August 26, 2008

Tana Gunville Case Chronology

By Jack D. McNamara

The following chronology is compiled from public records in the courts and press accounts of the Alpine Avalanche and the Big Bend Sentinel. This is an unusual case in the sense that we have seen few examples of situations involving allegations of fraud using current electronic devices such as debit cards.

Tana Gunville has plead not guilty and she is currently released on a personal recognizance bond of $20,000. All the related documents of the indictment are in the federal district court system, but there was a presentation before the Brewster County grand jury in late 2007 which resulted in a “no bill.” In other words, there is no 394^th District Court file.

Gunville and her husband also litigated a lengthy bankruptcy between 2004 and 2007 in federal court.

05/22/08         Alpine Avalanche by Suber, set Gunville trial tentative July 15, U.S. District Court — Gunville on bond — indicted “over a week ago” charge of “access device fraud” — arrested March 9 — plead not guilty — offense on or about October 12, 2007 to January 15, 2008 — interstate commerce — no billed by a Brewster County grand jury “last fall” —

06/13/08         Barclay & Ogg motion for discovery, emails, tax returns, phone records of five people including Sheriff Dodson.

06/30/08         US Magistrate Stuart Platt conducts a hearing on Defendant’s Motion to Dismiss.

07/03/08         Judge Platt quashes defense subpoenas, denies Defense requests for Dodson materials (telephone records, emails, etc.) as “immaterial” to defense.

07/03/08         Alpine Avalanche by Suber. Trial date set for July 21-22 — Comments by AUSA Kerry Fleck —

07/09/08         Alpine Avalanche by Suber, trial set for August 12 re Ogg motion for continuance —

08/07/08         Big Bend Sentinel by Halpern — Defense motion filed 08/04 in district court, “apparent email exchange” between government witness and Kathleen DeHart, clerk for US Magistrate Goains in Alpine — conspiracy to commit perjury — Gunville free on $20,000 personal recognizance bond, plead not guilty — Barclay that email 07/24 from Georgie Wilson to Kathleen DeHart — Barclay that Junell ordered probe and postponed — Kathleen DeHart on administrative leave — DA Frank Brown said he was aware of defense motion , if email factual points to conspiracy to commit perjury and obstruct justice — matter for federal prosecutors but “other aspects of the email may fall within" state purview — “duty bound” to investigate — Barclay motion asks court that email’s authenticity be verified.

08/14/08         BBS Halpern, “Email is a fake, officials say”  headine — “appears faked” officials say  — Sheriff Dodson — his office seized Wilson’s computer, not sent — “hoax” —Fleck says DeHart wasn’t at work on day email sent — “fraudulent” — Gunville received a copy of the email in the U.S. Mail by “unknown” person says motion — Dodson asked federal investigators to enter case because innocent people hurt.

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August 26, 2008

Gossip Becomes News

By Jack D. McNamara

Last Tuesday, August 19, Assistant U.S. Attorney Kerry Ann Fleck filed a motion to revoke the bond of Alpine resident Tana Gunville in Pecos. In early May, Gunville was indicted in federal court for allegedly stealing and using VISA debit cards, according to news reports.

The prosecutor’s motion cites incidents of harassment and attempted intimidation against victims, witnesses and their family members.

On Thursday, August 21, Brewster County Sheriff Ronny Dodson’s attorney Dick DeGuerin filed a “Motion by Witness Ronny Dodson for a Protective Order, Relief from Oppressive and Slanderous Defense Tactics, and Request for Sanctions and Attorney’s fees.”

The seven page Dodson motion chronicles documents filed by Gunville and her attorneys Mike Barclay of Alpine and Kim Ogg of Houston between June 13 and August 14. The motion asserts a wide range of rumor mongering in the community and falsehoods in Gunville’s motions.

Early Tuesday morning, the day after Columbus Day, I plowed through torrential rains east of Alpine toward Midland. Traffic was light but I couldn’t go any faster than my windshield wipers so I was late for the 10:30 a.m. hearing in Judge Stuart Platt’s courtroom.

The question before the court was a motion by the government to revoke the bond of Mrs. Tana Gunville, an Alpine realtor (who I don’t know). She was indicted in federal court in May 2008 on a charge of violating 18 U.S. Code, section 1029. The provision became effective in 1994 and Google describes as “Credit Card Fraud” and “Produces/Traffics in Counterfeit Device.” Her trial is scheduled for early January 2009.

When I arrived Mrs. Shelby Gonzales was being examined by Assistant U.S. Attorney Kerry Fleck. Mrs. Gonzales is the victim of the alleged theft of a credit card and several debit cards. Mrs. Gonzales testified to several incidents of alleged harassment and intimidation by Mrs. Gunville and her friends in apparent retaliation for Mrs. Gonzales’s allegations of theft.

Mrs. Gonzales was cross-examined by Alpine attorney Mike Barclay and Houston attorney Kim Ogg, both representing Tana Gunville in the ongoing criminal prosecution.

Shortly after 11 a.m. the court moved on from the government’s motion to two hearings. One was requested by Mrs. Gonzalez and her husband Lupe and the other by Brewster County Sheriff Ronny Dodson. The Gonzalez couple, represented by Alpine attorney Rod Ponton, and Sheriff Dodson, represented by Marfa and Houston attorney Dick DeGuerin, sought court recognition and protection by the court from the alleged intimidation and harassment from Gunville and her friends.

These two hearings are interesting and significant. At least the small crowd of family, witnesses, court personnel and at least one journalist seemed to think so.

The allegations were taken to a Brewster County grand jury in 2007 but the case was no-billed. Sheriff Dodson then took the case to federal investigators and Gunville was indicted by a federal grand jury in May 2008.

The result of all this, occurring as it did during the party primaries, was that the process has become highly politicized.

Dick DeGuerin replaced AUSA Kerry Fleck at the bar and after an opening statement called Alpine attorney Mimi Smith. She testified that she had a conversation with Alpine attorney Mike Barclay, “probably” in July, when Barclay called her and said Sheriff Dodson had his “stingers” out for Tana Gunville and he knew why. According to Smith, Barclay said Dodson was having an “affair” with Shelby Gonzalez. Smith said she told Barclay the story was “outrageous” and “over the top.” She said Barclay said he was “zealously representing a client.”

Smith testified she asked Barclay to stop the rumor. “We don’t do this” she said, and said the unfounded rumor was “like high school gossip.” She said the sheriff and his wife both worked 20 hours a day, “Everybody calls the sheriff or his wife every day and any hour day or night.”

Smith’s testimony came after she acknowledged that Mike Barclay had been her mentor and friend for the entire 16 years she has been in Alpine and that Barclay had taught her about ethics and “not burning bridges.” She said she had no interest in the specific case and no role.

DeGuerin asked her “there is a rumor?” Smith said yes and DeGuerin passed the witness. Mike Barclay went to the podium to cross-examine Smith and DeGuerin objected, “(Barclay) can’t be a witness and a lawyer both.” Judge Platt agreed and called for Kim Ogg to cross-examine Smith.

Ogg did not contest the conversation occurred. She suggested that the conversation was simply lawyer-to-lawyer talk. When Ogg said that Barclay had “solid evidence,” however, Judge Platt told Ogg her comments were not necessary.

DeGuerin later objected to Ogg’s line of argument and pointed to the allegation in papers filed by Barclay and Ogg in June of this year. The rumor was transmitted orally and in writing.

Ogg protested that she did not assert a “romantic” relationship, only a relationship.

Then DeGuerin called his client Ronny Dodson to testify. “Have you ever had a romantic relationship with Shelby Gonzalez?”

Sheriff Dodson said no. He also said that he contacted DeGuerin for the purpose of inquiring into the possibility of a libel or slander civil lawsuit against the perpetrators of the rumor. DeGuerin informed Judge Platt that a lawsuit was still possible and that Sheriff Dodson had contacted DeGuerin for that purpose.

Ogg continued to batter the sheriff with questions concerning appearance of misuse of his office — “Did you seek prosecution to exonerate yourself of rumors?” Ogg ridiculed the charge on which Gunville was indicted as a “misdemeanor.”

One issue quickly disposed of was the complaint by DeGuerin and Ponton that Ogg and Barclay issued fraudulent subpoenas. It was quickly disposed of because both Ogg and Barclay acknowledged their error. Judge Platt asked Ogg if she had typed in U.S. District Judge Robert Junell’s name on the subpoena? She said yes. Judge Platt asked if she consulted with Barclay? She said yes, both (Barclay and Ogg) made the mistake. Barclay stood up and apologized. Rod Ponton, representing Lupe and Shelby Gonzales, called an attorney from Ben E. Keith, the food service company which employs Lupe Gonzales. The lawyer testified to several communications with Kim Ogg concerning subpoenas for the serial numbers of debit card awards to Lupe Gonzales.

Judge Platt called the Gunville hearing to a halt about 1:30 p.m. He said he had a full docket of criminal matters for the afternoon. I had the impression the judge intended to decide the Gunville issues quickly.

As if the fraudulently issued subpoena issue was not sufficiently compelling or the village rumor circuit sufficiently tantalizing, the hearing was foreshadowed by the high tension of the 83^rd District Attorney Democratic primary in March this year. Incumbent Frank Brown of Alpine was defeated by Jesse Gonzales of Ft. Stockton by a razor thin margin. And only after three ballot boxes were “discovered” in the Brewster County voting office vault — three days after the election. Barclay and Brown are good friends, part of a Brewster County group of lawyers which includes County Judge Val Clark Beard, County Attorney Steve Houston and others.

Mimi Smith attributed Barclay’s rumor as an effort to “avenge” Frank Brown’s defeat.

Sheriff Dodson openly supported Jesse Gonzales. Dodson testified that District Attorney Brown refuses to prosecute good cases. Now Sheriff Dodson takes some of those cases to federal investigators. He said he takes all drug cases to the federal investigators. •