Sue and the Kangaroo
or:
Judge Battey auditions for "Night Court"
by Bob Newland (February 25, 1995)
For nearly three years, I've kept as up-to-date as I could on the most flagrant abuse of government power I've ever witnessed. Ruby Ridge and Waco have taught us all the lengths to which the government's agents are perfectly happy to go on a whim, and the the blandness with which their superiors excuse their outrageous actions. The strange case of the United States vs the Black Hills Institute of Geological Research is a little more typical, wherein the agents of government in all their multitudinicity--U.S. Attorneys, FBI, IRS, a Federal Judge, the Eighth Circuit Court of Appeals, BIA, USDA, BLM, Customs, officers of the National Guard, government-supported academia, and several agencies I forgot--select a victim, then, using all the resources at their disposal, proceed to punish that victim.
I've seen crows act similarly on a lamb. On a whim, a flock of crows will begin dive-bombing and pecking a lamb. After the lamb is exhausted, they sit on its back and peck its head and pull at its skin. After a while they quit. Sometimes the lamb dies, sometimes it doesn't. It's irrelevant to the crows; they had a good time, and, besides, their taste generally runs to grains. Why do they do it? Because they can, I guess. Why would a team of federal prosecutors pursue a course of unethical persecution of a group of people for picking up rocks and turning them into items of value? Why would they present evidence of wrongdoing while withholding exculpatory evidence relating to the same event? Why would they charge felonies, when the acts charged are misdemeanors under law? Why would they attempt to group misdemeanors to "add up to" a sufficient monetary total to charge a felony--something every lawyer knows is impermissible? Well, among other things, they work for the government.
The facts of the case are: The Black Hills Institute of Geological Research (BHIGR or BHI) was founded (as Black Hills Minerals) in 1974 by Peter Larson and James Honert, classmates at the SD School of Mines and Technology. The business supplied fossils and geological specimens to schools for study and teaching aids. By 1979, BHIGR had incorporated, with principals Peter and Neal Larson and Robert Farrar, all grads of SDSMT in Rapid City (Honert had left to take another job). It located in Hill City SD. Very quickly, BHIGR became known world-wide as a paleontological institution of the finest order. The Institute was famous for its significant vertebrate fossil finds, and for their openness in allowing scientists from all over the world access to their facilities and their finds. BHIGR was, and is, a commercial geological company. In other words, it sells things to generate money to operate. It has only once accepted public money, a $1500 loan from the South Dakota Economic Development Fund, which was repaid.
In 1990, a BHIGR employee (Susan Hendrickson) discovered the largest and most complete fossil of a Tyrannosaurus rex ever found, near Faith SD. This skeleton, nicknamed Sue, became the (eventually irrelevant) centerpiece of the most important criminal case ever to be tried in South Dakota. In May of 1992 BHIGR was raided. At the order of then-U.S. Attorney Kevin Schieffer, nine FBI agents, four USDA Forest Service rangers, two agents from the Dept. of the Interior, one BIA agent, one SD Highway Patrolman, one sheriff's deputy, and several paleontologists in the pay of the Dept. of Justice, executed a search warrant signed the previous afternoon by U.S. District Judge Richard Battey.
They enlisted, illegally, the South Dakota National Guard, several of whose personnel carried sidearms, to load and transport a huge amount of BHIGR records and property. Among the items taken was "Sue". Sue remains, after nearly three years, in a metal storage container in a steam room at the SD School of Mines. A few weeks later, the FBI came back and again pillaged BHIGR, taking tens of thousands of documents and records. Again, in January of 1993, the FBI raided the facility. In each case, they used records from the previous raid to determine more records and fossils to seize. In each case, the warrants themselves were suspect (probably illegal). BHI attorneys asked Judge Battey to recuse himself. He refused. They appealed to the Eighth Circuit Court of Appeals. That court went with Battey.
About a year and a half after the first assault on their business, in November of 1993, Peter and Neal Larson and Bob Farrar, Terry Wentz (BHIGR employee), and Ed Cole (a free-lance paleontologist) were charged with varying combinations of 39 federal counts. In September of 1994, the Rapid City Journal reported that the Justice Department and BHIGR had arrived at a plea agreement. Judge Battey said, essentially, that the principals were guilty as charged and that he might not allow a plea bargain. The FBI harassed the Journal reporter to find out who leaked the story (he didn't tell). For the second time, the Eighth Circuit Court of Appeals refused to remove Judge Battey from the case, despite his obvious prejudice. Any possibility of a plea bargain fell through, partially because the Justice Department demanded admission to a felony. Judge Battey's remarks about the probable guilt of the defendants are a matter of public record. He even asked defense attorneys to disregard them, and to not mention them in their appeal.
On January 10, 1995, the trial began.------------As of this writing, February 25, 1995, the trial is over. On Monday, February 28, the jury will begin deliberating. This magazine goes to press on Monday. Over the course of my life--I'm 46--I've consorted with various sordid characters, prime among them attorneys. I was a principal in a civil lawsuit, which lasted three weeks, in the very courtroom in which the BHIGR folks were tried. I've studied, in various research media, the justice system. Whatever illusions I may have had about justice as a child had been largely dispelled before I ever heard of BHIGR. But never have I, never could I have, imagined the travesty which was acted out in the third floor courtroom of the Federal Building in Rapid City from January 10 through February 24.
The government hired a private security force from Denver, dressed like Rapid City cops, to patrol the area around the courthouse during the first two weeks of the trial. I tried to talk to one of these rent-a-cops. He merely looked at me with disdain. It would appear that the government, knowing it had aroused the ire of decent people in the area, thought local cops would be more sympathetic to the fair-trial advocates who might try to slip a juror information about juries' rights and responsibilities--something Judge Battey won't do. We understand something government thinks we don't. Government fears our laughter more than our firepower. Nothing we can do about the absurdly abusive, intrusive, terroristic government of the United States will be as effective as if we ridicule it. In the Black Hills Institute trial, government provided plenty to ridicule. The trial was a parody of itself.
In the courtroom at any given moment during the trial were the judge, a court reporter, a clerk, a law clerk, a witness, 14 jurors (two are alternates), two federal attorneys, three federal marshalls, one or two FBI agents, and an IRS (don't ask, I don't know) observer. That was 28 people being paid tax money for their presence. Quick calculations suggest that, very conservatively, the cost to you in salaries and jury and witness fees was at least $10,000 per day.There were five defendants and five defense lawyers. The defendants were probably being charged about $1000 each per day of trial, in addition to two-and-a-half years of preparation. The total bill for the 34 months of defense attorney fees will probably approach $1,000,000. Various sources peg the government's investment in this prosecution at about $7,500,000. Government itself refuses to release its expenses related to the prosecution, saying it has no records on an individual case. A lie, of course.
The prosecution arranged six state-of-the-art TV monitors, wired to a VCR machine and a still video projector, so that all the principals, the jury, the judge, and a few of the closer trial observers can see the screens. At all times, a three-foot by five-foot posterboard was leaned so it could be seen by the jury. On it was listed all 39 federal counts, and the names of which defendants were connected with each count. Another three-by-five-foot posterboard listed "overt acts", specific acts associated with each of the 39 federal counts and also denoting the "committer" of the "overt act". One of the prosecuting attorneys frequently changed the positions of each of several magnetic arrows in the left column of the posterboards, so the jury could keep track of on which counts the current witness was testifying.
The prosecution called 92 witnesses. Its case lasted five weeks. The defense called five witnesses. Their case lasted a week.The U.S. Attorneys, David Zuercher and Robert Mandel, argued, with the benefit of seizure of over 100,000 documents and uncountable fossil specimens, that, over the course of twenty years, principals, employees, and agents of the Black Hills Institute of Geological Research had conspired to steal, purloin, and retain U.S. property; had conspired to transport commerce interstate and foreign; had conspired to make a false statement, to launder money, to evade international monetary reporting requirements, commit wire fraud, and to obstruct justice; and that five specific individuals had actually committed these deeds.
The Black Hills Institute argued, through attorney George Grassby (for BHIGR Inc.) and attorneys Bruce Ellison, Randy Connelly, Pat Duffy, and Ron Banks (for individual defendants) that BHIGR had built a business from nothing, and, over the course of twenty years, had established the finest commercial paleontological supply house in the world, as well as having established itself as a research organization attempting to glean as much scientific knowledge as possible from its discoveries. Paleontologists from around the world visited its museum and labs at Hill City. The U..S. Attorneys argued that it was part of the conspiracy that principals of BHI "...attempted to ingratiate themselves with schools and museums of note by 'donating' fossils, to later profit on such good will by using the school's or the museum's good name in negotiating future sales with that institution or another...." That it was part of the conspiracy that principals of BHI "...attempted to cloak themselves in an aura of scientific legitimacy..." for the purpose of profiteering. That "no serious scientific work" was being done at BHI. This was all written in the 39-count indictment.
The defense argued that, of some forty institutions to which items had been donated over 20 years, only one institution to which items had been donated ever purchased something. The defense attempted to introduce some 100 separate books, pamphlets, posters, articles in scientific journals--all including something of, by or about BHIGR. The prosecution said it was irrelevant to the charge of "cloaking oneself in an aura of scientific legitimacy" to show evidence to the contrary. The judge agreed, saying, in effect, "It's all right for the prosecution to accuse you of being illiterate, but you can't say, 'Here, let me read this to you.' "
The U.S. Attorneys, with the benefit of field notes seized from the Institute, located fifteen sites on land they said was U.S. property, from which they said "significant" fossils had been excavated and either sold or "retained" in BHI possession. They said that, in some cases, BHI principals were criminal to have taken the word of ranchers that they owned the land they claimed to own. They said that, in other cases, BHI principals had "feigned ignorance" of the boundaries of specific lands. They said that, in other cases, BHI principals had simply trespassed and stolen.
The defense argued that, over the course of 20 years, having found and excavated some 1000 significant fossils, having been asked to excavate some 4000 more, and having bought and curated some 200,000 fossils, that, yes, mistakes were made. The defense attempted to argue that the laws were confusing, that there never had been a definitive law concerning fossils, public land, and collecting. It was not allowed to do so. The defense attempted to argue that a fossil is valueless until collected. It attempted repeatedly to show that fossils, once discoverable, deteriorate rapidly from freeze-thaw cycles, that if nobody collects them they turn to dust. It was allowed very little along that line.
The prosecution used a Badlands National Park map to have a witness point out a specific site from which a catfish fossil had come. The defense attempted to show a Bureau of Land Management map which not only showed the Park boundaries, but denoted various plots of tribal land and private land within the outer boundaries. The catfish had been collected from tribal land, with tribal permission, by a tribal member. Irrelevant, said the court. Irrelevant? The prosecution claimed the catfish was taken from federal land, and produced evidence it knew was misleading. The defense wanted to show that it came from the land of a sovereign government other than that of the United States, with permission of that government--thus taking it out of the jurisdiction of the United States. It was not allowed to do so. It gets better. A juror asked to be shown the BLM map. He has not done so. And better yet. The next witness used the very same BLM map--not allowed to the defense--to illustrate a point favorable to the prosecution! This incident exhibits criminal collusion on the part of the U.S. Attorneys and the U.S. District Judge. They should be prosecuted. But who would do it? They won't prosecute themselves.
An expert paleontologist was paid about $10,000 to testify that a specific mosasaur fossil could have come from a site on federal land. He was not allowed to inspect the site on private land from which BHIGR claims the mosasaur came. Incidentally, that mosasaur came from the Buffalo Gap city dump, about 40 miles south of Rapid City. Private land. A curator for the Science Museum of Minnesota testified about a lobster fossil he had purchased from BHI. Zuercher suggested verbally and with a chart that the fossil had been illegally collected from federal land in August of 1988. The curator said he had bought the fossil in June, 1988[already prepped, an impossibility if it was not collected until August]. Zuercher then refused to allow the jury to be instructed to ignore the charge on that fossil. He said that maybe the lobster fossil in the charges wasn't the lobster fossil about which the witness had just testified. The judge concurred. A piece of evidence for which there was no charge stayed in. A charge for which there was no evidence stayed in. Pete Larson's attorney, Pat Duffy, asked for a mistrial. It was denied, of course.
FBI agent William Asbury denied that while drinking at a local bar he had accosted and lied to Pete Larson's ex-wife. Asbury had approached her in front of witnesses and said, "Pete has a million dollars in a Swiss account. If you want some of it, you'd better come in and talk to me." He also denied that he had threatened defendant Ed Cole with the following admonition, "We're going to convict the Larsons with or without your help. If you don't help us, you're going down with them". Several witnesses testified that they changed their attitudes and business relationships with BHI after early 1992. Having stolen BHI's records, the FBI began contacting every single person, business, school, or museum with whom the Institute had done business. Most were told in some fashion or another that BHI was a bunch of crooks, and their very relationship with BHI gave the government cause to think that they might be involved in illegal activities, but that if they cooperated, the government would take that into account when it came time to deal with the particular potential criminal with whom they were speaking at the moment.
The prosecution called a rancher, who testified that he had asked BHIGR personnel to leave his property, because they were there without permission. He then said he couldn't remember if he had given them permission, but "maybe I did." I happened to know the rancher I just mentioned. After his testimony, after he had been excused by the judge, I went into the hall outside the courtroom to talk to him. We greeted each other, sat down and began talking. A U.S. Marshal observed this, and went into the courtroom and fetched FBI agent Mark Vukelich. Vukelich squared off in front of the rancher and said, "YOU DON'T HAVE TO TALK TO THIS GUY YOU KNOW." He then turned to me. "AND WHO ARE YOU?" "Who the hell are you?" I asked. Vukelich turned back to the rancher. "Well, you don't have to talk to anyone you don't want to talk to," he said, as if he thought it was some sort of obscure right he had just bestowed on the citizens of the nation.
Another rancher testified that he couldn't remember specifically giving permission for BHI to dig on his land. However, photos showed him and his family at the site, watching the dig, apparently in good humor. He also said that he had had no objection to their being there. The prosecution wasted his time and the juriy's time and our money to testify that he couldn't specifically remember the exact content of a casual conversation ten years ago.
A travel agent testified he had sold BHIGR plane tickets to Miami . A bank employee testified that checks written to the travel agent were signed by a BHIGR employee. A USDA Forest Service supervisor from Colorado was called to testify that a specific section of land was indeed on the Buffalo Gap National Grasslands (any local USDA employee could have testified to that). A Spanish-speaking translator was flown in from Washington DC to read a Peruvian document. Peruvian Spanish is the same as Mexican Spanish, which is the same as Hill City Spanish. Any local Spanish teacher could have done for about $100 what the Government spent over $4000 to have this woman do. But when one makes over $105,000 per year, and have absolution, as do the federal attorneys, one doesn't need to understand economics or common sense, I guess.
Late in the afternoon of Friday at the end of the second week of trial, the last witness had been dismissed. It was 3:30. Court is adjourned for the day at 4:30. With no witness on the stand, and with no foundation laid, Mandel plugged in a videotape. (Never have I seen a piece of evidence introduced without a lawyer having to have a witness tell why it is relevant.) The tape showed Pete Larson and Ed Cole and several other folks digging up a turtle fossil. After about half an hour of talk and laughter on the videotape, Ed was heard to say, "When Eddie (his 24-year old son) was a baby, the Mafia wanted me to be a courier." Mandel shut off the tape. It was 4:00. Judge Battey said, "How much longer is the tape?" Mandel: "It goes on and ...."Battey: "Well, let's recess for the weekend." Half an hour earlier than normal. With the word "Mafia" ringing in their ears, the jury went home. The following Monday, George Grassby, BHIGR's attorney asked for a mistrial. Two defendants had given testimony via videotape without their permission--fifth amendment violations. A reference to an incident which resulted in a conviction for Ed Cole 24 years prior had been alluded to. Impermissible under sane legal rules. Denied, of course, by the judge.
Judge Battey disallowed a witness to testify that Attorney Mandel had threatened him, in a manner similar to Asbury's threat to Ed Cole, prior to a grand jury appearance. The prosecution called a witness who said that he had told Pete Larson that he was "sure they were digging on federal land." On cross-examination, he admitted that he had told the grand jury that he had "wracked his brain 50 times, and could not remember the conversation." Duffy asked how many more times he had wracked his brain before he remembered it. The witness was testifying under immunity, and it was obvious that he had been told by the prosecution to say he had finally remembered what they told him to say.
In more than one instance, government witnesses who had been hired to inspect excavation sites testified that they were not sure whether the sites were in public land or not. Several sites are close to boundary lines. Maps available at the time of excavation suggested that the sites were on other than public land. In some cases, remapping since the digging has placed the sites on public land. In one case, a witness said that, in three readings with a hand-held device which gives one his longitude and latitude on the planet within a couple of hundred feet, once it put a site on public land, twice it put the same site on private land. By this time, there was some evidence that BHIGR employees had left a Coke can at a fossil site. But one witness said he doubted that it was the Institute's can--"These folks buy generic cola."
In a complicated exchange, it was determined that the stated value of some unprepared fossils being shipped from Lima, Peru, to the United States was less than the subsequent selling price of the fossils. There is no import duty on fossils anywhere in the world. The defense was not allowed to ask what advantage the Institute could gain from understating the value. A juror asked the question. The answer: "No advantage." (I thought at this point some members of the jury saw the resemblance to chickenshit in the government's case.) Zuercher then said, "If the shipper (BHIGR) thought there was an import duty, then he might have thought there was an advantage. You don't know whether the shipper thought there was an import duty, do you?" The witness didn't, of course. Defense attorney Duffy said, "You didn't know if the shipper thought the broker thought the agent thought there was an import duty, did you?" Laughing, the witness said no. Everyone in the courtroom except the judge and Zuercher laughed. Zuercher seethed at the affront to his dignity and unparalleled prosecutorial style.
In week five, Susan Hendrickson, the discoverer of the precipitating Tyrannosaurus, testified, under immunity. Most of her testimony in court concerned places she had been, things she had done. She was asked about cashing two checks--for $7000 and $8000--on the same day, at the same time, at the BHI bank in Hill City, prior to her and Pete Larson's leaving for Peru in 1990. Mandel suggested that two checks were used so that BHI could avoid the federal reporting requirement on transactions over $9999.99. The fact is that the bank made the mistake; cashing checks which total more than $9999.99 invokes the requirement--the bank simply didn't ask. Mandel also asked her who carried the cash. She said that she and Pete each carried some--to avoid the tragedy of one of them losing all of the money in an accident or theft. Mandel again suggested that it was to avoid the reporting requirement when passing customs. In other words, they did what travel experts suggest, only to raise questions about some idiotic government requirement by an idiotic government representative.
The prosecution had put on 92 witnesses. None was able to point to a single clear instance of law-breaking, let alone intent to break the law.The prosecution's final witness of week five was, R.L "Chip" Davis (he repeatedly called himself that), a "Criminal Investigator for the Park Service". Normally such a post would involve investigating reports that someone had made an obscene gesture while standing on public land. He said that he had, in the January, 1993, raid on BHIGR, found a document, a "significant fossil registry", which was supposed to have been surrendered previously in response to subpoena. When asked whether the information contained therein was different from information already surrendered to the feds in different form on different documents, he became evasive, would not answer. The judge upheld several objections, and finally, their point made, the defense quit asking.
In any situation in which the defense attempted to evoke testimony from witnesses which would have demonstrated innocence of intent on the part of the defendants, the prosecution objected and the judge upheld the objection. In one three-day period, 121 prosecution objections were upheld, while only 19 defense objections were. Over 600 government exhibits--documents, photos, tapes, ad nauseum--were admitted, mostly over defense objections. About 20 defense exhibits were submitted. Only three were admitted. Any defense evidence which seemed exculpatory was denied.
Often prosecution witnesses were allowed to view the trial prior to their testimony, even when other witnesses were testifying on subjects about which they would be asked. Think about that. When Jesus of Nazareth was tried, one of the problems the government had was that no two government witnesses had the same story. Judge Battey, no doubt a student of the Bible, decided to try to avoid that inconvenience. "These are professionals," he said. "They can separate their testimony from that of others. Besides, it will help them to refresh their memories." It will be illustrative if, on Monday, when he gives the case to the jury, the judge asks for a bowl of water and a towel.
The very manner in which the prosecution finished its case was weird, as well. After "Chip" Davis finished, the judge asked, "Do you have more?" Mandel said he did, so a recess was taken. After the recess, attorneys were called into the judges chamber and the jury was sent home for the weekend, expecting to hear more prosecution witnesses the following Wednesday. It was Friday, February 10. The prosecution had told the defense that it was done, ... unless it decided to call more witnesses. The defense didn't know for sure it would have to start its case until the day before court reconvened, meaning they had to work all weekend, and tell prospective witnesses that they didn't know for sure if they would be needed Wednesday, but they had to be there anyway.
So, in five weeks of a disjointed, confusing, contentious presentation of their case, Assistant U.S. Attorneys David Zuercher and Robert Mandel showed nothing except that over the course of 20 years, while building an $800,000 per year business dependent on access to other folks' land to remove something of no value until after it has been removed, they had, on a few occasions, dug on land they though belonged to someone other than who it actually belonged to. They attempted to show that the defendants had, on occasion, gone on land without permission. I don't think they showed that. They appeared to think that by massive innuendo they could induce the jury to think first that they smelled smoke, and then decide that the defendants were burning. The "money-laundering" and "evading international monetary reporting" charges are illustrative.
In June, 1993, having endured a Justice Department raid, and having submitted to a subpoena for about 100,000 documents, BHIGR was raided again. Knowing now that it could be raided at the whim of the government, and that the government seized property at a whim, BHI transferred $70,000 to Brenda (Neal's wife) Larson's account. Mandel said, "It shows the state of mind of the people at the Institute." That's bad? You've been abused by government; it's abusing you more; and you want to protect some cash so you can defend yourself? That's wrong? That's criminal intent? Come on. It's good sense, that's all. (The $70,000 was never alleged to not belong rightfully to BHI, thus allowing it to write checks to whomever they wanted to.) In the same breath, Mandel brought up the deal about the $7000 check and the $8000 check, calling it "structuring" to avoid monetary reporting requirements. He said these incidents were illustrative of the criminal nature of many actions taken by BHI. I think their inclusion in this case is illustrative of the pettiness of certain U.S. Attorneys in pursuit of a win.
Did BHIGR break any laws? It appears they might have. It appears they knowingly, on three or four occasions, knowingly collected or received fossils from land about which there was some question as to who could give permission to collect. In these cases, the charges could have been made as misdemeanors, because there is no established value for any fossil in the ground. The government chose to charge them as felonies--more than $100-value per incident. These incidents and more, 39 counts. When you charge someone with 39 counts of conspiracy, wire fraud, money-laundering, stealing, purloining, and retaining U.S. property, transporting interstate and foreign commerce, evading international monetary reporting requirements, and structuring, while with cloaking oneself in an aura of scientific legitimacy, you've said a mouthful. It sounds quite a little more serious than accusing someone of taking something worthless from U.S. property. It's also more likely to produce a conviction. I wonder if anyone in government ever considered simply telling Pete and Neal, Bob and Terry and Ed, "Say, we'd like whatever fossils you have that you got from federal land, and it would be a good idea if you made real sure that you're not collecting on federal land. Someday, maybe we'll have a federal-lands fossil policy that makes sense, but for now, stay off." It seems that tack might have been more cost-effective than the tack government took.
What happened to make the whole Department of Justice so pissed off at a successful and scientifically valuable business and its owners. An e-mail interception forwarded to me tells some of it. Una Smith, a Yale biologist, wrote to several of her acquaintances that she had been at the Institute in August, 1994, when a defense lawyer called Neal Larson. Larson told her that his lawyer had just been speaking to a federal agent, who had said, "We wouldn't have given BHI such a hard time if they hadn't resisted at the outset, and had not tried to influence public opinion in support of themselves." In other words, if Pete and Neal and Bob and Terry and Ed had just said they were guilty of something they hadn't done, the government would have been happy. The government thugs could have collected a fine, levied a suspended sentence, and could have gone on about their business of terrorizing other peaceful honest businesspeople.
A couple of weeks into the trial, I spoke to Bill Asbury, the lying, threatening FBI agent, outside the courthouse on a smoke break (he obviously didn't know my intentions). He said, "I hope this doesn't go on as long as they expect it to. I'd like to get back to some semblance of a normal life. This has caused a great deal of hardship for a lot of people." Somehow, I don't think that was an expression of sympathy for the defendants. I admit it's been pretty tough on the sonsabitches. They've had to go to Peru, Japan, and Germany, among other tax-wasting ventures. They've had to cause the expense of somewhere close to $8,000,000 to amass the documentation and testimony which produced some evidence of littering. It would be a strain. I'm sure glad I didn't have to do it.
-Bob Newland