Sheriff denies record request

Shenandoah County Sheriff Timothy C. Carter and defense attorney David Downes are clashing again over attempts by Downes to obtain information about an undercover investigation into cigarette smuggling.

Downes, who represents two New York City men arrested in the sting, attempted to give Carter a check for $6,460 on July 29 made payable to the Sheriff’s Office. The check was intended to cover the costs of meeting a Freedom of Information Act request Downes submitted under state law.

Carter rejected the check and told Downes he should file a new FOIA request. Carter said in an interview that his refusal to accept the check complied with a court decision issued in May. Carter said the order allowed Downes 21 days to appeal the decision by Circuit Judge Dennis L. Hupp.

Hupp’s decision denied Downes’ FOIA request on grounds he had not paid the Sheriff’s Office the estimated costs – $6,460 – for compiling and producing the documents being sought.

Carter said Downes delivered the check well past the 21-day limit for filing an appeal of Hupp’s decision, which gave him no choice but to reject the check and continue denying Downes access to the investigation records

Carter’s reply left Downes frustrated but determined to forge ahead with a new FOIA request that will be submitted by a paralegal who works for him. With certain exceptions, state and local government agencies in Virginia must provide records requested of them within five working days.

“I’m not surprised by the sheriff’s response,” Downes said. “I just think he’s sad and desperate at this point.”

The latest conflict over law enforcement records comes less than a month before one of Downes’ clients, John Taveras, is scheduled to go on trial on 28 counts linking him to the illegal smuggling of untaxed cigarettes from Virginia to New York City. Downes is also representing another man, Thaer Nimer Khashman, who is expected to be scheduled for a trial after the conclusion of Taveras’ trial.

The investigation that led to the arrests of Taveras and Khashman has far exceeded the scope of other criminal investigations conducted by area law enforcement agencies. The cigarette smuggling cases have produced millions of dollars for the Sheriff’s Office under the U.S. Justice Department’s asset forfeiture program.

The program returns money to local law enforcement agencies that have seized property deemed to have been part of criminal enterprises such as drug dealing and cigarette smuggling. The property is given to federal authorities who submit it for auction and distribute part of the proceeds to sheriff’s offices and police departments.

In building a defense for his clients based on a theory of entrapment, Downes has accused Carter of conducting the investigation into cigarette smuggling as a moneymaking venture for his agency.

Carter has vigorously denied the cigarette smuggling cases are motivated by a desire to obtain revenue through the asset forfeiture program. Carter argues that cigarette smugglers may be entangled with organized crime and terrorist groups, which gives him and other law enforcement agencies ample reason to launch investigations regardless of the sums of money involved in the asset forfeiture program.

In trying to learn the workings of the undercover investigation, Downes has struggled to gain access to records containing details about the flow of money in and out of the transactions law enforcement officials have conducted with suspected cigarette smugglers.

Carter has cited the need to protect the identity of undercover officers and maintain operational secrets as his reasons for trying to keep the records sealed.

Downes has managed through several motions to obtain court orders that allowed for the unsealing of some records pertaining to the investigation. He has cited records showing the Sheriff’s Office received $4.6 million in asset forfeiture money between 2004 and 2014. Other information produced under court order showed the undercover investigation took in more than $11 million and spent almost $10 million between Jan. 1, 2011 and Dec. 31, 2013. Both sums far exceed the Sheriff’s Office’s annual budget of slightly more than $5 million.

Carter said in an interview that he was puzzled and surprised by Downes’ reaction to his refusal to accept the check and produce the records. Carter called their meeting about the records “cordial.”

“I’ve been in compliance with the orders of the court in these matters,” Carter said, referring to Downes’ latest FOIA request. “I thought he was asking for something outside of what I could for him at the time. I even gave him advice on what he could do next. That’s where I left it.”

But in a letter dated July 29, the same day he delivered his check to Carter, Downes made clear his impatience with the sheriff’s earlier response to his open records’ request.

“As of today, the only documents I have obtained through my prior FOIA requests are the purported amounts of expenses for Shenandoah and non-Shenandoah County sources for a three-year period,” Downes wrote. “These additional 10,000-plus pages of documents you are withholding from more than two years ago do not fall within an exception to the Virginia FOIA statute as you have repeatedly asserted through your counsel.”

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