Bray (who cooperated under an immunity agreement) tended to support the original AEG allegation against Moore. In light of our original conversations with Mr. Hardy and Mr. Carver, these developments, along with other evidence uncovered in the investigation, contributed to my overall sense that our investigation was necessary, justified, and on the right track.
24. We learned that Gnau paid Voss a kickback of money Gnau received from REI under his consulting contract with REI. In addition, Gnau, Voss, Marcus and Spartin agreed to split the proceeds of the one percent contingent fee REI had agreed to pay GAI in the event REI won an OCR production contract. We learned that the total value of potential OCR production contracts was between $250 and $400 million, meaning that Gnau, Voss, Spartin and Marcus would split somewhere between $2.5 and $4 million. As a result of the investigation, Voss pled guilty to federal crimes on May 30, 1986.
25. Although our successful apprehension of Voss, Gnau and Marcus was a major accomplishment for the Inspection Service and those of us who worked on the investigation, it was necessary for us to continue the investigation in order to determine who else, both in the Postal Service and outside, might have been involved in the scheme by which the Postal Service's decision making regarding automation and OCR procurement had been corrupted. Eventually, we concluded that Moore, Reedy and REI acquired sufficient knowledge of their consultants' actions as to be culpable as members of the conspiracy.
26. The investigation that began in mid-1985 and culminated in the indictment of Moore, Reedy and REI in October, 1988 involved hundreds of interviews, thousands of documents and the sifting and analysis of a huge amount of evidence. It is not possible in this context to outline all of the evidence that I felt supported our conclusion that Moore, Reedy and REI knowingly participated in the conspiracy to defraud. I will describe briefly some of the most significant evidence that led me to believe that Moore, Reedy and REI knowingly participated in the conspiracy that we had uncovered.
27. We learned in our investigation that REI had competed in the earlier Phase II single line OCR procurement, but lost to Electrocom. We learned that the Postal Service had announced Electrocom as the winner of the Phase II procurement in July, 1984. We also learned that because the Postal Service planned to procure single line OCRs (designed to read the last line of an address) in Phase II and to encourage large volume mailers to affix the nine digit zip code to individual mail pieces, the Postal Service planned not to revisit the question of whether to procure multiline OCRs (designed to read all three lines of an address), until 1987. Therefore, it appeared that REI had no immediate prospects of receiving significant Postal Service business. According to Moore's notes, REI planned in light of its failure to secure the Phase II contract, be getting out of the postal business. A true copy of Moore's notes received by us in the Investigation is attached hereto as Exhibit 2.
28. We learned that Governor Voss appeared to encourage Moore and REI about the prospects of USPS business. We learned from Voss' administrative assistant, Sharon Peterson, of a phone conversation in which Moore and Voss discussed Postal procurement. Ms. Peterson identified on a letter written by Moore her notes of the conversation between Moore and Voss which reflected statements such as "Making sure each governor has the letter in their hands;" "Already made moves to slow down;" "making point;" "taking heat;" "working for you." A true copy of Moore's letter to Voss bearing these notations and received by us in the investigation is attached hereto as Exhibit 3.
29. We also learned that on or around Labor Day, 1984, REI vice president Robert Reedy dined with Voss. During the dinner, Voss recommended that REI (who then was represented in Washington, D.C. by the well known consulting firm Hill & Knowlton) hire a new consultant, John Gnau of West Bloomfield Hills, Michigan. We learned that Voss followed up this recommendation with several phone calls urging that REI hire Gnau and GAI. Moore's notes, apparently of a telephone conversation with Voss on December 18, 1984, reflected the following: "Get John Knau [sic] involved have broad scale association with John-get together." A true copy of Moore's notes containing this entry and received by us in the investigation is attached hereto as Exhibit 4.
30. Ms. Peterson estimated that between September, 1984 and December, 1984, Voss made five to ten follow-up telephone calls relating to REI's hiring of GAI. I thought that Voss displayed an unusual level of interest for a Governor to take in whether a potential vendor hires a particular consultant. I also felt that it should have at least raised suspicion on the part of Moore, Reedy and REI as to Voss' motives in recommending Gnau. We also learned that when Reedy did not immediately act on Voss' recommendation of Gnau, Voss called Moore and told him that he had put Reedy in touch with a consultant but that nothing had happened. Moore acknowledged in an interview with Inspectors that he then raised the issue with Reedy and told him not to "drop the ball." A true copy of our Memorandum of Interview of Mr. Moore and accurately reflecting his statements during the interview is attached as Exhibit 5 hereto.
31. I also noticed when analyzing telephone activity among subjects of the investigation, at least 20 telephone calls between REI and Governor Voss' office between July, 1984 and December, 1984. After REI retained Gnau and GAI in early 1985, however, there was no evidence of further telephone contact between Governor Voss and anyone at REI. There were, however, virtually hundreds of calls between Reedy and the three main players in the GAI consulting firm, Gnau, Marcus and Spartin. That the telephone contact between REI and Voss suddenly ended right around the time REI acted on Voss' recommendation to hire GAI appeared to me to be strange and not a coincidence. If Moore, Reedy and REI viewed Voss as an "independent" Board of Governors ally on the OCR question, as Moore, Reedy, and REI later would claim, it made no sense that REI, Moore or Reedy never again made direct contact with that "independent" ally. The evidence regarding telephone activity, along with other evidence, led me to conclude that Moore, Reedy and REI became aware that once they had hired Gnau and GAI such direct contact with Voss no longer was necessary or advisable.
32. Other evidence also led us to believe that Moore, Reedy and REI understood their new consultants' true relationship with Voss. I learned that in an interview on April 8, 1986, Reedy lied to Inspector Edwards about Voss' referring him to Gnau. Reedy falsely told Inspector Edwards that he was introduced to Gnau at the 1984 Republican National Convention by Bob John Robison of Hill & Knowlton. In fact, Reedy obtained Gnau's name from Voss during their Labor Day, 1984 dinner. Reedy was forced to admit in a second interview, conducted on July, 25, 1986, that he lied to Inspector Edwards during the April 8, 1986 interview. Because in April, 1986 the Inspection Service was still investigating Voss' illegal activities, it would have been very helpful to have a truthful account from Mr. Reedy of how REI came to hire Gnau. In my experience as a fraud investigator, the reason people lie about key events in a transaction under investigation is that they have done something wrong and fear being caught. I could think of no other logical explanation why Reedy would lie to us about such an important fact. Reedy's lie was in my mind a significant fact indicating knowledge of the illegal action of Voss, Gnau, Marcus, and Spartin on REI's behalf.
33. When we learned that Reedy had lied to us about Voss' referral of Gnau, I concluded that Reedy also probably lied to Inspector Edwards and me when in our November, 20, 1985 interview of Moore, Reedy and Bray, I asked if any of the three had met with or spoken individually with a member of the Board of Governors and all three had indicated not. I also came to believe that Moore and Reedy were less than candid with us by not volunteering their extensive telephone contact with Governor Voss in 1984 and the level of interest Governor Voss showed in whether REI acted on his suggestion of hiring Gnau, I also concluded that Frank Bray was less than candid when he was interviewed in April, 1986. In response to the question of how REI came to hire Gnau, Bray answered in essence "through Reedy." Bray later acknowledged to us that Reedy had told him about Reedy's Labor Day, 1984 dinner with Voss and that Reedy did so prior to the beginning of our investigation. Bray also acknowledged that he had altered his travel records to disguise his contacts with William Spartin. Although Bray stated that he subsequently changed his records again to make them accurate, Bray's actions were another factor that made me doubt the honesty and integrity of REI management in its dealings with the Postal Service and with our investigation.
34. Other evidence indicated that Moore, Reedy and REI understood the illegal nature of Voss and Gnau's relationship regarding OCR procurement. GAI's Michael Marcus told us that on one occasion either Moore or Reedy remarked to Gnau and Marcus "[w]hy don't you get Peter Voss to order sole source?" Moore's notes contained an entry, dated April 29, 1985, that read: "'Consultant-wired (Peter Voss)." A true copy of Moore's April 29, 1985 notes are attached as Exhibit 6. Gnau reported to us conversations with Reedy in which Reedy asked in substance "what is your arrangement with Voss" and Gnau replied that "it was better" that Reedy not know. I viewed both Reedy's question, including its premise that there was "an arrangement" between Gnau and Voss and Gnau's answer as yet further proof that combined with all the other evidence indicated that Moore, Reedy and REI knew of the kickback arrangement. Gnau stated that on another occasion (in August, 1985) he negotiated a public relations contract with REI. In the course of the discussions over how much REI would pay GAI, Reedy said to Gnau in substance "I know you have people to take care of." Gnau stated to us that it was his impression that Reedy was referring to Voss. Gnau also told us that he instructed Reedy not to refer to Voss by name and instead to refer to Voss simply as "our friend" to which Reedy responded, according to Gnau, "I understand." Gnau also related to us that prior to a meeting with Postal Governors, including Voss, Gnau had informed Reedy that the other Governors did not need to know that Gnau and Voss knew each other.
35. We learned that in July, 1985, Postmaster General ("PMG") Paul Carlin had announced that the Postal Service would immediately implement the "mid-course" correction and begin to acquire multiline OCR read capability. Carlin later would tell us that he made this decision under pressure from the Board of Governors and that much of the pressure came from Governor Voss.
36. We learned that Postmaster General Carlin insisted that multiline read capability be acquired through competitive testing and procurement. We also learned that respected objective observers, including Comptroller General William Bowsher, endorsed Carlin's insistence upon competitive procurement of multiline acquisition. GAI's Michael Marcus reported to us that Voss and REI were dissatisfied with competitive procurement and wanted a sole source contract for REI. Governor Voss pressured Deputy Postmaster General Strange to authorize such a sole source contract. Marcus reported to us that discussions began among he, Gnau, Spartin, and REI officials about finding a way to replace Carlin, using Voss' and Spartin's influence within the Postal Service. One of Moore's "80/20" time management worksheets for October, 1985 and received by us in the investigation had under the heading "Problems" a notation in Moore's handwriting that read "Paul Carlin." A true copy of that document is attached hereto as Exhibit 7.
37. On January 6, 1986, Carlin was replaced by Albert V. Casey. Carlin had been PMG only one year, and there was speculation in the media and concern among Members of Congress that Carlin's termination was related to REI's efforts to obtain an OCR production contract. I and other Inspectors were aware of such reports and viewed the allegations as worthy of investigation. Attached as Exhibit 8 hereto is a true copy of a newspaper article, "Casey's postal appointment spurs interest in REl stock," Dallas Times Herald, Thursday, Jan. 9, 1986, we received during the investigation. Also attached as Exhibit 9 hereto is a transcript, DECISION OF THE BOARD OF GOVERNORS TO REPLACE POSTMASTER GENERAL, JOINT HEARING BEFORE THE SUBCOMMITTEE ON POSTAL OPERATIONS AND SERVICES AND THE SUBCOMMITTEE ON POSTAL PERSONNEL AND MODERNIZATION OF THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE OF THE HOUSE OF REPRESENTATIVES, 99th Congress, Second Session, February 5, 1986, which we received during the investigation.
38. We learned that with Voss' assistance William Spartin had received several executive recruiting contracts from the Postal Service. We also learned that William Spartin, the president of GAI, had an apparent conflict of interest in that he was awarded the contract to search for Carlin's replacement. Spartin told us that he decided that he would conceal his role in GAI from the Postal Service in order to continue to receive executive recruiting work from the Postal Service. He also acknowledged later attempting to cover up his GAI affiliation with a backdated letter of resignation from GAI.
39. We learned that Spartin obtained Albert Casey's name by calling Moore and that Moore agreed to make an introductory phone call to Casey on Spartin's behalf
40. Spartin later told us that after our investigation began, Moore agreed to a false cover story to the effect that Moore had called Spartin with PMG candidates, rather than Spartin calling Moore. John Gnau also told us of conversations with Moore in which Moore had said that he was uncomfortable with the cover story that he and Spartin had agreed upon. Michael Marcus also told us that he had a conversation with Spartin in which Spartin told Marcus that Gnau, Spartin, Moore and Reedy all had talked and agreed on a cover story. Marcus also told us that Spartin said that Gnau, Spartin, Moore and Reedy had purged their files and that Spartin recommended that Marcus do the same.
41. On July 26, 1985, we interviewed Moore regarding the events under investigation. Moore described Gnau as a "worker bee, not a name dropping type of guy." He told us that Spartin was a name dropper, and that he (Moore) was unsure of the role Spartin played. Moore stated to us, "[w]e kind of ignored him." Moore stated to us that when contacted about the PMG search he doubted at first whether Spartin was really conducting a search for a new Postmaster General. Moore explained that he did talk to Spartin and gave Spartin three names of PMG candidates. We were not satisfied with Moore's explanation. Moore's conduct in making an introductory telephone call to Albert Casey, a very prominent and well known business executive, whom Moore regarded very highly was not consistent with Moore's claim to doubt that Spartin was recruiting a new PMG. We did not understand why, if Moore really did not believe Spartin, Moore would bother someone as prominent as Mr. Casey with the matter. A true copy of our Memorandum of Interview that accurately sets forth Moore's statements in the interview is attached hereto as Exhibit 5.
42. We also had interviewed Moore's administrative assistant and secretaries regarding his office routine and how telephone calls were handled. Moore's