176 FILED Exhibits to Objection

EXHIBIT A

Case 1:08-cv-00700-PEC Document 447-1 Filed 08/27/15 of 115

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RULE 56(f) DECLARATION OF JAY ANTHONY DOBYNS

I, Jay Anthony Dobyns, under penalty of perjury, declare as follows:

1. I am a retired Bureau of Alcohol, Tobacco and Firearms (ATF) Special Agent. I

retired in January 2014 after 27 years of continuous service. I am the Plaintiff in

Dobyns v. USA and in this Special Master inquiry.

2. During my law enforcement career I was trained in and utilized multitudes of

investigative law enforcement techniques and tradecraft.

3. During my career I received numerous awards of honor from the Department of

Justice (DOJ) and ATF for investigative achievement.

4. My declaration is offered as both the Plaintiff and in the analysis of facts,

evidence, personal knowledge and review of DOJ’s discovery/disclosure

documents on behalf of my attorney for his final memorandum to the Special

Master in his inquiry.

5. This declaration details my personal and first-hand knowledge of the facts and

evidence related to:

a. A threat(s) made against ATF Special Agent Chris Trainor by retired

ATF Special Agent / Resident Agent in Charge Charles Higman;

b. The alleged fraudulent conduct of DOJ attorneys Bryan Snee, Jeanne

Davidson, Donald Kinner, David Harrington, Corrine Niosi, P. Davis

Oliver and Veronica Onyema as related to the Higman threats;

c. The personal/professional involvement of ATF Special Agents Daniel

Machonis and John Cooper as related to the Higman threats;

d. The personal/professional involvement of ATF attorney Rachael

Bouman as related to the Higman threats;


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e. The personal/professional involvement of ATF Assistant Director

Michael Gleysteen as related to the Higman threats;

f. The alleged threats to the career of Trainor by Harrington.

As to Charles Higman:

6. Higman and I were peers of age, time of employment and training at ATF. I

know that he has proper knowledge of the mechanics of criminal investigation

and legal proceedings.

7. I believe that Higman fully understood the potential risks, exposures and

consequences he faced by his contacting an active trial witness.

8. I do not believe that Higman would place himself into the position of criminal risk

without outside encouragement or demand.

9. The questions of Higman can only be resolved through the through the taking of

his deposition.

As to Christopher Trainor:

10. Trainor and I were peers of age, time of employment and training at ATF. I know

Trainor to be a consummate investigator and honest assessor of facts,

comprehensive and methodical.

11. Trainor’s knowledge and actions in these matters have only been examined

through statements, interviews and emails.

12. The direct and specific examination of Trainor in this matter has not taken place.

The questions of Trainor can only be resolved through the through the taking of

his deposition.


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As to the DOJ Attorneys Accused of Fraud, and Rachael Bouman:

13. My knowledge of the conduct of the accused DOJ attorneys in this inquiry is

limited to disclosure documents.

14. As to Onyema, she has not been heard from in any real investigative manner.

15. The questions for Harrington, Niosi, Bouman and Onyema can only be resolved

through the taking of their depositions.

As to Machonis, Cooper and Gleysteen:

16. Machonis, Cooper, Gleysteen and I were peers of age, time of employment and

training at ATF.

17. I know Machonis and Cooper to be consummate investigators and honest

assessor of facts.

18. Both Machonis and Cooper believed Higman’s voicemail to Trainor to be a

threat. Both sought a full and complete ATF investigation to include the interview

of Higman.

19. Machonis and Cooper were “overridden” by Gleysteen and denied their

professional intent to have Higman interviewed.

20. Machonis and Cooper have not been heard from in this inquiry in any

investigative manner.

21. Gleysteen’s position has only been reported through a declaration that I have

learned was prepared for his signature by the very attorneys suspected of fraud –

Harrington, Niosi and Bouman.

22. The questions for Machonis, Cooper and Gleysteen can only be resolved through

the taking of their depositions.


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Fraud and Misconduct Allegations:

23. Following the conclusion of trial but before the issuance of a ruling or opinion I

had a telephone conversation with Trainor. Trainor told me that he had

documented inappropriate conduct by DOJ’s attorneys during the trial.

24. Trainor did not, and would not, tell me what that conduct was. I did not know at

that time who, what, when, where, why or how the issues concerning Trainor

occurred. Trainor told me that at some future point in time he would expose the

facts he documented.

25. Had I known the true and full details of what had taken place at that time I would

have immediately reported it to Judge Allegra. DOJ was correct in their

speculations of that.

26. My position on this matter was accurately predicted by DOJ as evidenced by my

review of disclosure documents. I believe that is why both ATF and DOJ were

tremendously concerned with a potential “leak” of this information to me.

27. Following the publishing of Judge Allegra’s trial opinion, Trainor contacted Judge

Allegra, as he told me he would.

28. I became aware that Judge Allegra then issued a request to DOJ for investigation

of what he believed to be alleged frauds that occurred by DOJ’s attorneys during

the trial.

My Activity in the Special Master’s Fraud and Misconduct Inquiry:

29. I reviewed over one-thousand documents of DOJ disclosure.

30. I listened to two recorded telephone calls. The first was a recorded voice

message left on the phone of ATF Special Agent Chris Trainor by retired ATF


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Special Agent / Resident Agent in Charge Charles Higman. The second was a

recorded conversation between Trainor and Higman.

31. I am aware that a construction cone / barrier was used to vandalize Trainor’s

government vehicle at the same of Higman’s threat to Trainor.

32. I read the personal statement prepared by Trainor on this matter.

33. I listened to a recording of a witness/victim interview made of Trainor by Agents

from the Office of the Inspector General (OIG).

34. Based on my knowledge of the Trainor-Higman relationship (it is my

understanding that Trainor had no personal or professional overlap with Higman

other than this lawsuit) and considering all of the circumstances and evidence

available to me, in my professional law enforcement opinion the voice mail left for

Trainor by Higman was a serious threat / intimidation in July 2013, should have

been treated as such.

35. I believe Higman’s voicemail to be a threat of intimidation and potential violence.

I believe the threat was extended to Trainor and his family, specifically his

children.

36. In evaluating the threat, Higman’s word choices, tone and motivation should not

have been disregarded by investigators.

37. Higman’s voicemail threat to Trainor constituted a potentially criminal act. It went

beyond a threshold of misconduct.

38. Higman threatened a trial witness (Trainor) still under oath for continued

testimony.


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39. In his threatening voicemail and subsequent follow-up call Higman encouraged

Trainor to interview him regarding the arson of my home and then edit his official

and approved investigative report.

40. This constitutes both witness tampering and an attempt to manipulate trial

evidence. Judge Allegra absolutely should have been made aware.

41. Having come to know Higman, in my opinion Higman’s animosity for Trainor is

based on Trainor’s investigation that condemned Higman’s conduct, humiliated

his lack of leadership, highlighted his ethical shortcomings and damaged

Higman’s reputation.

42. Whether Higman was successful or not the attempted intimidation, witness

tampering and manipulation of evidence is criminal and should have been

reported to Judge Allegra.

43. Snee, Davidson, Kinner, Harrington, Niosi and Bouman, in their representation of

the United States government made a calculated decision not to make Judge

Allegra aware of the facts in this matter.

a. The DOJ trial team was clearly aware that Judge Allegra would want to

be advised of the Higman threat.

b. In a July 20, 2013 email exchange Niosi wrote to Harrington, “I don’t

want to muddy it up but we need to consider Bryant’s [Snee] question

about whether Allegra would want to know about this against the

backdrop of the Valarie Bacon thing and Trainor’s horse trading

testimony.


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c. Same day, Harrington replied, “You mean that he takes a broad view

of what he ought to know about?”

d. Same day, Niosi replied back, “Exactly.”

44. Knowing and concerned that the upcoming testimony from Trainor was

unpredictable, DOJ chose to take a “wait and see” approach to determine if

Trainor’s testimony was affected by the Higman threat.

45. I learned through disclosure that even if Trainor’s testimony had been altered

DOJ still intended not to report the Higman to threat to Judge Allegra but rather,

only if Trainor himself revealed the threats from Higman and potentially

Harrington’s threat to Trainor’s career, and then only with a pre-prepared bench

memorandum designed to mitigate the situation.

46. In doing so DOJ made a calculated decision to gamble with the integrity of Judge

Allegra’s courtroom.

47. Because Trainor displayed the integrity and courage to not be intimidated by

Higman and Harrington does not dismiss their attempts to do so. Should the

Special Master rule otherwise a dangerous message and precedent will be set –

as long as government threats to a witness are ineffective, no wrong doing has

taken place.

“Real Time” Investigation of the Higman Threat:

48. In July 2013, mid-trial, Higman left a threatening voicemail message for Trainor.

49. An unofficial transcript of the threat cited routinely in disclosure documents reads,

"Hey Chris, this is Chuck Higman. Uh, looking forward to talking to you. Uh, saw

your report. Uh, looking forward to talking to Ryan, too. And we’ll talk about it


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then. Hope your family is doing good, too. All right pal. See you soon...Iooking

forward to it."

50. As an investigator of dozens of threats and similar murder-for-hire cases during

my career, I know that rarely does the suspect blurt out words to the affect, ‘I am

going to kill or injure you’. It is routinely much more nuanced than that. An

experienced investigator in matters such as this would be aware of that.

51. Trainor was clearly aware of this when he sent a July 2, 2013 to ATF executive

Gregory Plott writing, “The tone of this message was clearly confrontational and

antagonistic. I do not know Charles Higman and have never met him or spoken

to him. I am not his "pal," and he does not know my family or have any reason to

reference them other than a disguised threat. I expect ATF to handle this

situation promptly and appropriately. I will not tolerate threats against me or my

family resulting from the performance of my official duties.”

52. Higman’s threat also mentioned his desire to contact ATF executive John Ryan

with his complaint.

53. In Trainor’s effort to also protect his peer, Ryan, also on July 2, 2013, Trainor

advised Plott to alert Ryan, “John Ryan should also be made aware of this

immediately.”

54. I can find no reference in disclosure whether Ryan was ever contacted to

determine if Higman had also contacted or threatened Ryan, an obvious

shortcoming in ATF’s investigation.

55. After reviewing DOJ’s disclosure documents I have come to learn that other

experienced and respected field investigators at ATF reached the same


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conclusion as I, that Higman’s voicemail message was a threat, namely Special

Agents Machonis and Cooper.

56. Machonis and Cooper wanted a full investigation of the threat and properly

moved forward towards that objective.

57. I have learned that ATF executive managers Michael Gleysteen and Ron Turk

“took over” the decision making process regarding ATF’s investigation of the

Higman threat.

58. Gleysteen and Turk chose to disregard the recommendations of their field

investigators for a full and complete investigation and instead order the

investigation closed just before Higman was to be interviewed.

59. On July 3, 2013, Cooper emailed Trainor documenting his desire to have Higman

interviewed in Tucson, writing, “Hey Chris- was hoping to have more info for u

tonight but unfortunately instead of moving fast to take this to Arizona, the DADs

and ADs have slowed it down and want to revisit in the morning- not a good idea

to me and I am still shaking trees but to no avail- reach out if necessary and

hopefully things will move faster in the morning- take care and stay safe Coop.”

The “DAD” Cooper refers to is Gleysteen. The “AD” Cooper refers to is Turk.

60. In a typical DOJ analysis of events, on July 17, 2013 Harrington emailed Kinner

and Niosi stating, “This appears to be another instance where Chris Trainor has

become personally and emotionally involved. I feel he has lost all semblance of

objectivity.”

61. Trainor had been threatened, as well as his family. His personal and emotional

involvement was thrust upon him by Harrington’s star witness. Harrington was


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correct in that but, simply because Trainor adamantly demanded and

investigation of the threat and wanted it reported to Judge Allegra, Harrington

wrongly and self-servingly extrapolates that Trainor has lost his objectivity.

62. In fact Trainor was very objective. In his July 17, 2013 email to Bouman and

Machonis, Trainor clearly articulated his concerns writing, “This does relate to my

testimony next week. If SA Dobyns has become aware of this issue I don’t want

to be unprepared to answer questions about it. I also believe that ATF should

proactively get out in front of this matter so that it does not appear that we are

(again) withholding information in this case - I don’t want to be a party to that.”

63. The mere fact that I might have become aware of the Higman threat dominates

the discussion in disclosure.

a. In one example of multiple discussions, on July 20, 2013 Bouman

emailed ATF Chief Counsel Charles Gross, ATF Deputy Director Tom

Brandon, and Brandon’s advisor Joe Allen, writing, “I also told David

that I wouldn’t not hang my hat on Jay not knowing just because Reed

hasn’t tipped us off. It is unusual, but this is a small agency. Cooper

was in SOD when the covert documents were recalled and is the

ASAC in the Washington Field Division who oversaw the alleged threat

investigation that Trainor raised. Cooper talks to Canino who is good

buddies with Jay. So, I think it is naive to believe that Jay doesn’t know

or won’t find out before Chris testifies. I also told David that the Judge

is already suspicious of us and we don’t want to look that way again.”


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64. Based on disclosure I know that ATF conducted their field investigation

professionally up (minus the failure to interview Ryan) to the very most critical

event – the interview of Higman – only to then drop the ball and be “shut down”

by Gleysteen and Turk.

65. As an investigator, this decision is as confusing as it is unexplainable. There was

no valid reason not to properly complete the investigation, other than prevent the

risk of revealing facts that would damage their civil defense of my lawsuit.

66. Again on July 20, 2103, Bouman calculates a strategy with Gross, Brandon and

Allen to explain how the Higman threat could be talked-off to Judge Allegra,

writing, “There is some risk, because Judge Allegra believes the worst in us and

will question why we didn’t disclose it. Our answer would be that we looked into it

and there was nothing to disclose. The threat investigation was opened and

closed and there was no threat. Attorneys listened to it personally and

determined there was no threat.”

67. Gleysteen and Turk held a clear motivation to make the Higman threat to Trainor

“go away” by prematurely closing the criminal investigation knowing a finding that

Higman threated Trainor mid-trial could have been devastating to the

government’s defense of my civil allegations and raise the ire of Judge Allegra.

68. In Trainor’s statement he documents how Gleysteen prematurely closed the ATF

investigation for an improper reason that how an interview of Higman would

damage DOJ’s defense of my allegations. Trainor wrote, “AD Gleysteen stated

AD Turk, Field Operations, or possibly simply "Field Operations," had decided

that Higman would not be interviewed any further. I reminded him that the


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Washington FD SAs felt it was important to the case to conduct the further

interview of Higman, as did I. AD Gleysteen stated that this was not a normal

situation, because of the ongoing civil trial. I told AD Gleysteen that I believe that

absent of the civil trial, there is no question that ATF would instruct Phoenix FD

SAs to interview Higman immediately. AD Gleysteen agreed, but said that

because of the civil case, it was very complicated, and SA Dobyns may use the

information about this incident to his advantage in the civil case.”

69. This reasoning for a veteran criminal investigator such as Gleysteen was

unethical in the extreme but again mirrored DOJ’s conduct during the Bacon

situation – stopping before any more damage is done.

70. Based on disclosure I believe that Gleysteen and Turk were coerced into closing

the ATF investigation of the Higman threat by ATF attorney Rachael Bouman

and DOJ attorneys David Harrington and Corrine Niosi.

71. I learned through disclosure that when faced with a potential exposure of the

Higman threat by Trainor to Judge Allegra and by encouraging ATF’s premature

closing of the threat investigation as a “non-threat” - Bouman, Harrington, and

Niosi then prepared Gleysteen’s declaration to fit their agendas and explain

Gleysteen’s actions to the Special Master.

72. In doing so, DOJ’s three of the primary suspects accused of misconduct by

Judge Allegra prepared their own version of the events, created their own

evidence and had Gleysteen sign off on it.

a. In fact, on July 19, 2013 ATF’s Bouman wrote to Harrington, Niosi and

Veronica Onyema, “I spoke with Michael this morning and am


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prepared to prepare a draft declaration for him, but I can go up to his

office and call you from there if you want to speak with him directly.”

b. Same day Niosi replied (re: now in possession of Gleysteen’s draft

declaration), “I think this looks good and meets our needs. I have some

suggested edits, in redline.”

c. Same day, Harrington replied, “Corinne’s revisions look good. I made a

few possible edits of my own…”.

73. The failure of the DOJ attorneys involved to treat the matter with the seriousness

it deserved is reflected in Niosi’s lackadaisical same day (07.19.13) and joking

reply related to the attorneys preparation of the Gleysteen declaration, “David,

your failure to use the redline functions is clearly intended to make more work for

Rachel. I ask that you cease and desist that behavior.”

74. No affidavits or declarations were provided by Machonis or Cooper – DOJ’s

biggest adversaries to prematurely closing the investigation - only DOJ’s self-

prepared explanation of the events disguised as a declaration from Gleysteen

have been offered. Evidence and fact control is clearly present.

75. The outside preparation of Gleysteen’s declaration led to a cross-up mistake on

the part of the attorneys.

a. In a July 20, 2013 email from Bouman to Harrington and Niosi

regarding the Gleysteen declaration Bouman writes, “Michael is

concerned about a number of things relating to Chris, including that he

seems to be coming after everyone, including me. He will not be

speaking with Chris any further.”


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b. In his Bouman/Harrington/Niosi prepared declaration almost two years

later in April 2015, Gleysteen certifies, “I spoke with SA Trainor and

asked how he was feeling about the situation. He told me that after

speaking with Mr. Higman he felt 100% better. I asked if there was

anything else that we needed to do for him, and he told me no. I told

him he could contact me personally if he ever needed anything from

me in regard to this issue.”

c. The cross-up of Gleysteen not speaking to Trainor in 2013 then in his

2015 declaration certifying that he wanted Trainor to contact him is

only trumped by the declaration being an opposite recollection of

Trainor’s account misstating that Trainor felt “100% better” after he

spoke to Higman a second time.

76. A deposition of Gleysteen is needed for this process to be fully complete and

clarified.

77. Based on my investigative experience, I believe that Higman should have been

formally interviewed, under oath, about his voice message to Trainor and the

follow-up conversation with Trainor. Did he leave the voicemail of his own

volition? If not, who solicited him to do so? How did he get Trainor’s telephone

number? Does he have any knowledge of the vandalism to Trainor’s vehicle?

Was he “coached” in any way by anyone prior to or during his second call to

Trainor?


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78. The absence of any information that anyone from DOJ contacted Higman at any

time during these events, even to correct him, is peculiar. The one and only

person who told Higman to stop contacting Trainor was Trainor himself.

79. I know and proved that ATF failed to do so little as to even confront several

suspects who had issued both verified and credible violence and murder threats

against me. Another repeat of incompetence has taken place here.

80. Given that a federal agent was threatened in mid-performance of his official

duties, and enhanced by the fact that the threatened agent was an active trial

witness threatened by a witness from the opposing party – the fact that Higman

was not interviewed is remarkable in its failure, albeit not surprising given the

nature of ATF and DOJ in these matters.

81. These events are a nearly exact repeat performance of the historical pattern and

practice at DOJ and ATF in matters affecting me.

82. When and if the results of an investigation appear to be headed in a damaging

direction or do not fit a pre-determined favorable conclusion, DOJ and ATF

simply shut them down to fall back on the claim that the investigation is not

warranted, pending, closed or “Held in Abeyance.”

83. Higman should have been offered the opportunity to explain himself to

investigators and possibly clear his name. Had he done nothing wrong or had he

been coerced, I believe he would have welcomed this opportunity. Our

deposition questions would establish this.


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84. An investigation that intentionally omits critical facts, evidence and critical witness

statements, more so intentionally refusing to contact critical witnesses, is not a

professional investigation; it is a cover-up.

85. Once again, ATF and DOJ’s willingness to forfeit their investigative integrity on a

criminal investigation in order to deny me truthful evidence in a civil matter was

recycled.

“After the Fact” Investigation of the Higman Threat:

86. Approximately sixteen months after the Higman and Harrington threats to Trainor

occurred - after ATF shortstopped their investigation; after DOJ failed to report

the threat to Judge Allegra; and, after Harrington threatened the career of Trainor

(discussed below); - Trainor reported the situations to Judge Allegra.

87. Judge Allegra’s October 24, 2014 Order referring fraud allegations against seven

DOJ attorneys inspired a new investigation by OIG.

88. Trainor did not wait sixteen months to report his allegations. He reported them

immediately to ATF and DOJ as current and time-sensitive. He waited over a

year to report them to Judge Allegra based on the advice of his legal counsel.

89. The OIG investigation was led by Agent Greg Schossler. Schossler interviewed

Trainor and received a sworn statement from Trainor but, inexplicably Schossler

himself failed to prepare his own written report of investigation.

a. This is documented by OIG Attorney William Blier email message to

DOJ Office of Professional Review (OPR) attorneys Niel Hurley and

Mark Masling dated November 7, 2014, “Neil, The agent that

interviewed Trainor was Greg Schossler (353-4056;


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[email protected]). He did not write a summary of the

interview. We have let him know that QPR may reach out to him.

Thanks. Bill”

b. No disclosure documents indicate that DOJ’s OPR spoke to Schossler

or even attempted to do so. They had gotten from him what they

wanted.

c. Instead, OPR took a shortcut and piggybacked OIG’s conclusion when

each dismissed the Higman threat by hanging on a single statement

made by Trainor to Schossler.

90. On June 4, 2015, OIG Counsel Robin Ashton prepared a memorandum that

stated:

“The OIG reported to PIN that we did not find sufficient evidence of

a threat being made against SSA Trainor or his family. In fact, SSA

Trainor stated" ... I was reasonably sure that Higman [former ATF

SA] posed no actual threat to me or my family .... ". Based on the

foregoing, PIN declined to pursue the allegation as a criminal

matter and deferred to the OIG as an administrative review.

91. This OIG conclusion disregards anything and everything Trainor reported, stated

or swore to at the time of the threat and thereafter. It further does not take into

account any information from Machonis or Cooper who believed that the Higman

threat was credible before ATF’s investigation was shut down by Gleysteen and

Turk, or Trainor’s own words of being intimidated.


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92. It further does not take into account that sixteen months after the actual threat

occurred and with no further contact with Higman, that Trainor likely at that time

concluded that, “Higman posed no actual threat to me or my family”. The

intimidation element is ignored.

93. ATF and the OIG provided OPR the “permission slip” that DOJ needed to

disregard the Higman threat in the face of Judge Allegra’s fraud allegations.

94. The closest DOJ got to respecting a potential threat to a federal trial witness was

during Snee’s liability speculation made in an email to Kinner, Harrington and

Niosi on July 20, 2013 writing, “What the best case which could be made that we

should bring it to the Court’s attention? That witness X in this case believes he

has been threatened about his testimony in this case by witness Y from this

case. Arguably, that may be relevant for the judge to know - for example, would it

be within his prerogative/power to issue an order directing these witnesses (or

even all witnesses) not to discuss their testimony with other witnesses during the

pendency of proceedings? (Has the rule on witnesses been invoked in this case?

- should it?)

Additionally, to what extent is our view of this matter informed by our assessment

that this is not a real threat? Is that a proper subject for us to evaluate? Stated

differently, if we thought it was a truly real threat, would we adopt the same

approach?

Another way to look at it is - if you were in the judge’s shoes, would you want to

know of the situation? What if (heavens forbid) Witness X actually harmed

witness Y or family, would we still say we had no duty to disclose to court?”


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95. When Snee wrote, “…witness X in this case believes he has been threatened

about his testimony…” he was correct, Trainor had been intimidated and

documented that. Further when Snee wrote, “Arguably, that may be relevant for

the judge to know.” Snee’s instincts were spot on correct as well.

Harrington Threats to Trainor’s Career / Harrington’s Credibility:

96. There is no debate that Harrington and his legal team failed to report the Higman

threat to Judge Allegra.

a. Harrington wrote in his response to OPR questions, “Ultimately, we

decided that there was no obligation to inform the court because the

message left for Mr. Trainor could not reasonably be construed as a

threat, there had been no attempt to influence future trial testimony…”

b. Harrington’s statement is at best flawed, more likely intentionally and

knowingly false. Trainor, Machonis, Cooper and others - all seasoned

field investigators - believed Higman’s voicemail to Trainor was a “real

threat”. Harrington knew that given Trainor’s situation that is not

“unreasonable”. The facts simply did not fit Harrington’s explanation.

97. Further, Higman’s threat was an intimidation of a witness’s “future trial testimony”

in the context that additional testimony was to be provided by Trainor and an illicit

contact had been made of him. Higman went so far as to ask Trainor to edit his

official conclusions and amend his official report – an attempt to manipulate

evidence.


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98. “Intimidation” does not mean that one has to be “shaking in his boots”. Trainor

makes clear throughout disclosure that Higman’s threat caused him serious

concern for his family and terrified his teenage daughter.

99. Harrington made another known false statement to investigators in his response

to OPR questions:

“The trial team was at all times professional and courteous in their

dealings with witnesses. See App. 87. Witnesses were specifically

told that their paramount obligation was to provide truthful

testimony. No witness complained to me about their treatment by

the trial team. Furthermore, to the best of my knowledge, no

witness was angered by their treatment by the trial team during

preparations for trial testimony.

However, as a result of Judge Allegra’s directive that the United

States look into conversations with Ms. Bacon, ATF instructed Mr.

Atteberry to return to Tucson (from Phoenix, Arizona) on the

evening of June 18, 2013. See App. 85. Mr. Atteberry was angry

that he had to return to Tucson to be interviewed and expressed his

displeasure in strong terms during a brief, heated exchange with

me. I explained why Mr. Atteberry had been instructed return to

Tucson. At the conclusion of our interview, Mr. Atteberry and I

shook hands and he departed on what I believed to be good terms.

100. I know the truth to be that Atteberry was incensed behind Harrington’s

attempts to mischaracterize the facts behind Bacon’s conversations with


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Atteberry and ATF Assistant Special Agent in Charge Carlos Canino. Atteberry

would testify under oath to such.

101. The exchange became so heated on the Bacon issue that Bouman had to

physically separate Harrington and Atteberry; hardly the reaction of a seasoned

law enforcement executive who was asked to travel ninety minutes from Phoenix

to Tucson.

102. Based on discovery documents, OPR appears to pay very little attention to

a very important question – Harrington’s threat to Trainor’s career (repeated

twice in one conversation) stemming from Trainor’s documented intent to

independently reported the Higman threat to Judge Allegra.

103. Simple and dismissive DOJ denials are all that are presented in the

disclosure documents as rebuttal.

104. Harrington attempts to answer the question of his threat to Trainor with

basically a one sentence denial in his response to OPR, “No attorney made any

threat to dissuade Mr. Trainor from contacting the court directly.”

105. This statement is too parsed; we must question on variations of

Harrington’s conditions for the statement.

106. The Special Master appears to readily accept the recollection of Niosi on

this issue - herself in a critical position for self-preservation based on her

involvement and exposure to the Harrington/ Trainor call during which Harrington

made his threats – when he cites Niosi’s written response to OPR questions on

the subject in his June 26, 2015 Order, “However, in Niosi’s response to the OPR

inquiry, she states that no such threat was made by Harrington that she heard,


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and that she remembers Trainor himself stating during the conference call: “I am

fully aware this is damaging [and could] hurt my career.”

107. “…that she heard…’ is far from a personal commitment from Niosi and is a

safe fallback position to take once Trainor and Machonis are deposed and testify

that a threat was issued by Harrington, twice.

108. Trainor and Machonis were also on that call and they disagree with Niosi.

They do recall the threat made against Trainor by Harrington more than once.

109. Machonis has not been heard from in declaration or affidavit and the

Special Master was provided no information by DOJ to balance his conclusion.

110. Onyema was on that call as well. She has not been heard from in

declaration or affidavit either.

111. Trainor was fully aware of the repercussions he would face by

“whistleblowing” the threats he received from Higman and Harrington. It is logical

to believe that he did make the statement Niosi attributes to him. Further, Trainor

was a first-hand witness to what and how DOJ and ATF treat anyone who

speaks out against their orders when he investigated my allegations of nearly

identical treatment. He knew what was coming if he contacted Judge Allegra –

retaliation - and thus he had been intimidated away from doing what he wanted

to do, report the threats.

112. Only DOJ’s own attorneys have provided declarations. Gleysteen’s

declaration was prepared for him by the attorneys themselves under suspicion.


113. No declaration or affidavit from anyone who would or might hold an

opposing viewpoint to DOJ in this matter has been offered me or the Special

Master. Nothing from Machonis. Nothing from Cooper. Nothing from Onyema.

114. In sum, DOJ has provided the Special Master a one-sided interpretation of

the Higman threat to Trainor, the Harrington I Trainor conversation and threat,

denied the Special Master any opposing viewpoints to consider for balance and

in doing so has appeared to convince the Special Master that neither Higman or

Harrington threatened or intimidated Trainor, and thus, causing the Special

Master to reach a premature summary judgement conclusion that no government

fraud or misconduct has occurred.

115. Based on facts, evidence and my eleven year effort to uncover corruption

at ATF and DOJ supported by the request of Judge Allegra and following the

Special Master's own ordered procedures, I respectfully believe that I have

earned the right to take the above cited depositions in the Special Master's

presence, each needed to fairly complete the Special Master's inquiry.

116. I certify under the penalty of perjury that the foregoing statements are

accurate and truthful.

EXECUTED on this gth day of July, 2015.

23


EXHIBIT C


From:

Sent:

To:

Subject:

Attachments:

Niosi, Corinne (CfV) <[email protected]>

Friday, July 19, 2013 7:54 PM

Harrington, David (CfV); Bouman, Rachel A.

Declaration of Michael Gleysteen 7-19-13 (Dobyns).docx


I think this looks good and meets our needs. I have some suggested edits, in redline.

CONFIDENTIAL - SUBJECT TO ORDER OF APRIL 7, 2015 DOJ_ATF00000907


jelder

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From:

Sent:

To:

Cc:

Subject:

Harrington, David (CIV) < [email protected]>


Bouman, Rachel A.

Niosi, Corinne ((::iV); [email protected]

RE: We need to talk. When are you available?

Soundsgood.

From== Bouman, Rachel A. (ATF) Sent== Friday, July 19, 2013 1:27 PM To== Harrington, David (CIV) Cc== Niosi, Corinne (CIV); Veronica.N.Onyema@usdoi,clov Subject== RE: We need to talk. When are you available?

He’s available if I come up in the next little while. Shall we call you at your desk in 5 minutes?

Rachel A. Bouman Chief, Office of Equal Employment Opportunity

Bureau of Alcohol, Tobacco, Firearms & Explosives

99 New York Avenue, NE, Suite 3.E-320 Washington, DC 20226

Tel: 202.648.7004

WARNING: This electronic transmission is intended only for the person(s) named above. It may contain information that is

confidential and protected from disclosure by the attorney-client privilege and/or work product doctrine or exempt from disclosure

under other applicable laws. Any use, distribution, copying or other disclosure by any other person is strictly prohibited. Do not

forward or re-transmit without the permission of sender or ATF Chief Counsel’s Office. If you have received this transmission in error,

please notify the sender at the number or e-mail above.

ATTORNEY WORK PRODUCT PRIVILEGED DOCUMENT ATTORNEY-CLIENT PRIVILEGED COMMUNICATION

From: Harrington, David (CIV) Sent: Friday, July 19, 2013 1:25 PM To: Bouman, Rachel A. Cc: Niosi, Corinne (CIV); [email protected] Subject: RE: We need to talk. When are you available?

Please.

From: Bouman, Rachel A. (ATF) Sent: Friday, July 19, 2013 1:20 PM To: Harrington, David (CIV) Cc: Niosi, Corinne (CIV); Veronica.N.Onyema@usdqi,gov Subject: RE: We need to talk. When are you available?

I spoke with Michael this morning and am prepared to prepare a draft declaration for him, but I can go up to his office

and call you from there if you want to speak with him directly. Do you want me to see if he’s available?

RachelA. Bouman



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Chief, Office of Equal Employment Opportunity


99 New York Avenue, NE, Suite 3.E-320

Washington, DC 20226

Tel: 202.648.7004



under other applicable laws. Any use, distribution, copying or other disclosure by any other person is strictly prohibited. Do not forward or re-transmit without the permission of sender or ATF Chief Counsel’s Office. If you have received this transmission in error,

please notif~ the sender at the number or e-mail above.


From: Harrington, David (CIV) Sent: Friday, July 19, 2013 12:39 PM To: Bouman, Rachel A. Cc: Niosi, Corinne (CIV); Onyema, Veronica N. (CIV) Subject: RE: We need to talk. When are you available?

Yes. We are also going to need to talk directly to Chris Trainor’s AD, Michael Glysteen (sp?), today if possible.

From: Bouman, Rachel A. (ATF) Sent: Friday, July 19, 2013 12:07 PM To: Harrington, David (CIV) Subject: RE: We need to talk. When are you available?

I just returned from a meeting and have another one starting shortly. Shall we plan around 1:30?

Rachel A. Bouman





Tel: 202.648.7004





please notif~ the sender at the number or e-mail above.


From: Harrington, David (CIV) Sent: Friday, July 19, 2013 10:57 AM

To: Bouman, Rachel A. Subject: We need to talk. When are you available?

David A. Harrington Senior Trial Counsel



Commercial Litigation Branch Civil Division U.S. Deparm~ent of Justice P.O. Box 480 Ben Franklin Station Washington, D.C. 20044 (202) 616-0465



From:

Sent:

To:

Cc:

Subject:

Gross, Charles R. </O = M MS/OU = EXCHANGE ADMINISTRATIVE GROU P

(FYDIBOH F23SPDLT)/CN = RECIPIENTS/CN =GROSS, CHARLE6A029 B5A-8 BIE-4DFA-

A95C-3887EFAE6AEC5B5 >

Saturday, July 20, 2013 12:42 AM

Bouman, Rachel A.

Brandon, Thomas E.; Allen, Joseph J.

Re: Chris Trainor Witness Issue in Dobyns

Rachel:

I’ve read through this material quickly. I’m not sure I understand or agree with the advice that has apparently been

provided to SA Trainor concerning a supposed duty to disclose. That said, my advice would be that our attorneys bring

this to the Court’s attention on Monday. That is far preferable to having SA Trainor contact the court on his own. It is

also better than trying to persuade SA Trainor that this is irrelevant to the case (although it seems so to me), only to

have it come out later, which it very easily could. By taking a proactive role here we minimize any fallout and ensure that

our efforts to deal with this are seen in a favorable light.

Chuck

On Ju119, 2013, at 6:53 PM, "Bouman, Rachel A." <RacheI.Bouman~atf.~ov> wrote:

Hi Chuck--

There is an issue that may need to be addressed with Chris Trainor on Monday. Unfortunately, I will be

in trial and unable to address it. I’ve spent the bulk of today on this issue. Chris apparently spoke with

one outside attorney who said he has a duty to disclose. He also spoke with law professor and former

JAG Tim McDonnell who says he has an affirmative duty to tell the judge.

DOJ wants us to speak with Trainor about this, but I’m not sure that is advisable given what is going

on. I will forward you all of the related documents. I’ve worked extensively with Michael Gleysteen on

this today and prepared a declaration for him to sign. The hang up is that Michael believes he needs to

tell Chris that he is going to sign a declaration so that Chris isn’t taken by surprise if he hears this in

court. This is not advised as there is no guarantee how that will be interpreted by Chris. I have notes of

my conversations with Michael, but they are handwritten and are here in my filing cabinet, so I won’t be

sending them.

From the emails I send to you, it should be apparent what the status is with Chris...he’s contacting

FLEOA and will get back to me. I will let you know what information I receive.

Rachel

Rachel A. Bouman





Tel: 202.648.7004



jelder

Highlight

WARNING: This electronic transmission is intended only for the person(s) named above. It may contain

information that is confidential and protected from disclosure by the attorney-client privilege and/or work product

doctrine or exempt from disclosure under other applicable laws. Any use, distribution, copying or other disclosure

by any other person is strictly prohibited. Do not forward or re-transmit without the permission of sender or ATF

Chief Counsel’s Office. If you have received this transmission in error, please notify the sender at the number or e-

mail above.




From:

Sent:

To:

Cc:

Subject:




Saturday, July 20, 2013 4:47 PM

Bouman, Rachel A.

Allen, Joseph J.; Brandon, Thomas E.

Re: Higman Issue

If it were me, I would still alert the court. Not because we have to, but because it’s the least risky course of

action. Chuck

On Jul 20, 2013, at 12:32 PM, "Bouman, Rachel A." <RacheI.Bouman(~tf.gov> wrote:

Thank God for Larry Berger! I’ve worked with him on many cases before and know that he is a good,

squared away attorney. Chuck, is your thought that we do not need to notify the judge in advance given

the below? I’m thinking we will proceed as we had initially planned with DOJ...we have a package ready

to provide the judge to offer the other side of what Chris is submitting. I’m talking to Gleysteen today

both about this and some Cefalu stuff that he needs to go over with me for his declaration in that

case. Please let me know if you agree and I will try to talk Gleysteen out of notifying Chris about his

declaration. If I am not successful, I may need assistance.

Thanks,

Rachel

Rachel A. Bouman





Tel: 202.648.7004

Begin forwarded message:

From: "Trainor, Christopher J." <[email protected]>

Date: July 20, 2013, 10:57:25 AM EDT

To: "Harrington, David (CIV)" <David.Harrin~ton@usdoj.~ov>, "Niosi, Corinne (CIV)"

<Corinne.A.Niosi@usdoi.~ov>, "Bouman, Rachel A." <RacheI.Bouman@atf.~ov> Cc: "Machonis, Daniel J." <DanieI.Machonis@atf.~ov>, "Plott, Gregory D."

<Gre~orv.Plott@atf.~ov>, "Gleysteen, Michael" <Mike.P.Gleysteen@atf.~ov>

Subject: Higman Issue

To all,

After consulting with FLEOA Attorney Larry Berger regarding this issue, I have decided

that I will not independently contact Judge Allegra to report this matter for his

consideration.



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I will execute a finalized version of the statement I prepared detailing this matter, and

will provide a signed copy to the DOJ attorneys prior to my testimony. I will have the

original in my possession when called to the stand. If I am questioned about whether I

have had contact with any party/witnesses during the break between my testimony, I

will answer "Yes" and produce the statement documenting this incident. If I am not

asked this question, or otherwise directly questioned about this matter, I will not

reference it.

Attorney Berger made me realize that my sense of justice has been fine tuned through

my experiences in criminal courts and my dealings with AUSA’s over the last 23

years. Different rules apply in civil courts: Some of these I find distasteful. Regardless, I

will continue to strive to be as professional and fair as I can be.

Chris Trainor



From:

Sent:

To:

Cc:

Subject:





Bouman, Rachel A.


Re: Higman Issue

I’ve known Jeanne Davidson for almost 20 years, and I trust her judgment. My sense is that if we had concluded this had

been a legitimate threat we would disclose, even though the legal analysis wouldn’t be any different. Given the prior

blow up over the Valerie Bacon issue (which also involves a question of perception), I just wouldn’t take the chance that

we may have to explain why we didn’t bring it up.

Sent from my iPhone

On Jul 20, 2013, at 1:51 PM, "Bouman, Rachel A." <RacheI.Bouman@atf.~ov> wrote:

I talked to David and proposed that we be proactive. He said that they are still discussing all of this at

DOJ. He’s had conversations today with Don Kinner and Bryant Snee. Ultimately, the decision will be

made by Jeanne Davidson.

Here are David’s thoughts on the issue about why we don’t raise this unless it comes up...What issue

would we raise? DOJ anticipates saying that nothing wrong has occurred. Chris has a couple of

concerns. It’s awkward to bring it up, because we are saying Chris thinks there was a threat and we

don’t think so, so we are disclosing that there was no threat. Or, we are presenting that Chris doesn’t

like how ATF investigated the threat, but this isn’t related to this case. If he brings the declaration to

court, he can’t bring anything up to the stand. If he brings it and it’s on our table to use and he testifies,

there’s some of a chance that it won’t come up. If it does come up, the judge will ask for all information

and DOJ would have the opportunity at that time to explain that Chris’s complaint about ATF can be

handled outside this litigation and we can explain that we believe there is no threat. DOJ’s goal is to

show that there’s nothing here and Trainor has become personally invested in this and has no objectivity

any more in evaluating this. There is some risk, because Judge Allegra believes the worst in us and will

question why we didn’t disclose it. OUr answer would be that we looked into it and there was nothing

to disclose. The threat investigation was opened and closed and there was no threat. Attorneys

listened to it personally and determined there was no threat. Nothing inconsistent with the statements

of Higman’s testimony. He told Trainor that the report was shoddy and didn’t get Higman’s input and

wanted an opportunity to provide input because the report was wrong. It is true that raising it

ourselves, is something we can do? Yes. We did this with DAD Lennon and said it wasn’t an issue. That

was the right approach and it worked out well. This is trickier, because judge can understand not

wanting conflict of interest. Judge’s response could be why are you telling me this if there is no

relevance to the litigation. It is curious and out of character for Reed not to alert us to it and require us

to produce it if he in fact knows about it. There is a real possibility that it doesn’t come up at all.

My response back to David is that the relevance is with regard to the sequestration issue. That’s how

this will be raised by Trainor...is whether there was inappropriate contact by a witness with another

witness. So, that’s the context in which we raise it to Judge Allegra. Just like with a potential conflict of

interest that didn’t exist, we raise a potential sequestration issue that doesn’t exist. I think David is

warming up to this idea. I also told David that I wouldn’t not hang my hat on Jay not knowing just



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because Reed hasn’t tipped us off. It is unusual, but this is a small agency. Cooper was in SOD when the

covert documents were recalled and is the ASAC in the Washington Field Division who oversaw the

alleged threat investigation that Trainor raised. Cooper talks to Canino who is good buddies with

Jay. So, I think it is naive to believe that Jay doesn’t know or won’t find out before Chris testifies. I also

told David that the Judge is already suspicious of us and we don’t want to look that way again.

David said they are still mulling it over what to do. If we want to submit something further for them to

consider, we can. I had a conversation with David and haven’t put anything in writing. If you want to

reduce my thoughts above into an email and send it to David, I can. I can include any further thoughts

you have as well. Please let me know.

Rachel

Rachel A. Bouman





Tel: 202.648.7004

On Jul 20, 2013, at 12:46 PM, "Gross, Charles R." <[email protected]~ov> wrote:

If it were me, I would still alert the court. Not because we have to, but because it’s the least risky course of action. Chuck


Thank God for Larry Berger! I’ve worked with him on many cases before

and know that he is a good, squared away attorney. Chuck, is your

thought that we do not need to notify the judge in advance given the

below? I’m thinking we will proceed as we had initially planned with

DOJ...we have a package ready to provide the judge to offer the other

side of what Chris is submitting. I’m talking to Gleysteen today both

about this and some Cefalu stuff that he needs to go over with me for

his declaration in that case. Please let me know if you agree and I will

try to talk Gleysteen out of notifying Chris about his declaration. If I am

not successful, I may need assistance.

Thanks,

Rachel

Rachel A. Bouman





Tel: 202.648.7004


From: "Trainor, Christopher J."

<[email protected]> Date: July 20, 2013, 10:57:25 AM EDT

2



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To: "Harrington, David (CIV)"

<[email protected]>, "Niosi, Corinne (CIV)" <[email protected]>, "Bouman, Rachel A."

<[email protected]> Cc: "Machonis, Daniel J." <[email protected]>,

"Plott, Gregory D." <[email protected]>,

"Gleysteen, Michael" <[email protected]>


To all,

After consulting with FLEOA Attorney Larry Berger

regarding this issue, I have decided that I will not

independently contact Judge Allegra to report this

matter for his consideration.

I will execute a finalized version of the statement I prepared detailing this matter, and will provide a signed

copy to the DOJ attorneys prior to my testimony. I will

have the original in my possession when called to the

stand. If I am questioned about whether I have had

contact with any party/witnesses during the break

between my testimony, I will answer "Yes" and produce

the statement documenting this incident. If I am not

asked this question, or otherwise directly questioned

about this matter, I will not reference it.

Attorney Berger made me realize that my sense of

justice has been fine tuned through my experiences in

criminal courts and my dealings with AUSA’s over the

last 23 years. Different rules apply in civil courts: Some

of these I find distasteful. Regardless, I will continue to

strive to be as professional and fair as I can be.

Chris Trainor



From:

Sent:

To:

Subject:

Attachments:

Bouman, Rachel A. </O=MMS/OU=EXCHANGE ADMfNfSTRATfVE GROUP

(FYDfBOH F23SPDLT)/CN = RECfPfENTS/CN = BOU MAN, RACHEE8753B06-

BFOF-4DD3-8B9F-BIB625AAE552E27 >


Harrington, David (CfV); Niosi, Corinne (CfV)

Gleysteen delcaration


I haven’t run this by him yet, but does this serve our purpose? Also, I’ve reached out to everyone in the WFD who had

contact with this case (SAC, ASAC, RAC, SA, Division counsel) and no one is answering. I contacted the Intel branch and

they said the case is closed in NForce. I’m waiting for someone to contact me so I can see what documents were

actually generated in the case. Let me know what you think. Gleysteen is leaving at 4.

Rachel A. Bouman





Tel: 202.648.7004









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From:

Sent:

To:

Cc:

Subject:

Bouman, Rachel A. </O=MMS/OU=EXCHANGE ADMINISTRATIVE GROUP




Gross, Charles R.

Brandon, Thomas E.; Allen, Joseph J.

Re: Chris Trainor Witness [ssue in Dobyns

Hi Chuck--

You’re read on this is accurate. My guess is that these two outside attorneys are only considering the presentation by

Chris of the information and they don’t actually know what the voicemail and recorded conversations reflect. Chris has

used phrases like "this will cause a mistrial" and other things that lead DOJ to believe Chris may not have even conveyed

the accurate posture of this civil case to the outside attorneys. I will suggest that David file something this weekend,

even, or at least give me the affirmative that he will do so on Monday so I can let Chris know that we are going to handle

it. I’ll let you know the response.

Rachel

Rachel A. Bouman





Tel: 202.648.7004

OnJul19,2013, at8:43 PM,"Gross, Charles R."<[email protected]> wrote:

Rachel:

I’ve read through this material quickly. I’m not sure I understand or agree with the advice that has

apparently been provided to SA Trainor concerning a supposed duty to disclose. That said, my advice

would be that our attorneys bring this to the Court’s attention on Monday. That is far preferable to

having SA Trainor contact the court on his own. It is also better than trying to persuade SA Trainor that

this is irrelevant to the case (although it seems so to me), only to have it come out later, which it very

easily could. By taking a proactive role here we minimize any fallout and ensure that our efforts to deal

with this are seen in a favorable light.

Chuck

On Jul 19, 2013, at 6:53 PM, "Bouman, Rachel A." <RacheI.Bouman~atf.~ov> wrote:

Hi Chuck--

There is an issue that may need to be addressed with Chris Trainor on

Monday. Unfortunately, I will be in trial and unable to address it. I’ve spent the bulk of

today on this issue. Chris apparently spoke with one outside attorney who said he has a

duty to disclose. He also spoke with law professor and former JAG Tim McDonnell who

says he has an affirmative duty to tell the judge.



jelder

Highlight

DOJ wants us to speak with Trainor about this, but l’m not sure that is advisable given

what is going on. I will forward you all of the related documents, l’ve worked

extensively with Michael Gleysteen on this today and prepared a declaration for him to

sign. The hang up is that Michael believes he needs to tell Chris that he is going to sign a

declaration so that Chris isn’t taken by surprise if he hears this in court. This is not

advised as there is no guarantee how that will be interpreted by Chris. I have notes of

my conversations with Michael, but they are handwritten and are here in my filing

cabinet, so I won’t be sending them.

From the emails I send to you, it should be apparent what the status is with Chris...he’s

contacting FLEOA and will get back to me. I will let you know what information I

receive.

Rachel




Tel: 202.648.7004

WARNING: This electronic transmission is intended only for the person(s) named above. It may

contain information that is confidential and protected from disclosure by the attorney-client

privilege and/or work product doctrine or exempt from disclosure under other applicable laws.

Any use, distribution, copying or other disclosure by any other person is strictly prohibited. Do not

forward or re-transmit without the permission of sender or ATF Chief Counsel’s Office. If you

have received this transmission in error, please notify the sender at the number or e-mail above.




From:

Sent:

To:

Cc:

Subject:





Harrington, David (CfV)

Niosi, Corinne (CfV)

Trainor

Hi David--

Our Chief Counsel would like us to file something with the court on Monday so that we take the proactive approach with

this and control how this is presented to the court, instead of allowing Chris to do it. If you can confirm that you will do

this on Monday, I will notify Chris so that he doesn’t take actions on his own. Please let me know.

Thanks,

Rachel

Rachel A. Bouman Chief, Office of Equal Employment Opportunity Bureau of Alcohol, Tobacco, Firearms & Explosives


Tel: 202.648.7004



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Highlight

From:

Sent:

To:

Cc:

Subject:





Gross, Charles R.


Re: Higman [ssue

I re-read my prior email and there were some typos. I didn’t intend for you to reduce my thoughts to writing. Sorry

that’s how it reads. I will let David know that I think we’ve had a good discussion on this and we will wait for DOJ to

make the decision.

I talked with Michael. I sent him Chris’s statement last night and he reviewed that. He also has spoken with Dan

Machonis who was on one of the calls Chris had with DOJ yesterday. Michael is concerned about Chris’s neutrality right

now and what seems like a willingness to go after anyone and everyone, including me. Michael will not be having any

further discussions with him. Michael is going to review the declaration and we will work out how I will get it from him

this weekend as he is out of town this coming week.

Hopefully, this is all the further dialogue this weekend with all of you on this. Enjoy the rest of your weekend.

Rachel

Rachel A. Bouman





Tel: 202.648.7004

On Jul 20, 2013, at 2:25 PM, "Gross, Charles R." <[email protected]> wrote:

I’ve known Jeanne Davidson for almost 20 years, and I trust her judgment. My sense is that if we had

concluded this had been a legitimate threat we would disclose, even though the legal analysis wouldn’t

be any different. Given the prior blow up over the Valerie Bacon issue (which also involves a question of

perception), I just wouldn’t take the chance that we may have to explain why we didn’t bring it up.

Sent from my iPhone


I talked to David and proposed that we be proactive. He said that they are still

discussing all of this at DOJ. He’s had conversations today with Don Kinner and Bryant

Snee. Ultimately, the decision will be made by Jeanne Davidson.

Here are David’s thoughts on the issue about why we don’t raise this unless it comes

up...What issue would we raise? DOJ anticipates saying that nothing wrong has

occurred. Chris has a couple of concerns. It’s awkward to bring it up, because we are

saying Chris thinks there was a threat and we don’t think so, so we are disclosing that



jelder

Highlight

there was no threat. Or, we are presenting that Chris doesn’t like how ATF investigated

the threat, but this isn’t related to this case. If he brings the declaration to court, he

can’t bring anything up to the stand. If he brings it and it’s on our table to use and he

testifies, there’s some of a chance that it won’t come up. If it does come up, the judge

will ask for all information and DOJ would have the opportunity at that time to explain

that Chris’s complaint about ATF can be handled outside this litigation and we can

explain that we believe there is no threat. DOJ’s goal is to show that there’s nothing

here and Trainor has become personally invested in this and has no objectivity any more

in evaluating this. There is some risk, because Judge Allegra believes the worst in us and

will question why we didn’t disclose it. OUr answer would be that we looked into it and

there was nothing to disclose. The threat investigation was opened and closed and

there was no threat. Attorneys listened to it personally and determined there was no

threat. Nothing inconsistent with the statements of Higman’s testimony. He told

Trainor that the report was shoddy and didn’t get Higman’s input and wanted an

opportunity to provide input because the report was wrong. It is true that raising it

ourselves, is something we can do? Yes. We did this with DAD Lennon and said it

wasn’t an issue. That was the right approach and it worked out well. This is trickier,

because judge can understand not wanting conflict of interest. Judge’s response could

be why are you telling me this if there is no relevance to the litigation. It is curious and

out of character for Reed not to alert us to it and require us to produce it if he in fact

knows about it. There is a real possibility that it doesn’t come up at all.

My response back to David is that the relevance is with regard to the sequestration

issue. That’s how this will be raised by Trainor...is whether there was inappropriate

contact by a witness with another witness. So, that’s the context in which we raise it to

Judge Allegra. Just like with a potential conflict of interest that didn’t exist, we raise a

potential sequestration issue that doesn’t exist. I think David is warming up to this

idea. I also told David that I wouldn’t not hang my hat on Jay not knowing just because

Reed hasn’t tipped us off. It is unusual, but this is a small agency. Cooper was in SOD

when the covert documents were recalled and is the ASAC in the Washington Field

Division who oversaw the alleged threat investigation that Trainor raised. Cooper talks

to Canino who is good buddies with Jay. So, I think it is naive to believe that Jay doesn’t

know or won’t find out before Chris testifies. I also told David that the Judge is already

suspicious of us and we don’t want to look that way again.

David said they are still mulling it over what to do. If we want to submit something

further for them to consider, we can. I had a conversation with David and haven’t put

anything in writing. If you want to reduce my thoughts above into an email and send it

to David, I can. I can include any further thoughts you have as well. Please let me know.

Rachel

Rachel A. Bouman





Tel: 202.648.7004

On Jul 20, 2013, at 12:46 PM, "Gross, Charles R." <[email protected]> wrote:



If it were me, I would still alert the court. Not because we have to, but because it’s the least risky course of action. Chuck

On Jul 20, 2013, at 12:32 PM, "Bouman, Rachel A." <[email protected]> wrote:

Thank God for Larry Berger! I’ve worked with him on

many cases before and know that he is a good, squared

away attorney. Chuck, is your thought that we do not

need to notify the judge in advance given the

below? I’m thinking we will proceed as we had initially

planned with DOJ...we have a package ready to provide

the judge to offer the other side of what Chris is

submitting. I’m talking to Gleysteen today both about

this and some Cefalu stuff that he needs to go over with

me for his declaration in that case. Please let me know if you agree and I will try to talk Gleysteen out of

notifying Chris about his declaration. If l am not

successful, I may need assistance.

Thanks,

Rachel

Rachel A. Bouman





Tel: 202.648.7004


From: "Trainor, Christopher J."

<Christopher.Trainor(~atf:gov> Date: July 20, 2013, 10:57:25 AM EDT

To: "Harrington, David (CIV)"

<David.H a rrington (~usdoi.gov>, "Niosi,

Corinne (CIV)"

<Corinne.A.Niosi~usdoj.gov>,

"Bouman, Rachel A."

<RacheI.Bouman@atf.~ov> C:c: "Machonis, Daniel J." <Daniel. Machonis(~atfigov>, "Plott,

Gregory D." <Gre~orv~Plott@atf!~ov>,

"Gleysteen, Michael"

<Mike_P. GI eysteen (~atf#,ov> Subject: Higman Issue

To all,

After consulting with FLEOA Attorney

Larry Berger regarding this issue, I have

decided that I will not independently

3



contact Judge Allegra to report this

matter for his consideration.

I will execute a finalized version of the statement I prepared detailing this

matter, and will provide a signed copy

to the DOJ attorneys prior to my

testimony. I will have the original in my

possession when called to the stand. If

I am questioned about whether I have

had contact with any party/witnesses

during the break between my

testimony, I will answer "Yes" and

produce the statement documenting

this incident. If I am not asked this question, or otherwise directly

questioned about this matter, I will not

reference it.

Attorney Berger made me realize that

my sense of justice has been fine tuned

through my experiences in criminal

courts and my dealings with AUSA’s

over the last 23 years. Different rules

apply in civil courts: Some of these I

find distasteful. Regardless, I will

continue to strive to be as professional

and fair as I can be.

Chris Trainor



From:

Sent:

To:

Subject:

Attachments:


(FYDIBOH F23SPDLT)/CN = REC[P[ENTS/CN = BOU MAN, RACHEE8753B06-


Sunday, July 21, 2013 1:12 AM

[email protected]

Fwd: Additional Documents re Trainor

Declaration of Michael Gleysteen 7-19-13 (Dobyns).docx; ATT00001.htm; Gleysteen

docs provided 7-19-13.pdf; ATT00002.htm; Gleysteen Meeting notes 7-19-13.pdf;

ATT00003.htm; Gleysteen provided NForce entry 7-19-13.pdf; ATT00004.htm

Rachel A. Bouman





Tel: 202.648.7004


From: "Bouman, Rachel A." <[email protected]>

To." "Gross, Charles R." <[email protected]> Cc." "Brandon, Thomas E." <Thomas.Brandon~atf.Rov>, "Allen, Joseph J." <Joseph.Allen~atf.Rov>

Subject: Additional Documents re Trainor

Here are additional documents. I scanned in the notes I took at the meetings today. I’m not sure how

helpful they will be. Chris had a number of conversations with DOJ today as well. I was not on those

calls. Dan Machonis, the ASAC of IA was on at least one of the calls. I understand there were a lot of

accusations made about DOJ and ATF on those calls.

I am heading home now and will bring my computer with me if there is anything else you would like me

to send that I didn’t yet provide.

Rachel

Rachel A. Bouman





Tel: 202.648.7004

WARNING: This electronic transmission is intended only for the person(s) named above. It may contain

information that is confidential and protected from disclosure by the attorney-client privilege and/or work product

doctrine or exempt from disclosure under other applicable laws. Any use, distribution, copying or other disclosure

by any other person is strictly prohibited. Do not forward or re-transmit without the permission of sender or ATF

Chief Counsel’s Office. If you have received this transmission in error, please notify the sender at the number or e-

mail above.



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From:

Sent:

To:

Cc:

Subject:

Snee, Bryant (CIV)


Harrington, David (CIV); Kinner, Donald (C~V)

Niosi, Corinne (C~V)

Re: Trainor

2 issues to consider: (1) this is obviously going to come out so we have figure out whether it is better that we raise it or

respond to it? and (2) once we figure out the best approach, we’ll have to let Jeanne know.

What are the possible/likely ways it will come up by them? Reed will raise it? Trainor will stalk Allegra over the weekend

and contact him directly? Or Trainor will blurt it out when he is on the stand?

What is our response? Probably the same in each case (?) - internal matter which agency has examined and closed; if

Trainor dissatisified can grieve; has no relevance to Dobyns’ claims against US? Anything else? Assuming this comes up

before Trainor testifies on Tuesday - could we/should we more aggressively cross-examine him to highlight inadequate

nature of his work; that he has personal interest because his professional abilities/judgment/competence are at issue;

personal bias in favor of Dobyns?

Alternatively, we could raise it (orally or short filing) and say same thing?

Which is better approach from an "optics" perspective? Bryant

..... Original Message .....

From: Harrington, David (CIV)

Sent: Friday, July 19, 2013 11:17 PM

To: Kinner, Donald (CIV); Snee, Bryant (CIV)

Cc: Niosi, Corinne (CIV) Subject: Fw: Trainor

I received this e-mail from Rachel Bouman this evening. I respectfully disagree with ATF about a "proactive" filing. A

final decision needs to be made promptly, however, because we are back in court Monday morning.

ATF has concluded that there was no threat from Higman to Trainor. I have listened to the phone calls myself and have

likewise concluded that no reasonable person would construe the calls as a threat. It hardly makes sense to inform

Judge Allegra that Chuck Higman did not threaten Chris Trainor. Nor is there any reason that Higman’s putative threat

would be relevant to issues about the alleged breach of the Dobyns-ATF settlement agreement in any event.

There has been no violation of the Rule 615 sequestration order or the court’s protective order. So this is not a basis for

a filing with the court.

Chris Trainor is apparently dissatisfied with the vigor of ATF’s response to the purported threat against him. However,

this would be an internal ATF matter - not a matter for the court to address in the Dobyns action.

The call between Higman and Trainor did contained some discussion about the fire investigation ROI, most notably, that

Higman believed that Trainor did a shoddy, unprofessional job on the report. But this occurred after both Higman and

Trainor had completed their testimony about the fire investigation. (Trainor will be testifying this week, but his

testimony is about a second ROI, concerns completely different issues, and has nothing to do with Chuck Higman.) In

addition, Higman’s statements are consistent with his testimony at trial and thus would not serve to impeach Higman

even if Higman could be recalled.

CONFIDENTIAL - SUBJECT TO ORDER OF APRIL 7, 2015 DOJ_CIVIL00000002


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The bottom line is that we have nothing to bring to the court’s attention. Chris Trainor, of course, has no ground to

appear before the court or submit something to the judge. He is not a party and his ill-founded belief that we are not

handling the case appropriately does not change the fact that the Justice Department represents the United States.

Naturally, we should be prepared to respond to his contentions if they are entertained by Judge Allegra.

As for ATF, my view is that they should explain to Chris Trainor that he is a witness for plaintiff and nothing more.

Accordingly, he should be instructed by an appropriate superior not to contact the judge or make any submission to the

court in the Dobyns case. Naturally, if he wants to file a grievance with ATF about its handling of the supposed threat

from Higman, or file a complaint with OPR about our handling of the case, those administrative avenues are open to

him.


From: Bouman, Rachel A. (ATF) Sent: Friday, July 19, 2013 09:33 PM

To: Harrington, David (CIV)

Cc: Niosi, Corinne (CIV) Subject: Trainor

Hi David--




Thanks,

Rachel



Tel: 202.648.7004



From:

Sent:

To:

Subject:

Harrington, David (CIV)


Niosi, Corinne (CIV)

Re: Trainor

I think that is the more likely scenario and then we tell the Court that Trainor has his own personal complaint about ATF

handling of a supposed threat against him, that we have looked at it, that he needs to address it internally at ATF, that

we have told Trainor this, and that his complaint has no bearing on this case.


From: Niosi, Corinne (ClV) Sent: Saturday, July 20, 2013 06:59 AM


Subject: RE: Trainor

That’s what I was thinking too actually. If he calls the court, we will have a discussion on the first day of trial, and we can

control the content of the discussion, right? But, what happens Trainor decides not to call the Court before Monday

morning -- and he might not because Rachel sent him an email asking him to hold off on doing anything until Monday

when someone from Chief Counsel’s office can speak to him -- and instead shows up with a declaration on Tuesday. I’m

trying think about how this would play out? Would he take the stand and turn to the Court and say I have a declaration

that I want to submit about an issue that I think needs to be brought to the Court’s attention? What would Allegra do in

response? Look at us and say what is this about? At that point, do we essentially have to disclose everything, albeit in

our own words, and he (Trainor) essentially gets what he wants?

Corinne A. Niosi Trial Attorney

(202) 616-0391



Sent: Saturday, July 20, 2013 6:53 AM

To: Niosi, Corinne (CIV) Subject: Re: Trainor

Plus, frankly, ATF forgets that there is no mechanism for Trainor to submit anything to the Court. As soon as Trainor

calls the Court, Judge Allegra will be asking us what is going on.







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I do think we need to wait to hear from them. Bryant and Don have been adamant that there is no reason to bring this

to the Court’s attention. I don’t think we can agree to do a filing unless they say it is ok, particularly because I don’t

agree that we should file something.


(202) 616-0391




To: Niosi, Corinne (ClV) Subject: Re: Trainor

Thanks, Corinne. I want to gey back to Rachel. But I guess for the moment we wait to see what Bryant and Don say.





I agree with you. I’m not even sure how we "proactively" address this without implicitly acknowledging that we think

there’s a problem or without suggesting that we are seeking the Court’s assistance in controlling an ATF employee.

I will be in the office until about 8:15 am, then back in the office around 1 pm. I’ll be available by phone in between.

When I get back to the office, I should have a draft of the document that we discussed yesterday.


(202) 616-0391
































him.





Hi David--




Thanks,

Rachel



Tel: 202.648.7004



From:

Sent:

To:

Cc:

Subject:



Snee, Bryant (ClV); Kinner, Donald (CfV)


Re: Trainor

Corinne an I had a back and forth addressing many of the considerations you raise.

I see the two overarching goals: first, explain that Trainor’s issues have nothing to do with the pending dispute; second,

show that Trainor has lost his objectivity, which he clearly has.

It is unlkely that Reed will bring this up as he has made no mention of it to date and he is rarely reticent. Trainor has

been adamant that he will bring it up, however. I think it likely that either he will contact the court or raise it unilaterally

before he testifies. Either way we are likely to have Judge Allegra then ask us what this is all about. This is the way I

would prefer the issue to arise. We then give Judge Allegra our prepared oral response.

In a nutshell, our response is that Trainor has his own personal complaint about ATF handling of a supposed threat

against him, that we have looked at it, that he needs to address it internally at ATF as a grievance, that we have told

Trainor this, and that his complaint has no bearing on the claims in this case.

Bringing the matter up affirmatively does not seem consistent with our view that Trainor’s complaints are rightly a non-

issue. Additionally, it will make it less apparent to the court how personally invested and biased Trainor has become.


From: Snee, Bryant (CIV)


To: Harrington, David (ClV); Kinner, Donald (ClV)

Cc: Niosi, Corinne (ClV) Subject: Re: Trainor

2 issues to consider: (1) this is obviously going to come out so we have figure out whether it is better that we raise it or

respond to it? and (2) once we figure out the best approach, we’ll have to let Jeanne know.

What are the possible/likely ways it will come up by them? Reed will raise it? Trainor will stalk Allegra over the weekend

and contact him directly? Or Trainor will blurt it out when he is on the stand?

What is our response? Probably the same in each case (?) - internal matter which agency has examined and closed; if

Trainor dissatisified can grieve; has no relevance to Dobyns’ claims against US? Anything else? Assuming this comes up

before Trainor testifies on Tuesday - could we/should we more aggressively cross-examine him to highlight inadequate

nature of his work; that he has personal interest because his professional abilities/judgment/competence are at issue;

personal bias in favor of Dobyns?

Alternatively, we could raise it (orally or short filing) and say same thing?

Which is better approach from an "optics" perspective? Bryant





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him.





Hi David--




Thanks,



Rachel



Tel: 202.648.7004



From:

Sent:

To:

Cc:

Subject:



Bouman, Rachel A. (ATF)

Niosi, Corinne (ClV)

RE: Higman [ssue

Feel free to give me a call at 703-560-9503 if you would like to talk.

From= Bouman, Rachel A. (ATF) Sent= Saturday, July 20, 2013 12:33 PM To= Harrington, David (CIV) Cc= Niosi, Corinne (CIV) Subject= Re: Higman Issue

Thank God for Larry Berger! I’ve worked with him on a number of cases. He knows me well and knows I don’t take

things lightly. I am waiting for a response from the Chief Counsel. I’ll let you know when I receive a response.

Rachel

Rachel A. Bouman





Tel: 202.648.7004

OnJul20,2013, at 12:21 PM,"Harrington, David(CIV)"<Dav!d_Harrington@usdoj~gov> wrote:

Rachel-

In light of this e-mail, does ATF still believe that it makes sense to affirmatively raise with Judge Allegra

the issue of the alleged threat to Chris Trainor by Chuck Higman? Thanks.

David

From= Trainor, Christopher J. (ATF) Sent= Saturday, July 20, 2013 10:57 AM To= Harrington, David (CIV); Niosi, Corinne (CIV); Bouman, Rachel A. (ATF) Cc= Machonis, Daniel J. (ATF); Plott, Gregory D. (ATF); Gleysteen, Michael (ATF) Subject= Higman Issue

To all,

After consulting with FLEOA Attorney Larry Berger regarding this issue, I have decided that I will not

independently contact Judge Allegra to report this matter for his consideration.



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I will execute a finalized version of the statement I prepared detailing this matter, and will provide a

signed copy to the DOJ attorneys prior to my testimony. I will have the original in my possession when

called to the stand. If I am questioned about whether I have had contact with any party/witnesses

during the break between my testimony, I will answer "Yes" and produce the statement documenting

this incident. If I am not asked this question, or otherwise directly questioned about this matter, I will

not reference it.

Attorney Berger made me realize that my sense of justice has been fine tuned through my experiences

in criminal courts and my dealings with AUSA’s over the last 23 years. Different rules apply in civil

courts: Some of these I find distasteful. Regardless, I will continue to strive to be as professional and

fair as I can be.

Chris Trainor



From:

Sent:

To:

Subject:




RE: Higman [ssue

I am reconsidering whether we should perhaps say that there were contacts between Trainor and Higman, that there

was a discussion about the fire investigation ROI (but not their testimony), and that we have concluded that there was

no violation of FRE 615.

We could steer clear of the "threat" and issues about the adequacy of ATF’s response, which really have nothing to do

with our case.

From= Niosi, Corinne (CIV) Sent= Saturday, July 20, 2013 1:32 PM To= Harrington, David (CIV) Subject= Re: Higman Issue

Exactly.

From: Harrington, David (CIV) Sent: Saturday, July 20, 2013 01:26 PM To: Niosi, Corinne (CIV) Subject: RE: Higman Issue

You mean that he takes a broad view of what he ought to know about?

From= Niosi, Corinne (CIV) Sent= Saturday, July 20, 2013 12:55 PM To= Harrington, David (CIV) Subject= Fw: Higman Issue

I don’t want to muddy it up but we need to consider Bryant’s question about whether Allegra would want to know about

this against the backdrop of the Valarie Bacon thing and Trainor’s horse trading testimony.

From: Snee, Bryant (CIV) Sent: Saturday, July 20, 2013 11:51 AM To: Harrington, David (CIV); Kinner, Donald (CIV)

Cc: Niosi, Corinne (CIV) Subject: Re: Higman Issue

What the best case which could be made that we should bring it to the Court’s attention? That witness X in this case

believes he has been threatened about his testimony in this case by witness Y from this case. Arguably, that may be

relevant for the judge to know - for example, would it be within his prerogative/power to issue an order directing these

witnesses (or even all witnesses) not to discuss their testimony with other witnesses during the pendency of

proceedings? (Has the rule on witnesses been invoked in this case? - should it?)

Additionally, to what extent is our view of this matter informed by our assessment that this is not a real threat? Is that a

proper subject for us to evaluate? Stated differently, if we thought it was a truly real threat, would we adopt the same



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approach?

Another way to look at it is - if you were in the judge’s shoes, would you want to know of the situation? What if (heavens

forbid) Witness X actually harmed witness ¥ or family, would we still say we had no duty to disclose to court?

We will have to flag this issue for Jeanne, but before we do so you should ask Rachel whether in light of Trainor’s e-mail,

the agency still recommends "pro-actively" bringing the matter to the Court’s attention. Bryant

From: Harrington, David (CIV) Sent: Saturday, July 20, 2013 11:13 AM To: Snee, Bryant (CIV); Kinner, Donald (CIV) Cc: Niosi, Corinne (CIV) Subject: Fw: Higman Issue

I just received this from Chris Trainor. He now says he will not be contacting the court directly. Instead, it looks as if he

will be tacitly inviting questions.

I see a small chance that the issue will not come up if he sticks to this approach. Regardless, I continue to believe that a

"proactive" filing would be unwise.

From: Trainor, Christopher J. (ATF) Sent: Saturday, July 20, 2013 10:57 AM To: Harrington, David (CIV); Niosi, Corinne (CIV); Bouman, Rachel A. (ATF) Cc: Machonis, Daniel J. (ATF); Plott, Gregory D. (ATF); Gleysteen, Michael (ATF) Subject: Higman Issue

To all,

After consulting with FLEOA Attorney Larry Berger regarding this issue, I have decided that I will not independently

contact Judge Allegra to report this matter for his consideration.

I will execute a finalized version of the statement I prepared detailing this matter, and will provide a signed copy to the

DOJ attorneys prior to my testimony. I will have the original in my possession when called to the stand. If I am

questioned about whether I have had contact with any party/witnesses during the break between my testimony, I will

answer "Yes" and produce the statement documenting this incident. If I am not asked this question, or otherwise

directly questioned about this matter, I will not reference it.

Attorney Berger made me realize that my sense of justice has been fine tuned through my experiences in criminal courts

and my dealings with AUSA’s over the last 23 years. Different rules apply in civil courts: Some of these I find

distasteful. Regardless, I will continue to strive to be as professional and fair as I can be.

Chris Trainor



From:

Sent:

To:

Cc:

Subject:



Snee, Bryant (ClV); Kinner, Donald (CfV)


RE: Higman [ssue

The strongest argument for disclosure is probably the fact that Judge Allegra takes a broad view of what relates to the

case and what he should hear about.

A related question is what exactly we would be disclosing to the Court. Chris Trainor’s most recent e-mail concerns

whether he "had contact with any party/witnesses during the break." The best case for some disclosure - and indeed

perhaps a disclosure worth making - is that there were such contacts between witnesses, but no violation of FRE 615.

FRE 615 has been invoked in the case. This means that trial witnesses cannot disclose their testimony to witnesses who

have not yet taken the stand. There was no violation of FRE 615 because (1) Higman did not discuss his trial testimony to Trainor, and (2) both Higman and Trainor had finished testifying about the fire investigation ROI before their

discussion occurred. Trainor, however, is going to be back on the stand this week to testify about other matters. This is

a sufficiently complex issue, and a sufficiently close call, that a mention at the outset of trial on Monday may well be

warranted.

There is a much less compelling case for raising other matters affirmatively. A threat by Higman (if here had been one)

would be a criminal matter - not a matter to be addressed by the COFC. If there were some threat that was an attempt

to influence trial testimony, this would be a matter to raise with the Court. However, there has been no such allegation.

Likewise, there is no reason to raise Trainor’s unhappiness with ATF’s response to the purported threat. That is a

dispute between Trainor and ATF that has no bearing on issues in this action.

From= Snee, Bryant (CIV) Sent= Saturday, July 20, 2013 11:51 AM To= Harrington, David (CIV); Kinner, Donald (CIV) Cc= Niosi, Corinne (CIV) Subject= Re: Higman Issue








approach?


forbid) Witness X actually harmed witness Y or family, would we still say we had no duty to disclose to court?




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To all,











Chris Trainor



From:

Sent:

To:

Subject:



Snee, Bryant (ClV); Niosi, Corinne (CfV); Kinner, Donald (CfV)

RE: Higman [ssue

Rachel said that ATF thinks the "safer" course is to raise matters affirmatively. ATF is still vague about what exactly they

think should be raised with the court.

We also need to consider how far we go if we mention FRE 615 affirmatively. Do we give the judge details about the

voicemail and subsequent call that occurred between Higman and Trainor? That Trainor considered the initial message

to be a treat? That ATF then investigated the threat allegation? That Trainor thinks ATF did not do so vigorously

enough? And if we go only part way, do we run the risk that Judge Allegra thinks we have not told him something that

he considers to be important?

From= Snee, Bryant (CIV) Sent= Saturday, July 20, 2013 2:33 PM To= Harrington, David (CIV); Niosi, Corinne (CIV); Kinner, Donald (CIV) Subject= Re: Higman Issue

Did you send an e-mail to Rachel about the agency’s views given Trainor’s latest? I think we should find that out.

We should explain situation to Jeanne but we can wait until later tonight to see if we get a response from the agency.

Bryant

From: Harrington, David (CIV) Sent: Saturday, July 20, 2013 01:55 PM To: Snee, Bryant (CIV); Kinner, Donald (CIV) Cc: Niosi, Corinne (CIV) Subject: RE: Higman Issue










warranted.






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From: Snee, Bryant (CIV) Sent: Saturday, July 20, 2013 11:51 AM To: Harrington, David (CIV); Kinner, Donald (CIV) Cc: Niosi, Corinne (CIV) Subject: Re: Higman Issue








approach?











To all,






2








Chris Trainor



From:

Sent:

To:

Subject:



Snee, Bryant (ClV); Niosi, Corinne (CfV); Kinner, Donald (CfV)

RE: Higman [ssue

I may have been unclear. This is ATF’s view after seeing this morning’s e-mail from Chris Trainor.

From= Harrington, David (CIV) Sent= Saturday, July 20, 2013 2:43 PM To= Snee, Bryant (CIV); Niosi, Corinne (CIV); Kinner, Donald (CIV) Subject= RE: Higman Issue

Rachel said that ATF thinks the "safer" course is to raise matters affirmatively. ATF is still vague about what exactly they

think should be raised with the court.

We also need to consider how far we go if we mention FRE 615 affirmatively. Do we give the judge details about the

voicemail and subsequent call that occurred between Higman and Trainor? That Trainor considered the initial message

to be a treat? That ATF then investigated the threat allegation? That Trainor thinks ATF did not do so vigorously

enough? And if we go only part way, do we run the risk that Judge Allegra thinks we have not told him something that

he considers to be important?

From= Snee, Bryant (CIV) Sent= Saturday, July 20, 2013 2:33 PM To= Harrington, David (CIV); Niosi, Corinne (CIV); Kinner, Donald (CIV) Subject= Re: Higman Issue

Did you send an e-mail to Rachel about the agency’s views given Trainor’s latest? I think we should find that out.

We should explain situation to Jeanne but we can wait until later tonight to see if we get a response from the agency.

Bryant

From: Harrington, David (CIV) Sent: Saturday, July 20, 2013 01:55 PM To: Snee, Bryant (CIV); Kinner, Donald (CIV)

Cc: Niosi, Corinne (CIV) Subject: RE: Higman Issue











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warranted.














approach?











To all,













Chris Trainor



Statement of Christopher J. Trainor

On Tuesday, July 2, 2013, I received a threatening voicemail on my government issued cell phone (240-882-7712) from Chuck Higman. Higman called me from telephone number (661) 748-0240. The content of the voicemail is as follows:

"Hey Chris, this is Chuck Higman. Uh, looking forward to talking to you. Uh, saw your report. Uh, looking forward to talking to Ryan, too. And we’ll talk about it then. Hope your family is doing good, too. All right pal. See you soon.., looking forward to it."

The tone of this message was clearly confrontational and antagonistic. I do not know Chuck Higman and have never met him or spoken to him. I am not his "pal," and he does not know my family or have any reason to reference them other than a disguised/veiled threat. I played that voicemail for several other ATF SAs, and all agreed that the message was threatening/intimidating in nature.

Higman was a named subject of the Internal Affairs Division (IAD) report I completed under number 20120079, dealing with the response to and investigation of a fire that occurred at the residence ofATF SA Jay Dobyns. Higman was called as a witness in the Dobyns civil trial. I was also called as a witness in the trial, and am to be called again during the week of July 22, 2013 for additional testimony. I was advised by the DOJ attorneys assigned to the civil trial that I was considered to be still on the stand and that I should have no contact with any parties

involved in the trial.

I immediately reported the threatening voicemail to my supervisor, Acting Special Agent in Charge Gregg Plott, per ATF protocol. I forwarded several e-mails to SAC Plott at around 11:00 a.m. I also notified OPSEC Branch Chief Bernard Conley, at SAC Plott’s direction. I provided several e-mails to Conley, one of which included a recording of the voicemail in question.

At approximately 1:45 p.m., I participated in a conference call between AD Michael Gleysteen, SAC Plott, and myself. I explained the situation to AD Gleysteen. I stated that I expected a vigorous investigation to be conducted by ATF. AD Gleysteen mentioned that he knew Higman to be a fool and suggested that the voicemail might be "innocuous." I took exception to the use of that word, and explained that my 18 year old daughter was at my home terrified because I had called to warn her not to answer the doorbell until this situation had been sorted out. I explained that this fact alone meant the voicemail was not innocuous, and that Higman had in fact succeeded in intimidating/threatening my family. I again stated I wanted a vigorous response from ATF. I advised that I had already requested assistance from Washington FD ASAC John Cooper in investigating the case. AD Gleysteen agreed that a vigorous investigation would occur, and advised that he would follow up through AD Field Operations to ensure that any investigative assistance needed was provided by Washington FD. AD Gleysteen later sent me an e-mail advising that he had followed up our conversation by speaking to the SAC Washington FD and that they would provide any and all assistance needed.

At approximately 2:18 p.m. I received the following response from OPSEC Chief Bernard Conley:

CONFIDENTIAL - SUBJECT TO ORDER OF APRIL 7, 2015, AND FEBRUARY 7, 2011 AMENDED PROTECTIVE ORDER

DOJ CIVIL00000125


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"Those are all good and valid questions. What we have to do when a threat comes in is verify and confirm via investigation. The investigation in this case will probably be assigned to someone in IAD that will most likely do what you have suggested below, and provide verification to OPSEC-TAB whether it is a valid threat. Now, I know that may sound like I didn’t read and hear what you sent me on the individual, but this is done for

legal purposes should our findings be challenged in the future.

I have copied Amy your DOO, down on this email so that information will be provided to your ASAC and incoming SAC. In the mean time, whoever is assigned to investigate will contact me so that OSPEC-TAB will be in the loop and ready to provide a Risk Assessment if the results deem necessary. I recommend that you continue to be vigilant

about your surroundings, take note of all the strange things that are taking place around you and vary your routine going to and from work and home. If you have any questions please give me a call, my cell number is also below for after hours."

I considered this response from ATF OPSEC to be pathetic. OPSEC Chief Conley cc’ed IAD DOO Amy Walck on this e-mail, however Walck was on leave for the rest of the week. IfI had not taken action myself on this threat, it would have remained in her Inbox unopened and un- acted upon until she returned. I find that to be unacceptable. Furthermore, IAD is not equipped to conduct an investigation such as this. We do not have a relationship with the USAO for the Eastern District of Virginia in order to obtain concurrence on the use of electronic surveillance. I wrote the following e-mail to AD Gleysteen, SAC Plott, and ASAC Dan Machonis:

"Not sure what to make of this e-mail. Seems like maybe we haven’t learned from painful lessons of the past regarding delays in investigating threats. We are not equipped here in IAD to handle this type of investigation. I am going over to the Falls Church FO

to make the recorded phone call to Higman - Washington FD has been very helpful. Hopefully it is a good number and he answers. If not, this threat needs to be investigated aggressively with subpoena’s for subscriber info, locating Higman and conducting a thorough interview, etc."

I received a phone call from ASAC John Cooper advising that Acting RAC Don Dockendorff, Falls Church FO, had been assigned to handle this investigation. I contacted RAC Dockendorff and made arrangements to meet at the Falls Church FO later in the afternoon to attempt a recorded phone call to Higman. RAC Dockendorff advised that an NForce case would be opened, and that one of his agent’s would make notification to the USAO that we planned to use

electronic surveillance in accordance with ATF orders.

I contacted Dean Baynes, ATF IT Services Management Division, to determine if a method existed to download the voicemail off of my phone. He advised that we would contact Verizon, the service provider for my phone, to discuss. Baynes also advised that he had checked Higman’s phone number (661) 748-0240 and found that it was a trunked Skype account, and that

we would likely not have any luck in calling the number. We spoke to Verizon’s Law Enforcement desk and found that the voicemail exists only on my phone, not on their servers, and therefore could not be downloaded by Verizon.


DOJ CIVIL00000126


I went to the Falls Church FO and met with the investigators assigned to the case: RAC Dockendorff, SA Victor Castro, and SA Justin Masuhr. We placed recorded phone calls to the Skype number and found it was not a connectable number. We called another number, and I spoke to a female who I believe to be Higman’s ex-wife. She agreed to provide my name and phone number to her son, who could then provide the info to Higman if he so chose. I also sent an e-mail to an address I had used last summer in an attempt to contact Higman. The address is

[email protected]. I advised Higman that I had received his voicemail and requested he call me back.

The Falls Church SAs decided to go to an address in Vienna, VA that was generated from a LexisiNexis Search on Higman. It was believed that Higman’s son might reside there. The SAs would determine if Higman was living there, and if not, how to contact him. The SAs met with the landlord of the residence, who provided a cell number for the son. The SAs contacted the

son, who stated that he did not have his father’s contact numbers with him, but would meet the SAs at his residence at 7:30 p.m.

At approximately 6:00 p.m. I received a call from Higman, which I recorded. Higman stated that his voicemail the previous Friday was essentially a business call. He did not intend to threaten me or my family. He merely wanted to be courteous by passing on his regards to my family. I advised him that that made no sense. He then stated that he had read my report on the fire, found it to be unprofessional and incorrect, and wanted me to interview him and subsequently amend the report. I told him that would not happen. He also stated that he felt that ATF had no jurisdiction to investigate a house fire. I advised Higman to attempt no further contact with me, and that if he did, he may face arrest for threatening a federal officer. (Refer to audio recording for complete details)

After speaking with Higman, I called the Falls Church FO SAs to advise them of the conversation. We all agreed that Higman should be interviewed at his home in Tucson, AZ by ATF agents, to ask him questions that I failed to ask during our conversation, and to put him on notice, through ATF SAs other than myself, that ATF took the matter seriously and would seek charges against him if he continued to threaten!intimidate me.

I called AD Gleysteen to advise him of the conversation I had with Higman. I advised that the investigating agents were requesting that Higman be interviewed in Tucson, AZ. AD Gleysteen said that would be a problem because if any investigative activity were to occur in Tucson, AZ, SA Dobyns would be immediately made aware of the situation. I advised that I didn’t see a problem with that at all, and that perhaps he should be made aware regardless because this was a threat situation, and ifHigman was willing to threaten me for investigating him, it is not too far a leap to conclude he may be a threat to SA Dobyns who was the original complainant. AD Gleysteen said that SA Dobyns is already under a heightened state of awareness due to more serious threats, and he did not feel that he needed to be advised of this situation. I stated to AD Gleysteen that the entire matter likely was discoverable in the Dobyns civil trial, as one witness had threatened another, Higman stated that ATF had no jurisdiction to investigate the fire (this information is germane to the civil case), and Higman wanted me to interview him and amend my fire report. AD Gleysteen requested that we wait until the next day to make any decisions about interviewing Higman.


DOJ CIVIL00000127


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At approximately 10:17 p.m., I received the following e-mail from Washington FD ASAC John Cooper:

"Hey Chris- was hoping to have more info for u tonight but unfortunately instead of moving fast to take this to Arizona, the DADs and ADs have slowed it down and want to revisit in the morning- not a good idea to me and I am still shaking trees but to no avail- reach out if necessary and hopefully things will move faster in the morning-"

On Wednesday, July 3, 2013, I went to the Falls Church FO where the digital recording I made was downloaded from the recording device. The original was retained as evidence per ATF orders. I received a copy of the recording.

I forwarded a copy of the Higman recording to AD Gleysteen at 11:13 a.m. AD Gleysteen advised that he had shared the recording with ATF Chief Counsel’s Office.

At approximately 6:01 p.m., I called AD Gleysteen because I had not heard from him regarding the interview ofHigman. AD Gleysteen stated AD Turk, Field Operations, or possibly simply "Field Operations," had decided that Higman would not be interviewed any further. I reminded him that the Washington FD SAs felt it was important to the case to conduct the further interview of Higman, as did I. AD Gleysteen stated that this was not a normal situation, because of the ongoing civil trial. I told AD Gleysteen that I believe that absent of the civil trial, there is no question that ATF would instruct Phoenix FD SAs to interview Higman immediately. AD Gleysteen agreed, but said that because of the civil case, it was very complicated, and SA Dobyns may use the information about this incident to his advantage in the civil case. I told AD Gleysteen that I completely disagreed with the reasoning behind the decision to not interview Higman. I advised that a negative impact on DOJ’s defense of the civil case was not a good reason to forgo an interview that everyone agreed needed to be done. I stated to AD Gleysteen that I was reasonably sure that Higman posed no actual threat to me or my family, but he should be made aware that such intimidation is unacceptable, and a visit from ATF agents at his home would send that message far more clearly than my warnings over the phone. I also restated to AD Gleysteen that I believed that this incident was discoverable in the civil trial for multiple reasons, and that at a minimum, the DOJ attorneys should present this information to Judge Allegra and allow him to decide if it should be released to SA Dobyns as discovery. AD Gleysteen stated that he had provided all of the information to Rachel Bouman, ATF Counsel on the Dobyns civil trial, and she would handle the issue from that point forward.

From July 4 to July 14, 2013 I was on annual leave and out of the area.

On July 16, 2013, I received an e-mail from Rachel Bouman providing reporting details for my upcoming testimony in the Dobyns civil trial. I responded to Bouman as follows:

"I will be flexible.

I don’t want to overstep my boundaries, but can you tell me if the UC/ID report and PRB decision have been provided to SA Dobyns? Also, how was the situation with Chuck Higman handled?

I just want to know what I may be questioned about."


DOJ CIVIL00000128


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On July 17, 2013, Bouman responded:

"I saw that you sent an email yesterday and received it on my iphone, but for some reason I can’t find it again. Anyway, I wanted to respond and let you know that the ROI has been produced and I expect you will be questioned about it. You also asked about a Higman issue and I’m not aware of any pending Higman issue relating to your testimony."

After asking her if she was aware of the threatening phone call I had received from Higman, she responded:

"I am aware of the voicemail and the call you had with him. I thought your original email asked me about your testimony next week and I wasn’t aware that the Higman voicemail and call related to your testimony next week. Perhaps I misunderstood. Is that information that you have relayed to Agent Dobyns or his attorney?"

I replied on July 17, 2013 as follows:

"I have not relayed any information to SA Dobyns or his attorney, or any other person outside ofAD Gleysteen, IAD SAs, the Washington FD SAs who investigated the threat, and OPSEC. That would be inappropriate.

My question!concern is this: One witness in this civil trial (Higman) contacted another witness (me) in a threatening manner regarding issues I testified about in court (the IAD fire investigation report I wrote). Higman also spoke about his beliefs regarding ATF jurisdiction to investigate a house fire, an issue germane to the civil trial. Audio recordings and ROIs were generated regarding this matter. Is this matter discoverable? I

was under the impression from AD Gleysteen that DOJ would present the matter to Judge Allegra for a determination as to whether it is pertinent to SA Dobyns case in any way such as impeachment of Higman’s testimony.

This does relate to my testimony next week. If SA Dobyns has become aware of this issue I don’t want to be unprepared to answer questions about it. I also believe that ATF should proactively get out in front of this matter so that it does not appear that we are (again) withholding information in this case - I don’t want to be a party to that.

Please let me know your thoughts about my concerns."

I sent a follow-up e-mail on July 18, 2013 that read:

"I would like to receive a response to my question below, as I am feeling very conflicted

about this matter. Have you forwarded the information about Higman to the DOJ attorneys handling the Dobyns civil suit? Are they aware of this issue and my concerns?"


DOJ CIVIL00000129


Bouman replied:

"This matter has been referred to the DOJ attorneys for handling. If you have any questions about it, please feel free to contact David Harrington."

I was beginning to feel very uncomfortable about the manner in which this issue was being handled by ATF and DOJ. I decided to call two experienced attorneys who are completely unconnected to this case to receive their advice on how I should proceed. One stated that this incident is absolutely discoverable and it wasn’t even close. Not only had one witness threatened intimidated another, but Higman’s comments constitute impeachment material, and Higman was requesting that I amend a report that has already been entered into evidence as a business record. This attorney recommended I draft a memorandum and provide it to lead counsel Harrington and his immediate supervisor.

I contacted David Harrington and had a conference call with him and Corrine Niosi and another DOJ attorney. I explained the entirety of this situation to him, as detailed above. I explained that I believed this incident was discoverable and needed to be provided to Judge Allegra for his determination as to whether is needed to be provided to SA Dobyns. Harrington advised that he

was an expert in civil discovery: He would make some calls to ATF to gather more info, then decide if the information should be released to SA Dobyns.

I received a call from the second attorney I consulted, who agreed that the incident was discoverable. This attorney stated that I had an affirmative duty to contact Judge Allegra myself

and ensure that he was made aware of this incident and it ramifications for the civil trial.

I am not comfortable with the situation I have been put it. I believe that ATF and DOJ should err on the side of caution in this case, and at a minimum, allow Judge Allegra to decide this matter.


DOJ CIVIL00000130


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DOJ CIVIL00000131


From:

Sent:

To:

Subject:

Pettaway, Dawn (CTV)

Friday, July 19, 2013 11:35 AM

Harrington, David (CTV)

RE: Here is the recording of the threat

Ok working on it

From= Harrington, David (CIV) Sent= Thursday, July 18, 2013 5:08 PM To= Pettaway, Dawn (CIV) Subject= FW: Here is the recording of the threat

This is the other recording we need on CDs. Please call it "Higman Message." Thanks.

From= Bouman, Rachel A. (ATF) Sent= Thursday, July 18, 2013 2:16 PM To= Harrington, David (CIV); Niosi, Corinne (CIV) Subject= FW: Here is the recording of the threat

Rachel A. Bouman





Tel: 202.648.7004







From= Gleysteen, Michael Sent= Thursday, July 18, 2013 1:41 PM To= Bouman, Rachel A. Subject= FW: Here is the recording of the threat

Per your request.

From= Plott, Gregory D. Sent= Tuesday, July 02, 2013 12:04 PM To= Gleysteen, Michael l:c= Trainor, Christopher J. Subject= FW: Here is the recording of the threat



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Michael -

Here is the recording.

Greg

Greg Plott Office: 202-648-5989 Mobile: 202-510-3325

I did speak with John Ryan. He hasn’t received any calls.

NOTICE: This e-mail message and any attached files are intended solely for the use of the addressee(s) named above in connection with official business. This

communication may contain Sensitive But Unclassified information that may be statutorily or otherwise prohibited from being released without appropriate

approval. Any review, use, or dissemination of this e-mail message and any attached file(s) in any form outside of the Bureau of Alcohol, Tobacco, Firearms &

Explosives or the Department of Justice without express authorization is strictly prohibited.

From: Trainor, Christopher J. Sent: Tuesday, July 02, 2013 11:59 AM To: PIott, Gregory D. Subject: FW: Here is the recording of the threat

SAC Plott,

Here is the recording of the threat. It will play through iTunes.

Chris Trainor







From:

Sent:

To:

Subject:

Attachments:

Niosi, Corinne (CIV) Friday, July 19, 2013 7:54 PM

Harrington, David (CIV); Bouman, Rachel A. (ATF)






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From:

Sent:

To:

Subject:



Harrington, David (CIV); Bouman, Rachel A. (ATF)

RE: Declaration of Michael Gleysteen 7-19-13 (Dobyns).docx

David, your failure to use the redline functions is clearly intended to make more work for Rachel. I ask that you cease

and desist that behavior.


(202) 616-0391

From: Harrington, David (CIV) Sent: Friday, July 19, 2013 3:58 PM

To= Niosi, Corinne (CIV); Bouman, Rachel A. (ATF) Subject= RE: Declaration of Michael Gleysteen 7-19-13 (Dobyns).docx

Corinne’s revisions look good. I made a few possible edits of my own - unfortunately not to Corrine’s draft and no in

redline - in the attachment.

From: Niosi, Corinne (CIV) Sent: Friday, July 19, 2013 3:54 PM To= Harrington, David (CIV); Bouman, Rachel A. (ATF) Subject= Declaration of Michael Gleysteen 7-19-13 (Dobyns).docx




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From:

Sent:

To:

Subject:




RE: Trainor

So, perhaps we can tell Rachel that we see it most likely playing out in one of the two ways discussed below, and we

think that it will be difficult for Trainor to get his views out ahead of us? (Not saying it can’t happen, but we think it’s

more likely that we will be able to get out our position -- which you stated below -- before he can tell the Court about

his disagreement with DO J).


(202) 616-0391





I think that is the more likely scenario and then we tell the Court that Trainor has his own personal complaint about ATF

handling of a supposed threat against him, that we have looked at it, that he needs to address it internally at ATF, that

we have told Trainor this, and that his complaint has no bearing on this case.


From: Niosi, Corinne (CIV) Sent: Saturday, July 20, 2013 06:59 AM



That’s what I was thinking too actually. If he calls the court, we will have a discussion on the first day of trial, and we can

control the content of the discussion, right? But, what happens Trainor decides not to call the Court before Monday

morning -- and he might not because Rachel sent him an email asking him to hold off on doing anything until Monday

when someone from Chief Counsel’s office can speak to him -- and instead shows up with a declaration on Tuesday. I’m

trying think about how this would play out? Would he take the stand and turn to the Court and say I have a declaration

that I want to submit about an issue that I think needs to be brought to the Court’s attention? What would Allegra do in

response? Look at us and say what is this about? At that point, do we essentially have to disclose everything, albeit in

our own words, and he (Trainor) essentially gets what he wants?


(202) 616-0391





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To: Niosi, Corinne (CIV)

Subject: Re: Trainor

Plus, frankly, ATF forgets that there is no mechanism for Trainor to submit anything to the Court. As soon as Trainor

calls the Court, Judge Allegra will be asking us what is going on.


From: Niosi, Corinne (CIV)




I do think we need to wait to hear from them. Bryant and Don have been adamant that there is no reason to bring this

to the Court’s attention. I don’t think we can agree to do a filing unless they say it is ok, particularly because I don’t

agree that we should file something.


(202) 616-0391





Thanks, Corinne. I want to gey back to Rachel. But I guess for the moment we wait to see what Bryant and Don say.


From: Niosi, Corinne (CIV) Sent: Saturday, July 20, 2013 06:36 AM



I agree with you. I’m not even sure how we "proactively" address this without implicitly acknowledging that we think

there’s a problem or without suggesting that we are seeking the Court’s assistance in controlling an ATF employee.

I will be in the office until about 8:15 am, then back in the office around 1 pm. I’ll be available by phone in between.

When I get back to the office, I should have a draft of the document that we discussed yesterday.


(202) 616-0391
































him.





Hi David--






Thanks,

Rachel

Rachel A. Bouman

Chief, Office of Equal Employment Opportunity Bureau of Alcohol, Tobacco, Firearms & Explosives


Washinl~ton, DC 20226

Tel: 202.648.7004



From:

Sent:

To:

Subject:




Re: Higman ~ssue

But if he tries to carry it to the stand the judge will ask what it is and that gets the issue out in front of the Judge. What

makes us think he will listen to us and leave it with us?

From: Harrington, David (CIV) Sent: Saturday, July 20, 2013 11:39 AM To: Niosi, Corinne (CIV) Subject: Re: Higman Issue

Yes and the judge will not allow him to carry it to the stand in any event. We will have to arrange it so that he leaves the

original and copies at the table with us - however "distasteful" he may find that.

From: Niosi, Corinne (CIV) Sent: Saturday, July 20, 2013 11:26 AM To: Harrington, David (CIV) Subject: Re: Higman Issue

If he walks into the courtroom with a document in his hand, then that will be a red flag.







To all,





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Chris Trainor



From:

Sent:

To:

Subject:




Fw: Higman ~ssue

I don’t want to muddy it up but we need to consider Bryant’s question about whether Allegra would want to know about

this against the backdrop of the Valarie Bacon thing and Trainor’s horse trading testimony.









approach?










From: Trainor, Christopher J. (ATF) Sent: Saturday, July 20, 2013 10:57 AM To: Harrington, David (CIV); Niosi, Corinne (CIV); Bouman, Rachel A. (ATF) Cc: Machonis, Daniel J. (ATF); Plott, Gregory D. (ATF); Gleysteen, Michael (ATF)



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To all,











Chris Trainor



IN THE UNITED STATES COURT OF FEDERAL CLAIMS

JAY ANTHONY DOBYNS,

Plaintiff,

V.

THE UNITED STATES,

Defendant.

) ) ) ) ) ) ) ) )

No. 08-700C (Judge Allegra)

GOVERNMENT’S NOTICE CONCERNING WITNESS COMMUNICATIONS

The Government files this notice to advise the Court that there has been a communication

between two trial witnesses, Mr. Chuck Higman and Special Agent (SA) Chris Trainor.

SA Trainor prepared an Internal Affairs Report of Investigation regarding ATF’s

response to the August 10,2008 fire at Agent Dobyns house (fire ROI). The fire ROI was

admitted into evidence as PX 272 on or about June 10 or June 11, 2012. The fire ROI examines

the actions of Chuck Higman, a former ATF Resident Agent in Charge (RAC), as well as of

other individuals. Mr. Higman testified at trial in Tucson on June 12, 2013, about his

involvement in ATF’s response to the fire at Agent Dobyns’ house. Later in the day on June 12,

plaintiff called Chris Trainor as a trial witness. SA Trainor’s testimony continued on June 13.

The topic of SA Trainor’s testimony was his preparation of the fire ROI. His testimony about

the fire ROI concluded on June 13, 2013. Plaintiff has listed SA Trainor as a witness for the DC

portion of the trial to testify regarding a wholly separate IA report of investigation relating to the

recall of Agent Dobyns covert identification in November 2007 (covert identification ROI),

which SA Trainor also prepared. Although Agent Trainor is expected to testify regarding the

covert identification ROI, his testimony about the fire ROI is closed. Thus, at this point, the trial



record of the testimony of Higman and Trainor is closed. Trial adjourned in Tucson on June 21,

2013.

Mr. Higman left a voicemail for SA Trainor on June 28, 2013, after the trial in Tucson

concluded, and thus after both Higman and Trainor had testified on June 12-13. Agent Trainor

apparently perceived the voicemail as potentially threatening. Based upon a follow-up telephone

conversation between Agent Trainor and Mr. Higman that they had on July 2, 2013, and an

investigation conducted by ATF’s Washington Field Division, ATF determined that the

voicemail was not a threat against SA Trainor and closed its investigation. SA Trainor agrees

with the conclusion that the voicemail was not a threat.

In the July 2, 2013 telephone call (which SA Trainor audio recorded), Mr. Higman

informed SA Trainor that he had contacted SA Trainor because he was upset that SA Trainor

been critical of Mr. Higman in the fire ROI without having first interviewed him, and that he

wanted SA Trainor to interview him and amend his ROI to include that interview. Agent Trainor

said that he would not do so.

Evidence of the telephone call is not admissible at trial. This telephone call is a dispute

between two people who have already given trial testimony about the fire ROI. Although the

subject of their discussion relates to issues in the trial, their out-of-court dispute does not affect

this litigation or have anything to do with this case. Therefore, the contents of their discussion

are not relevant to this litigation.

Indeed, neither Mr. Higman nor SA Trainor have any right or ability for that matter to

add their additional views about the fire ROI to the trial record. (Notably, however, Mr.

Higman’s call made no reference to such a desire.) Neither party has a right to recall a witness

merely because the witnesses have additional views about trial matters.



Nor could plaintiff use the call as impeachment evidence. The call demonstrates that Mr.

Higman is upset that SA Trainor issued a report that criticized Mr. Higman. Mr. Higman’s anger

towards SA Trainor is not evidence that could be used to impeach Mr. Higman’ s prior testimony

because it is not a prior inconsistent statement. Mr. Higman’s comments about the fire ROI’s

statements are not inconsistent with his trial testimony; indeed, the call simply reiterates --

perhaps in more colorful language -- his position stated at trial that he disagreed with the ROI’s

statements. Mr. Higman’s displeasure at SA Trainor is not admissible evidence of Mr. Higman’s

character or is not admissible to impeach Mr. Higman’s credibility. See Fed. R. Evid. 404, 405,

& 608.

Furthermore, Federal Rule of Evidence 615 is not implicated by the contact because

neither witness discussed his trial testimony. See Fed. R. Evid. 615 ("At a party’s request, the

court must order witnesses excluded so that they can hear other witnesses’ testimony.").

Additionally, Rule 615 is not at issue because both Mr. Higman and SA Trainor already testified

on this subject.

Finally, we note that the contact between Mr. Higman and SA Trainor has been addressed

through appropriate internal ATF investigative channels. ATF has concluded that it was not a

threat against SA Trainor. Similarly, during the call, Mr. Higman did not attempt to influence

SA Trainor’s trial testimony. Mr. Higman merely requested that he be interviewed; SA Trainor

said that request would not be granted.



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From:

Sent:

To:

Subject:

Kinner, Donald (CIV) Wednesday, July 17, 2013 5:47 PM

Niosi, Corinne (CIV); Harrington, David (CIV)

RE: Dobyns Trial

I’m in a meeting, I will be in reviewer meeting tomorrow as well. Hopefully free after 4 and maybe in the afternoon

tomorrow. We’ll find time to discuss this.

From= Niosi, Corinne (CIV) Sent= Wednesday, July 17, 2013 1:09 PM To= Harrington, David (CIV); Kinner, Donald (CIV) Subject= RE: Dobyns Trial

To clarify, when Trainor says:

Audio recordings and ROIs were generated regarding this matter.

I believe that Trainor is saying that based upon Higman’s call to Trainor, which Trainor considered to be a threatening

call, ATF commenced an internal investigation about a potential threat to Trainor. In turn, that generated Report of

Investigations (ROIs).

Corinne A. Niosi

Trial Attorney

(202) 616-0391

From= Harrington, David (CIV) Sent= Wednesday, July 17, 2013 12:39 PM To= Kinner, Donald (CIV) Cc= Niosi, Corinne (CIV) Subject= Fw: Dobyns Trial

Don -

We have another issue to discuss in the Dobyns case. See the e-mails below.

I am out this afternoon interviewing one of our trial witnesses and have additional witness interviews tomorrow

afternoon. Would tomorrow morning work for you to meet with Corinne and me?

As to the substance of Trainor’s e-mail, below, he is probably referring to the fire investigation ROI. There is absolutely

nothing to his suggestion that we have improperly withheld that or anything else. Nor is his post-trial testimony

disagreement with Higman relevant or admissible as best I can tell.

This appears to be another instance where Chris Trainor has become personally and emotionally involved. I feel he has

lost all semblance of objectivity. We can discuss this further when we get together.

David



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From: Niosi, Corinne (CIV) Sent: Wednesday, July 17, 2013 12:10 PM To: Bouman, Rachel A. (ATF); Harrington, David (CIV) Subject: RE: Dobyns Trial

I don’t think that I realized that there was a ROI prepared about Higman’s call to Trainor. In any event, though:

¯ Why does Trainor think that Higman had any reason to know that Trainor testified? It sounds like Higman was calling to complain about the fire ROI; in fact, he asked (I think) that Trainor interview Higman. He did not ask for Trainor to change his testimony; nor would there be any way for that to happen because Trainor’s testimony on this is over.

¯ Higman is allowed to have his opinions about ATF jurisdiction; that does not mean that his opinion gets introduced at court simply because it does not square with Trainor’s own views. If it was not presented at trial that is because neither party thought it was relevant -- that’s the adversarial system. But, in any event, I think Higman did testify about his position on ATF jurisdiction. So Higman’ s restating his opinion out of court does not affect the litigation at all.

¯ Audio recordings and ROIs about an issue that does not affect the litigation is not relevant and not discoverable; so he is wrong that "This does relate to my testimony next week."

¯ We already know that Trainor’s impressions of what Glysteen says are often skewed and inaccurate, but did Glysteen suggest that the issue would be raised with Judge Allegra?

¯ "I don’t want to be unprepared to answer questions about it." I don’t see what there is to discuss with him.

¯ "I also believe that ATF should proactively get out in front of this matter so that it does not appear that we are (again) withholding information in this case - I don’t want to be a party to that." Who is the "we" and what does the "again" refer to? I certainly have not withheld anything and take serious offense if that is what he’s suggesting.

Corinne A. Niosi

Trial Attorney

(202) 616-0391

From." Bouman, Rachel A. (ATF) Sent: Wednesday, July 17, 2013 11:44 AM To." Harrington, David (CIV); Niosi, Corinne (CIV) Subject." Fwd: Dobyns Trial

I’m not sure how to respond to this. David, let’s discuss after our meeting with Billy today.

Thanks, Rachel


99 New York Avenue, NE, Suite 3.E-320 Washington, DC 20226 Tel: 202.648.7004




From: "Trainor, Christopher J." <[email protected]> Date: July 17, 2013, 11:41:57 AMEDT To: "Bouman, Rachel A." <[email protected]> Cc: "Machonis, Daniel J." <[email protected]> Subject: RE: Dobyns Trial

I have not relayed any inTormation to SA Dobyns or his attorney, or any other person outside oT AD Gleysteen, IAD SAs, the Washington FD SAs who investigated the threat, and OPSEC. That would be inappropriate.

My question/concern is this: One witness in this civil trial (Higman) contacted another witness (me) in a threatening manner regarding issues I testiTied about in court (the IAD TiPe investigation PepoPt I wrote). Higman also spoke about his belieTs regarding ATF jurisdiction to investigate a house Tire, an issue germane to the civil trial. Audio recordings and ROIs were generated regarding this matter. Is this matter discoverable? I was under the impression TPom AD Gleysteen that DO] would present the matter to ]udge A11egra Tot a determination as to whether it is pertinent to SA Dobyns case in any way such as impeachment oT Higman’s testimony.

This does relate to my testimony next week. IT SA Dobyns has become aware oT this issue I don’t want to be unprepared to answer questions about it. I also believe that ATF should proactively get out in Tront oT this matter so that it does not appear that we are (again) withholding inTormation in this case - I don’t want to be a party to that.

Please let me know your thoughts about my concerns.

Chris Trainor


From: Bouman, Rachel A.

Sent: Wednesday, ]uly 17, 2013 11:01 AM

To: Trainor, Christopher 3.

Subject: Re: Dobyns Trial

Hi Chris--

I am aware oT the voicemail and the call you had with him. I thought your original email asked me about your testimony next week and I wasn’t aware that the Higman voicemail and call related to your testimony next week. Perhaps I misunderstood. Is that inTormation that you have relayed to Agent Dobyns or his attorney?

Rachel

Rachel A. Bouman ChieT, OTTice oT Equal Employment Opportunity Bureau oT Alcohol, Firearms & Explosives 99 New York Avenue, NE, Suite 3.E-320 Washington, DC 20226 Tel: 202.648.7004

Tobacco,

On 3ul 17, 2013, at 10:53 AM, "Trainor, Christopher 3." <Christopher.Trainor@~=gov> wrote:

> Are you not aware oT the threatening phone call I got Trom Higman?

3



..... Original Message ..... From: Boumanj Rachel A. Sent: Wednesdayj 3uly 17~ 2013 10:45 AM

To: Trainor~ Christopher 3.

Subject: Dobyns Trial

Hi Chris--

> I saw that you sent an email yesterday and received it on my iphone~ but ~or some reason I can’t gind it again. Anyway~ I wanted to respond and let you know that the ROI has been produced and I expect you will be questioned about it. You also asked about a Higman issue and I’m not aware og any pending Higman issue relating to your testimony. >

> I will plan to touch base with youj most likely via text~ on Monday around lunch time to advise you on when you need to make your way to the courthouse.

Thanks~

Rachel

Rachel A. Bouman Chie~ O~ice o~ Equal Employment Opportunity Bureau o~ Alcohol~ Tobaccoj Firearms & Explosives 99 New York Avenue~ NE~ Suite 3.E-320 Washington~ DC 20226 Tel: 202.648.7004



From:

Sent:

To:

Subject:

Bouman, Rachel A. (ATF) Wednesday, July 03, 2013 5:14 PM

Harrington, David (CIV); Niosi, Corinne (CIV)

RE: HIGMAN Call

You’re welcome. Never a dull day around here...

Rachel A. Bouman





Tel: 202.648.7004







From: Harrington, David (CIV) [mailto:[email protected]] Sent= Wednesday, July 03, 2013 12:52 PM To= Bouman, Rachel A.; Niosi, Corinne (CIV) Subject= RE: HIGMAN Call

Thanks for keeping us informed, Rachel.

From: Bouman, Rachel A. (ATF) Sent: Wednesday, July 03, 2013 12:39 PM To: Harrington, David (CIV); Niosi, Corinne (CIV) Subject: FW: HIGMAN Call

Chris surreptitiously recorded Higman last night. Please do not disseminate, but I share this in case it becomes an issue

with Chris’s testimony during the next phase of trial.

Rachel

Rachel A. Bouman





Tel: 202.648.7004






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forward or re-transmit without the permission of sender or ATF Chief Counsel’s Office. If you have received this transmission in error, please notify the sender at the number or e-mail above.


From: Gleysteen, Michael Sent: Wednesday, July 03, 2013 12:23 PM To: Bouman, Rachel A. Subject: FW: HIGMAN Call

For your records.





From: Trainor, Christopher J. Sent: Wednesday, July 03, 2013 11:13 AM To: Gleysteen, Michael Cc: PIott, Gregory D.; Machonis, Daniel J. Subject: HIGMAN Call

Mike,

Here is the HIGMAN call.

Chris Trainor







From:

Sent:

To:

Subject:

Attachments:

Bouman, Rachel A. (ATF) Thursday, July 18, 2013 6:16 PM

Harrington, David (CIV); Niosi, Corinne (CIV)

FW: Here is the recording of the threat

HIGMAN Threat.m4a




Tel: 202.648.7004







From: Gleysteen, Michael Sent: Thursday, July 18, 2013 1:41 PM To: Bouman, Rachel A. Subject: FW: Here is the recording of the threat

Per your request.

From: Plott, Gregory D. Sent: Tuesday, July 02, 2013 12:04 PM To: Gleysteen, Michael l::c: Trainor, Christopher J. Subject: FW: Here is the recording of the threat

Michael -

Here is the recording.

Greg

Greg Plott Office: 202-648-5989 Mobile: 202-510-3325

I did speak with John Ryan. He hasn’t received any calls.



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From: Trainor, Christopher J. Sent: Tuesday, July 02, 2013 11:59 AM To: PIott, Gregory D. Subject: FW: Here is the recording of the threat

SAC Plott,

Here is the recording of the threat. It will play through iTunes.

Chris Trainor







From:

Sent:

To:

Cc:

Subject:

Bouman, Rachel A. (ATF) Friday, July 19, 2013 5:27 PM


Niosi, Corinne (CIV); [email protected]

RE: We need to talk. When are you available?

He’s available if I come up in the next little while. Shall we call you at your desk in 5 minutes?

Rachel A. Bouman





Tel: 202.648.7004







From= Harrington, David (CIV) Sent= Friday, July 19, 2013 1:25 PM To= Bouman, Rachel A. Cc= Niosi, Corinne (CIV); Veronica.N.Onyema@usdoj,gov Subject= RE: We need to talk. When are you available?

Please.

From= Bouman, Rachel A. (ATF) Sent= Friday, July 19, 2013 1:20 PM To= Harrington, David (CIV) Cc= Niosi, Corinne (CIV); [email protected] Subject= RE: We need to talk. When are you available?

I spoke with Michael this morning and am prepared to prepare a draft declaration for him, but I can go up to his office

and call you from there if you want to speak with him directly. Do you want me to see if he’s available?

Rachel A. Bouman





Tel: 202.648.7004

WARNING: This electronic transmission is intended only for the person(s) named above. It may contain information that is confidential and protected from disclosure by the attorney-client privilege and/or work product doctrine or exempt from disclosure



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under other applicable laws. Any use, distribution, copying or other disclosure by any other person is strictly prohibited. Do not forward or re-transmit without the permission of sender or ATF Chief Counsel’s Office. If you have received this transmission in error, please notify the sender at the number or e-mail above.


From: Harrington, David (CIV) Sent: Friday, July 19, 2013 12:39 PM

To: Bouman, Rachel A. Cc: Niosi, Corinne (CIV); Onyema, Veronica N. (CIV) Subject: RE: We need to talk. When are you available?

Yes. We are also going to need to talk directly to Chris Trainor’s AD, Michael Glysteen (sp?), today if possible.

From: Bouman, Rachel A. (ATF) Sent: Friday, July 19, 2013 12:07 PM To: Harrington, David (CIV) Subject: RE: We need to talk. When are you available?

I just returned from a meeting and have another one starting shortly. Shall we plan around 1:30?

Rachel A. Bouman





Tel: 202.648.7004

WARNING: This electronic transmission is intended only for the person(s) named above. It may contain information that is confidential and protected from disclosure by the attorney-client privilege and/or work product doctrine or exempt from disclosure under other applicable laws. Any use, distribution, copying or other disclosure by any other person is strictly prohibited. Do not forward or re-transmit without the permission of sender or ATF Chief Counsel’s Office. If you have received this transmission in error, please notify the sender at the number or e-mail above.


From: Harrington, David (CIV) Sent: Friday, July 19, 2013 10:57 AM To: Bouman, Rachel A. Subject: We need to talk. When are you available?

David A. Harrington Senior Trial Counsel Commercial Litigation Branch Civil Division U.S. Department of Justice P.O. Box 480 Ben Franklin Station Washington, D.C. 20044 (202) 616-0465



IN THE UNITED STATES COURT OF FEDERAL CLAIMS

JAY ANTHONY DOBYNS )

) Plaintiff, )

) v. ) No. 08-700C

) (Judge Allegra)

THE UNITED STATES, )

) Defendant. )

DECLARATION OF MICHAEL GLEYSTEEN

I, Michael Gleysteen, having personal knowledge of the matters set out in this

declaration, hereby declare:

1. I have been the Assistant Director (AD) of the Office of Professional

Responsibility and Security Operations (OPRSO) at the Bureau of Alcohol, Tobacco,

Firearms & Explosives (ATF) since November 2012. As AD of OPRSO, I oversee a

number of divisions, including the Internal Affairs Division (IAD). Special Agent Chris

Trainor is a SA in the IAD. I am the fourth-level supervisor in Special Agent (SA) Chris

Trainor’ s chain of command.

2. On July 2, 2013, SA Trainor notified me that he received a voicemail on

his work iPhone from retired Resident Agent in Charge (RAC) Chuck Higman that SA

Trainor perceived as a threat. The voicemail apparently was left for SA Trainor on

Friday, June 28, 2013, but Agent Trainor did not receive the voicemail until Tuesday,

July 2, 2013. I listened to the voicemail. I then received a transcript of the voicemail and

re-listened to the voicemail. Given SA Trainor’s concerns about his safety and his

perception that this was a threat, I wanted the issue run to ground. Because SA Trainor

works in Virginia and IAD does not investigate involving one of their own, I contacted


DOJ CIVIL00000534


Special Agent in Charge (SAC) of the Washington Field Division (WFD), Carl Vasilko,

and requested his assistance in having agents in the WFD investigate a potential threat to

a Federal agent.

3. SA Trainor worked with WFD agents to tape-record a July 3, 2013

telephone conversation between SA Trainor and Mr. Higman. I listened to the recorded

conversation and, in light of that discussion, concluded that Mr. Higman did not make

any threat against SA Trainor. I contacted AD of Field Operations, Ron Turk, and we

determined that a criminal case against Mr. Higman for threatening a Federal law

enforcement officer could not be made based on what had transpired in the June 28

voicemail, particularly in light of the subsequent July 3, 2013 telephone call between SA

Trainor and Mr. Higman. Therefore, we concluded that the perceived threat had been run

to ground and the case would be closed.

4. I contacted SA Trainor and asked how he was feeling about the situation.

He told me that after speaking with Mr. Higman he felt 100% better. I asked if there was

anything else that we needed to do for him and he said no. I told him he could contact

me directly if he ever needed anything from me with regard to this issue.

I declare under penalty of the perjury that the foregoing is true and accurate to the

best of my knowledge.

Dated this

Michael Gleysteen


DOJ CIVIL00000535


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From:

Sent:

To:

Subject:


Thursday, July 25, 2013 11:30 AM

Niosi, Corinne (CIV); Oliver, P. Davis (C[V); Onyema, Veronica N. (C[V)

FW: How was trial today?

FYI



Sent: Thursday, July 25, 2013 7:25 AM

To: Davidson, Jeanne (CIV) Cc: Snee, Bryant (CIV); Kinner, Donald (CIV)

Subject: RE: How was trial today?

Jeanne-

The trial today went well. Chris Trainor, the agent who wrote the two internal Reports of Investigation we are dealing

with, wrapped up. Once again, he was not a favorable witness. However, Corinne did a nice job establishing

shortcomings in his second report during her cross-examination. The word from ATF is that Trainor is very unhappy that

he was subjected to real cross examination. On the other hand, I am told that ATF is very pleased with our approach.

Plaintiff did a decent job rehabilitating him by pointing out that his ATF supervisors signed off on the ROI. Nothing we

could do about that.

The other witness to testify was William Hoover. Mr. Hoover was the Assistant Director for Field Operations at the time

of the fire and was involved in negotiating the settlement agreement. He provided his own view of what settlement

agreement terms meant (supportive of our interpretation), described his involvement with the investigation fire (limited

because he was in DC), explained why ATF transferred the investigation to the FBI (ATF’s continued involvement was a

"no-win" situation), and testified that ATF and Jay Dobyns himself were of the view there were no extant threats in 2007

when Dobyns fictitious IDs were withdrawn. All in all, he was a very effective witness.

With Mr. Hoover, Judge Allegra once again inquired about the basis for the $373,000 settlement payment. I asked some

follow up questions to show that it was not really clear what that sum reflected. We think that Judge Allegra is still

thinking about ruling that if there was a pain and suffering component to the settlement, emotional distress damages

for breach of the agreement are recoverable. Such damages remain the only damages potentially recoverable in this

case.

There are a few other noteworthy points. First, George Gillett, the Phoenix Assistant Special Agent in Charge, who we

were concerned about, did a good job on the stand Tuesday explaining that ATF was playing a supporting role in the fire

investigation, and that the Pima County Sherriff’s Office was the first to respond and was the lead agency. Davis did a

nice job prepping him in difficult circumstances. Second, as I explained last weekend, we thought that Chris Trainor

might volunteer information about a supposed threat that he says he received from another witness. That did not

happen and nothing about the incident has been raised with the court. Third, yesterday, ATF issued letters clearing the

three individuals who were the subjects of the second Trainor Report of Investigation on the recall of fictitious

identification documents from Agent Dobyns. We will be adding exhibit numbers and moving to admit those letters

today.

David



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From: Davidson, Jeanne (CIV) Sent: Wednesday, July 24, 2013 10:19 PM


Subject: How was trial today?



From:

To:

Cc:

Subject:

Date:

Snee, Bryan~ (CIV)

Harrinaton. David (CIr.: Kinner. Donald (CIV~

Niosi. Corinne (CIV~ Re: Higman Issue

Saturday, .July 20, 2013 4-:59:39 PM

OK - we write a reasonably concise e-mail to Jeanne explaining the situation generally, that ATF

defers to us, that anything can go wrong with Allegra but given that Trainor has withdrawn his

request that we apprise the judge, we see no reason to raise it affirmatively, but will have our

prepared response ready (explain what that is) and will have materials handy. You should expect

that she will pass to Joyce who will pass the Jon Olin - there is no lack of interest in this case in

Main. If you want, I can take a look at it first. Bryant

From: Harrington, David (CIV) Sent: Saturday, July 20, 2013 03:22 PM To: Snee, Bryant (CIV); Kinner, Donald (CIV) Co: Niosi, Corinne (CIV) Subject: FW: Higman Issue

l just received this e-mail saying that ATF is comfortable deferring to our judgment on what to raise

with the Court and when to raise it.

From: Bouman, Rachel A. (ATF) Sent: Saturday, July 20, 2013 3:12 PM To: Harrington, David (CIV) Cc: Niosi, Corinne (CIV) Subject: Re: Higman Issue

Hi David--

I think we had a good discussion about this issue. ATF doesn’t have anything further to add. We

trust DOJ’s judgment about how to proceed and will defer to DOJ to make the call about whether

to raise this and when.

I spoke with Michael Gleysteen. He reviewed Chris’s statement last night and talked with Dan

Machonis. Michael is concerned about a number of things relating to Chris, including that he

seems to be coming after everyone, including me. He will not be speaking with Chris any further.

He’s going to review his declaration and then he and I will figure out how to get it from him this

weekend as he will be on travel this coming week.

If you want to discuss anything further on this, please let me know. I need to run some errands

over the next little while and I plan to float in the pool at some point. But, will return a call if

necessa ry.

Rachel

RachelA. Bouman

Chief, Office of EqualEmployment Opportunity



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Tel: 202.648.7004

On Jul 20, 2013, at 12:21 PM, "Harrington, David (CIV)" <[email protected]> wrote:

Rachel -

In light of this e-mail, does ATF still believe that it makes sense to affirmatively raise

with Judge Allegra the issue of the alleged threat to Chris Trainor by Chuck Higman?

Thanks.

David

From: Trainor, Christopher J. (ATF) Sent: Saturday, July 20, 2013 10:57 AM To: Harrington, David (CIV); Niosi, Corinne (CIV); Bouman, Rachel A. (ATF) Cc: Machonis, Daniel J. (ATF); PIott, Gregory D. (ATF); Gleysteen, Michael (ATF) Subject: Higman Issue

To all,

After consulting with FLEOA Attorney Larry Berger regarding this issue, I have decided

that I will not independently contact Judge Allegra to report this matter for his

consideration.

I will execute a finalized version of the statement I prepared detailing this matter, and

will provide a signed copy to the DOJ attorneys prior to my testimony. I will have the

original in my possession when called to the stand. If I am questioned about whether

I have had contact with any party/witnesses during the break between my testimony,

I will answer "Yes" and produce the statement documenting this incident. If I am not

asked this question, or otherwise directly questioned about this matter, I will not

reference it.

Attorney Berger made me realize that my sense of justice has been fine tuned through

my experiences in criminal courts and my dealings with AUSA’s over the last 23 years.

Different rules apply in civil courts: Some of these I find distasteful. Regardless, I will

continue to strive to be as professional and fair as I can be.

Chris Trainor



176 FILED Exhibits to Objection

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Transcript of 176 FILED Exhibits to Objection