Feds Breathe Sigh of Relief;
Jury Convicts on 1 Charge of 8

  by Steve Miller
  copyright 1996, Electric Nevada

It was Thursday morning, minutes after Jerry Keenan had been found guilty by a U.S. District Court jury of charges of lying to agents of the FBI and ATF who'd been investigating last December's Reno IRS bomb attempt.
The jury was gone, the courtroom cleared out, and Keenan, his wife and friends were standing out in the fifth-floor hall of the Reno Federal Building. They were listening to defense attorney Ben Walker explain the different sentences the felony conviction might bring the 53-year-old businessman.
It was not so bad, really, considering everything, said Walker, because the jury had found Keenan not guilty on the government's most serious charge, that of perjury before the federal grand jury.
And if Keenan actually had to go to jail, it probably wouldn't be for long, he said, adding that the eventual sentence, after the just-scheduled August 9 pre-sentence hearing, might turn out to be only be a fine or even just probation.
But the diabetic owner of Gardnerville-Minden's Green Valley Nursery Center was dejected, and -- as trial watchers had learned was his deep-seated habit -- just blurted out what was foremost in his mind. He "could take some extra insulin and clear it all up," he said.
At that both his attractive fifty-ish red-headed wife, Joanne, and attorney Walker turned again to the brighter side of the result.
"You're self-employed, so you've still got your business, you've still got your friends and they know what happened," said Walker. "It shouldn't affect your business."
"It already has," said Keenan.
But his wife Joanne -- either greatly relieved that the more serious federal charges had been rejected by the jury, or simply to cheer up her husband, or both -- was emphatically upbeat.
When the defense attorney said that what might end up bothering Keenan most was that, as a convicted felon, the lifelong hunter and fisherman might not be able to own a firearm, Mrs. Keenan pointed out to her husband that he hadn't gone hunting in five years anyway.
"You'll have to take up bridge," she joked.
If some on the defense side felt Keenan had dodged a bigger legal bullet than he took, members of the Nevada office of the U.S. Attorney's had even more reason to be relieved.
In many ways the trial could easily have turned out a high-profile public relations disaster for the federal government. Instead, the prosecution got a conviction on one subparagraph out of the eight listed under the indictment's two counts.
The government had charged Jerry Keenan with lying to federal agents in three instances and with lying to a federal grand jury in five instances.
But even before the jury was given the case for deliberation, federal Judge Howard McKibben had agreed with the defense that four of the eight particulars should be stricken from the indictment because the government had presented no evidence to substantiate the charges.
The remaining charges at that point were two items under the first count -- lying to a federal officer in the pursuit of his duty -- and two items under the second count, lying to a grand jury.
But when McKibben provided his instructions to the jurors, the absence of several of the original charges confused them. The jury sent a letter back to the judge, asking if the remaining single statement in count 2 was the only statement they were to consider. And the judge's response, in effect, was yes.
When the jury did settle down to deliberate on the remaining four particulars, they quickly found Keenan not guilty on three of them.
Most probably the remaining question at that point, Walker told Electric Nevada, was whether Keenan had tried to deceive investigators when he told them that the "Crazy Joe" they were seeking had come to his nursery only once that he knew of.
Walker based that inference on the similarity the other charge under the first count had to the remaining charge under the second count. If jurors had felt Keenan was guilty on the other first-count charge, said Walker, they would have logically also found him guilty on the similar charge under the second count. And since they didn't, what remained was the question having to do with the number of Bailie visits.
The question had first been asked on the night of December 19, 1995, FBI agent William Jonkey told the court. Jonkey and federal Alcohol, Tobacco and Firearms agent Jim Doreen had telephoned the Keenan household shortly before midnight and told Mrs. Keenan they would be arriving shortly. Mrs. Keenan then woke her husband, who goes to bed at 8 p.m., in order to rise at 4:30 a.m. and getting to the nursery an hour later. At the time he had been asleep about four hours.
When the agents arrived, according to Jonkey, the Keenans served them coffee, and the sleepy and tired Keenan answered their questions, which had to do with a "Joe Grosso" or a "Crazy Joe" -- names they had from a previous interview. While the "Joe
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Grosso" line of inquiry would eventually turn out to be a false lead, the "Crazy Joe" line allegedly was not, and Keenan did give the agents the names of three people who knew a good deal more about the "Crazy Joe" character than did he.
However, ATF agent Doreen had not been satisfied by Keenan's demeanor. Taking Jonkey outside onto the front porch he had complained that in his view, Keenan was not being forthcoming enough. The agents returned inside where Doreen then cited to Keenan provisions of federal law under which making false statements to federal agents could lead to prosecution and imprisonment.
Jonkey testified in court that no tape recording had been made of the interview with Keenan and that he no longer had his own notes on it. The notes, he said, had been given to ATF agent Doreen, because the Bureau of Alcohol, Tobacco and Firearms had been the lead agency in the investigation.
Government prosecutors did not put ATF agent Doreen on the stand, notwithstanding the BATF lead role in the investigation, and ATF officers and agents would not respond to questions on the case, referring all questions to the office of the U.S. Attorney for Nevada. Assistant U.S. Attorney Thomas O'Connell, reached in Las Vegas by Electric Nevada, would not answer questions on the decision not to call agent Doreen. O'Connell said Department of Justice rules and policies prohibited federal attorneys talking to news media about anything outside what actually took place in court.
Defense counsel Walker argued to jurors that the fact that Keenan had given useful information to the FBI and ATF agents showed that his motive had been to help and that any omissions in what he told them in the middle-of-the-night interview would have been forgetfulness, rather than an intention to deceive. And throughout the trial, Walker was able to catch government witnesses, and even Assistant U.S. Attorney Ron Rachow -- who argued part of the case for the government -- in their own mistatements of key facts and other memory lapses.
Walker also argued before Judge McKibben that the question of how many times "Crazy Joe" had been to Keenan's nursery center was not actually germane to the central issues at stake in the agents' visit.
But McKibben's instructions to the jury would eventually retain the point as one for the jury to decide.
Reached Friday, attorney Walker said he thinks it probable that the verdict will be appealed. He said he will also renew an earlier motion for acquittal.
One ground for the appeal, he said, could be that government attorneys improperly used Keenan's Alford plea in a Douglas County case six years ago.
While Keenan had pled guilty to a misdemeanor, the asssistant U.S. Attorneys incorrectly characterized the conviction as something more serious: a gross misdemeanor, said Walker.
And while the nature of Alford pleas is to specifically allow someone to continue to assert their innocence, he said, the prosecution improperly argued to the jury that for Keenan to continue to say he was innocent, though he pled guilty, meant Keenan was "just willing to lie again to a jury."
This is the Alford plea phrasing, based on a U.S.Supreme Court decision: "..That in pleading guilty to the above referenced charge I am reserving my constitutional privilege to continue to assert my innocence, and I am pleading guilty for the sole purpose of avoiding the possibility of conviction on the more serious charges that are currently pending against me."
Walker said Keenan's attorney at the time had told Keenan it would have cost him an estimated $20,000 to defend against the charges.
"It was just a plea bargain to end the case, to avoid the expense," said Walker, adding that the plea bargan was so general, it didn't even tell who Keenan was supposed to have assisted.
"I think the prosecutor mistated the evidence to the jury," leaving them to think, "now he's lying when he claims he's innocent."
The first time the government attorneys so mischaracterized Keenan's Alford plea, said Walker, was during their cross-examination of Keenan. And at that point the defense counsel objected and the judge sustained his objection.
But later, in the government's final summation, said Walker, "they did it again. I could have stood up and objected, but often that just makes it into a high point, emphasizing it. The other course is to keep quite and just hope it didn't prejudice the jury." That was the course he chose, he said.
"But in a real close case like this -- and I think it was a close case -- it may have been what made the difference."


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