AG won’t prosecute Bebb
by DAVID DAVIS, Managing Editor
Mar 26, 2013 | 2626 views | 0 0 comments | 9 9 recommendations | email to a friend | print
Steve Bebb
Steve Bebb
The Tennessee Attorney General’s Office has concluded no allegations reviewed warrant criminal proceedings against 10th Judicial District Attorney Steve Bebb.

Though none of the allegations rose to the level of criminal charges, Bebb and his office engaged in practices and recordkeeping that evidenced poor judgment, deficient recordkeeping and insufficient attention to the appropriate use of public resources, according to a detailed state AG report.

Bebb declined to make a statement this morning except to say, “At this point, I’m not ready to say anything.”

State Rep. Eric Watson told the Cleveland Daily Banner the legislative delegation representing districts in the 10th Judicial District has not had time to read the report. He said the delegation will issue a statement later.

The conclusions in the 11-page report obtained Monday do not address any potential criminal wrongdoing by other employees of the DA’s office or Drug Task Force. At about the same time the state investigation began, Bebb requested an investigation by the Tennessee District Attorneys General Conference, which appointed former Tennessee Attorney General Paul G. Summers. It was agreed the investigation already initiated by the Attorney General and the TBI would continue and, at its conclusion, any potential criminal charges not involving Bebb would be referred to Summers for review and prosecution, if appropriate. appropriate. Summers has since been appointed senior judge by the Tennessee Supreme Court and has withdrawn as prosecutor in this matter. No successor prosecutor has been designated.

The Tennessee Attorney General announced on Aug. 27, 2012, that it and the Tennessee Bureau of Investigation were cooperating in an investigation of allegations related to Bebb with the assistance of the Office of the Tennessee Comptroller of the Treasury.

The investigation was prompted by an audit report released by the comptroller on July 10, 2012, media reports of alleged wrongdoing by Bebb and other employees of the 10th Judicial District, and other complaints received by the TBI.

The reports and complaints were related to both the District Attorney's Office and the Drug Task Force in the 10th Judicial District and included the following subjects: Abuse of prosecutorial authority; unauthorized disclosure of material from TBI investigative file; improper influence of grand jury by assistant district attorney; impersonation of an attorney by detective; perjury in deposition testimony; use of Economic Crime Funds, automobile provided by DTF and filing of expense claims; and supervision of alleged wrongful conduct by DTF agents.

TBI assigned three agents to this case. The attorney general assigned two investigators to assist TBI and an attorney to review and evaluate the evidence and advise the investigators.

The agents and investigators interviewed 61 witnesses. Those witnesses included auditors with the Comptroller's Office who examined the books and records in Bebb's office and the DTF, officers and investigators with sheriffs’ and police departments in the 10th Judicial District, victims in the incidents related to the allegations, and other persons with knowledge related to the matters addressed in this report.

In addition, the agents and investigators reviewed relevant documents including the comptroller's report related to audits of Bebb's office; working papers used to prepare those reports; DTF files; and the investigative case files of TBI and local law enforcement agencies related to the allegations of abuse of prosecutorial authority.

Under Tennessee Code, the attorney general is authorized to investigate and prosecute crimes committed by district attorneys general, but does not have oversight of management decisions, the exercise of prosecutorial discretion or any other actions by district attorneys general in the absence of criminal activity.

The district attorney general is the chief law enforcement officer in the judicial district and is responsible for the prosecution of all criminal cases in the district. A district attorney general possesses wide discretion in performing the duties of the office. Decisions within the discretion of a district attorney general include whether a person should be charged, which charges should be brought, and whether to take a case to trial, accept a plea bargain, or dismiss the charges.

The allegations related to Bebb's abuse of his prosecutorial authority were divided into the following categories:

Declining Prosecution in Cases Involving Law Enforcement Officers. The TBI investigated a number of instances in which it was alleged Bebb improperly declined to prosecute cases involving law enforcement officers.

The report stated a district attorney general "has virtually unbridled discretion in determining whether to prosecute and for what offense." The investigation uncovered no evidence suggesting Bebb improperly interfered in investigations of these matters or that his decisions not to prosecute were based upon illegal motives.

In some cases, while not prosecuting, Bebb referred the matters to the appropriate law enforcement employer for disciplinary action. Bebb's decisions fell within the exercise of his prosecutorial authority, according to the report.

Allegations of Questionable Dispositions of Criminal Cases. It was alleged Bebb gave more favorable dispositions of criminal cases than are normally given in similar types of cases to two defendants:

- A defendant whose father was a Cleveland businessman was charged with a drug offense. Bebb disposed of the case by agreeing to allow the defendant to be placed on judicial diversion. There were allegations Bebb agreed to such a disposition after the defendant's father agreed to make a contribution to the 10th Judicial District Drug Fund. The criminal records were expunged after the completion of judicial diversion.

- Jeff Young served as the Bradley County Emergency Management director from 1996 through 2004. In August 2005, while Bebb's predecessor was in office, Young was indicted on charges of theft and official misconduct. In July 2007, after Bebb took office, the charges were dismissed.

The investigation uncovered no evidence that would warrant prosecuting Bebb based on the disposition of either case.

- Allegations of Threatening Criminal Prosecution for the Purpose of Assisting a Party in a Divorce Proceeding in Obtaining a More Favorable Child Custody Arrangement.

In the course of its investigation, the TBI received an allegation Bebb threatened a defendant with criminal prosecution unless he agreed to a particular child custody arrangement in a pending divorce proceeding.

The investigation indicated Bebb informed the defendant that Bebb would not seek an indictment for wiretapping activities the defendant committed in the course of his domestic dispute if the defendant agreed to a joint custody arrangement with his estranged wife.

When the defendant declined, Bebb presented the matter to the grand jury, which issued an indictment. The defendant pled guilty and was placed on judicial diversion; the case was dismissed and records expunged.

- Unauthorized disclosure of TBI investigative records:

It was alleged Bebb improperly gave DTF Agent Bobby Queen material from TBI investigative records related to a domestic violence incident involving Queen, and in particular a summary of the investigation from the file.

All TBI investigative records are confidential and are not open to inspection by the general public. With limited exceptions that are not relevant here, the records cannot be disclosed except pursuant to a subpoena or court order. The authority of a district attorney general to disclose TBI investigative records is limited to disclosure of evidence by the state or the use of evidence at trial. Disclosure of TBI records by a district attorney general outside the discharge of official duties could constitute an unauthorized exercise of official power or an act exceeding the district attorney's official power. If done intentionally or knowingly with the intent to either obtain a benefit or inflict harm, a district attorney general could be subject to prosecution for official misconduct.

The investigation confirmed that after the TBI completed its investigation of Queen, Queen came to Bebb's office and left with a copy of a summary of the investigation. Queen was seeking access to this information, not in any official capacity, but rather in the private capacity of seeking new employment, so he could show prospective employers that the investigation had ended and he was not going to be charged criminally.

The evidence gathered by the investigation about the nature, content and origin of the document Queen obtained was conflicting. Accordingly, there is insufficient evidence to show the document fell within the scope of TBI investigative records covered by the confidentiality requirement.

In any event, because the conduct in question occurred in 2008, any attempt to prosecute would be barred by the two-year statute of limitations in effect at that time for official misconduct.

- Allegations of improper influence of grand jury: It was alleged that in July 2010, one of the assistant district attorneys in Bebb's office influenced a grand jury proceeding related to an investigation of possible campaign finance law violations by the McMinn County sheriff. The alleged campaign law violations had been investigated by the district attorney general of Knox County, who had been appointed to handle the matter.

On the day the matter was scheduled to be presented, the assistant district attorney allegedly informed the grand jury in session that a district attorney general pro tem was going to present a matter and that there was nothing to it.

The grand jury declined to indict the sheriff. Tennessee Code prohibits any person from privately communicating with a juror with the intent to influence the outcome of the proceeding. Violations are punishable as Class A misdemeanors.

However, there is no allegation of a private communication with a juror, as the allegation relates only to statements made to the entire grand jury while in session.

Moreover, the investigation was unable to confirm that the alleged communication actually took place. In any event, the investigation did not uncover any evidence Bebb had any contact with any member of the grand jury in connection with this matter or that he solicited, directed, aided, or attempted to aid any person to take action to unlawfully influence the grand jury.

- Allegations related to impersonation of an attorney. It was alleged that from November 2008 through January 2009, McMinn County Detective Pat Henry (Henry) improperly posed as an attorney in an effort to induce John Henry Dawson (Dawson) to provide evidence implicating Dawson in theft and drug-related cases which were pending in the Monroe County Criminal Court. The details of the scheme are set forth in an opinion of the Tennessee Court of Criminal Appeals in which the court described the conduct of the Monroe County law enforcement officials as "so egregious that it simply cannot go unchecked" and vacated Dawson's guilty pleas on the theft and drug charges based on its findings that Henry's impersonation of an attorney was improper.

In a separate criminal investigation, Henry posed as an attorney hoping to induce Dawson to implicate himself in an unsolved murder. A trial court subsequently dismissed the murder indictment lodged against Dawson.

It is unlawful for any person not licensed to do so to practice or pretend to be licensed to practice a profession for which a license certifying the qualifications of the licensee to practice the profession is required.

Bebb could be held criminally responsible for Henry's conduct had he solicited, directed, aided, or attempted to aid Henry to carry out his scheme to impersonate a lawyer. The TBI investigation uncovered no evidence to warrant such a prosecution. There is no evidence Bebb was a participant in the scheme or was aware of the scheme. Rather, as the Court of Criminal Appeals noted in its opinion, Bebb instructed the Monroe County sheriff in November 2008 to stop working with an informant who, unbeknownst to Bebb, was assisting Henry in the impersonation of an attorney.

There is nothing to indicate Bebb knew the Sheriff’s Office had subsequently disregarded those instructions. There is also no evidence to indicate Bebb committed official misconduct in not pursuing criminal charges against Henry. As district attorney general, Bebb had broad discretion in deciding whether to prosecute Henry for official misconduct or impersonation of a licensed professional. There is no evidence Bebb's decision was based upon illegal motives subject to criminal prosecution, such as bribery, official misconduct or extortion. Bebb's decision, therefore, was a matter of prosecutorial discretion.

- Allegations of perjury in deposition testimony: It was alleged Bebb gave false testimony in a deposition taken in connection with a wrongful termination lawsuit filed by former DTF agent Samuel McNelley.

In the deposition, Bebb agreed with the questioning attorney's characterization that Bebb accepted former DTF Director Mike Hall's word that McNelley was a disruptive influence at DTF. It was alleged that Bebb's statement was false because at a Dec. 4, 2009, meeting at DTF, Bebb stated he had received the same information from other people.

Aggravated perjury requires proof of the making of a false statement. Reading the relevant portion of the deposition, it is apparent Bebb did not make a false statement and did not intend to deceive. The attorney's question was intended to elicit information concerning the person or persons who had told Bebb about McNelley. Bebb started to answer the question and the information he provided was true. He then became sidetracked when he attempted to explain his answer more fully. The attorney then shifted the focus of the inquiry to another area before Bebb finished his answer and never returned to that line of inquiry.

Since there is no evidence Bebb made a false statement, there is no basis to warrant prosecuting Bebb for aggravated perjury.

- Allegations related to the use of economic crime funds, the automobile provided by DTF, and filing of expense claims: None of the facts described rise to a level that would support or warrant criminal prosecution. With respect to these allegations, however, Bebb and his office engaged in practices and recordkeeping that evidenced poor judgment, deficient recordkeeping, and insufficient attention to the appropriate use of public resources.

It was alleged Bebb misused economic crime funds to cover the cost of office dinners. Purchasing records from McMinn County show Bebb authorized three payments from the Economic Crime Fund to cover the cost of the office's annual meetings and Christmas dinners: $1,217.50 on Dec. 15, 2008; $1,507 on Dec. 21, 2009; and $1,435.00 on Dec. 13, 2010. All of these functions were held at the Robert E. Lee Restaurant in Athens.

The Legislature established the "Economic Crime Fund" in 1984 with the enactment of the Fraud and Economic Crimes Prosecution Act. The Act's purpose is to provide district attorneys general with financial resources to effectively prosecute fraud and other economic crimes. Fees assessed against defendants in bad check, forgery and other theft-related prosecutions provide the source of funding. Uses for such funds include, but are not limited to, fulfilling the prosecutorial duties of the office, paying expenses related to training, enhancement of other resources available to combat white-collar crime, and hiring expert witnesses. The only express prohibition involving the use of such funds is that such funds may not be used to supplement salaries, except as provided by the Act.

Based on the evidence obtained over the course of the investigation, prosecution of Bebb for theft is unwarranted, the report stated. Theft requires proof of a taking or exercise of control of property without the effective consent of the owner, which in this case is the state. Under the broad language of Tennessee Code, a district attorney general may arguably use the funds for any office-related purpose, except for certain payments that are related to salary. Since there is a plausible argument that the statute has given effective consent to the use of funds described above, it is unlikely that a successful theft prosecution could be maintained.

It was alleged that Bebb improperly used an automobile furnished by the DTF. The vehicle had been seized by DTF and forfeited because of its use in connection with violations of the drug laws. Bebb used the automobile from late 2009 until early 2012.

State law provides that vehicles seized and forfeited by DTF shall be sold at public sale. That same statute makes an exception to allow such vehicles to be used in local drug enforcement programs for up to five years. The evidence indicates that Bebb used the automobile for other business that was official but was not related to the drug enforcement program.

The report also stated there is no evidence from the investigation that Bebb made personal use of the vehicle. Based on the evidence obtained during the investigation, prosecution of Bebb for theft for use of the automobile furnished by DTF is not warranted.

It is a defense to a prosecution for theft if the defendant acted under an honest claim of right to the property or service involved or if the defendant acted with an honest belief he had the right to obtain or exercise control over it. The evidence indicates Bebb honestly but mistakenly believed DTF had purchased the forfeited vehicle and therefore he had a right to use the automobile for any official business, not just for drug enforcement. There is no evidence to indicate Bebb made personal use of the automobile.

Furthermore, theft of services requires proof that the defendant used fraud, coercion, deceptive or other means to avoid payment, the wrongful diversion of services for personal benefit or the benefit of another, or absconding from an establishment to avoid paying for services. There is no evidence that Bebb engaged in any such conduct.

It was alleged that Bebb wrongfully submitted claims for reimbursement for mileage related to his use of the automobile that was furnished by DTF. Records indicate that from October 2009 through March 2012, Bebb submitted claims for $2,859 in mileage claims. Some of that mileage related to use of the automobile that was furnished by DTF.

Based on the evidence that was obtained during the investigation, prosecution of Bebb for theft for submission of these expense claims is unwarranted. Theft requires proof of knowing and intentional action. The evidence indicates Bebb used his personal automobile and the DTF automobile for official business, thus leading to confusion concerning the preparation of expense claims. The evidence indicates that his secretary prepared the expense claims and that Bebb signed and submitted them without careful review.

In addition, during the time Bebb had possession of the DTF automobile, Bebb said that he used personal funds to pay for gasoline and oil changes for that vehicle. He also said that he did not submit mileage claims for business use of his personal automobile for one year.

At best, the report stated, such conduct proves negligence, not intentional wrongdoing. The preparation, review and submission of mileage reimbursement claims in this matter lacked the documentation and formality necessary to ensure governmental accountability. These deficiencies, however, do not rise to the level of a prosecutorial offense.

Finally, the investigation reviewed allegations concerning misuse of DTF credit cards and possible misconduct by DTF agents in connection with the seizure and forfeiture of cash, automobiles, and other personal property.

The authority of the attorney general’s office to investigate and prosecute such matters is limited to matters in which a district attorney general might be criminally responsible for such acts. Because Bebb is the chairman of the DTF board of directors, the focus of the investigation conducted was whether Bebb directed or participated in any of the alleged wrongful activities.

The investigation concluded that Bebb had no direct or supervisory connection to any such activities by other agents. Information from the investigation related to such activities will be provided to the appropriate prosecutorial authority.