Judge makes cigarette investigation documents public

WOODSTOCK – Sealed documents containing information about an undercover investigation mounted by the Shenandoah County’s Sheriff’s Office into cigarette smuggling will be made public under a ruling by a Circuit Court judge Thursday.

Circuit Judge Dennis L. Hupp ordered the documents unsealed in a victory for defense attorney David Downes, who has filed several motions seeking to pry information from the prosecution and the Sheriff’s Office.

“I’m ordering these matters no longer remain under seal,” Hupp said about documents that were the subject of a Freedom of Information Act request that Downes filed early last year. Downes wanted the documents unsealed as possible evidence that could be introduced on behalf of his clients at their jury trials.

Downes, a Front Royal attorney, is representing two New York City men, John Taveras and Thaer Nimer Khashman, in a protracted legal battle during which Downes he has challenged the legality of his clients’ arrests on a total of 60 charges related to cigarette smuggling.

Hupp also scheduled a two-day jury trial for Taveras on Aug. 31 and Sept. 1. No date was set for Khashman, but the judge said Khashman’s trial would be scheduled after the conclusion of Taveras’ trial.

At the outset of the hearing, Hupp announced he had reconsidered a tentative decision he made in April to close the hearing to prevent sensitive information about the undercover law enforcement operation from being publicly disclosed through the media.

“I think we can proceed today without closing the hearing,” Hupp said, adding that he considered the courtroom a “public forum.”

“I firmly believe the public has the right to know what goes on in the court, and the news media plays a vital role in our democracy and society,” Hupp said.

Downes has attempted to obtain information about the undercover operation as part of a legal strategy aimed at persuading a jury that his clients were the victims of an entrapment scheme mounted by the Sheriff’s Office.

Downes has accused the Sheriff’s Office and another law enforcement agency that has not been disclosed of conducting the undercover investigation as a money-making venture, an accusation that Sheriff Timothy C. Carter and Assistant Commonwealth’s Attorney Louis Campola have vigorously denied.

The Sheriff’s Office has received millions of dollars in recent years under a federal program that returns money to local law enforcement agencies that have participated in investigations that led to the seizure of cash and property linked to criminal activity. The seized assets are turned over to the federal government, which disposes of them through auctions and other means and distributes the proceeds back to local law enforcement.

Downes sketched his theory of the case in explaining to Hupp why it was important to disclose the identity of the law enforcement agency that helped the Sheriff’s Office during the investigation.

Downes said he wanted to know if an agency, citing the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives as a hypothetical example, was paying 70 or 80 percent of the cost of the undercover investigations into cigarette smuggling, receiving cash and property seized from the defendants, converting the seized assets into cash, and then returning large sums of money to the Sheriff’s Office.

Downes’ claims left Campola fuming.

“I object,” Campola told Hupp. “Mr. Downes is playing to the press.”

Campola also accused Downes of laying the groundwork for tainting a jury pool that would be assembled for the defendants’ trial.

Hupp ruled that Campola and the Sheriff’s Office had to disclose the identity of the second law enforcement agency.

Earlier in the hearing, Hupp rejected an attempt by Downes to obtain additional information from the Sheriff’s Office through a more recent Freedom of Information Act request, the second FOIA request Downes has filed in the case.

Downes argued that the Sheriff’s Office was insisting on what he called an unreasonable sum of money — $6,460 — to copy the documents he was seeking.

Carter was represented at the hearing by Sam Darby, a Roanoke attorney. Darby told Hupp that Carter was “concerned about information about undercover operations getting out in this arena.”

Carter said after the hearing that he was worried that revealing details of undercover investigations could jeopardize law enforcement officers’ safety, but then added: “I respect the court’s decision. I respect the process, and we’ll certainly comply with the court’s wishes and the court order.”

Contact staff writer Joe Beck at 540-465-5137 ext. 142, or jbeck@nvdaily.com