US Attorney files testy motion in Everett case

US ATTORNEY CARMEN ORTIZ’S office filed a scathing court motion on Wednesday accusing the city of Boston and the defendants in a criminal lawsuit of working together to spread unfounded rumors about wrongdoing by local law enforcement officials and Wynn Resorts.

The motion, filed by Assistant US Attorney Kristina Barclay, is a response to a court demand filed by attorneys representing three defendants accused of concealing the involvement of convicted felon Charles Lightbody in an Everett land deal with Wynn Resorts. The defendants accused the US attorney’s office of withholding exculpatory evidence in two areas – first, that two private investigators for Wynn were allegedly allowed into a wiretap room at the state attorney general’s office at a time when the Everett land deal was being investigated, and second, that Wynn officials knew of Lightbody’s involvement in the land deal long before the casino developer says it was told about his role by investigators working for the Massachusetts Gaming Commission.

What’s unusual about Barclay’s motion is how it dispenses with the usual legal niceties and implies that attorneys representing the defendants in the federal criminal case and the city of Boston, in its lawsuit against the Massachusetts Gaming Commission, are working in a cooperative manner.

In the first sentence of her motion, Barclay zeroed in on the alleged wiretap room incident. “Without a shred of evidence, and despite having been warned that the ‘alleged incident’ never happened, the defendants seized on a rumor spewed by the city of Boston in a vicious civil lawsuit against the Massachusetts Gaming Commission and filed a Brady motion questioning the integrity of this criminal prosecution,” Barclay’s motion said. A Brady motion typically seeks evidence favorable to the defense that is being withheld by prosecutors.

Barclay said there is no evidence the alleged wiretap room incident ever happened. She included affidavits from the two private investigators, Joseph Flaherty and Stephen Matthews, who said they never visited the attorney general’s office on behalf of Wynn in 2013, when the incident allegedly happened.

Flaherty, in his affidavit, said he worked for a month during the fall of 2013 for the law firm of Mintz Levin on behalf of Wynn, but never visited the attorney general’s office in that capacity. He said he and Matthew reviewed documents in a fourth floor conference room at the attorney general’s office in March 2014 on “a client matter that did not relate to casinos or gambling.”

Barclay also dismissed claims raised by Lightbody and his fellow defendants that her office had failed to turn over evidence that suggested Wynn knew of Lightbody’s involvement prior to July 2013, when the company says it was first notified about Lightbody’s participation in the land deal by Gaming Commission investigators. Lightbody has argued in court documents that the federal government’s claim that he criminally concealed his ownership interest in FBT Everett Realty would be undermined if Wynn was aware of his involvement all along.

Barclay said the timing of Lightbody’s involvement is what is important. “It has never been the government’s position that the defendants conspired to conceal from Wynn the fact that Lightbody was an owner of the Everett parcel before December 2012,” Barclay said in her motion. “The government’s position is that, in and after December 2012, the defendants arranged to remove Lightbody’s name from FBT ownership documents and represented to FBT’s attorneys and others that Lightbody was no longer an owner of the property, even though Lightbody retained a financial interest in the Everett parcel.”

Throughout her motion, Barclay suggested attorneys for Lightbody and his fellow defendants are working hand-in-hand with the city of Boston, a sort of the-enemy-of-my-enemy-is-my-friend relationship.

For example, Barclay’s motion notes that attorneys representing Lightbody and his fellow defendants used subpoenas issued by the city of Boston to buttress their motion for exculpatory evidence.  The motion also slams Lightbody and his fellow defendants for alleging the US attorney’s office had withheld information on Wynn Resorts’ knowledge of Lightbody’s ownership interest in the Everett land.

“This argument charitably falls into the ‘everything-but-the-kitchen-sink’ category; a more cynical critic might suggest that it was posed merely to facilitate the public disclosure of grand jury materials produced pursuant to the protective order,” Barclay’s motion said. “Notably, those materials made their way into the record in the city of Boston’s civil lawsuit within 24 hours, and were thereafter released to the media by the city’s attorneys.”

Bonnie McGilpin, press secretary to Boston Mayor Marty Walsh, issued a statement taking exception with the US Attorney’s motion. “The city of Boston sharply disagrees with the assistant US attorney’s characterization regarding the merits of this case. The city maintains that the Gaming Commission has not followed the law in its awarding of the [Everett casino] license and it is the city’s responsibility to fight to protect the rights of Boston’s public and the neighborhood of Charlestown.”

Lightbody’s attorney could not immediately be reached for comment.