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Sunday, October 1, 2006
Vigil Guilty on 1 Count; Former N.M. Treasurer Acquitted on 23 Other Charges
By Scott Sandlin and Mike Gallagher
Journal Staff Writers
A weary but united jury returned a guilty verdict on a single charge in a 24-count indictment against former Treasurer Robert Vigil on Saturday afternoon.
Vigil's conviction on attempted extortion dealt not with the alleged kickbacks at the heart of the case. Rather, Count 24 had to do with Vigil pressuring a former Treasurer's Office employee to hire the wife of former Treasurer Michael Montoya if he wanted a contract with the office.
"Basically, we could not get enough corroboration using the witnesses they used," said jury foreman Bill Strouse, an employee with the city of Las Cruces. "The difficulty was we needed something to be corroborated because they weren't believable by themselves.
"The acquittal (on some counts) does not mean Mr. Vigil was universally admired," Strouse said.
The verdict ended a month of testimony in Vigil's second trial on racketeering and extortion charges. A trial in April before Senior U.S. District Judge James A. Parker ended in a hung jury and a mistrial was declared.
Vigil's defense is challenging the conviction. By statute, Vigil could face up to 20 years in prison for the conviction on the federal charge.
"There was a lot of lost sleep. They didn't want to convict an innocent man, and they didn't want a corrupt official to walk," Strouse said of his fellow jurors.
Vigil's lead attorney, Sam Bregman, was spare with his comments after the verdict, pronouncing the defense "thrilled" at the 23 acquittals and promising a fight over the sole count on which there was a conviction.
"This isn't the end," he said.
Lead prosecutor Jonathon Gerson said the jury gets the final word.
"Whenever a jury renders a verdict, the government is pleased. They've adjudged him a felon," he said.
The jury had been sequestered during deliberations, which began in earnest Friday morning.
U.S. District Judge James O. Browning got notes during deliberations seeking sodas and smoke breaks. Jurors also wanted a replay of video clips showing former investment adviser Kent Nelson handing over envelopes stuffed with $11,500 in $100 bills to Vigil in a parked car on one occasion and $1,900 on another.
Jurors had heard a month of testimony about a complicated extortion scheme started by Montoya soon after he took office in 1995 and continuing through both his terms in office.
Prosecutors Gerson and Steve Yarbrough presented evidence including hundreds of financial records, hours of secretly taped audio and video and testimony by more than two dozen witnesses to support racketeering and extortion charges. The government's theory was that Vigil knew about the kickbacks Montoya was taking and continued the operation, although in a different form, when he became treasurer in 2003.
Prosecutors contended Vigil's motivation directing contributions to New Mexico charities, many in his native Las Vegas, N.M., was to build political capital.
The defense team, led by Bregman and including Jason Bowles, B.J. Crow and Eric Loman, took the position that it was campaign finance laws that were at fault, not anything Vigil did with respect to them.
Vigil's defense argued the money Vigil received, including the envelopes of cash in the parking lot, represented donations to Vigil's re-election campaign.
Many key prosecution witnesses have entered into plea agreements with the government in exchange for their cooperation, including testimony. Prosecutors disclosed the plea agreements and, in some cases, immunity deals on which the defense heaped scorn.
Montoya and Vigil were each initially charged in the same indictment with two counts each of extortion.
Montoya, Vigil's predecessor, pleaded guilty to one count of extortion in November 2005.
Angelo Garcia, a former insurance man through whom Montoya channeled cash during the years, entered a guilty plea to extortion in June 2005. Nelson pleaded guilty to wire fraud in September 2005.
Leo Sandoval, Montoya's childhood buddy whom Montoya hired to oversee the local government investments, received immunity in exchange for his cooperation because he was the conduit for kickbacks to Montoya.
It was those plea agreements, and the fact that individuals such as Montoya had been accused of multiple counts while admitting to only one, that gave the jury trouble, Strouse said.
"It meant you couldn't rely on their testimony alone," he said.
An alternate juror who asked not to be identified said she was surprised at the verdict.
"I would have liked to talk it out and see where people were coming from," she said.
Juror Mike Cisneros, a construction worker from Silver City, said the trial was very hard for jurors as well as Vigil.
"I hope to God he can piece his life back together," he said. "Poor guy, he's been railroaded long enough."
Decision is made
The tension in the federal courthouse built slowly Saturday.
At mid-morning, the building seemed empty. The lights were turned low for the weekend. The usual quiet bustle was absent.
A few news reporters, court security officers, 12 jurors and Browning's staff barely echoed in the seven-story building.
When jurors returned from a break, under the escort of the U.S. Marshals Service and court security, many were smiling. Some chatted.
Earlier, they had returned a note. The U.S. Attorney's Office and Vigil's attorneys were notified. Browning summoned them for 1 p.m. The jury reached their verdict about 11:30 a.m. and asked by a written note if they could have lunch.
Prosecutor Gerson and FBI Special Agents Peggy Russin and Marcus McCaskill arrived first, then the defense team, and Vigil's family members, at least a dozen of whom sat through much of the trial.
The jury filed into their seats and Strouse handed the verdict forms to Browning's clerk K'Aun Sanchez. She took them to Browning, who flipped through the pages and read them silently.
He then began a litany of "not guilty" on individual charges.
Twenty-three times, Browning read the jury's finding into the record.
Vigil sat very still at the beginning of the recitation. He then covered his eyes with his hands as the judge continued to read "not guilty" out loud.
Bregman, an emotional man who counts Vigil as a personal friend, appeared almost overcome. He covered his eyes. His shoulders shook.
Gerson listened to the staccato rejection of his criminal case against Vigil. He showed little emotion.
Then Browning read the verdict to Count 24: "We the jury, find the defendant, Robert Vigil, guilty as charged."
There was a moment of confusion. People in the gallery asked each other if they heard correctly. Bregman looked at the courtroom ceiling. Bowles, who had been covering his eyes, shook his head. Vigil removed his hand from his eyes.
Gerson raised his eyebrows for just a moment.
Vigil's family was silent.
Ready to challenge
After jurors were dismissed, Gerson asked Browning to reconsider Vigil's conditions of release. In the federal system, defendants may be held in custody if they're deemed a flight risk or danger to the community.
Bowles reminded Browning that there is a pending legal challenge from the defense to the count on which Vigil was convicted.
Bregman said after leaving the courthouse that he believes it's on that count that Vigil has the strongest legal basis for dismissal. The team will file more legal arguments challenging it in coming weeks.
The count involves allegations made by George Everage, an accountant who had worked in the Treasurer's Office as an investment officer under Vigil and prepared an analysis of certain investments. Everage proposed creating a position called "securities lending oversight manager," which he believed could net the state several million more dollars each year, and resigned his state job to prepare a bid.
Everage said he was informed he would get the contract, but came under increasing pressure he believed was directed by Vigil to hire Montoya's wife. When he balked at hiring her, especially at the salary she was demanding, the deal fell apart, he testified.
Browning heard argument on a defense motion to dismiss all charges under a federal rule that permits charges to be tossed despite the jury verdict if evidence is insufficient to sustain a conviction.
"We believe Count 24 fails as a matter of law and that no clear and convincing evidence was presented at trial to support (it)," Bowles said.
Bowles said that Vigil is not a flight risk, citing his extensive ties to New Mexico, and Browning declined to place Vigil in custody.
The outcome of the trial could well affect other potential cases that have been under investigation by the FBI.
Jurors heard testimony, for instance, about alleged kickbacks to Santa Fe broker and former state Game Commission chairman Guy Riordan, who has not been charged with any crime.
Riordan's attorney Robert Gorence was present to hear the reading of the verdict and said it will have an impact on other possible charges.
"It means the jury didn't believe Mr. Montoya in the slightest," he said. "It's not that juries won't accept stings, but when crooks get to keep their ill-gotten gains, that's offensive.
"I hope this ends the rumor and innuendo that have disparaged my client," he said.