US Attorney Benjamin Wagner’s Response Defending the US Attorneys’ Office Entirely Misses the Point
by Gary Goyette
On  September 27, 2007 a jury convicted accused ‘Eco-Terrorist’ Eric McDavid for conspiring to damage or destroy property (the Nimbus Dam, a U.S. Forest Service genetics lab and cell phone towers) by fire or with explosives (18 U.S.C. § 844(n)). He was sentenced by United States Eastern District Judge Morrison C. England on May 8, 2008 to 235 months in prison – almost the 20-year maximum.
On Thursday, Jan. 8, 2015, Judge England granted a joint request by defense attorneys and the Dept. of Justice and ordered Eric McDavid released from prison with time served, because the government withheld documents from the defense at trial. Judge England accepted an alternate plea by McDavid to general conspiracy under 18 U.S.C. § 371 with a maximum sentence of 5 years. He was released. He had already served nine years.
The Sacramento Bee ran a few articles to report this release, based on the failure by the US Attorneys’ office to disclose key documents to Mr. McDavid’s attorney prior to the trial.
US Attorney Benjamin Wagner then wrote a letter to the Bee, which was published on January 16, 2015, defending the nondisclosure by his office.
In his self-serving letter, Mr. Wagner takes issue with the Bee’s articles as implying that the US Attorney intentionally concealed documents from Mr. McDavid’s attorney, and argues that no misconduct occurred when over 2.500 pages of documents were not disclosed to the attorney for Mr. McDavid – – including specific emails and even a hand-written letter from Mr. McDavid to Anna, the FBI undercover agent. These documents clearly would have been relevant to the entrapment defense asserted by Mark Riechel, the attorney defending Mr. McDavid.
Federal Rule XVI requires that the Government, upon the defendant’s request, disclose a wide array of documents, data, and other tangible things in the Governments possession or control that are material for the defendant to prepare his or her defense.  In addition, the Government is bound by the disclosure standards of Brady v. Maryland 373 US 83 (1963), which requires the Government to disclose to the defendant any exculpatory evidence if the evidence is material to either guilt or punishment. That means that even through the evidence may not have exonerated the defendant of the underlying misconduct, if it is in anyway material to the level of punishment, the Government must disclose it.  The government’s obligation to disclose evidence under Brady v. Maryland does not require a request from the defendant or the defendant’s knowledge or suspicion that the government may have in its possession such information.  The US Attorney’s office did not comply with its discloser standard with its prosecution of Eric McDavid.
Given this noncompliance, Mr. Wagner’s letter to the Bee entirely misses the point: whether the failure to disclose these documents was “intentional concealment” or simply “inadvertent nondisclosure” doesn’t change the fact that Mr. McDavid lost a decade of his life in prison due to a conviction achieved via a trial in which the defense did not have key documents the US Attorney was required to disclose. Given the crimes charged against Mr. McDavid, and the length of possible incarceration for a conviction, Mr. Wagner should have made sure prior to the trial that his office followed their duty to disclose. He did not do so.
Mr. Wagner also declares in his letter to the Bee that “the government remains confident . . . in the jury’s verdict,” followed by the ridiculous statement “So too, apparently, does McDavid” because upon his release on January 8, 2015 McDavid, under oath, “admitted he was guilty of the same conspiracy . . . that he was convicted of at trial.” First, Mr. McDavid admitted only to the lesser general conspiracy charge, not to the “conspiring to damage or destroy property” conviction which led to his 19 and a half year prison sentence. Second – – a point obvious to any attorney and likely to 98% of non-attorneys – –  even the admission made by Mr. McDavid under oath on January 8th was made as a condition of the ‘deal’ for his release! If Mr. Wagner had required Mr. McDavid to state under oath that Mr. Wagner was the most accomplished attorney in the history of the US Attorney’s office, Mr. McDavid likely would have gladly done so – – which of course doesn’t make the statement true.
But perhaps the most arrogant and incorrect statement made by Mr. Wagner in his letter to the Bee was his declaration that the documents which his office failed to disclose “arguably add to [McDavid’s] defense that he was entrapped into committing his crime. That defense was rejected by the jury, and we believe it would likely have been again, regardless of the newly discovered documents.”  Really?  Perhaps Mr. Wagner should have read the thoroughly reported article by Andrea Todd published in Elle Magazine  which covered all involved in the story, from ‘Anna’, the FBI uncover agent, to Mr. McDavid, to the trial Judge, and finally, after the trial, the jury.  Specifically, one of the jurors, Diane Bennett stated four months after the trial that she had been bothered by the guilty verdict since the day it was read, and that “I hope he gets a new trial. I’m not happy with the one he got.” So contrary to Mr. Wagner’s unsupported conclusion, the  specific emails and the hand-written letter establishing a romantic element between Mr McDavid and the FBI undercover agent may very well have caused the jury not to reject the entrapment defense, resulting in Mr. McDavid not being convicted.  This is especially true, considering Mr. Wagner’s co-counsel, Assistant U.S. Attorney Ellen Endrizzi emphasized during the trial that “[T]he defendant has throughout his papers said there was a romantic relationship [but] he has provided no facts of that.”. Right; not having the withheld documents made that more of a challenge.
Mr. Wagner closed his letter to the Bee by saying “the inadvertent nondisclosure of a limited set of documents in 2007 is unfortunate.”  Let’s correct that – – the failure by Mr. Wagner’s office to comply with the clear legal standard for disclosure is far more than unfortunate. It is likely the cause – – intentional or not – – of Mr. McDavid losing a decade of his life, which he can never get back.