Joint trial likely in Hanford timecard fraud case

By Annette Cary, Tri-City HeraldSeptember 4, 2013 

Ten defendants accused of timecard fraud at Hanford likely will be tried together unless some make plea agreements.

Judge Edward Shea heard arguments Wednesday for dividing the defendants into groups and holding three trials in federal court. He said he wanted to reread a past case before ruling, but was strongly inclined to hold a single trial for all defendants.

He is leery of dividing the trial for fear that it would create a disadvantage for some defendants, he said.

A trial date of March 10 has been set. A joint trial for all defendants could last more than four months, according to the Department of Justice. None of the attorneys in the case have asked for a delay, but if a continuance is granted later the trial could be moved to September 2014, Shea said.

Prosecutors expect the 10 defendants to proceed to trial as scheduled.

U.S. attorneys have proposed that the 10 be grouped according to their job duties, which correspond to their involvement with timecards at Hanford, to allow more efficient and focused trials. Different defendants had different roles and derived different benefits, said Tyler Tornabene, the lead attorney for the prosecution.

The smaller trials would prevent the judge and the attorneys from having to devote four months straight to a single trial, according to arguments in court documents. Such a long trial also would tax the mental energy of jurors, Tornabene said.

The separate trials could help inform plea negotiations as each trial nears, according to court documents.

They also would solve the logistical problem of having 10 clients, 10 defense attorneys, prosecutors and a jury together in a single room, Tornabene said. Some attorneys sat in the jury box Wednesday because of lack of space in the courtroom at the Richland federal building.

Two of the defendants agreed that three separate trials would be best.

Bryan Hershman, of Tacoma, who is representing Daniel Niebuhr, said a four-month trial would be a logistical nightmare. It would kill his practice for four months and would be expensive for his client to cover his costs for the stay in the Tri-Cities. He also does not want a jury to confuse the actions of some of the other defendants or different charges with his client's case, he said.

John Crowley, of Seattle, who is representing Kenneth Baird, also supported smaller trials, but said he did not want to discuss the reasons in court.

But attorneys for the remaining eight defendants argued for all 10 to be tried together, with several attorneys saying the motive for asking to split up the trial was strategic for the prosecution.

Defendant Patrick Brannan would have "to sit, wait and watch while the government has free rein to customize the evidence in the two prior trials, and when the case finally reaches his doorstep, Mr. Brannan's opportunity to effectively challenge the evidence against him has been severely limited," said his attorney, Kenneth Therrien of Yakima, in a court document.

James Egan, of Kennewick, representing Glenda Davis, said he objected to his client being in the first proposed group. She would not be able to rely on the testimony of other defendants and cross-examine their testimony, he said. He also questioned whether three separate trials would take less time than one larger trial.

"The facts in the case are inextricably entwined," said Mark Vovos, of Spokane, representing Terrence Hissong.

The Department of Justice has proposed that Davis and Stephanie Livesey go to trial first. They worked as direct supervisors and the trial would focus on their role in approving the timecards of radiological control technicians, including nine hourly workers who have made plea deals.

The second trial would be for Niebuhr, Baird, James Michael Hay, Perry Mark Howard and Mark Norris Johnson. The Justice Department calls them "persons in charge." They supervised hourly workers on specific jobs but did not usually approve timecards. Their trial would focus on their role in obtaining authorized overtime for hourly workers from upper managers.

The last group would include upper managers Brannan, Hissong and Ryan Dodd. They have been accused of concealing the timecard scheme and ensuring that deadlines were met to allow former contractor CH2M Hill Hanford Group to receive incentive payments from the Department of Energy. Meeting the deadlines allowed Dodd and Hissong to receive corporate bonuses, according to the prosecution.

The Department of Justice has alleged that hourly workers would only agree to overtime if it were offered in eight-hour shifts and then workers routinely would claim the full eight hours even though jobs usually were completed sooner.

-- Annette Cary: 582-1533; acary@tricityherald.com; Twitter: @HanfordNews

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