Las Vegas Sun

October 18, 2019

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Why did feds intervene in civil dispute?

A federal judge's ruling Monday has brought into clear relief a question of importance to Nevada: Did Gov. Jim Gibbons, while serving in the U.S. Congress, influence the Justice Department - directly or through intermediaries - to intervene in a civil dispute on behalf of his friend Warren Trepp?

The question arises because a federal judge has ruled that the government acted unlawfully when FBI agents searched the home and storage locker of Dennis Montgomery, who is in a dispute with Trepp over valuable military technology.

According to Judge Phillip Pro's ruling, the government never should have intervened in the dispute between Trepp and Montgomery.

So why did it?

In the Montgomery narrative, Trepp bought political muscle by paying off Gibbons with campaign contributions, cash and gifts. Gibbons then used his contacts with the Air Force and the Justice Department to pressure them to intervene in the civil dispute.

The FBI is investigating Gibbons, examining his relationship with Trepp, for whose Reno company, eTreppid Technologies, he helped secure valuable defense contracts.

Both Gibbons and Trepp have denied any improper relationship. They say they are old friends. Gibbons has said he's proud that he helped procure important military technology in a time of war.

At this point, the government has not offered an explanation as to why it intervened in the civil dispute by raiding Montgomery's home. Two calls by the Sun to the FBI public affairs office in Las Vegas were not returned Tuesday.

What is clear is that the government erred badly. Pro's order Monday upheld an earlier ruling from U.S. Magistrate Judge Valerie Cooke, which was unsealed Tuesday.

Cooke's order ruled that the government violated Montgomery's Fourth Amendment right against search and seizure in a search warrant request "riddled with incorrect statements."

It was Cooke who signed the original search warrant about a year ago. After hearing testimony following the raid, however, she concluded that she had been badly deceived by the government.

The person she names as responsible is FBI Special Agent Michael West.

In affidavits supporting the search warrant request, here is the story West told Cooke about a year ago:

West said Montgomery and Trepp had a deal, known in the court filing as the "contribution agreement," which granted Trepp all of Montgomery's intellectual property in exchange for money.

He also said Montgomery had signed a "noncompete" clause, meaning he wouldn't bring his skills to another company. Evidence indicated that he had violated the agreement, according to West.

The affidavits say the government contract with eTreppid allowed the company access to secret material, and that Montgomery had signed declarations outlining his obligation to protect secrets.

In November 2005, West said, Patty Gray of eTreppid visited the Predator Drone Operations Center at Nellis Air Force Base, where she recorded "Secret Predator Drone video images" on nine eTreppid hard drives.

The hard drives were stored in a safe. Gray, Trepp and Montgomery were the only ones with access to the safe.

In December Montgomery was discovered not properly storing information in the safe. He deleted vital "source codes" and was seen taking equipment home.

In essence, it was a two-part accusation: Montgomery had stolen intellectual property, and he had unlawfully retained classified material after leaving the company.

The story was compelling, and a complete hoax, Cooke ruled, often using tough language.

West had a "fundamental misunderstanding of the operating agreement and the business relationship between Montgomery and eTreppid," according to Cooke's ruling. Specifically, the "contribution agreement" didn't entitle eTreppid to all of Montgomery's intellectual property, but, rather, only the material contained on what is known in court papers as "CD1."

The judge said that West misled her by omitting a key phrase of the so-called noncompete contract between Montgomery and eTreppid.

According to West's affidavit, eTreppid had obtained what's known as "facility clearance." This government classification allows a company to do secret work at a given location.

In fact, however, "It appears eTreppid never had a facility clearance," Cooke writes.

West said Montgomery's security clearance had been revoked.

The judge's ruling implies this, too, is untrue.

Also, the so-called "secret hard drives" contained no actual classified material, which meant Montgomery couldn't have violated any law against mishandling classified data.

Finally, Cooke notes that West never disclosed in his affidavit that Trepp and Montgomery were engaged in civil litigation.

"Had this court had even the slightest inkling that Trepp and Montgomery were engaged in civil litigation, it is an understatement to say that the court would have scrutinized the theft of trade secrets allegations very, very carefully."

She then adds, "The over-arching concern in this proceeding is that West became an unwitting pawn in a civil dispute, and as a result of his inexperience and lack of training, he prepared search warrant affidavits that are riddled with incorrect statements, edited documents and uncorroborated conclusions, which caused this court to exercise its formidable power to authorize the government to search Montgomery's home and storage units."

And, finally, West "never appeared to question whether he had become an agent, not for the government, but for private interests engaged in litigation valued in millions of dollars."

Cooke ruled that there had been a "callous disregard" for Montgomery's Fourth Amendment rights, and ordered his property returned to him.

Pro upheld that order Monday.

The question now: Why would West go to such extreme measures for Trepp? Did anyone influence him in this endeavor?

One important figure mentioned in Cooke's ruling is Special Agent Paul Haraldsen of the Air Force Office of Special Investigations at the Pentagon.

As Cooke notes, West relied on Haraldsen for information regarding eTreppid's "facility clearance" as well as the "secret hard drives." The information turned out to be untrue.

Who is Haraldsen? And, why did he supply West with incorrect information?

These questions were beyond Cooke's judicial purview.

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