On May 13, 2016, former Assistant Chief of the Arizona Attorney General’s Office Dan Woods filed an affidavit with the Arizona Supreme Court, which will consider today a Writ of Mandamus filed by Arizona businessman Will Graven in an effort to compel Arizona Attorney General Mark Brnovich to present certain cases to an Arizona State Grand Jury. Former Assistant Chief Woods’ precise description of a years’ long investigation resulted in numerous indictments and plea agreements, but was allegedly cut short by Brnovich when it came time to indict powerful Arizona attorneys.
Woods, a former Federal Bureau of Investigation special agent and technical operations officer with the Central Intelligence Agency, with a stellar performance record, was summarily dismissed by the Attorney General’s office almost immediately after he presented evidence of alleged criminal conduct by Snell & Wilmer attorneys to higher-ups in the Attorney General’s Office.
The affidavit reads in part:
1. My name is Daniel Woods. I am 50 years old and I currently reside at [REDACTED]
2. I have information relevant to Will Graven’s February 26, 2016, petition for a writ of mandamus, which I believe is a matter before the Arizona Supreme Court.
3. I prepared this Affidavit entirely on my own and at my own initiative to correct several material omissions and factual misstatements made by Petitioner Will Graven and by Respondent’s counsel, Arizona Solicitor General John Lopez.
4. For approximately five years between January 3, 2011, and December 22, 2015, I worked as a special agent for the Special Investigations Section (SIS) in the Criminal Division of the Arizona Attorney General’s Office (AGO). One of my duties was to investigate major fraud (refer to Appendix A for an organizational chart of the people and components of the AGO referenced in this Affidavit).
5. Prior to working for the AGO, I had worked for the Phoenix Police Department as a sworn reserve police officer; the Federal Bureau of Investigation as a special agent; the Central Intelligence Agency as a technical operations officer; and as a deputy sheriff for the Maricopa County Sheriff’s Office. I have worked in various law enforcement and national security positions for the last 23 years. I also hold a Bachelor of Science degree in Computer Systems Engineering from Arizona State University, magna cum laude.
6. Prior to working for Attorney General Mark Brnovich, I had never been fired, asked to resign, or disciplined by any employer.
WILL GRAVEN’S ORIGINAL ALLEGATIONS
7. On November 3, 2011, Will Graven walked into the AGO to file a complaint. I was the “duty agent” that day so I met with Will Graven in the lobby of the AGO. 1 I did not know nor had I ever met Will Graven prior to this day.
8. During our first meeting, Will Graven told me he was the former owner and chief executive officer of several companies including but not limited to Arizona Building Systems (ABS), California Building Systems (CBS), and CBS Aviation Development (CBS Aviation). Despite the names of these companies, I later confirmed these companies were all based in Phoenix, Arizona, and were operated in large part using Arizona-based resources.
9. During our first meeting, Will Graven alleged that between 2005 and 2007, 8-10 of his previous employees conspired with each other and others and:
a. Committed multiple acts of fraud, forgery, theft, and computer tampering against Will Graven and his companies, which resulted in cash losses of several hundred thousand dollars, and consequential losses of tens of millions of dollars.
b. Formed competing companies, and then used ABS resources, personnel, and proprietary information to pursue ABS projects and leads worth tens of millions of dollars for their newly formed competing companies, all while continuing to work for Will Graven, collecting an ABS paycheck, and representing themselves to Will Graven as loyal ABS employees.
c. Undermined a large development project in Victorville, California, and then forged a contract that caused CBS Aviation to not receive a cash payment of approximately $8.5 million.
10. All of the above-described offenses could be more generally categorized by geography – Phoenix-related offenses and Victorville-related offenses. . 2
11. Will Graven also alleged that in approximately June 2007, as a result of the above described offenses, approximately 40 of his companies, which he valued at several hundred million dollars, all went out of business.
12. Some of Will Graven’s allegations were so far reaching and conspiratorial that I found them very difficult to believe. He alleged that his executive team “spied” on him, and that several prominent politicians and attorneys in both Arizona and California “withheld evidence,” “lied to judges,” and “committed fraud on the court.” These sorts of allegations of vast conspiracy and public corruption are typically a warning sign to any experienced investigator that the complainant may have lost touch with reality. However, as a sworn police officer, I was obligated to review Will Graven’s evidence before forming an opinion.
13. At the conclusion of our first meeting, I asked Will Graven for his email address. He replied, [REDACTED]. I commented on the coincidence that I too had an email address [REDACTED]. How and why Will Graven learned one of my personal email addresses will become relevant later in this Affidavit.
14. Within a few days of my first meeting with Will Graven, I summarized his allegations in an SIS “case open/close” document and submitted it to my supervisor for consideration. My supervisor at the time was Special Agent Supervisor Mike Edwards (refer to Appendices A and B).
15. It is my understanding that Mike Edwards reviewed the case open/close document with the SIS chief agent at the time, Andy Rubalcava. Together, Mike Edwards and Andy Rubalcava decided SIS would not open an investigation. I recall their reasoning was because Will Graven’s allegations would have taken a considerable amount of resources to investigate, which SIS lacked; the allegations were rather old, which would have hampered the collection of evidence; and at least some of his allegations were the subject of previous or ongoing civil lawsuits. At the time, I agreed with the decision (I remained skeptical that Will Graven’s allegations could possibly be true).
16. When I informed Will Graven that SIS was not going to open an investigation, he was disappointed, but he understood and reacted in a very reasonable manner. The fact that Will Graven was reasonable at this point will become relevant later in this Affidavit.
17. Over the next several months, Will Graven provided me with additional information. As I received the information, I added it to the SIS case open/close document and submitted it to Mike Edwards for re-consideration. Each time the decision was the same – SIS would not open an investigation.
18. As I reviewed the information from Will Graven, I started to change my opinion relative to his allegations. I started to believe his allegations might actually be true, so I started to advocate to Mike Edwards and Andy Rubalcava for SIS to open an investigation. I did not believe the allegations to be true or false – I only believed they might be true and warranted an investigation. Both Mike Edwards and Andy Rubalcava declined to open an investigation for the same reasons (see paragraph 15). I disagreed with the decision, but I believe their decision was rooted in a sincere effort to manage limited investigative resources within SIS and had nothing to do with the merits of Will Graven’s allegations. When I told Will Graven we would not be opening an investigation, he continued to react in a very reasonable manner.
19. In early June 2012, Will Graven called me and said he planned to contact Attorney General Tom Horne in an effort to convince SIS to open an investigation. This was not the first time someone had escalated to the Attorney General, so I simply wished Will Graven luck and expected to never hear from him again.
20. Within 30 minutes of the call from Will Graven, Attorney General Tom Horne walked into my office and asked about Will Graven’s allegations. At the time, I had never had a one-on-one conversation with Attorney General Horne, so his presence in my office was unexpected.
21. I provided Attorney General Horne with a summary of Will Graven’s allegations and added that I believed his allegations warranted a criminal investigation. Attorney General Horne directed me to brief two people about Will Graven’s allegations – then Chief of Fraud and Special Prosecutions Michael Benchoff and then Chief Counsel of the Criminal Division Andrew Pacheco.
22. Over the next few days, both Michael Benchoff and Andrew Pacheco stopped by my office, separately, and asked about Will Graven’s allegations. Each time, I provided them with the same summary I had provided to Attorney General Horne, and I advocated for SIS to open an investigation. I recall both Andy Rubalcava and Mike Edwards jokingly warning me by saying something like, “be careful what you wish for” because they knew the case would require significant effort and would likely move very slowly, if at all, in light of existing SIS caseloads.
23. On June 14, 2012, at AG Horne’s direction, SIS opened an investigation. This was the first of seven cases opened related to victim Will Graven (refer to Appendix C for a list of all cases). I recall when the first case was opened it was assigned to me, but I had little time to advance the investigation because of other higher priority cases, which was exactly what both Andy Rubalcava and Mike Edwards had predicted. By this time, I had developed a very high level of respect for both Andy Rubalcava and Mike Edwards for their insights derived from their years of experience. I sought their advice and counsel regularly with regard to investigative strategy.
24. Michael Benchoff assigned Assistant Attorney General (AAG) Joe Waters as the prosecutor for Will Graven’s cases. I asked specifically for AAG Waters because he was one of very few assistant attorneys general who had a technical background, and I knew that based upon Will Graven’s allegations, the first case would involve computer tampering charges, and a lot of the evidence would be found in emails recovered from ABS corporate computers.
25. AAG Waters and I met early in the investigation and discussed strategy. We agreed the best approach was to break the case into several smaller investigations, charge the suspects responsible for the Phoenix-related offenses, one or a few at a time, gain their cooperation, and then repeat this cycle until we had one or more insiders to corroborate the allegations related to the $8.5 million Victorville-related offenses. Charging suspects in this order was intentional and part of a multi-year strategy.
26. For approximately three months, I tried to advance Will Graven’s investigations but I was too busy on other higher-priority cases. As one example, for several months, Mike Edwards and I focused almost exclusively on the case involving Sheriff Paul Babeu and Jose Orozco.3
27. I recall at some point Will Graven’s investigations were assigned to SIS Special Agent Shawn Osborn, but he too was focused on other higher priority cases and could not advance the Will Graven-related investigations.
28. Will Graven had walked into the AGO in November 2011, the case was finally opened in June 2012, and at this point, three months later, SIS still had made little progress on the investigations. Will Graven remained patient and understanding.
29. At some point in mid-2012, I recall meeting with Will Graven in the parking lot of Chompies Deli near Chandler Fashion Center to collect from Will Graven several ABS servers, hard drives, computers, cell phones, and Blackberries. I intended to process these digital storage devices for ABS corporate emails and other evidence. The fact that Will Graven voluntarily provided me with all these digital storage devices will become important later in this Affidavit (that is, I did not obtain these items pursuant to a search warrant or other compulsory process – Will Graven provided them voluntarily to assist in the investigations).
30. In September 2012, SIS promoted me two layers of management to assistant chief agent. As the assistant chief, I oversaw all major fraud investigations, so I decided to give the Will Graven-related investigations a higher priority. I transferred the case from Special Agent Shawn Osborn back to me and started working nights and weekends to advance the investigations. I distinctly recall moving several ABS servers, hard drives, computers, cell phones, and Blackberries, between our offices, so that each could be processed.
31. In November 2012, Will Graven stopped returning my calls. I later learned he needed emergency double-bypass heart surgery. I recall he sent me a picture of himself recovering in the hospital. Will Graven remained patient and understanding despite his health issues and my lack of meaningful progress on his case (Will Graven will eventually become impatient with my lack of progress, so it’s important to understand just how much he tolerated and endured as a victim prior to becoming impatient).
32. For the next seven months, I conducted several interviews and analyzed tens of thousands of emails and other documentary evidence. The AGO continued to fill a lot of my workday with other tasks, so I tried to advance Will Graven’s investigations during nights and weekends. While I led all investigations related to Will Graven, several other SIS agents provided me with invaluable assistance.
OTHER AGO PERSONNEL WITH KNOWLEDGE
33. I recall working extensively with Special Agent James Connell, an SIS computer forensics expert, to process the digital storage devices and load hundreds of thousands of ABS emails into a system that enabled meaningful analysis (a tool called “lntella”). At my request, Special Agent Connell also created multiple instances of the lntella database so that Will Graven, witnesses, and suspects could also access separate copies of the emails to assist with analysis. Whenever a third-party discovered an email of interest, I could quickly re-discover the same email on my closed system. The fact that Will Graven had access to these emails, and the fact that he and others leveraged their access to facilitate analysis, will become relevant later in this Affidavit. It’s also important to reiterate that most of these emails were corporate emails found on the ABS -owned digital storage devices that Will Graven had voluntarily provided to me to advance the investigations (see paragraph 29).
34. I also continued to consult Mike Edwards frequently with regard to investigative strategy because I valued his 30+ years of experience. Consequently, Mike Edwards became fluent in almost all Will Graven-related cases.
35. For a short time in approximately 2012, SIS Special Agent Supervisor Meg Hinchey also served as a case agent on one Will Graven-related case (the unauthorized purchase of personal-use vehicles with ABS monies). Consequently, Meg Hinchey became fluent in the one investigation, but she left the AGO prior to its completion. After Meg Hinchey left the AGO, I opened the case to charge the offenses Meg Hinchey had investigated and then I expanded the case to include several additional offenses (refer to Appendix C).
36. Between approximately 2013 and 2015, Special Agent Lauren Burrow also served as a case agent on one Will Graven-related case, and as co-case agent on several other cases. Consequently, she became quite fluent in several Will Graven-related cases.
37. On July 8, 2013, one year and eight months after Will Graven had first walked into the AGO to file a complaint, the AGO charged the former ABS Director of Information Technology Greg Smolens with 18 felony counts (refer to Appendix D for a list of all suspects). He subsequently pleaded guilty to lesser charges and agreed to cooperate. The factual basis addendum to his plea agreement is consistent with the documentary evidence and corroborates many of Will Graven’s allegations. This is the first of five factual basis addenda to plea agreements that are both consistent with the documentary evidence and corroborate Will Graven’s allegations.
38. On December 23, 2013, the AGO charged former ABS Chief Financial Officer Doug Epley with five felony counts. He subsequently pleaded guilty to a lesser charge and agreed to cooperate. The factual basis addendum to his plea agreement is also consistent with the documentary evidence and corroborates many of Will Graven’s allegations. This is the second of five factual basis addenda to plea agreements that are both consistent with the documentary evidence and corroborate Will Graven’s allegations.
39. On April 28, 2014, the AGO charged six additional ABS executives with 30 felonies:
Thaddeus Sobarnia …. Senior Vice President of Operations (three felonies)
Michael Groh ……………………. Chief Financial Officer (CFO) (two felonies)
Deborah Dubree …………………………. Former owner of ABS (three felonies)
Pamela Johnson ……………………………………………… Controller (six felonies)
Mike Martin ……………………………………………………… President (11 felonies)
Daniel Esposito …………………………………….. General Counsel (five felonies)
a. Thaddeus Sobarnia later pleaded guilty to a lesser charge and was sentenced to probation and to pay additional restitution. He had already been ordered to pay about $180,000 in restitution due to a 2006 theft of about $180,000 from ABS, for which he pleaded guilty in 2007.
b. Michael Groh later pleaded guilty to a lesser charge and agreed to cooperate. The factual basis addendum to his plea agreement is also consistent with the documentary evidence and corroborates many of Will Graven’s allegations. This is the third of five factual basis addenda to plea agreements that are both consistent with the documentary evidence and corroborate Will Graven’s allegations.
c. Deborah Dubree pleaded guilty to a lesser charge and agreed to cooperate. The factual basis addendum to her plea agreement is also consistent with the documentary evidence and corroborates many of Will Graven’s allegations. This is the fourth of five factual basis addenda to plea agreements that are both consistent with the documentary evidence and corroborate Will Graven’s allegations.
d. At the time, Pamela Johnson, Mike Martin, and Daniel Esposito, planned to proceed to trial. I believe Pamela Johnson, Mike Martin, and Daniel Esposito continued to communicate with each other after they were each charged and had agreed to “stick together” in their defense of the criminal charges. I later felt badly for Pamela Johnson because I did not think she was as complicit as Mike Martin and Daniel Esposito, and I thought they were leading her astray. I believe she should receive probation for her actions, but if she went to trial, I she would likely be sentenced to prison.
e. Daniel Esposito was Will Graven’s personal attorney and inside corporate counsel for ABS and all other Will Graven companies. He was one of very few people who likely had the information needed for the State to corroborate almost all remaining offenses, including the $8.5 million Victorville-related offenses. Consequently, Daniel Esposito was at the top of my list of people from whom I sought cooperation. I even went to New Jersey when Daniel Esposito was first arrested in an effort to gain his cooperation; however, at the time of his arrest, when I presented him with an email he had sent in 2007 in which he expressed his intention to “rape and piledge [sic] the [ABS] office…” Daniel Esposito claimed the evidence was “fabricated” and refused to cooperate. By this time, I had proved, at least to myself, that the evidence could not have possibly been fabricated.
f. Mike Martin was hired as a senior vice president of operations but was later promoted to president of ABS. Like Daniel Esposito, Mike Martin held a leadership position at ABS that gave him insight and influence, so he too was someone from whom I sought cooperation.
40. While conducting the above-described investigations, I learned that Will Graven had filed 19 separate civil lawsuits against multiple parties in Arizona and California.
41. These lawsuits came up frequently during interviews. Suspects and witnesses told me, repeatedly, that Will Graven had been declared a vexatious litigant in California and had filed bankruptcy in bad faith.
42. Multiple parties also claimed that all of the AGO criminal allegations had already been the subject of one or more civil law suits, and that Will Graven had lost those civil law suits because his claims were baseless.
43. These allegations caused me to read every one of the 19 civil lawsuits in great detail to fully understand the origin, nature, scope, and disposition of each. After reviewing each of these lawsuits carefully, I determined at least one of the defendants committed perjury, and several of the defense attorneys withheld discovery and misled judges.
44. Every one of the 19 lawsuits was eventually dismissed, not based on the merits of Will Graven’s allegations, but for some technical or procedural reason. Will Graven represented himself most of the time and was no match for the experienced and too often unethical attorneys he faced during the civil proceedings. The fact that I read all 19 previous lawsuits and am fluent in the bogus reasons why Will Graven was deemed a vexatious litigant will become important later in this Affidavit.
CRIMINAL AND OTHER ALLEGATIONS AGAINST WILL GRAVEN
45. Many suspects made counteraccusations against Will Graven. They alleged that Will Graven “kited” checks, sent money to Mexico for illicit purposes (causing the bank to close all of Will Graven’s corporate and personal accounts), and used municipal bond monies for private jets and corporate suites instead of paying subcontractors.
a. Kiting checks: When I confronted Will Graven with these allegations, he admitted he sometimes wrote checks knowing there were insufficient funds, but he said he always asked the payee to hold the check until the funds were available (this was often corroborated by corporate emails). I confirmed there were a lot of bounced checks at ABS, but only a small number of the bounced checks were actually issued by Will Graven – many of the bounced checks were issued by Will Graven’s executive team using a rubber stamp of Will Graven’s signature.
b. Sending money to Mexico for illicit purposes: My investigation confirmed that Will Graven sent money to Mexico several times (both wire transfers and cash), but I could not find any evidence of misconduct (Will Graven was pursuing several large development projects in Mexico). I did, however, find evidence that Daniel Esposito engaged in money laundering, which contributed to the bank’s decision to close all of Will Graven’s corporate and personal accounts.
c. Misappropriation of bond monies: The City of Victorville, California, had issued approximately $100 million in bonds to raise money for the project at the center of the Victorville-related offenses. An independent audit of these bond monies, which was later conducted at the request of a San Bernardino County Grand Jury, indicated that $13 million given to Will Graven’s company, CBS Aviation, was “unaccounted for.” I obtained a copy of the audit and spoke with the person who led the audit (I do not recall his name). I did not find any evidence to support any criminal allegations against Will Graven. I did, however, find significant evidence that several officials from the City of Victorville, and others with whom they worked, engaged in criminal conduct. This evidence is described in detail in my investigative reports.
46. I never found any evidence to support any criminal allegations against Will Graven. Every person who made these sorts of allegations offered no evidence, and many later admitted the allegations were based entirely on rumors fueled by the ABS executive team’s disdain toward Will Graven (refer to the factual basis addenda to the plea agreements, which are public record).
DISCOVERY OF EVIDENCE RELATED TO SNELL & WILMER
47. In about April 2014, while conducting the above-described investigations, I discovered evidence that in December 2005, Deborah Dubree and Daniel Esposito had directed Snell & Wilmer to make changes to the ABS shareholders’ agreement, without Will Graven’s knowledge, in an effort to take control of ABS. This is very important – I discovered these allegations in April 2014, yet the AGO now claims these allegations were included in Will Graven’s 2011 civil lawsuit against Snell & Wilmer.
$45 MILLION SEIZURE WARR ANT
48. In May 2014, I prepared a $45 million seizure warrant affidavit that summarized many of the allegations against Deborah Dubree, Daniel Esposito, Mike Martin, Michael Groh, Pamela Johnson, Marc Stricker, and Scott Hesse (refer to Appendix D for a list of all suspects). Marc Stricker was the ABS vice president of development services, and Scott Hesse was the ABS director of development services. At the time of the seizure warrant, neither Marc Stricker nor Scott Hesse had been charged criminally, but the service of the seizure warrant put them on notice that criminal charges were likely pending.
49. The May 2014 seizure warrant affidavit also included the limited details I knew at the time related to Deborah Dubree and Daniel Esposito working with Snell & Wilmer, without Will Graven’s knowledge, to try to take control of ABS.
50. Prior to filing the May 2014 seizure warrant affidavit, which I knew would soon become a public record, I asked then Chief of the Criminal Division Andrew Pacheco if the AGO wanted me to replace references to “Snell & Wilmer” in the affidavit with something less specific, such as “a large Phoenix-area law firm.” Andrew Pacheco said he would check with the chief deputy at the time, Rick Bistrow, and then walked toward Rick Bistrow’s office. A short time later on the same day, Andrew Pacheco returned and told me the affidavit was fine “as is.” I recall admiring both Andrew Pacheco and Rick Bistrow for their willingness to take on Snell & Wilmer.
51. In May 2014, as a result of the $45 million seizure warrant, the AGO seized approximately $700,000 to $900,000 in cash and other assets from Deborah Dubree, Daniel Esposito, Mike Martin, Michael Groh, Pamela Johnson, Marc Stricker, and Scott Hesse. These assets would need to be forfeited and liquidated before the AGO could provide the funds to Will Graven (the fact that we seized these assets is very important).
52. By this time, Charles Loftus had also been promoted to assistant chief and managed the Financial Remedies Unit within SIS (among other responsibilities). I worked closely with Charles Loftus and many of his agents and analysts to execute the $45 million seizure warrant, so these agents and analysts may also have information relevant to Will Graven’s cases.
53. After being served with the $45 million seizure warrant, both Marc Stricker and Scott Hesse obtained legal counsel who proactively reached out to the AGO, which resulted in free talks and pre-indictment plea negotiations.
54. Scott Hesse later pleaded guilty to one class six felony and agreed to cooperate. The factual basis addendum to his plea agreement is consistent with the documentary evidence and corroborates many of Will Graven’s allegations. This is the fifth of five factual basis addenda to plea agreements that are both consistent with the documentary evidence and corroborate Will Graven’s allegations.
55. Scott Hesse also admitted that he lied to Will Graven during his sworn depositions, which were conducted pursuant to Will Graven’s previously filed civil lawsuits against Scott Hesse and his co-conspirators.
56. My investigation also confirmed that Scott Hesse’s defense attorney during the civil lawsuit, Paul Steen, who is now deceased, withheld from Will Graven evidence of his client’s criminal conduct (the fact that Paul Steen, who worked for Phoenix-area law firm Ryan Rapp & Underwood PLC, withheld evidence of criminal conduct, will become important later in this Affidavit).
57. To this point, evidence and testimony supported all of Will Graven’s “unbelievable” allegations of vast conspiracy and public corruption.
58. Marc Stricker also agreed to cooperate and participated in several free talks. He is one of very few people who had visibility into the $8.5 million Victorville-related offenses so he was near the top of my list of people from whom I sought cooperation. AAG Waters and I started working with Marc Stricker’s defense attorney, Timothy Eckstein, to start negotiating a pre-indictment plea and a sixth factual basis addendum. This is very important – Marc Stricker was going to provide a sixth factual basis addendum.
59. At this point, the AGO had indicted eight former ABS executes for 53 felonies, five of those executives had agreed to cooperate, and a tenth executive had agreed to cooperate and was negotiating a pre-indictment plea (Marc Stricker).
60. AAG Waters and I frequently discussed our optimism that our multi-year investigative strategy was working (see paragraph 25).
SNELL & WILMER INVESTIGATION
61. By September 2014, I had gained a much better understanding of the Snell & Wilmer-related scheme to give Deborah Dubree and Daniel Esposito control over ABS, but I needed access to Will Graven’s client files at Snell & Wilmer to complete my understanding.
62. In September 2014, AAG Waters issued a State Grand Jury subpoena to Snell & Wilmer and demanded copies of all internal client files related to Will Graven and his companies. AAG Waters included a waiver of privilege that I had asked Will Graven to sign.
63. Snell & Wilmer Attorney Lisa Coulter responded on behalf of Snell & Wilmer and said Snell & Wilmer could not provide the requested documents because Will Graven was not Snell & Wilmer’s client, and therefore, had no standing to waive privilege. My investigation confirmed this was a false statement, but I do not know if Lisa Coulter knew it was false or if she was simply misled by the other Snell & Wilmer attorneys who fully understood the true history, nature, and scope of Snell & Wilmer’s attorney-client relationship with Will Graven and his network of companies (refer to the Snell & Wilmer PowerPoint/video).
64. In November 2014, AAG Waters obtained a court order for Snell & Wilmer to provide the requested documents. Snell & Wilmer subsequently provided me with a CD that contained copies of Will Graven’s client files. I quickly found documents that I believe incriminate Snell & Wilmer Attorneys Jim Sienicki, Mark Ohre, and Bill Kastin in the scheme to give Deborah Dubree and Daniel Esposito control over ABS. I also noticed that several incriminating documents that should have been on the CD, were in fact, missing from the CD. When I tried to interview Jim Sienicki, Mark Ohre, and Bill Kastin, Snell & Wilmer declined the interviews and then retained criminal defense attorney Michael Piccarreta (refer to the Snell & Wilmer PowerPoint/video).
65. In about December 2014, I wrote an executive overview of the Snell & Wilmer related scheme and provided it to Andrew Pacheco and Rick Bistrow. Andrew Pacheco told me if I could prove the allegations as presented in the executive overview, then all five people should be charged, including the three Snell & Wilmer attorneys. I recall Andrew Pacheco also telling me he knew one of the Snell & Wilmer attorneys personally, I believe Mark Ohre, and that regardless of his personal relationship, if the allegations were true, everyone should be held accountable. I recall admiring Andrew Pacheco for this statement.
66. I also recall a meeting with Rick Bistrow during which he and I discussed the Snell & Wilmer executive overview. Like Andrew Pacheco, Rick Bistrow was unequivocal in his position that everyone involved should be charged no matter who they are or where they work. I recall admiring Rick Bistrow for his strong stance.
67. It’s important to point out that neither Andrew Pacheco nor Rick Bistrow were fluent in the allegations against the Snell & Wilmer attorneys at this point – their concurrence with charging the Snell & Wilmer attorneys was based entirely on my executive overview.
MARK BRNOVICH BECOMES ATTORNEY GENERAL
68. In January 2015, Attorney General Mark Brnovich was sworn into office. Within a short period of time, Mike Bailey replaced Rick Bistrow and became the chief deputy, Don Conrad replaced Andrew Pacheco and became the chief of the criminal division, and Paul Ahler replaced Mike Benchoff and became the chief of fraud and special prosecutions (refer to Appendices A and B).
69. In early 2015, I started writing a detailed report to document the Snell & Wilmer related scheme. I also started working on a PowerPoint to present and explain the evidence in a logical order.
70. By this time, I had created several PowerPoint presentations for complex cases that I had previously investigated. These cases include the Core Properties investigation, the Peter Workum investigation, and the Forsta Mediation investigation. The fact that I had a long history of using PowerPoint to convey details of complex investigations will become important later in this Affidavit.
71. By April 2015, AAG Waters and I had become fluent in the facts and evidence related to Snell & Wilmer and we both believed Deborah Dubree, Daniel Esposito, Jim Sienicki, Bill Kastin, and Mark Ohre, should all be charged with criminal fraud. I am not guessing with regard to AAG Waters’ opinion – he stated it directly to me multiple times.
72. My Snell & Wilmer report and PowerPoint presentation were nearly completed, so SIS Chief Agent Andy Rubalcava requested a meeting with Criminal Division Chief Don Conrad. AAG Waters and I wanted to brief him on our intentions to charge three Snell & Wilmer attorneys. We did not ordinarily request a meeting with the criminal division chief prior to charging a suspect, but we recognized that since we planned to charge three Snell & Wilmer attorneys, that such a meeting was warranted.
73. In April 2015, I met with Don Conrad, AAG Waters, and Andy Rubalcava, in Don Conrad’s office. Don Conrad had a printed copy of my executive overview in his hand. It was a short meeting, perhaps 15-20 minutes, during which Don Conrad expressed his full support for moving forward with charging all suspects, including the three Snell & Wilmer attorneys. He told AAG Waters and I to be prepared to present the case to Attorney General Brnovich and Chief Deputy Mike Bailey.
74. On April 22, 2015, as a result of Don Conrad’s approval, I completed an SIS case open/close document and submitted it to Andy Rubalcava. This was a formality so I could organize the evidence and submit the case for charging on only the Snell & Wilmer-related scheme. This document was initialed and approved by Don Conrad (this document is a public record; refer to Appendix E for a recommended request for records).
75. On April 28, 2015, as a result of Don Conrad’s approval, AAG Waters completed a Fraud and Special Prosecutions (FSP) case open document.
76. On April 30, 2015, I received a “screening memo” via my AGO email that screened AAG Waters’ supervisor, Paul Ahler, from all cases related to Will Graven (the screening memo is public record).
77. The fact that Paul Ahler was walled off from all cases related to Will Graven is very important. Don Conrad will later ignore the screening memo and allow Paul Ahler to participate in at least one meeting during which Will Graven and the Snell & Wilmer investigation will be openly discussed. During this same meeting, Paul Ahler will also make several statements demonstrating detailed knowledge about Will Graven – knowledge that goes well beyond that of someone who is purportedly “walled off” (refer to paragraph 152).
78. On May 6, 2015, Don Conrad signed and approved the FSP case open document (this document is public record).
79. At this point, Don Conrad was in full support of charging ABS General Counsel Daniel Esposito; Snell & Wilmer Attorneys Jim Sienicki, Mark Ohre, and Bill Kastin; and Snell & Wilmer, LLP. This is supported by Don Conrad’s signatures on both the SIS and FSP case open documents, which were completed after the investigation was completed and after AAG Waters and I had presented Don Conrad with a high level summary of the evidence and case facts.
80. At some point, Don Conrad asked AAG Ted Campagnolo to supervise the Snell & Wilmer prosecution (because Paul Ahler had been walled off).
81. Prior to the presentation, I sent both Don Conrad and Ted Campagnolo a copy of my draft report. The report was too large to send via email (the report by itself is only about 50 pages, but it includes a few thousand pages of exhibits) so I used the “AGO large file transfer utility” to send the report. This utility sent me an email notification whenever someone downloaded the report (I did not configure the utility to send me email notifications – this is just how the utility functions).
82. I recall being disappointed that Don Conrad never downloaded the report, and that Ted Campagnolo downloaded the report only a short time prior to the scheduled presentation to Attorney General Brnovich and Chief Deputy Mike Bailey. This told me that neither would be very familiar with what I believed to be a very complex set of facts prior to the presentation (I believe the logs for the AGO large file transfer utility are public record).
83. In early May 2015, Don Conrad arranged for AAG Waters and Ito present the Snell & Wilmer case to Attorney General Brnovich and Chief Deputy Mike Bailey.
84. A day or two before the scheduled presentation, Don Conrad told me he had canceled the presentation to Attorney General Brnovich and Chief Deputy Mike Bailey. Don Conrad told me, “You need to get through me first.” I recall talking with AAG Waters about how surprised we both were at Don Conrad’s sudden and unexplained change in position (which apparently occurred immediately after he asked Attorney General Brnovich to attend a presentation advocating for charging three Snell & Wilmer attorneys, and possibly the firm, with criminal fraud).
85. At some point, I heard (I don’t recall from whom) that Ted Campagnolo believed the entire case had already been the subject of a civil lawsuit, which Will Graven had lost. This is not correct – the criminal allegations have never been the subject of any civil lawsuit. I recall trying to quickly add the unrelated civil case to the PowerPoint to make this fact very clear; however, I was not able to finish adding it to the PowerPoint prior to the presentation.
86. On May 15, 2015, the day of the scheduled presentation, AAG Waters and I were in the executive conference room setting up the projector when Chief Deputy Mike Bailey walked into the conference room and politely asked what we were doing. I told Mike Bailey we were preparing to present the Snell & Wilmer case to Don Conrad. Mike Bailey looked surprised as if he had never heard anything about the Snell & Wilmer case.
87. Mike Bailey then asked me how long the presentation would take. I explained it was about two hours long, to which Mike Bailey asked something like, “I only have about 20 minutes. Is it worth staying?” I replied no, and said the presentation would not get interesting for about 45 minutes. Mike Bailey decided to stay and watch the first 20 minutes (Mike Bailey ended up staying for more than two hours).
88. A few minutes later, Don Conrad and Ted Campagnolo walked into the conference room. I recall that Don Conrad was visibly surprised by Mike Bailey’s presence.
89. For the next two hours, I presented the Snell & Wilmer case to Don Conrad, Mike Bailey, and Ted Campagnolo. Andy Rubalcava, AAG Waters, and Lauren Buhrow were also present. During the presentation, Don Conrad asked several questions consistent with a complete lack of understanding of the evidence. At the time, I blamed myself and thought I was doing a poor job presenting the slides.
90. Near the end of the presentation, Don Conrad said we should charge Daniel Esposito, but that we were “woefully short” in proving a case against the three Snell & Wilmer attorneys. At the time, I believed Don Conrad was woefully short of understanding the case facts, and his ignorant questions reinforced this belief, which I continued to believe was a result of my poor explanation of a very complex set of facts. Despite my now pejorative view of Don Conrad’s uninformed legal opinion, this meeting was not adversarial at the time – it was a respectful discussion of the case facts.
91. During the presentation, Don Conrad said multiple times that he believed Snell & Wilmer’s actions were just “attorneys being attorneys.” I recall saying if that were true, then the entire legal industry needed a reset. I added that in 2001, the actions of Arthur Andersen were likely described by many as just “accountants being accountants” until a U.S. Attorney had the courage to file criminal charges. I said Snell & Wilmer is today’s Arthur Andersen.
92. During the meeting, Mike Bailey respectfully challenged Don Conrad. On more than one occasion, Mike Bailey motioned his hand toward the screen and said, “We have to do something, Don. Isn’t there something criminal we could charge?” Don Conrad just kept his arms folded in front of him, nodded his head no, and repeated that we were “woefully short.” At the time, this confused me because it was clear that Don Conrad had formed an opinion without fully understanding the evidence.
93. At the end of the two-hour presentation, Don Conrad said he might reconsider his position after Daniel Esposito’s free talk, which AAG Waters and I were still trying to coordinate.
94. I told Will Graven that Don Conrad wanted to wait until after Daniel Esposito’s free talk before charging the Snell & Wilmer attorneys. Will Graven remained patient and understanding.
95. During the days and weeks after the meeting, AAG Waters and I spoke with several other prosecutors and SIS investigators. There was unanimous agreement that the Snell & Wilmer attorneys should also be charged. No one could explain why Don Conrad changed his opinion so suddenly, without any explanation, and apparently right after he had requested the meeting with AG Brnovich.
96. In June 2015, Andy Rubalcava retired. In the days just prior to leaving the AGO, Andy Rubalcava told me that Don Conrad had told him the AGO would never charge the Snell & Wilmer attorneys and that AAG Waters and I were “amateurs” for even considering it. I got the impression from Andy Rubalcava that he was only trying to protect me, so I would have realistic expectations relative to ever changing Don Conrad’s mind.
97. After Andy Rubalcava retired, I became the acting chief agent.
98. For the next few months, I tried to improve the quality of my Snell & Wilmer report and PowerPoint. I added several slides that fully explained the previous but unrelated civil lawsuit that Will Graven had filed against Snell & Wilmer. I was busy with other duties during most workdays so most of my work on Will Graven’s cases continued to take place during the evenings and weekends. The AGO access logs will confirm this (as will my wife and children).
99. Because of the complexity of Will Graven’s investigations, I frequently shared verbiage from draft reports with suspects, witnesses, and Will Graven, to solicit feedback on accuracy. I believe this was a worthwhile endeavor because on more than one occasion the feedback enabled me to write a clearer and more accurate report.
ESPOSITO CHARGED WITH THE SNELL & WILMER SCHEME
100. On August 3, 2015, the AGO charged Daniel Esposito and Mike Martin with12 additional felony counts each. One of the charges against Daniel Esposito was for his involvement in the Snell & Wilmer-related scheme to try to take over ABS. The fact the Daniel Esposito was charged with his involvement in the Snell & Wilmer related scheme is very important – charging Daniel Esposito is what caused all the evidence related to the entire Snell & Wilmer-related scheme to become publicly disclosable. If the AGO had never charged Daniel Esposito, I believe all the evidence would have remained sealed as confidential Grand Jury information.
101. Deborah Dubree was not charged because by this time she had pleaded guilty to a lesser charge and had agreed to cooperate (refer to paragraph 39c).
102. On August 27, 2015, more than a year after $700K to $900K in assets were seized for forfeiture in May 2014, the AGO provided Will Graven with an interim check for $137,356. This had taken the AGO so long to accomplish that we gave the check to Will Graven in a rather ceremonial fashion in the lobby of the AGO (5-7 AGO employees who had assisted in Will Graven’s cases met Will Graven in the lobby of the AGO and presented the check to Will Graven).
103. By this time, I noticed that a few AGO employees had started to grow impatient with Will Graven. Will Graven became a “squeaky wheel” because for several months he had been asking about when Daniel Esposito was coming in for a free talk, when Snell & Wilmer would be charged, and when he could expect another payment from the seized assets. A few AGO employees adopted the opinion that Will Graven should stop expecting so much, and instead, should be thankful that the AGO accomplished anything. The check we had just given to Will Graven was for more money than many of these AGO employees earn in two years, so their reaction was understandable, not appropriate, but understandable (this reaction is not unlike the comments made in the AGO’s response to Will Graven’s petition for a writ of mandamus, which are addressed later in this Affidavit).
104. In about September 2015, the AGO hired Mark Perkovich to replace Andy Rubalcava as chief agent. I had applied for the position but learned I was not the selected candidate when I saw Mark Perkovich in the SIS office completing some paperwork. I was disappointed that neither Don Conrad nor Mike Bailey notified me personally.
105. During the interview process for the chief agent position, I had told Mike Bailey and Don Conrad that if I was not the selected candidate that I would likely leave the AGO for a higher paying position; however, after meeting and getting to know Mark Perkovich, I decided to stay. Having changed jobs every few years for more than 20 years, I was looking forward to the stability and reward of working for SIS for another 15 years until I retired.
106. As I was organizing the Snell & Wilmer-related evidence and investigative reports for disclosure to Daniel Esposito’s defense attorney, I decided to narrate the PowerPoint because adding captions to each slide, as I typically did, would have taken way too long. I also wanted to improve my presentation of the slides. At the time, I still believed Don Conrad’s failure to understand the evidence was my fault.
107. I recall recording my presentation of the PowerPoint and then giving a copy of the audio file to several SIS interns to transcribe. I then reviewed and edited the transcript to improve my presentation, and then I re-recorded the presentation by reading the now improved transcript. Prior to finalizing the PowerPoint, I collaborated with Will Graven on its accuracy (see paragraph 99). I recall Will Graven correcting the way I first described how Daniel Esposito tricked him into signing the new engagement letters, so I re-recorded that section of the audio. The fact that I asked Will Graven and other witnesses and suspects to review draft version of complex reports will become very important later in this Affidavit.
108. I recall being very proud of the final product and was convinced, naively I now believe, that it would change Don Conrad’s mind. At the time, I thought Will Graven’s cases would be the highlight of my career. I had no idea the cases would soon cause me to be terminated.
109. I converted the finished PowerPoint into a video because for some reason the PowerPoint “show” kept restarting before it finished. I recall thinking a video would be better anyway because the person viewing it could pause, rewind, fast-forward, and repeat the presentation as needed.
110. AAG Waters and I had both been trying to get Daniel Esposito in for a free talk but had been unsuccessful. Both AAG Waters and I also hoped the PowerPoint/video might incentivize Daniel Esposito to finally come in for a free talk (AAG Waters and I both believed that Daniel Esposito was key to corroborating the $8.5 million Victorville-related offenses).
111. At around this time, the AGO received a public records request from Katie Connor at ABC15. Katie Connor had been following the Will Graven-related investigations for a few years so her request was not a surprise to me.
112. It is my understanding that AGO employee Bethany Diaz received the public records request from Katie Connor, emailed it to Don Conrad and his executive assistant, Lisa Rodriguez, who then forwarded the email to AAG Waters and me so we could prepare a response (all of these emails are public record).
113. I recall replying to AAG Waters, Don Conrad, and Lisa Rodriguez, that I wanted to delay our response until the reports were first provided to Daniel Esposito’s defense attorney. Don Conrad replied that he agreed and reminded us to make sure the reports were first properly redacted. The fact that Don Conrad was aware of the public records request, and approved the release of records after they were properly redacted, will become relevant later in this Affidavit (all these emails are public record).
114. When I finished the Snell & Wilmer PowerPoint/video, I felt a great sense of accomplishment. I believed any reasonable person who watched the entire PowerPoint/video carefully and objectively would come to the same conclusion – that Snell & Wilmer Attorneys Jim Sienicki, Bill Kastin, Mark Ohre, and possibly Lisa Coulter, should also be charged. I looked forward to sharing the new PowerPoint/video with Don Conrad and Mike Bailey (AAG Campagnolo had left the AGO by this time).
115. I also recall developing some concern surrounding the PowerPoint/video. I knew that Katie Connor would soon have a copy (pursuant to her public records request). I also knew that Will Graven had started to grow impatient with Don Conrad’s decision to not charge any of the Snell & Wilmer attorneys, and instead, to “wait until Daniel Esposito comes in for a free talk” (see paragraph 93). Will Graven started to believe this was just an excuse to do nothing (and according to Andy Rubalcava’s comment to me just before he retired, per paragraph 96, that AAG Waters and I were amateurs for even trying, I now believe Will Graven was right).
116. At around this time, I shared my concerns with the new SIS chief agent, Mark Perkovich, and asked him to ask Don Conrad to reconsider his decision on Snell & Wilmer (as the new chief agent, Mark Perkovich had weekly one-on-one meetings with Don Conrad). After his one-on-one, Mark Perkovich told me Don Conrad was dismissive of the request to reconsider the Snell & Wilmer case. In fact, Mark Perkovich told me that Don Conrad didn’t even let him finish the question relative to Snell & Wilmer – as Chief Perkovich was speaking, Don Conrad raised his hand, said he had already read the report and that his decision was “final.”
117. At this point, only Don Conrad and Ted Campagnolo had reviewed the Snell & Wilmer report. In reality, only Ted Campagnolo had actually downloaded the report, a short time before the May 15, 2015 presentation, yet Don Conrad’s decision was already “final.” This is very important in light of the AGO’s current claims that four attorneys, each with more than 15 years of experience, had decided there was not enough evidence to charge the Snell & Wilmer attorneys.
118. At around this time, the AGO director of media relations, Mia Garcia, came into my office. During our meeting, which lasted about 20 minutes, we discussed the Will Graven-related investigations in some detail. I was proud of what SIS and AAG Waters had accomplished over the previous four years and thought it was an accomplishment the Attorney General should showcase. I also expressed my concern that the AGO was not going to charge the Snell & Wilmer attorneys. I told her it was Don Conrad’s decision to which she replied something like, “He never wants to charge anything!”
119. I provided AAG Waters’ paralegal, Tanika Sherman, with copies of all investigative reports for all charged cases related to Will Graven, which included the Snell & Wilmer-related reports (because we had already charged Daniel Esposito with the Snell & Wilmer-related scheme). Tanika Sherman was going to redact, Bates stamp4, and burn all the files to DVDs.
120. I asked Tanika Sherman to make four additional copies of the DVDs. In addition to the set she was preparing for Daniel Esposito’s defense attorney, I also needed a set for Katie Connor (to be provided through Lisa Rodriguez and Bethany Diaz pursuant to a lawful public records request), one for Will Graven, one for the Securities and Exchange Commission (SEC), and one for the New Jersey State Bar (both the SEC and New Jersey State Bar had previously asked me for copies of all investigative files to advance their own independent investigations).
121. On or about November 12, 2015, Tanika Sherman gave me four sets of nine DVDs. I gave one set to Lisa Rodriguez (which she subsequently provided to Bethany Diaz to give to Katie Connor); I gave two sets to the SIS office administrator, Autumn Maya, and asked her to mail them to the SEC and New Jersey State Bar; and I gave one set to Will Graven.
122. When I provided Will Graven with the nine DVDs, I was not providing him with confidential information. The nine DVDs contained redacted copies of investigative reports for charged cases. Also, per paragraph 113, Don Conrad had approved the release of the same information to Katie Connor at ABC15 pursuant to her public records request. If ABC15 was entitled to the DVD’s, so too was the victim.
123. A few days later, Bethany Diaz said she found some social security numbers on the DVDs that should have been redacted. She was going to give the DVDs back to Tanika Sherman, but I saw her just outside my office door and offered to finish the redaction myself because I was familiar with the investigations, wrote most of the reports, and could find the social security numbers more easily (emails surrounding this topic are public record).
124. I immediately sent an email to my contacts at the SEC and New Jersey State Bar and let them know the DVDs they received (or were about to receive via U.S. mail) contained a few un-redacted social security numbers, and I asked that they treat the records accordingly. I also called Will Graven and told him he would need to exchange the nine DVDs I had given him for new ones (these emails and call data records are public record).
125. Within a few days, I finished redacting the files and gave them to Tanika Sherman so she could create new DVDs for distribution. A few days later, in mid-November 2015, the new DVDs were ready for distribution (it is my current understanding that the AGO has refused to provide copies of these DVDs to several people, who over the previous four months, have submitted lawful public records requests).
126. In late 2015, Mark Perkovich advocated for me to receive a raise, which I understand was approved by Don Conrad and Mike Bailey. I was optimistic about the future of SIS. At the time, I didn’t know I would soon be terminated.
WILL GRAVEN SENDS POWERPOINTNIDEO TO THE MEDIA
127. On or about November 16, 2015, at approximately 8:00 pm, Andrew Pacheco (who by this time had left the AGO) called and told me he received an envelope from Will Graven that contained a thumb drive and several pages of documents that accused Mark Brnovich, Don Conrad, and Paul Ahler of corruption in their handling of the Snell & Wilmer investigation. Andrew Pacheco also said he had reason to believe other people had received an identical envelope.
128. I immediately called and confronted Will Graven. He told me he was tired of waiting for the AGO to do the right thing so he sent a copy of the PowerPoint to 10-15 different media outlets and Arizona politicians. It had been eight years since Will Graven discovered the crimes committed against him, and almost four years since Will Graven had walked into the AGO to ask for help – while I don’t agree with what Will Graven did, I understand why he did it.
129. I immediately called Chief Agent Mark Perkovich and told him what had happened. I then created a 3-way call with Don Conrad and Mark Perkovich and explained again what had happened. Don Conrad asked if the PowerPoint that Will Graven had sent to the media was the same PowerPoint he had seen on May 15, 2015 (see paragraphs 86-93). I explained the differences (one check to Snell & Wilmer that Deborah Dubree had signed after she had purportedly left ABS, and a complete explanation of the previous civil lawsuit between Will Graven and Snell & Wilmer). Don Conrad didn’t seem to care. He said something like, “sometimes victims do irrational things” and that we would deal with it in the morning.
130. The next morning as I was driving to work, Mark Perkovich called and asked me to try to get a complete copy of whatever Will Graven sent to Andrew Pacheco.
131. I immediately called Andrew Pacheco and asked him for a copy. We agreed to meet right away at the Starbucks at McDowell and 7th Avenue, in Phoenix.
132. Approximately 20 minutes later, we met in the parking lot of Starbucks and walked in together. As we entered Starbucks, we were both surprised to see Attorney General Brnovich sitting at the first table to our left as we walked in the front door. Andrew Pacheco and Attorney General Brnovich exchanged some pleasantries and then Andrew Pacheco and I walked away to resume our meeting (this meeting at Starbucks will become relevant later in this Affidavit).
133. I recall finding it strange that Attorney General Brnovich didn’t talk to me at all; however, it is possible he didn’t recognize me as we had only met face-to-face a few times.
134. Andrew Pacheco gave me the envelope that he had received from Will Graven. It contained a thumb drive with the Snell & Wilmer PowerPoint/video and several printed screen captures from the PowerPoint/video. It also included a typed document that publicly accused Don Conrad, Paul Ahler, and Mark Brnovich of corruption in their handling of the Snell & Wilmer case.
135. After my short meeting with Andrew Pacheco, I went to the AGO and gave the envelope to Mark Perkovich who provided it to Don Conrad.
136. Between mid-November and December 18, 2015, Mike Bailey and Don Conrad avoided me, which was in stark contrast to the previous 10-12 months when they would say hello almost every time they walked by my office (multiple times per week).
137. While avoiding me, Don Conrad asked AAG Waters and Mark Perkovich, separately, why I created the PowerPoint. Don Conrad didn’t ask me. I found this strange – if Don Conrad wanted to know why I created the PowerPoint, I wondered why he didn’t just ask me directly.
138. I expressed to Mark Perkovich my disappointment with how Don Conrad and Mike Bailey were handling the situation with Will Graven. He encouraged me to be patient and not to worry. At one point, I asked Mark Perkovich if I was going to be terminated. He subsequently mentioned my concern to Don Conrad, and according to Mark Perkovich, Don Conrad said I did not need to worry about being terminated.
139. In late November 2015, AAG Waters told me that Don Conrad had arranged a three-hour meeting between Don Conrad, AAG Waters, and AAG Kim Ortiz (AAG Kim Ortiz worked for Don Conrad as a prosecutor in the Tucson office of the AGO). According to AAG Waters, the purpose of the meeting was to discuss the Snell & Wilmer-related investigation. I recall AAG Waters concluding that a three hour meeting could only mean that Don Conrad planned to have all three of them watch the roughly two hour and 50 minute Snell & Wilmer PowerPoint/video together. I also recall AAG Waters telling me he wanted to skip the meeting because he had already watched the PowerPoint/video, so watching it again would be a waste of his time.
140. Don Conrad waited to seek a second opinion on the merits of the Snell & Wilmer case until after he had already decided not to charge the Snell & Wilmer attorneys, after his negative opinion of the Snell & Wilmer case was well known throughout the Criminal Division, and after Will Graven had publicly accused him of gross misconduct. This was not an environment conducive to objective legal analysis. This is especially true if AAG Waters was correct in his assumption about the planned three-hour meeting with Don Conrad and Kim Ortiz (that Don Conrad planned to be present when both AAG Waters and AAG Ortiz watched the PowerPoint/video).
141. On December 2, 2015, more than 18 months after SIS seized $700K to $900K in assets for forfeiture in May 2014, the AGO provided Will Graven with a second interim check for $322,642, bringing the total amount paid to Will Graven pursuant to the $45 million seizure warrant to $459,998 (I recall the check was subsequently replaced with a wire transfer). Several AGO employees continued to express frustration with Will Graven and adopted the attitude that Will Graven “should be happy we did anything!” Several AGO employees continued to express frustration with Will Graven’s persistent demands for justice.
142. At this point, there were still approximately $1OOK in assets pending forfeiture. The fact that the AGO still had in its control seized assets worth approximately $100,000 pending forfeiture will become important later in this Affidavit.
143. At some point in December 2015, Marc Stricker’s defense attorney, Timothy Eckstein, sent me a copy of a draft factual basis addendum for Marc Stricker’s plea agreement. This was a document that had evolved over several months of free talks and negotiations during which Marc Stricker added his comments to a draft report now titled, “20150920 Background and Timeline of Will Graven’s Allegations.pdf.” In the latest version of Marc Stricker’s factual basis addendum, which was derived from his comments on the draft report and was stored on my AGO network drive, Marc Stricker admitted to knowing about the $8.5 million Victorville-related offenses. Based on Marc Stricker’s close personal relationship with both Daniel Esposito and Snell & Wilmer Attorney Mark Ohre, it is also likely that Marc Stricker had information relative to the Snell & Wilmer-related scheme.
144. I recall AAG Waters and I looking at the latest version of the factual basis addendum in disbelief – after four years of effort, someone had finally acknowledged the forgery that had caused CBS Aviation to lose $8.5 million (the documents in evidence proved the forgery, but no one had actually acknowledged the forgery until Marc Stricker). AAG Waters and I were very optimistic about the future of Will Graven’s cases – four years of effort was only days away from success. We were also optimistic that once finalized, Marc Stricker’s factual basis addendum would have applied considerable pressure on Daniel Esposito and Mike Martin to cooperate. This was consistent with the strategy AAG Waters and I had been executing for more than four years (see paragraph 25).
145. On Monday, December 14, 2015, Will Graven met with Mike Bailey, Don Conrad, Mark Perkovich, and AGO Director of Communications Ryan Anderson. According to Will Graven, during the meeting Mike Bailey asked why I created the PowerPoint/video. I recall wondering why Mike Bailey and Don Conrad were so interested in why I created the PowerPoint/video since I had a long history of creating PowerPoints. I also continued to question why Don Conrad and Mike Bailey asked AAG Waters (per paragraph 137), Mark Perkovich (per paragraph 137), and Will Graven why I created the PowerPoint/video, but Mike Bailey and Don Conrad still failed to ask me directly. I also wondered why they would meet with a victim of a case I was investigating and AAG Waters was prosecuting without including me or AAG Waters.
146. In early to mid-December 2015, AAG Waters and I finalized our negotiation with Scott Hesse’s defense attorney, Cynthia Kelley. We had agreed upon a factual basis addendum to Scott Hesse’s plea agreement, in which Scott Hesse admitted that his defense attorney at the time, Paul Steen, withheld evidence of criminal conduct during discovery. That is, Scott Hesse admitted to sending his defense attorney, Paul Steen, evidence of criminal conduct, and Paul Steen failed to provide the evidence to Will Graven.
147. Just days after reaching a verbal agreement with Cynthia Kelley, Attorney Chris Rapp, a named partner at Ryan, Rapp, & Underwood PLC, where Cynthia Kelley worked, asked for a teleconference with AAG Waters. I silently participated in the teleconference. Before he even introduced himself, Chris Rapp started the call by asking, “What the fuck is going on?” AAG Waters and I were both shocked by Chris Rapp’s vulgar language (for someone with whom we had no history). He went on to aggressively object to the contents of Scott Hesse’s factual basis addendum (this is the same factual basis addendum to which Scott Hesse and his defense attorney, Cynthia Hesse, had already agreed).
148. It was obvious to both me and AAG Waters that most of Chris Rapp’s objections were arbitrary and only intended to give him leverage in the one objection that mattered – that Attorney Paul Steen, who had previously worked for the same firm at which Chris Rapp was a named partner, had withheld from Will Graven evidence that Scott Hesse had engaged in criminal conduct. Predictably, Chris Rapp acquiesced on all of his arbitrary objections as soon as AAG Waters agreed to remove the one reference that mattered.
149. On the call, Chris Rapp directly stated he was concerned about the civil liability to which his firm would be exposed if this language was left in Scott Hesse’s factual basis addendum. I recall thinking that Chris Rapp was ignoring an obvious conflict – he was clearly representing the best interests of his firm, and not his firm’s client, Scott Hesse. In the end, AAG Waters agreed to remove the language to which Chris Rapp objected (the unnumbered paragraph near the bottom of page 7 of 9 of Scott Hesse’s factual basis addendum, which starts, “In 3/2008 …” was changed to remove the language that indicated Attorney Paul Steen had received evidence of criminal conduct).
150. On Friday, December 18, 2015, Scott Hesse pleaded guilty to one class six felony. The factual basis addendum to his plea agreement is consistent with the documentary evidence and corroborates many of Will Graven’s allegations (minus the language that Attorney Chris Rapp insisted that AAG Waters remove). This is the fifth of five factual basis addenda to plea agreements that are both consistent with the documentary evidence and corroborate Will Graven’s allegations (and a sixth factual basis addendum from Marc Stricker was only days away from being finalized).
151. On Friday December 18, 2015, the same day Scott Hesse had entered into his plea agreement, I was called into a meeting with Mark Perkovich, Mike Bailey, Paul Ahler, and Don Conrad. The meeting was in Mike Bailey’s office.
152. I thought the meeting was going to be a constructive conversation about how to handle Will Graven and the Snell & Wilmer case going forward, but instead, it was an ambush.
a. Don Conrad and Paul Ahler asked me 20-30 questions in a loud and accusatory tone. I got the impression that everyone at the meeting except Mark Perkovich believed I created the PowerPoint/video to “embarrass” and “get even” with Don Conrad because he refused to prosecute Snell & Wilmer; and because I was not the selected candidate for the chief agent position. When I objected and stated that I had a long history of creating PowerPoints for my cases, Don Conrad replied, “No, you don’t!” Don Conrad was simply wrong and the contents of my AGO network drive will prove this (see paragraph 70).
b. Don Conrad said I was “reckless and irresponsible” for providing Will Graven with a copy of the Snell & Wilmer PowerPoint/video (at this point, I don’t think Don Conrad had any idea that I had given Will Graven a copy of all investigative reports). I objected and said something like, “You mean it was OK for me to give a copy to ABC15 but not to Will Graven?” Don Conrad, yelled, “Yes!” I had no idea how to respond to such an unreasonable answer.
c. We talked openly about Will Graven and the allegations and evidence against Snell & Wilmer despite the fact that Paul Ahler had been walled off.
d. At one point, Paul Ahler asked me in a very sarcastic and loud tone, “Did you ever think to do a background on Will Graven!?” He added that Will Graven was a vexatious litigant in California, and that according to “an audit,” $13 million in bond monies were missing. As he made the allegation, Paul Ahler motioned his hands toward a hard copy of an audit that Don Conrad had brought with him to the meeting (per paragraph 45c, this is the same audit I found a few years earlier, which was prepared for the San Bernardino Grand Jury).
e. I remained confused by Paul Ahler’s active and aggressive presence in the meeting given that he had been walled off from all cases related to Will Graven. The fact that Paul Ahler knew that Will Graven had been declared a vexatious litigant, knew about the audit prepared for the San Bernardino County Grand Jury, and knew that $13 million was purportedly missing, is a violation of the screening memo.
f. I told Paul Ahler that not only was I aware of the audit and Will Graven being declared a vexatious litigant, but rather than drawing a conclusion based on this limited information, I had conducted a four year investigation – I said I had actually read the 19 lawsuits that led to Will Graven being declared a vexatious litigant; I had read the audit; I had spoken with the person who wrote it; I had interviewed more than a hundred people; I had read thousands of emails and other documents; and that my four year investigation supported an entirely different conclusion.
g. I told Don Conrad and Paul Ahler that they sounded like defense attorneys, not objective prosecutors, as they yelled at me and made ignorant accusations and claims. Don Conrad and Paul Ahler were not interested in hearing facts – they appeared only to be looking for information that would support their erroneous conclusions about Will Graven.
h. Because I am fluent in the allegations and evidence, I now believe the only place they could have reasonably learned about and obtained a copy of the audit is from Snell & Wilmer’s criminal defense attorney, Michael Piccarreta, (or some other defense attorney). Neither AAG Waters nor I were consulted about their communicating with anyone on our case. I was concerned that in their haste to discredit Will Graven, that they had already compromised the Will Graven-related investigations, which were only days away from significant success, so I asked from where they obtained the audit. After a few seconds of awkward silence, Don Conrad said I was there to answer questions, not ask them.
i. Throughout the meeting Don Conrad took copious handwritten notes. These notes should be pubic record, but based upon what I know now, I am not sure if his notes reflect what actually transpired during the meeting, or if they reflect what he wanted to transpire during the meeting. It is now clear to me that, at the time, all he and Paul Ahler cared about was locking me into precise details and then trying later to discredit me. They were not interested in facts or advancing justice.
j. At one point, Mike Bailey rhetorically said, “I’m not even sure the PowerPoint is discoverable since both you and Joe worked on it.” I quickly corrected Mike Bailey and said, “Joe didn’t work on the PowerPoint. I did it all myself like every other report I prepared.” I got the distinct impression that Don Conrad, Paul Ahler, and Mike Bailey, were trying to get me to say something, anything, that would allow them to categorize the PowerPoint/video as “confidential” and therefore not publicly releasable, and then they grew increasingly frustrated when nothing they tried worked.
k. Paul Ahler also yelled that I should have been managing the section (the special investigations section over which I had been acting chief prior to Mark Perkovich being hired) like he “directed me to do” rather than “spinning my wheels” on Will Graven’s cases (I never actually worked for Paul Ahler so he had no authority to direct me to do anything). I objected and reminded everyone that we had obtained more than 50 felony indictments on nine people.
l. Don Conrad sarcastically asked, “Anything more serious than a class six?” His question again demonstrated his ignorance – almost all of the charges were class two and class three felonies. He had no idea that AAG Waters and I were following a four-year strategy, that to date, had been very effective, and that we were only days away from our final goal of finding insiders on the $8.5 million Victorville-related offenses. Don Conrad and Paul Ahler were not interested in hearing about the successes – all they cared about was attacking me and discrediting Will Graven.
m. Paul Ahler also asked, “Why would you meet Andrew Pacheco at Starbucks?” It’s not clear to me under what authority Paul Ahler believed he was entitled to ask such a question, but in the spirit of cooperation, I provided the answer (see paragraphs 131-134). Nobody in the meeting responded. They just continued attacking Will Graven and aggressively challenging me with questions – why did you create the PowerPoint? Why did you give a copy to Will Graven? Did you ever communicate with Will Graven using your personal email address? Why did you give a copy of the PowerPoint to Will Graven? Did you ever think to do a background check on Will Graven? You know he’s a vexatious litigant in California?
n. At the end of the meeting, I told everyone I was sorry for the trouble I had caused and that it was not my intention. Everyone at the meeting was hired after AG Brnovich took office. None of them knew my true character, nor did they appear to care.
153. At approximately 8:00 p.m. on the same day of my interrogation, Don Conrad called me and placed me on administrative leave. This was the same day that AAG Waters and I had obtained a fifth confession relative to Will Graven’s allegations (and a sixth from Marc Stricker was a few days away).
154. I stayed up all night on the 18th replaying my interrogation wondering what I could have said or done differently to make them better understand. I thought about their questions and my answers. I now believe Don Conrad and Paul Ahler were only trying to lock me into precise details so they could later find minor inconsistencies, accuse me of lying, and terminate me.
155. After thinking about it, I now understand why Don Conrad was so focused on the PowerPoint/video – it exposes his poor judgment and uninformed decision not to prosecute the Snell & Wilmer attorneys. The PowerPoint (for anyone patient enough to watch the three-hour presentation) very publicly proves Don Conrad wrong, and Don Conrad’s ego caused him to make vengeful decisions that are contrary to justice.
156. One of the many questions I was asked during my interrogation was if I ever communicated with Will Graven using my personal email address. I have no idea why I was asked such a question, but I said no. The next morning, as I continued to replay the interrogation in my mind, I searched my personal email accounts to be sure. I found approximately 50 emails from Will Graven to one of my personal email accounts. Over the previous four years, Will Graven had sent me almost 2,000 emails, and only approximately 50 of the emails (less than 2.5%) were sent to my personal email address. This was not something to which I ever paid attention.
157. The fact that Will Graven had sent any emails to my personal email address confused me, so I asked Will Graven how he got my personal email address (because I did not recall providing it). He told me that when we first met on November 3, 2011, I asked him for his email address. When he told me [REDACTED] personal email address Will Graven said he remembered it (refer to paragraph 13).
158. I sent an email to Don Conrad, Mike Bailey, and Mark Perkovich and explained the honest mistake. Only Mark Perkovich replied, ”Thanks.” (All these emails are public record).
159. I later asked Will Graven why he sent so many emails to my personal email address (this was not something I ever noticed). He told me he recalled me making fun of the AGO work cell phones because they were old “flip-phones” not capable of a data connection, and he knew they could not receive emails, so he sometimes used my personal email address so the email would be forwarded to my cell. He said other times it was probably just auto-complete oversight.
160. I have since reviewed all emails from Will Graven to my personal email address and none of them are consistent with secret communication.
161. On December 21, 2015, Don Conrad called me and told me to report to the AGO on December 22 at 9:00 am. When I arrived, Don Conrad, AGO Director of Operations Leslie Welch, and Mark Perkovich, met me in the lobby and led me into the lobby conference room.
162. Don Conrad told me my services were no longer needed by the AGO and presented me with two letters – a resignation letter I could sign or a termination letter he would sign. I said I had no interest in resigning, so Don Conrad signed the termination letter and gave it to me.
163. Don Conrad also provided me with a document that threatened me with a class six felony if I disclosed “confidential information.” I have seen several termination letters during my time at the AGO and none of them included this language.
164. I surrendered my badge and AGO identification, and then a co-worker drove me home. The next day, two days before Christmas, AGO human resources called and asked me to return to the AGO to pick up all my personal belongings. This was a low point in my career. I had never been treated so poorly by any employer.
THE FUTURE OF WILL GRAVEN’S CASES
165. Because of the abrupt way I was forced to leave the AGO, I never had the opportunity to transition any of Will Graven’s cases to another case agent, nor did I have any time to capture the latest set of case facts in the case file.
166. I left incomplete documents on my AGO network drive and partially examined evidence secured in my office. For example, Deborah Dubree had given me a three-ring binder of original documents that she described as being critically important to her defense. I started my review of these documents but Don Conrad terminated me before I could finish. I read enough of the documents to conclude they warranted a complete and thorough examination; however, I am skeptical that such a review ever took place. No one at the AGO had the context required to even understand the documents.
167. I also had the draft factual basis addendum for Marc Stricker’s plea agreement on my AGO network drive. This is the document that had evolved over several months of discussions proxied by Marc Striker’s defense attorney, Timothy Eckstein. In the latest version of Marc Stricker’s draft factual basis addendum, Marc Stricker admitted to knowing about the $8.5 million Victorville-related offenses.
168. On December 27, 2015, I sent an email to Mark Perkovich and provided him with as much information as I could to help him transition Will Graven’s cases to another investigator:
a. I explained that the only person at the AGO who could possibly take over the Will Graven-related cases, with my assistance, was Mike Edwards (because I had consulted him regularly over the previous four years).
b. I offered to meet with anyone at the AGO as needed to explain the previous four years of investigative activity.
c. I described the evidence that was in my office and why it was important.
d. I explained that I was expecting to receive an email from Marc Stricker’s defense attorney that included a new factual basis addendum for Marc Stricker, and I explained how critically important it was for this email to be properly handled.
e. I explained that Daniel Esposito had agreed to come into the office for a free talk and that we were only waiting on his preferred travel schedule. I emphasized that Daniel Esposito’s free talk was perhaps the single most important interview of the four-year investigation.
f. I indicated if Don Conrad or Paul Ahler did anything to compromise Daniel Esposito’s free talk, that they should be both be charged with obstruction.
g. I indicated that I believed Don Conrad and Paul Ahler may have already compromised the investigation by communicating directly with Snell & Wilmer’s defense counsel, Michael Piccarreta, or other defense attorneys, without coordinating their communication with AAG Waters or me (I cannot think of any other reasonable explanation for how Don Conrad and Paul Ahler received a copy of the audit prepared for the San Bernardino County Grand Jury).
h. I closed the email by writing, “Please let me know what you need from me to make sure truth and justice prevails.”
169. Mark Perkovich never replied to the above email and no one from the AGO ever asked for my assistance in properly transitioning to anyone Marc Stricker’s draft factual basis addendum; Deborah Dubree’s evidence, which was under review; or any other facts related to Will Graven’s cases. The fact that the AGO would not take any steps to transition Will Graven’s cases to another investigator is beyond my comprehension.
170. On or about December 31, 2015, the AGO terminated Will Graven’s access to hundreds of thousands of ABS emails. These are among the same emails to which I provided Will Graven, suspects, and witnesses, with access so they could review, challenge, contradict, clarify, or confirm the State’s allegations. It is not clear to me why the AGO, at such a critical time in the investigation, unilaterally decided to terminate Will Graven’s access to these emails (see paragraph 29).
171. On January 5, 2016, I emailed Mark Perkovich and asked if the “TM form,” which is a form sent to Arizona Peace Officer Standards and Training (AZ-POST) whenever a peace officer separates from a law enforcement organization, would undermine my reputation and credibility (there is a check box to indicate whether or not the organization has any reason to believe the separating officer has questionable integrity). Mark Perkovich replied there was no plan on behalf of the AGO to place me on a Brady List5 and/or advise AZ-POST there is cause for review. I worry the AGO will change its position to retaliate against me if and when this Affidavit is made public. However, despite this risk, I cannot sit idly by and watch the AGO continue to victimize Will Graven.
172. Around this time, Lauren Buhrow completed an SIS case modification form to transfer her case related to Will Graven to Mike Edwards, which caused me to believe that Will Graven’s cases might be completed (the SIS case modification forms are public record).
173. On January 8, 2016, which was Don Conrad’s last day at the AGO before he retired, Don Conrad closed all of Will Graven’s remaining cases (refer to the bottom of Appendix C).
174. I believe closing Will Graven’s remaining cases when SIS had completed the entire investigation, or was 95% completed with the investigation, and only days away from gathering critical evidence and testimony from key suspects, was a gross injustice and was driven by a desire to “get even” with Will Graven for sending the PowerPoint/video to the media and accusing Mark Brnovich, Don Conrad, and Paul Ahler of corruption.
175. For four years, AAG Waters and I were enthusiastic and confident toward the Will Graven-related cases. There is no doubt in my mind that AAG Waters only signed the letters declining prosecution under pressure from Don Conrad and Paul Ahler.
176. The fact that Lauren Buhrow had completed a case modification form transferring her case to Mike Edwards, only to have the same case subsequently closed by Don Conrad, is consistent with Don Conrad or Paul Ahler injecting themselves into decisions that should have been made by Chief Agent Mark Perkovich.
177. On January 14, 2016, Daniel Esposito’s defense attorney filed a motion to redefine the victim of record from the individual, Will Graven, to the corporate entity, Arizona Building Systems. It is my understanding that the AGO did nothing to contest this motion.
178. This would have likely been the end of anything related to victim Will Graven, however …
WILL GRAVEN FILES NOTICE OF CLAIM
179. On January 19, 2016, Will Graven filed various motions in Maricopa County Superior Court requesting appointment of a special prosecutor and special investigator, and a temporary restraining order (TRO) against the AGO. He also filed a $1.9 billion notice of claim alleging various forms of public corruption and misconduct against the AGO.
REFERRAL TO MARICOPA COUNTY
180. On February 9, 2016, just after the AGO learned about Will Graven’s various motions, then and only then did the AGO decide to refer Will Graven’s now declined and closed cases to the Maricopa County Attorney’s Office (MCAO) for review.
181. On February 11, 2016, I sent an email to Bill Montgomery that made it clear the AGO was not capable of providing MCAO with all the information it needed to make a well-informed decision relative to Will Graven’s cases, and I offered to meet with him or his designate to provide the information the AGO lacked (this email is public record).
182. On February 21, 2016, the Arizona Daily Independent ran a comic that portrayed Attorney General Brnovich as a pawn. The comic provided a link to the PowerPoint/video I had created for the Snell & Wilmer scheme (I had previously learned from Will Graven that he uploaded the video to YouTube).
183. On or about February 23, 2016, MCAO declined to handle Will Graven’s cases “without a formal intake or review” because MCAO was “not the appropriate agency.”
184. On February 26, 2016, Will Graven filed a petition for a writ of mandamus with the Arizona Supreme Court in which he asked the Court to force the AGO to present the Snell & Wilmer matter to the State Grand Jury.
REFERRAL TO PINAL COUNTY
185. On February 26, 2016, the same day Will Graven filed his petition for a writ of mandamus, the AGO referred Will Graven’s now declined and closed cases to the Pinal County Attorney’s Office (PCAO). The AGO employee who notified me about the referral to PCAO told me it was a “rush” and that for some reason the AGO needed the referral done “immediately.” This was a Friday afternoon, and for some reason, the referral could not wait until Monday. An agent drove the referral from downtown Phoenix to PCAO on Friday late afternoon.
186. On or about February 28, 2016, Mike Edwards was demoted and transferred out of major fraud because the AGO believed he was the person who told me Will Graven’s cases were referred to MCAO (see paragraphs 180-183). The fact that the AGO would demote a highly competent and skilled special agent supervisor because it believed the agent provided me with publicly available information is a gross abuse of power. Special Agent Supervisor Mike Edwards is an uncovered employee – the AGO demoted him because they could, not because they had a valid reason.
187. On February 28, 2016, I sent an email to Pinal County Attorney Lando Voyles that made it clear the AGO was not capable of providing PCAO with all the information it needed to make a well-informed decision relative to Will Graven’s cases, and I offered to meet with him or his designate to provide the information the AGO lacked (this email is public record).
188. The next day, AGO Special Agent Lauren Buhrow was terminated because the AGO believed she was responsible for telling me the AGO referred Will Graven’s cases to PCAO. The fact that the AGO would actually terminate a career special agent because it suspected the agent provided me with publicly available information is a gross abuse of power. Special Agent Lauren Buhrow was an uncovered employee – the AGO terminated her because they could, not because they had a valid reason.
189. Between 2011 and 2015, the Will Graven-related investigations caused SIS investigators to collect approximately 1O terabytes of digital evidence, analyze several hundred thousand emails and other documents, execute multiple search and seizure warrants, and conduct what I believe is more than 100 interviews. The notion that these complex investigations could simply be “punted” to MCAO or PCAO is beyond reason. I believe the AGO was simply trying to close all cases related to Will Graven because he publicly accused Don Conrad, Paul Ahler, and Mark Brnovich of corruption.
190. On March 11, 2016, Will Graven forwarded to me an email he had received from Zora Manjencich, the new chief of Fraud and Special Prosecutions after Paul Ahler was promoted (refer to Appendix B). The email reads, in part, “There are no additional funds or payments to be made to you as a full distribution of the forfeiture account has occurred” (this email is public record).
191. I am certain at this point there were additional funds pending forfeiture and liquidation. A “full distribution of the forfeiture account” had not occurred, unless the AGO returned lawfully seized assets to one or more defendants.
WILL GRAVEN’S WRIT OF MANDAMUS
192. In April 2016, I carefully reviewed Will Graven’s February 26, 2016 petition for a writ of mandamus. I offer the following information to assist the Court in its understanding of the petition:
a. On page two, Will Graven claims that AAG Joe Waters was originally against charging Snell & Wilmer attorneys Jim Sienicki, Bill Kastin, and Mark Ohre, because they were simply “attorneys being attorneys.” I don’t believe this is true. At first, AAG Waters wasn’t sure we could prove the case beyond all reasonable doubt; however, after he read and understood the evidence, AAG Waters was 100% behind charging. I never heard him dismiss the allegations as “attorneys being attorneys.” I did, however, hear Don Conrad state this as a reason to not charge the Snell & Wilmer attorneys.
b. On page three, Will Graven claims that Attorney General Brnovich sought to remove Will Graven as the victim of the crimes I had investigated over the previous four years.
i. It is my understanding that on January 14, 2016, Daniel Esposito’s defense attorney filed a motion to change the victim of record from the individual Will Graven to the corporate entity Arizona Building Systems, and that the AGO did nothing to contest the motion.
ii. AAG Waters and I believed it was in the spirit of justice to consider Will Graven the victim (which is why he was the victim of record for all of our cases).
iii. Most of Will Graven’s 40+ companies were small with very few employees and only one or two shareholders (at most) and Will Graven owned either 90.1% or 100% of each company (and the only other shareholder, Deborah Dubree, was in fact charged with criminal offenses and subsequently pleaded guilty). These were not large companies with dozens of shareholders where the distinction between the corporate entity and the individual owners is more clear.
iv. In many cases, the Snell & Wilmer case for example, Will Graven is the victim regardless of the line between the corporate entity and individual owners – Daniel Esposito and Deborah Dubree conspired with Jim Sienicki, Bill Kastin, and Mark Ohre, in an effort to give Daniel Esposito and Deborah Dubree control of ABS (that is, to take control away from Will Graven). Given these allegations, I cannot imagine a scenario where ABS or any other corporate entity could possibly be the victim.
v. I believe changing the victim of record from Will Graven to the corporate entity, ABS, would have had profound implications (had the AGO not abandoned its claim on the remaining seized assets). The proceeds from the remaining seized assets would have gone to ABS, not Will Graven; and since ABS was dissolved, the proceeds would have instead gone to a State-appointed receiver and would have been distributed to ABS creditors.
vi. My investigation confirmed that Snell & Wilmer believes ABS still owes it a few hundred thousand dollars for the “legal services” it had provided to Will Graven, so Snell & Wilmer could have made a claim against the seized proceeds. I believe this would be contrary to justice.
c. On page eight, Will Graven claims that AAG Waters “guaranteed a successful prosecution.” I am not aware of anyone at the AGO who ever guaranteed Will Graven a successful prosecution. I also know AAG Waters quite well and I am skeptical that he would ever make such a claim. AAG Waters told me multiple times that he believed the Snell & Wilmer attorneys should be charged criminally, and that if he could present the case to a jury, he believed the State would be successful.
THE AGO RESPONSE
193. In April 2016, I carefully reviewed the AGO’s response to Will Graven’s petition for a writ of mandamus. I offer the following information to assist the Court in its understanding of the response:
a. On page seven, the AGO states that Will Graven is asking the Court to order the AGO to prosecute the Snell & Wilmer attorneys criminally for the “same claims” that Will Graven had made in his previous civil lawsuit against Snell & Wilmer. This is factually incorrect. Since May 2015, I have grown increasingly frustrated with multiple AGO officials making this same spurious claim. I corrected Don Conrad on multiple occasions, I presented facts in both my written reports and PowerPoint/video that clearly disprove these claims, yet the AGO continues to repeat them. Will Graven’s previous civil lawsuit has nothing to do with the current criminal allegations.
b. On page seven, the AGO claims that after the trial court gave Will Graven time to amend his claims against the Snell & Wilmer attorneys (in his previous civil lawsuit), that Will Graven failed to do so. While this is true, the AGO omitted material information – Snell & Wilmer refused to provide Will Graven with copies of his own client files and claimed, incorrectly, that Will Graven was not Snell & Wilmer’s client. This is why Will Graven failed to amend his previous civil claims. This fact would be clear to any reasonable and objective person who read my investigative reports or watched the Snell & Wilmer PowerPoint/video.
c. On page seven, the AGO claims it “could not do everything [Will Graven] wanted.” This is factually incorrect. The AGO could have done everything Will Graven wanted, but instead, Don Conrad chose to close the remaining cases under the pretense of “prosecutorial discretion.” I believe the reason Don Conrad really closed Will Graven’s cases is because Will Graven publicly accused him, AG Brnovich, and Paul Ahler of misconduct. I believe Don Conrad and Paul Ahler used their power and influence as public officials to retaliate against Will Graven (and against me, Mike Edwards, and Lauren Buhrow). There is no other reasonable explanation given the timing for Don Conrad’s decisions – the AGO closed all of Will Graven’s remaining cases, which had significant momentum and were only days away from considerable success, just after Will Graven publicly accused Don Conrad and Paul Ahler of misconduct, and then the AGO terminated me, demoted Mike Edwards, terminated Lauren Buhrow, and abandoned its claim on the remaining assets that had been seized and were pending forfeiture.
d. On page eight, the AGO claims it declined to prosecute the three Snell & Wilmer attorneys because “after [emphasis added] redundant review by [four] career prosecutors, the office determined that it did not possess sufficient evidence of criminal misconduct to create a reasonable likelihood of conviction.” While the AGO does not name the four career prosecutors, I know them to be Don Conrad, Mike Bailey, Ted Campagnolo, and Kim Ortiz.
i. Don Conrad was actually in favor of criminal prosecution when AAG Waters and I first briefed him in his office in April 2015 (see paragraphs 72-79). He only changed his mind immediately after he tried to arrange the presentation to Attorney General Brnovich (see paragraphs 83-84). Then during the May 15, 2015 presentation, Don Conrad asked several questions consistent with a complete lack of understanding of the case facts (per paragraphs 81-82, he had not even downloaded the report prior to the presentation) then claimed we were “woefully short” of proving our case. At the time, I blamed myself and believed I did a poor job presenting the case facts (which is why I later created the narrated PowerPoint/video); however, now, based on everything I know, I believe that immediately after Attorney General Brnovich learned about the Snell & Wilmer case, Don Conrad changed his mind and declined prosecution, and then when Will Graven released my PowerPoint/video, which reveals to any reasonable and objective person Don Conrad’s abuse of “prosecutorial discretion,” Don Conrad terminated me.
ii. Ted Campagnolo is a very experienced and well-respected prosecutor with whom I have worked several times. With only a few days’ notice (because Paul Ahler had ostensibly been walled off), Don Conrad directed AAG Campagnolo to attend the May 15, 2015 presentation. Per paragraphs 81-82, Ted Campagnolo downloaded the Snell & Wilmer report prior to the presentation, and while I believe he sincerely attempted to read and understand the entire report prior to the presentation, Don Conrad did not give AAG Campagnolo enough time (the report is approximately 50 pages long and has several thousand pages of exhibits). Ted Campagnolo left the AGO a month later in June 2015 to become a Maricopa County Superior Court judge. For the AGO to include the Honorable Judge Campagnolo as someone who reviewed the case facts and rendered a well-informed opinion is highly suspect.
iii. Mike Bailey attended the May 15, 2015 presentation and at least twice said something like, “Don, we have to do something. Isn’t there something criminal we could charge?” Mike Bailey appeared to be genuinely offended by Snell & Wilmer’s actions but he deferred to Don Conrad on a final decision. For the AGO to include Mike Bailey (a political appointee of AG Brnovich) as someone who reviewed all the case facts and rendered a well-informed opinion is also highly suspect.
iv. Kim Ortiz is a prosecutor in Tucson. Per paragraph 139, Don Conrad did not solicit her opinion until after Don Conrad had formed his own uninformed opinion of the Snell & Wilmer case; until after Don Conrad had made his negative opinion of the Snell & Wilmer case well known throughout the AGO Criminal Division; and until after Will Graven had already accused Don Conrad, Paul Ahler, and AG Brnovich of gross misconduct. I would not typically question Kim Ortiz’s legal opinion as I have the utmost respect for her; however, I don’t believe Don Conrad fostered an environment that permitted Kim Ortiz to be objective in her review of the case facts. In addition to being a competent prosecutor, I believe Kim Ortiz is also a very loyal AGO employee.
I personally know several prosecutors at the AGO, including the one and only prosecutor who was familiar with the case facts and evidence, AAG Waters, who wanted to prosecute the Snell & Wilmer attorneys. I will not identify the other attorneys by name because to date several other people who voiced their support for prosecuting Snell & Wilmer have been terminated or demoted. The fact that the AGO would count only those attorneys who purportedly supported Don Conrad’s uninformed decision to not prosecute is a material omission. The AGO should identify by name any attorney willing to provide a legal opinion, in writing, on the merits of the case against the Snell & Wilmer attorneys. If an attorney is not willing to go on the record, then his/her opinion should not be considered. In my opinion, this is the difference between a difficult decision and a decision where the obvious choice is a difficult one.
e. On page eight, the AGO claims that Will Graven’s petition is “replete with erroneous factual assertions, meritless allegations of corruption and retaliation, conclusory legal statements, and speculation concerning the investigation and deliberative process.” I believe Will Graven’s petition is poorly constructed, redundant, and often confusing, and he sometimes makes claims he cannot prove; however, I believe the AGO is exploiting Will Graven’s lack of legal expertise to distract the Court from the facts – from 2005 to 2007, Will Graven was the victim of multiple complex crimes and lost millions of dollars; between 2007 to 2014, Will Graven was outmaneuvered by ethically challenged government officials and attorneys from multiple law firms in California and Arizona (this is well-documented in my investigative reports); and now, Will Graven continues to be victimized by the very people at the AGO who are empowered with protecting him. I believe these are facts that would be evident to any reasonable and objective person who took the time to read and understand my investigative reports.
f. On page eight, the AGO claims that Will Graven is asking the Court to “Place itself in the shoes of the prosecutor, review voluminous evidence, second guess the AGO’s prosecutorial judgment, and order the AGO to prosecute the three attorneys from Snell & Wilmer.” The prosecutor was Assistant Attorney General Joe Waters. AAG Waters is a very competent prosecutor, who unlike Don Conrad, actually read my investigative reports and understood the evidence and case facts. AAG Waters wanted to prosecute all the remaining cases, including Snell & Wilmer. He told me this multiple times. The only reason Will Graven is now asking the Arizona Supreme Court to “place itself in the shoes of the prosecutor” is because Attorney General Brnovich is simply not filling those shoes.
g. On page 11, the AGO rhetorically asks the question, “Did the Attorney General abuse his discretion when he conducted a multi-year investigation resulting in felony charges against nine defendants and nearly $500,000 in restitution for [Will Graven], but declined to pursue additional charges against three other individuals after concluding that the evidence did not support the charges, especially where he subsequently referred the case to a County Attorney for a separate independent review?”
i. It was actually former Attorney General Tom Horne who authorized the multi-year investigation resulting in felony charges against nine defendants and nearly $500,000 in restitution for Will Graven. After Attorney General Brnovich took office, no one in his administration showed any interest in Will Graven’s cases until after Wil l Graven publicly accused Mark Brnovich, Don Conrad, and Paul Ahler of gross misconduct. Then and only then did the new administration show any interest in Will Graven’s cases; however, instead of taking steps to advance the investigations, the new administration closed all remaining cases, which after four years of investigation were days away from significant success; allowed defense to assert Will Graven was not the victim of record; and then abandoned the State’s claim on the remaining assets that had already been seized and were pending forfeiture. Attorney General Brnovich did all of this all under the pretense of “prosecutorial discretion.”
ii. Attorney General Brnovich did not seek independent review from a county attorney until after Will Graven filed his notice of claim on January 19, 2016. It is disingenuous for the AGO to now claim that its referral to a county attorney on or about February 11, 2016, is somehow a defense to the allegations Will Graven made on January 19, 2016 – it’s not a defense, it was a reaction. While the AGO is quick to be critical of Will Graven’s notice of claim, writing it was filled with allegations of “scandal and corruption,” it was, in fact, Will Graven’s notice of claim that forced the AGO to resurrect Will Graven’s cases and refer them to MCAO. Unfortunately, the MCAO declined the cases because it was “not the appropriate agency.”
iii. After MCAO declined to accept the cases, the AGO again did nothing until Will Graven filed his petition for a writ of mandamus. Then and only then did the AGO “rush” to refer Will Graven’s cases to PCAO.
iv. It appears based on the above track record, that AG Brnovich will not do his job unless he is forced to do his job.
h. On page 12, the AGO claims “[Will Graven] insinuates that the current AGO Criminal Division Chief, Paul Ahler, was involved in the decision to decline charges against the Snell and Wilmer attorneys …. Petitioner is mistaken. First, Ahler was not the Criminal Division Chief when the AGO declined charges against the Snell and Wilmer attorneys. Second, because Ahler’s son is employed with Snell and Wilmer (and even though his son is not implicated in this case), the AGO screened Ahler from involvement in the investigation.” I can confirm that, on paper, Paul Ahler was screened from the investigation (see paragraphs 76-77); however, I can also unequivocally confirm that Paul Ahler participated in at least one meeting in which Will Graven and the allegations against Snell & Wilmer were openly discussed after he was purportedly “walled off” (see paragraphs 151-152n). Not only did Paul Ahler participate in the meeting, but he was also familiar with the audit that had been performed for the San Bernardino County Grand Jury (see paragraphs 152d-152e) and that Will Graven had been deemed a vexatious litigant in California (see paragraphs 152d-152e). If Paul Ahler was truly “screened” as the AGO claims, he would not have participated in any meetings and he certainly would not have had any knowledge of the audit or Will Graven’s vexatious litigant status in California. Paul Ahler participated in the meeting and demonstrated his knowledge about Will Graven and the audit before Don Conrad decided to close all of Will Graven’s remaining cases.
i. On page 15, the AGO claims Will Graven’s “personal dissatisfaction with the Attorney General’s exercise of his prosecutorial discretion in a criminal investigation hardly raises an issue of statewide importance that requires prompt resolution…” Again, the AGO is distorting its invocation of “prosecutorial discretion.” I assume that before any prosecutor can exercise his/her prosecutorial discretion, he/she should at least understand the case facts. Don Conrad led the AGO’s position on this matter well before he understood the case facts, and his ignorant opinion influenced the other AGO prosecutors well before anyone was able to form an educated opinion.
j.On page 16, the AGO claims that, “Since the Pinal County Attorney’s Office has yet to decide whether to charge the Snell and Wilmer attorneys, [Will Graven] has not demonstrated a distinct and palpable injury. Consequently, this Court should dismiss the Petition because it is not ripe.” Again, the AGO is failing to include material information. The fact is, the AGO did not provide PCAO with all the information it needs to make a well-informed decision on the merits of Will Graven’s allegations (I know this because no one at the AGO understands the case facts well enough, and as of the date of this Affidavit, no one from the AGO has asked for my assistance in gathering the information that PCAO would need).
CONCLUSION (refer to Appendix F)
194. On November 3, 2011, Will Graven walked into the AGO and reported the crimes committed against him (see paragraph 7).
195. On June 14, 2012, Attorney General Tom Horne directed SIS to open the first of seven cases involving victim Will Graven. AAG Joe Waters and I decided on a multi-year investigative strategy (see paragraph 23).
196. Between July 8, 2013 and April 28, 2014, in furtherance of our multi-year strategy, AAG Joe Waters and I charged eight ABS executives with 53 felonies. Five of the executives agreed to cooperate. Our multi-year strategy was working (see paragraphs 37-39f).
197. In April 2014, I discovered evidence that Snell & Wilmer Attorneys Jim Sienicki, Bill Kastin, and Mark Ohre conspired with ABS General Counsel Daniel Esposito and the former owner of ABS, Deborah Dubree, to give Daniel Esposito and Deborah Dubree control over ABS (see paragraph 47).
198. In May 2014, I prepared a $45 million seizure warrant affidavit and seized $700,000 to $900,000 in assets. The seizure warrant caused two additional suspects, Mark Stricker and Scott Hesse, to contact the AGO and begin preindictment plea negotiations (see paragraph 48).
199. In December 2014, AG Tom Horne’s administration supported moving forward with the Snell & Wilmer investigation, and if I could prove the allegations, with charging the Snell & Wilmer attorneys (see paragraphs 50-67).
200. In January 2015, Mark Brnovich became attorney general. His administration showed no interest in any of Will Graven’s cases (see paragraph 68).
201. By April 2015, AAG Waters and I became fluent in the facts and evidence related to the Snell & Wilmer-related scheme and believed the Snell & Wilmer attorneys should be charged with criminal fraud (see paragraph 71).
202. In April 2015, AAG Waters and I briefed Don Conrad on the Snell & Wilmer case. He was in full support of charging the Snell & Wilmer attorneys (see paragraph 73).
203. On April 30, 2015, Paul Ahler was screened from all cases related to Will Graven because Paul Ahler’s son worked for Snell & Wilmer (see paragraph 76).
204. Immediately after Don Conrad tried to arrange the Snell & Wilmer case briefing to AG Brnovich and Chief Deputy Mike Bailey, Don Conrad no longer supported the case against the Snell & Wilmer attorneys; and he canceled the briefing to AG Brnovich (see paragraph 84).
205. On May 15, 2015, I presented the details of the Snell & Wilmer case to Don Conrad and to Mike Bailey (who showed up unexpectedly). During the presentation, Don Conrad asked questions consistent with a complete lack of understanding of the case facts; and Mike Bailey asked, “We have to do something, Don. Isn’t there something criminal we could charge?” Don Conrad just kept his arms folded in front of him, nodded his head no, and repeated that we were “woefully short.” At this point, Don Conrad had not even downloaded the Snell & Wilmer report (see paragraphs 81-82).
206. At the conclusion of the May 15, 2015 presentation, Don Conrad said we should charge Daniel Esposito with the Snell & Wilmer-related scheme, but not the Snell & Wilmer attorneys, despite the fact that it was the Snell & Wilmer attorneys who orchestrated the scheme (Deborah Dubree had pleaded guilty by this point) (see paragraphs 89-93).
207. In June 2015, Andy Rubalcava told me that Don Conrad had told him the AGO would never charge the Snell & Wilmer attorneys and that AAG Waters and I were “amateurs” for even considering it (see paragraph 96).
208. On August 3, 2015, AAG Waters and I charged Daniel Esposito for his involvement in the Snell & Wilmer-related scheme to try to take over ABS. This caused all of the evidence related to the entire Snell & Wilmer-related scheme to become publicly disclosable (see paragraph 100).
209. After almost eight years of being victimized, and four years of waiting for justice, Will Graven became increasingly impatient and frustrated with the lack of progress. Don Conrad refusing to charge the Snell & Wilmer attorneys was a final straw.
210. On November 12, 2015, Will Graven mailed a copy of the Snell & Wilmer PowerPoint/video to 10-15 different media outlets and Arizona politicians and accused Don Conrad, Paul Ahler, and Mark Brnovich of corruption (see paragraph 127).
211. In the wake of Will Graven accusing Don Conrad, Paul Ahler, and Mark Brnovich of corruption, and within days of AAG Waters and I making significant progress on Will Graven’s remaining cases:
a. On December 18, 2015, Don Conrad allowed Paul Ahler to attend a meeting during which Will Graven and his cases were openly discussed. During the same meeting, Paul Ahler demonstrated detailed knowledge about Will Graven and several of the case facts; and Mike Bailey, Don Conrad, and Paul Ahler tried to get me to say something that would allow them to characterize the PowerPoint/video as confidential (see paragraphs 151- 152n).
b. On December 22, 2015, Don Conrad terminated me for creating the PowerPoint/video and providing a copy to Will Graven, and then threatened me with a class six felony if I disclosed any “confidential” information (see paragraphs 161-164).
c. On or about December 31, 2015, Don Conrad terminated Will Graven’s access to hundreds of thousands of ABS emails, which Will Graven had voluntarily provided to the AGO. These emails were critically important evidence in all Will Graven-related investigations (see paragraph 170).
d. Then on January 8, 2016, his last day at the AGO before he retired, Don Conrad closed all of Will Graven’s remaining cases under the pretense of “prosecutorial discretion” (see paragraph 173).
212. After Don Conrad retired, AG Brnovich promoted Paul Ahler to replace Don Conrad as the chief of the Criminal Division. Paul Ahler then finished what Don Conrad had started:
a. On January 14, 2016, the AGO allowed Daniel Esposito’s defense attorney to redefine the victim from the individual, Will Graven, to the corporate entity, Arizona Building Systems, which would have had a profound impact on the distribution of seized and forfeited assets (see paragraph 177).
b. After Will Graven filed his $1.9 billion notice of claim on January 19, 2016, the AGO referred Will Graven’s now closed cases to MCAO. MCAO decided, “without a formal intake or review,” that it was “not the appropriate agency” and declined to handle the cases (see paragraphs 179-183).
c. After Will Graven filed a petition for a writ of mandamus on February 26, 2016, the AGO “rushed” to refer the closed cases to PCAO (see paragraph 185)./p>
d. On or about February 28, 2016, the AGO demoted Special Agent Supervisor Mike Edwards because it believed he provided me with publicly available information (that the AGO referred Will Graven’s cases to MCAO) (see paragraph 186).
e. On or about February 29, 2016, the AGO terminated Special Agent Lauren Buhrow because it believed she provided me with publicly available information (that the AGO referred Will Graven’s cases to PCAO) (see paragraph 188).
f. On March 16, 2016, the AGO filed a response to Will Graven’s petition for a writ of mandamus, and the response was replete with factual misstatements (see paragraphs 193a-193j).
213. Between 2011 and 2015, the Will Graven-related investigations caused SIS investigators to collect approximately 10 terabytes of digital evidence, analyze several hundred thousand emails and other documents, execute multiple search and seizure warrants, and conduct what I believe is more than 100 interviews. The notion that these complex investigations could simply be “punted” to MCAO or PCAO, and still file charges within the statute of limitations, is beyond reason. I believe the AGO is simply trying to close all cases related to victim Will Graven because he publicly accused Don Conrad, Paul Ahler, and Mark Brnovich of corruption.