Sunday, May 20, 2018

U.S. v. Olga Hernandez: A Smashing Victory For Bill Reid

Congratulations to my old friend and colleague William T. Reid IV (aka Bill Reid) of Reid Collins & Tsai (see Bill's bio here) who recently won a complete acquittal for his client Olga Hernandez in San Antonio federal court. Hernandez, a longtime San Antonio Independent School District ("SAISD") Trustee, had been charged with conspiracy to commit honest services wire fraud and conspiracy to violate 18 U.S.C. 666--the infamous mark of the beast statute. The case was brought by the U.S. Attorney's Office for the Western District of Texas, which happens to be my old district and Bill's as well. The government maintained that Hernandez received an excessive and inappropriate amount of travel and entertainment ("T&E") from several people involved in insurance bid rigging.  Its theory was that these bid riggers in essence bought Ms. Hernandez’s vote through the excessive T&E. The government, as is par for the course, offered 5K1.1 deals to the alleged co- conspirators in exchange for their testimony against Olga Hernandez.  There was ample proof of the gifts and each of the alleged co-conspirators testified against Hernandez. 

The defense theory of the case was that Ms. Hernandez was in fact friends with the conspirators and their wives.  She accepted substantial gifts of T&E from the conspirators, but she did so out of friendship.  With respect to the rewarding of insurance contracts by SAISD, Hernandez simply voted (along with all other trustees) consistent with staff recommendations by SAISD's Risk Management director. Olga had no idea that bribes were being paid and never got involved in the RFP Process that led to the various insurance contracts in question. 

As often happens in honest services cases, the government relied heavily on Olga's purported violation of SAISD's conflict of interest/gift disclosure policy. Although violation of such policies is not in itself a crime, the government loves to merge or bootstrap such violations into the charged offense. The argument goes like this: "If the defendant is really innocent, why didn't she disclose these gifts in accordance with the school district's policy?" But the prosecutors had a problem in Olga's case.

According to Reid, "the biggest mistake the government made was using the wrong, inapplicable gift/conflict policy (that post-dated the conduct in question) to argue that Olga’s failure to disclose the T&E was evidence of her culpability.  When, though a great deal of effort, we located the truly applicable policy we were able to prove that none of the gifts required disclosure. The government looked stupid. "

Reid now a high-end, high-stakes civil attorney who splits his time between Austin and Manhattan had not tried a criminal case since he left the U.S. Attorney's Office in 2000.  Perhaps the most impressive thing about Bill's victory is that he took and tried the case pro bono, as a favor to his old friend (and mine), legendary San Antonio criminal defense attorney Alan Brown. (See Alan's bio here.) Bill tried the case with his partner Brandon Lewis and with Alan.

He told me that the case, "was by far the most rewarding case of my career.  We were successful in defending Olga because of the hard work that our team put in to understand the evidence and hold the government accountable for trying to use the wrong gift disclosure policy.  We also, explored the details of the process that led to the insurance contracts in question very closely so that we could demonstrate how minimally involved Olga was and thereby break the connection between gifts and any official act.  This case was a stark example of how the government can obtain a wrongful conviction if defense counsel does not do his or her homework. "

Reid's Closing Argument, which focused on confirmation bias, was outstanding. Here are some additional stories on the case from the San Antonio Express-News, Law Dragon, and the Rivard Report.

https://www.mysanantonio.com/news/local/article/Fate-of-SAISD-trustee-now-in-jury-s-hands-12441813.php

http://www.lawdragon.com/2017/12/24/lawyers-christmas-story/

https://therivardreport.com/former-saisd-trustee-found-not-guilty-of-federal-bribery-charges/

(wisenberg)

 

https://lawprofessors.typepad.com/whitecollarcrime_blog/2018/05/us-v-olga-hernandez-a-smashing-victory-for-bill-reid.html

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