Lawyers for a former Republican Party operative charged with intercepting a dozen emails from Gov. Susana Martinez’s 2010 campaign email account and making false statements to federal agents claim the Federal Bureau of Investigation’s handling of the case was “sloppy and incomplete.”
Jamie Estrada’s defense attorneys Zachary Ives and Molly Schmidt-Nowara made the claim in two motions filed in Federal District Court in Albuquerque last Friday. They want a judge to enter an order compelling prosecutors to turn over evidence they need to prepare for trial in July.
The defense team also claims FBI Special Agent Michael Boady misled the original grand jury before they indicted Estrada on May 29, 2013.
“He made several errors in his reports that have been turned over to the defense, as well as misstatements to the first grand jury,” writes Schmidt-Nowara in the motion.
During his first grand jury appearance, Boady testified that Estrada lied to him about setting up a new Susana2010.com web domain at GoDaddy.
But Ives writes in the motion that it was actually Boady who misled the jury, because Estrada never set up a new GoDaddy account to host the website. Instead, Estrada, using a prepaid credit card and the alias Sylvia Tacori, has only been accused of renewing the original campaign web domain.
In October, six months after the original grand jury charged Estrada, prosecutors convened a second grand jury to secure a superseding indictiment. Boady’s original testimony about the domain registration was dropped, Ives believes, when prosecutors realized their mistakes and learned about Boady’s false statements under oath.
While Ives is upset he still hasn’t received a transcript from the agent’s second grand jury testimony, he did receive a copy of the original transcript. During that testimony, Boady told grand jurors that he had received a copy of an email from the governor’s political adviser Jay McCleskey that McCleskley claimed had been sent to his political team and members of the governor’s staff, who had previously worked on her campaign, directing them to stop using their 2010 email addresses after getting a notice from GoDaddy that their account was set to expire.
“They made those efforts to make it known to people who would be communicating with them, and they also created a new domain . . . and started using that,” Boady told grand jurors.
Ives claims prosecutors still haven’t given him a copy of that email and wonders if it even exists.
Considering the agents alleged misstatements to the grand jury, Ives plans to challenge Boady’s credibility at trial and question whether he investigated the matter independently or simply took the governor and McCleskey at their word.
Ives contends since Boady did not record his interview with Estrada the government will rely on Boady’s testimony at trial, and says the agent’s credibility has become a “key issue.”
Prosecutors say they’ve complied with discovery rules and in a letter to Ives write, “we have complied and continue to comply with our disclosure obligations.”
But Estrada’s attorneys say they have asked Assistant United States Attorneys Jeremy Peña and Fred Federici to confirm that the government does not have the requested emails and have given the government counsel the opportunity to elaborate on their position, but the prosecutors have not responded.
Ives isn’t giving up getting the evidence he's requested in discovery. He says he wants full disclosure from the government, and contends the documents and emails he’s requesting will reveal “the true motives of Martinez and those in her inner circle in pressing for Estrada’s prosecution and conviction.”
“It appears that the government wishes to confine this case to the narrow subject of emails about things such as the purchases of underwear and music,” writes Ives.“This case is really about enormous political and personal consequences for some of the most powerful and influential people in our state, including Governor Susana Martinez who is seeking reelection and who appears to aspire to obtain an elected position at the national level.”
Martinez has consistently said she has no interest in running for president or being considered as a vice president candidate in 2016.
Ives believes emails obtained by Estrada and leaked to the media have “suggested corruption within Martinez’s administration, leading to both federal and state criminal investigations and causing political fallout that Martinez and her allies have tried to deflect by attacking Estrada and others.”
In fact, Ives writes that the governor and McCleskey’s aggressive approach urging the FBI to prosecute his client was nothing more than their strategy to divert attention away from a controversial lease deal with the owners of the Downs at Albuquerque.
“This prosecution appears to be the result of the Martinez administration’s concerted efforts to deflect attention from the racino investigation, as well as misconduct and other acts that may have serious political and personal consequences for Martinez and McCleskey,” writes Ives. “It is also reasonable to infer that Martinez and McCleskey may be attempting to curry favor with the government in the hopes of obtaining a favorable outcome in the racino investigation.”
The new motions also suggest that a federal investigation into the lucrative racino deal at Expo New Mexico is still pending
Estrada has maintained his innocence since being indicted.
“I have every faith that not only will I be found innocent, but also that this attack on me will result in exposure of the true wrongdoers, once and for all," Estrada said in a written statement last May.
SFR asked McCleskey for a copy of the email, but he did not return our calls this afternoon.
Loera wants evidence tossed
Meanwhile, the attorney for former Democratic operative Jason Loera, who was charged with possession of child pornography after FBI teams raided his house in November 2012 looking for emails from the governor’s campaign account, also filed a new motion in Federal District Court on Friday.
Defense Attorney David Serna says the agents conducted a warrantless search of Loera’s computer after discovering files that suggested visual images depicting children engaged in sexual conduct.
The secondary search of Loera’s computer, Serna writes, was not included in the original warrant. Serna claims agents began opening picture files before getting a second warrant and that violated Loera’s constitutional rights to due process. If the evidence is tossed it may be difficult for the prosecutors to move forward to trial.
So far no hearings have been set to consider the motions.