Contamination and Manipulation in a Briber y Case: US v. Paul Manziel
Abstract and Keywords
In a successful drug sting operation against Paul Manziel’s brother, Bobby Joe Manziel, one tape recording gave law enforcement a clue that Paul may be involved in an unrelated bribery event. The undercover cooperating witness then turned his attention to Paul, using recording strategies in which he manipulated the tape recorder and otherwise contaminated the evidence to the extent that the case had to be dismissed before trial.
In early 2002 the FBI conducted a sting operation targeting Bobby Joe Manziel, a businessman in Tyler, Texas. The Manziel family owned several businesses in the city, where they were all considered prominent, if politically controversial, citizens. The FBI used handyman Eddie Williams, a local acquaintance of Manziel, as a cooperating witness. Williams had been arrested for various crimes and he agreed to wear a mike and try to get incriminating information from Bobby Joe Manziel. Williams spent two months doing this, at times tape-recording the entire Manziel family, but focusing his effort on Bobby Joe Manziel, who was thought to be willing to engage in some kind of criminal activity if given the chance. During his taping, Williams single-handedly created an alleged bribery scheme involving Bobby Joe Manziel's younger brother, Paul Manziel, and so he also taped several conversations that led to Paul's indictment on charges of bribery.
Some months earlier, in order to avoid the nuisance of a trial, Paul Manziel had pleaded guilty to a highly questionable drunken-driving charge and was serving his sentence of community service by teaching business courses five days a week at a local business school. The new bribery charge grew out of discussions about how Paul could speed up the completion of his community service hours by doing additional service at PATH (People Attempting to Help), a local nonprofit organization set up to help the needy in the Tyler area. This idea was suggested (p.90) by Williams, who knew the man at PATH who was in charge of arranging for such work, Lorenzo Steward. Steward also repaired air conditioners on the side and, knowing that Bobby Joe had properties needing air conditioner repairs, Williams used this as an excuse to set up a meeting between Steward and Bobby Joe. During this meeting, Williams suggested to Bobby Joe and Steward that Paul might be able to work off some of his community service at PATH. Bobby Joe liked the idea and arranged for Williams to give Steward one hundred dollars cash, which the government claimed was a bribe for Steward to cook the books to make it appear that Paul would get credit for work that he wouldn't really do. In sharp contrast, Bobby Joe claimed that this money was an advance on air conditioner repairs that Steward would be doing for him.
From the beginning it was clear that Paul was never told about the one hundred dollars. To satisfy the police in his role as a secret, under-cover, cooperating witness, Williams's tasks were:
1. to get Bobby Joe to invest two thousand dollars in a drug scheme that Williams knew about from personal experience;
2. to get Paul to show that he knew about the one hundred dollars that his brother Bobby Joe gave to Steward and to show that Paul agreed to cheat on reporting his community-service hours.
The FBI had given Williams the tape-recording equipment for a total of ten days during the months of April and May. Since Paul was not the original target of the sting operation, he was not recorded on most of these tapes. In fact, his relevant participation can be heard on only the last two. During the ten days that he had the recording equipment, Williams was not closely monitored, and he was given the freedom to turn his tape recorder off and on whenever he wanted to do so, at times resulting in a mishmash of seemingly disconnected talk, along with long periods of static, walking, and traffic sounds. This produced evidence that was usually of very low-quality audibility. For example, on the first tape, containing conversations between Williams and Bobby Joe, the government's own transcript marked 730 places that were deemed inaudible. Even the casual listener to the tapes could tell that Williams turned the tape off and on at will, sometimes in the middle of an ongoing conversation.
(p.91) To complicate things further, when the prosecution gave the taped evidence to the defense to fulfill its discovery requirement, it was found that there were seven other tapes that, suspiciously enough, contained no audible conversations at all. As noted in chapter 2, when on/off signatures occur on tapes, one can never know what exculpatory evidence might have been excluded by the person doing the taping. When there is nothing at all on the tapes, suspicion mounts. Williams also took advantage of the fact that throughout the tapes, various people, including the targets, Bobby Joe and Paul, kept arriving and leaving. This led to crucial things being said on tape when the Manziels were not even present to participate in the conversations.
Soon after his indictment, Paul Manziel's defense attorneys, Cynthia Orr and Gerald Goldstein of San Antonio, sent me the tapes to analyze linguistically. The only evidence in the case against Bobby Joe consisted of five very long tape recordings made in late April and May. In the third of these, Bobby Joe agreed to invest two thousand dollars in a quick-money drug scheme suggested by Williams, providing the evidence needed to indict him. At that point, Williams turned his attention to brother Paul, who was in no way suspected of drug trafficking. Williams's first step was to suggest to Bobby Joe (still uncharged) that an acquaintance of his, Lorenzo Steward, who worked for PATH, could probably arrange for Paul to work off some of his community service hours there. Bobby Joe liked the idea and, unbeknownst to Paul, he ultimately agreed to advance Steward one hundred dollars cash. What that cash was for was less than clear, however, because Williams first introduced Steward as someone who could help repair air conditioners in Bobby Joe's various businesses, an attractive idea to Bobby Joe, since he was in need of such help at that time.
Three types of tape contamination were evident in this case: contaminating the recording, manipulating when to record and when not to, and manipulating electronic static to occur at crucial points.
Contaminating the Recording
The defense attorneys immediately suspected that, at minimum, the seven blank tapes had been tampered with. They also noticed the many on/off signatures on the remaining five tapes, especially when such signatures (p.92) occurred in the midst on ongoing conversations. The last two taped conversations took place in several locations with many people constantly arriving and leaving. Williams said many things that, if Paul were present to hear them, might well implicate him in criminal activity. Since the recordings were of such low auditory quality, the problem for both the defense and the prosecution was not only how to determine who said what but also to discover who was even present at the time it was said. A videotape might have clarified such a question but this type of recording was not feasible when the cooperating witness was walking and driving around between ranches, fields, and businesses, talking with dozens of people indoors and outdoors, and frequently changing his participants. No hidden camera could be placed to capture such events effectively.
Even with only audiotape evidence, however, there are important clues about when Paul was a participant in the conversations and when he was not.
Evidence of Paul's Participating Presence
• When Paul responded and showed by his response that he had heard what was said.
• When Paul greeted or was greeted, and said good-bye or was said good-bye to.
• When there were only two people in the conversation and Paul was one of them.
• When Paul was addressed by name.
• When the pronouns “you” and “your” were used with Paul rather than “he” or “his.”
Evidence of Paul's nonpresence and nonparticipation:
• When Paul did not respond to a statement or question that had no identifiable addressee.
• When Paul's voice was not heard over long stretches of conversation.
• When there were sounds of walking or moving around, which can only be from the person wearing the mike.
• When Paul was not addressed by name and was talked about as though he was not present.
• When pronoun references to Paul were “he” and “his” rather than “you” and “your.”
• When Paul's voice could be heard in the distance talking with somebody else or talking on the telephone.
• When Williams's voice could be heard talking with somebody else present or on the telephone.
These clues helped determine when Paul was present and, if he was in the area, whether he was sufficiently within hearing range to participate in what was going on. In the second to last tape, Paul moved in and out of various conversations that began at Bobby Joe's ranch, then moved to a number of other sites. Williams had set this meeting up for Bobby Joe to meet with Steward about fixing his air conditioners. By chance, Paul happened to be at one of these sites also. This is the first of the only two tapes on which Paul's participation was relevant and in which his voice can be heard.
Since Steward was late for this meeting, Paul and Williams discussed a number of topics while they waited for him, all of which were small talk totally unrelated to anything illegal. Over an hour later, Steward arrived and Williams introduced him to Paul. For the first time, Paul was told how Steward might be able to help him get community service hours at PATH. Paul explained how he runs a manufacturing plant and that it's difficult for him to put in his community service hours and still manage the company he owned. Paul's voice was then not on tape for a couple minutes while Williams explained to Steward that “they had a big-head hundred” and that they need to get a hundred hours of community service. During this time, Williams referred to Paul as “he” and to the Manziel brothers as “they.” Bobby Joe had been elsewhere doing something else for the previous thirty minutes and the pronoun references and lack of Paul's voice indicated that Paul had wandered off briefly to do something around the ranch. Then suddenly, Williams loudly addressed Paul by name: “Paul, how many houses do you own in this town?” Paul's voice could be heard answering, first from a distance and then growing louder as he apparently approached Williams. This gave a strong indication that he was not a participant in the preceding dialogue about the “big-head hundred.” Williams clearly tried to bring (p.94) Paul back into the conversation to make it appear that he had heard what Williams just said to Steward. But the vocal signals belie that fact. Paul was not a participant at that time.
In group conversations, addressees are commonly switched. Four people can be talking together for a while, then break off into dyads. Note also how once Williams addressed Paul, he did not continue the topic of the “big-head hundred.” Instead he used the hit-and-run strategy, changing the topic quickly to how many houses Paul owns.
About an hour and a half into this conversation, with Bobby Joe and Paul intermittently coming and going while Williams and Steward talked with each other, a door could be heard closing. For the next thirty minutes, until the tape is finally turned off, only Williams and Steward could be heard on tape talking with each other. Steward clearly agreed with Williams's request to help Paul obtain additional hours for his community service. The most revealing parts of this tape occur after the sound of the door closing indicated that Paul had left:
Williams: See that, boy, you got your envelope.
Steward: I got my envelope.
Williams: When I told him I said pull that envelope out there, they didn't have that envelope for you for two weeks. Until I could catch you. Was that big-head hundred in there?
Steward: I ain't never even looked at it.
Williams: It's there.
Steward got the one hundred dollars but the taped evidence did not show that Paul had any knowledge that he got it or about what the money was for. Nor did this alleged critical conversation reveal that the one hundred dollars was for Steward to cook the books to show that Paul was getting community service credit that he was not entitled to have.
Manipulating When to Record
Williams's favorite technique seemed to be to put the bad stuff on tape when Paul was just out of hearing range. In one conversation, which took place largely outdoors, Williams was having trouble with his truck. When he couldn't get it started, Paul said, “Let me have that wrench,” (p.95) and apparently got under the hood. Once there, he could be heard shouting from a distance, “You got the key on?” indicating his location under the truck's hood. Williams then told Steward how lucky he was to now be associated with the Manziel family so that he can be paid to fix the books:
Williams: Hey, they paid you your money to get that community service thing done, didn't they? Lorenzo, I make a lot of money with these boys.
Steward: I know. I gotta make sure I could use some of it.
A lot depended on what “get that community service thing done” meant here. Williams tried to make it look like they were paying Steward to cook the books, but during the ten minutes that Paul was trying to get the truck started, Bobby Joe returned and made it clear to Steward that nobody would be used as Paul's substitute to do the service work, that Paul had to do it himself, and that in return for the inconvenience to Steward for his having to go to PATH to sign Paul in and out on Saturdays when Steward isn't on duty and isn't getting paid, he will get some air conditioner repair work from Bobby Joe. This was the clearest statement about what the “big-head hundred” was actually for:
Bobby Joe: This isn't how I want to do with Paul. What I want to do is sign in and sign out. We can't send any men down there to work. What I want you to do is sign him in and sign him out. And we're not sending any help down there. Just we're not going to do it. That's my little brother. That's all we do and we can take care of you all the time. And we'll have you on one end and he's teaching school on the other end. You go sign him in and sign him out and it'll be every Saturday.
Manipulating Static at Crucial Points
It is well known among law enforcement agencies that sensitive microphones can create static noise very easily. The sound of walking creates a whoosh-whoosh noise that can interfere with any simultaneous speech. The same type of static noise can be created by moving ones arms or (p.96) shuffling within position. Even the government's own transcripts record evidence of such movement. Even on the government's own transcript, “Walking sound” static is transcribed once every two pages and “Rustle” static is transcribed once every 2.4 pages. Williams was very active in causing static on the tape. “Walking” and “Rustle” together gave an average of one static instance on every page of the transcripts.
Undercover operations have encountered such difficulties frequently enough in the past to cause those who wear the hidden mikes to become very conscious of how crucial inculpatory language can be lost through such movements and actions. This awareness makes it all the more surprising that cooperating witness Williams was permitted to obscure the speech of targets throughout this operation. Sometimes such blocking may be accidental, but when it happens on a large scale, as it did in this case, and especially when it happens at times when targets appear to be starting to say something that would indicate their innocence, one can question the intentions of the person controlling the mike. The tapes in this case are replete with such created static. It is beyond the scope of this chapter to list them all. Instead, only an example will be given here.
One of the many such instances of creating static that blocked the target's response took place on May 30, the very last tape submitted in evidence, when Paul was consecutively recorded more than on any other occasion—for a total of four straight minutes. Williams asked Paul whether Steward was “taking care of” his community service. Paul responded:
Paul Manziel: He's working on it … he's got me folding some envelopes … he gives me eight hours' credit to do six boxes …
Williams: That don't take no eight hours to do it.
Paul Manziel: I'm gonna knock this shit out. I've got 120 hours teaching already and Steward has got me twenty something. Yeah, but see, I have to do some work for him to get my hours.
Williams: Oh, he'll slip you some in there. I'll talk to him … He can work it out.
Paul Manziel: Uh-huh. I've already done six cartons for him. Six in forty-eight hours I've already done for him … so he owes me some hours.(p.97)
Williams: Can't you get a occupational license over there to drive? You need to transfer yourself to Henderson County … say you moved over there.
Paul Manziel: But, uh (static sounds drown out the rest of this)
In the first part of this passage, Williams was obviously trying to get Paul to say either that he was not actually doing his community service work for PATH or that he was willing to cheat on his hours. This effort clearly failed, since Paul explained that he was working off his service hours legitimately. After Williams claimed that Steward could “slip” some hours in, Paul responded in a way in which he seemed to understand this to mean that he had already worked hours for which he hadn't been credited, apparently missing Williams's intent. So Williams took another tack, suggesting that Paul could get his unrestricted driver's license back if he would change his residence to another county. Paul started to respond with “but,” a marker usually indicating that a disagreement or objection will follow. Before he could say his next word, however, loud static, followed by walking sounds, drowned out the recording and we are unable to hear the rest of Paul's statement. Williams apparently manipulated his tape recorder in order to block Paul's response.
Before Paul Manziel's trial for bribery even began, his attorneys requested that they be permitted to examine the recording equipment worn by Williams to determine whether it was fraudulently manipulated. The court agreed with this request and issued an order compelling the prosecution to provide it to the defense. After weeks of pleading with the FBI to honor the order, the prosecution reported to the court that FBI Headquarters in Quantico, Virginia, refused to comply, citing national security concerns.
Linguistic analysis can only point out the language oddities of passages of conversation when such passages are irrelevantly chopped up. Although linguistic analysis is important evidence of manipulating the recording and creating static, the ultimate test would be to let the defense examine the recording equipment to electronically determine the ways in which tape manipulation could have taken place. This refusal to make the recording device available for inspection by the defense led (p.98) the judge to report that she would either suppress the tapes made by this device, the only concrete evidence in the prosecution's case, and dismiss the charges against Paul Manziel, or let the case go to trial and, in the judge's own words, “let the defense beat up on you all.” Since FBI agents freely handed the device over to the cooperating witness, who had a criminal record and who was allowed to keep it in his possession for ten days without obvious supervision, the judge expressed puzzlement at the prosecutor's excuse that this was a national security case noting, “I'm unable to wrestle with this claim of national security.”
I will be quick to point out that it was the cooperating witness, not law enforcement officers, who was primarily responsible for contaminating the recording process in this case. As a rule, the FBI is not guilty of such manipulation. Once in a while, however, the overwhelming desire to capture a criminal may overcome the need to be objective and aboveboard in such efforts.