November 29, 2006 - Former Marana Mayor Bobby Sutton Jr. last week stood next to three shackled men in a federal courtroom and pleaded not guilty again to charges of conspiracy and attempted extortion.
The plea pertained to an added count of lying to FBI agents.
Sutton's acquaintance and Marana businessman Rick Westfall asked for a continuance on his arraignment. He faces the same three charges as laid out in the original April 2005 indictment, albeit with slightly different language.
The indictment alleges that while mayor of Marana, Sutton used his influence to try and extort from Waste Management Inc. a lucrative job contract and thousands of dollars for Westfall. Waste Management is the nation's largest trash hauler.
Wearing a blazer and slacks, Sutton appeared out of place in a courtroom packed with men in prison jumpsuits. After the brief appearance, Sutton left the courthouse, donned a pair of sunglasses and drove away before he could be reached for a comment.
Sutton has failed to return phone calls from the EXPLORER for several months. The government's lead prosecutor in the case, U.S. Attorney Howard Sukenic refused to comment on why he went back to the grand jury with a false statements charge this late in the game - about six years after the FBI's investigation, almost two years after the initial indictment and little more than two months before a trial.
"I do all of my talking in the courtroom," said Sukenic, who did not attend the arraignment.
Sutton's attorney Michael Piccarreta called the added charge "a government fall back position." It is something to convict Sutton on should Sukenic fail to convince a jury of the two more serious charges.
"If the government was comfortable with its main case, they wouldn't need a fall back," Piccarreta said.
Adding a lesser charge could be an attempt to cop a plea from Sutton. If so, it seems a backdoor way of doing it, Piccarreta said.
Westfall's attorney Steve Weiss echoed those thoughts.
Sutton has until Jan. 19 to accept a plea deal, though there have been no indications that Sukenic has offered any since early 2005.
Just before the new indictment, defense attorneys filed a flurry of motions on behalf of the two defendants. Westfall spent Thanksgiving in Utah and rescheduled his arraignment for Nov. 30.
Defense attorneys filed more than a dozen motions, including last-ditch efforts to have the charges dismissed and attempts to keep statements made by the accused out of the trial, slated to begin Feb. 6.
The backroom meetings and private phone calls that led to the charges began almost five years ago.
Westfall had a contract with CSU Transportation Inc. to truck waste materials from Waste Management's Ina Road transfer station to a landfill near Florence. CSU terminated Westfall's contract on Feb. 8, 2002 in reaction to the defendant's becoming aware of illegal overweight loads coming out of the transfer station, the defense claims.
Sutton simply came to the defense of a wronged constituent and had nothing to gain financially by getting the contract reinstated for Westfall, according to the defense.
Sukenic will try to crumble the "whistleblower defense" with evidence of Westfall's participation in hauling overweight loads from the Ina Road station. The government plans to introduce at least 300 instances where Westfall trucked these illegal loads, sometimes several times a day.
"Westfall is not a whistleblower, but a violator," according to the government's court filings. If he did not get his contract and money, he and Sutton would go to the authorities about the illegal loads, the government claims.
The defense also moved to have two important conversations thrown out. The first took place in April 2002 at FBI offices in Tucson. FBI Agent Cliff Goodman interrogated Westfall behind a locked door without reading him his Miranda rights, the defense claims.
The government will argue that Westfall initiated the interview, making it voluntary. The defense claims Goodman and another agent extended the interview to more than two hours, forcing Westfall to cancel another appointment. While the interview began voluntarily, the dynamic changed midway through, the defense claims.
A couple of weeks later, Sutton had a conversation with Goodman that provides the basis for the added lying charge the former mayor now faces. Sutton claims that when he asked the agent if he should bring his attorney, Goodman responded, "What do you need an attorney for?"
During the meeting, Sutton - without his attorney - claimed never to have engaged in negotiations with Waste Management on behalf of Westfall. Sukenic calls that a lie, one of four lies the government alleges Sutton told during the meeting.
In a case based mostly on recorded conversations, the meeting between Goodman and Sutton went unrecorded.
Goodman in 2003 became embroiled in controversy when Pima County Superior Court Judge Lina Rodriguez dismissed perjury charges against Tucson Police Department Detective Joseph Godoy. Godoy had been accused of lying in court to secure the convictions of suspects in murders that occurred in 1992 and 1995 and Goodman was the prosecution's primary investigator in the perjury case.
In her July 16 ruling dismissing the charges, Rodriguez used terms such as "zealousness" and "exaggeration" to describe Goodman's testimony before a grand jury that later indicted Godoy. Members of the Tucson Police Officers Association, a union that supported Godoy, have called for an internal FBI investigation of Goodman.
"A tape recording would show there were no false statements," Piccarreta said of Goodman's meeting with Sutton.
Another motion made by the defense seeks to ban the use of tape recorded conversations Sutton and/or Westfall had with Dave Christensen, a security manager for Waste Management who worked closely with the FBI during its investigation.
The defense claims the FBI and Waste Management jointly tried to get Sutton and Westfall to commit a crime, prodding them along the way. Christensen is a big part of that theory.
Christensen, who the FBI called "Steven Jones," died earlier this year during a dangerous hiking expedition in Pine, Ariz. He had a relationship with Waste Management that dates back to his days as a city councilman in Irvine, Calif. Sources in Irvine government claim that Christensen orchestrated a backroom deal to get Waste Management a $60 million contract for Irvine. Other companies' bids went unnoticed, sources said.
Christensen also worked as a police officer and private investigator.
If he cannot be cross examined, then a jury should not hear his conversations with the defendants, according to defense attorneys.
"We have hundreds of questions to ask him related to FBI contact with Christensen before and after the taping," Piccarreta said. "And we can't ask them."
Christensen had as many as 10 conversations with the defendants.
"It is clear that (Christensen) is more than a passive participant in these conversations," Westfall's attorney states in court records.
Christensen suggests a lump sum payment to Westfall during one conversation and suggests a cover-up to Sutton in another, according to transcripts of the tapes. The former Waste Management employee baited the defendants into giving incriminating statements, the defense claims.
More importantly, Christensen closed the alleged deal, taking Westfall's bank account number from Sutton during an April 2002 phone conversation.
The government has until Dec. 1 to respond to the defendants' motions.
Sutton and Westfall will return to court on Dec. 19 to argue for their motions.