I am up to my eyelashes in my research on Enron Broadband Services (EBS) — that is why most of my posts lately are about EBS. And during my talks with people involved with EBS, I seem to be able to gather more information about EBS defendant, Rex Shelby, than any other person — people seem to like Shelby and want to talk about him. And traffic on my blog goes up with posts about Shelby, so people seem to like to read about him also. Anyway, here is a great Rex Shelby story — I have touched on this topic briefly in an earlier post, but I have more information about it now.
An FBI Form 302 is the “official” document that FBI agents create after they interview a witness or potential witness. The key point to note here is that the Form 302 is completely a government spin document; the Form 302 contains only the information that the Feds want to include, and it is typically written to support the Feds’ theory of their case.
Federal prosecutors love Form 302s because they like to use a government-created spin document to support their questioning of witnesses during a trial. This is exactly how the prosecutors used the Form 302s during the EBS trial — the prosecutors typically started their cross-examinations of defense witnesses by using the Form 302s that recorded the interviews the Feds had conducted with that witness during their investigation of EBS. The prosecutor, of course, would pick and choose from the Form 302 to find the things that were most likely to bolster the point he wanted to make in front of the jury. Then the prosecutor would typically read a sentence or two from the Form 302 and ask the witness, “This is what you said during your interview, right?” Most witnesses have no idea exactly what they said during the FBI interview, which typically took place months or years ago, and therefore they normally assume that if the prosecutor is reading from an “official” document, the document must be correct. So witnesses seldom tell the prosecutor that what he is reading is incorrect.
The federal prosecutors used this Form 302 technique with some success at the EBS trial … until they tried it on Rex Shelby.
Ben Campbell was the lead federal prosecutor from the Department of Justice (DOJ) who cross-examined Rex Shelby, the first of the EBS defendants to testify at the trial. A frequently used nickname for Campbell was “Killer Opie” — “Opie” because he looked like an adult version of red-haired Opie from the classic Andy Griffith television series and “Killer” because he had a reputation for aggressive, rapid-fire questioning of witnesses.
As the prosecutors had been doing with other witnesses, Ben Campbell began his cross-examination of Rex Shelby by cherry-picking a few lines from the Form 302 written by the two FBI agents who had interviewed Shelby approximately three years before the trial. Campbell read the lines aloud in front of the jury and then asked Shelby, “This is what you said, right?” To Campbell’s noticeable shock, Shelby responded, “No, that is not accurate. I took notes of the interview and brought those to the stand with me. If you don’t mind, I will take a look at my notes so I can tell you exactly what I said about that topic.”
People tell me this was a dramatic moment at the trial. Rex Shelby’s words seemed to take Ben Campbell’s breath away, and the jury was rapt in attention. Finally, the Judge paused the proceedings while Shelby’s attorney passed out copies of Shelby’s notes to the prosecution team. The prosecutors huddled and tried to figure out what to do.
When Ben Cambell resumed his questioning of Rex Shelby, he desperately tried to claim that Ed Tomko, Shelby’s attorney, must have written the notes, not Shelby — I guess Campbell thought a software engineer like Shelby did not know how to write! This was a big mistake on Campbell’s part because it gave Shelby the opportunity to tell the jury that he did not even have an attorney when he talked to the FBI agents — so, the jury learned that Shelby clearly had not felt that he even needed an attorney when he was interviewed by the FBI agents — this was the behavior of an innocent man!
Ben Campbell tried a few other questions around the Form 302 without success and so had to quickly move on to another topic. The Battle of the Notes ended up being a victory not only for Rex Shelby, but for the other EBS defendants as well. The other four EBS defendants followed Shelby to the witness stand — Joe Hirko, Scott Yeager, Michael Krautz, and Kevin Howard, in that order. Those defendants, having seen Shelby correct the prosecutor when he read something false from a Form 302, were emboldened to disagree with the prosecutors when the Form 302s did not match their own recollections of the interviews. This largely made the Form 302s useless for the prosecutors against the EBS defendants!
Among the comments that Rex Shelby wrote in his seven pages of notes about his interview with the FBI agents was this:
The agents must have talked to somebody who said that “things didn’t work” or “the EIN was ahead of its time”. The agents didn’t identify the names of others who they were interviewing, but indicated that they were talking to lots of EBS people.
The agents clearly had a very weak understanding of technology and, therefore, probably would have been unlikely to understand, probe, and clarify statements such as “things didn’t work”.
Wow! Remember that this was written right after Rex Shelby’s interview in August 2002, back when Shelby felt that he had no reason to believe that he was a target of the ETF’s investigation — indeed, the FBI agents lied to Shelby during that interview telling him that he was not a person of interest in the case. Shelby recorded at the time that the FBI agents had no clue of the fundamental subject matter of the case!
Present during the EBS trial when Rex Shelby’s notes were introduced were a number of FBI agents, including the Special Agent who had been in charge of the overall EBS investigation — it was agents from his team who had questioned Rex Shelby. I hear that the Special Agent was incensed with Shelby’s written comment about the ignorance of his agents. But the prosecutors did not call the FBI agents to the witness stand to testify. The FBI agents and the federal prosecutors knew that Shelby was right.
Rex Shelby won the Battle of the Notes because he wrote the truth!
Shelby is brilliant for taking notes, keeping them and making comments like he did. Also, to be able to show the jury that the FBI lied and did not keep good records had to help the defense. Shelby deserves some real credit for his forward thinking by taking notes and for his testimony.