Solofa’a attorney blames fed informant in bid for new trial
Appellate defense attorney for Paul Solofa has insisted that a government informant induced the defendant into allegedly committing witness tempering and obstruction of justice and the inducement was initiated by a federal agent under the false pretense that the informant was the subject of a federal investigation into the school bus spare parts money kick-back scheme, when no investigation into the informant existed at the time.
Court documents identified the informant as Oscar Mayer, general manager of locally based (now defunct) Pacific Products, which supplied spare parts for the Education Department bus division, where former mechanic Gustav Nauer worked.
Nauer with Mayer and Solofa allegedly came up with a scheme to got monetary kickbacks.
While Solofa was never charged with receiving money in the scheme, he was charged and convicted by a federal jury in Washington D.C. for witness tempering and obstruction of justice — something that the defense says are all allegations on the government’s part.
Solofa has appealed the conviction and his sentence arguing in court documents filed in May that the defendant — during trial early last year — didn’t get effective assistance from his trial attorney who failed to raise an “entrapment defense”, and that the court erred by handing down a much longer jail term than required by federal sentencing guidelines.
Last month the U.S. Justice Department disagreed with the appellate defense attorney’s argument, saying that the court didn’t make any error in sentencing and that the trial defense attorney’s “performance was neither deficient nor prejudicial... because Solofa did not have a viable entrapment defense.”
“Solofa could not come forward with any evidence that the government, through Mayer, induced him to engage in witness tampering or obstruction of justice,” argued federal appeal prosecutor John-Alex Romano in his 74-page motion. “At no point did Mayer solicit advice from Solofa on how to destroy documents or provide false and misleading information to the FBI.”
SOLOFA’S NEW RESPONSE
However, Solofa’s appeal attorney Matthew D. McGill said the government’s defense of Solofa’s conviction and sentence “is unavailing in all respects”. First, the “government fails to overcome Solofa’s showing that his trial counsel provided ineffective assistance when she failed to raise an entrapment defense,” he argued.
“Although Solofa allegedly attempted to commit witness tampering and obstruction of justice only after a government informant, Oscar Mayer, approached Solofa with a false story that he was being investigated by federal agents, feigned anxiety and concern, and sought Solofa’s advice, the government argues that an entrapment defense could not have succeeded because Mayer did not explicitly ask Solofa how to destroy documents or lie to the FBI,” he said.
“But numerous decisions... make clear that the entrapment defense is not so narrow,” said McGill and cited at least one federal court case. “The government also fails to identify evidence that remotely satisfies its burden of proving beyond a reasonable doubt that Solofa was likely to commit his alleged offenses if he had been ‘left to his own devices’.”
“Nor can the government persuasively defend [trial defense] counsel’s objectively unreasonable failure to raise this meritorious defense at trial,” he argued.
Regarding the matter of the lower court’s error in the longer sentenced given to Solofa, McGill said the government failed “to overcome Solofa’s showing that the district court committed plain error when it enhanced Solofa’s sentence based on the cross reference [provisions] of the sentencing guidelines.”
He argued that the cross reference provision, by its own terms, applies only when a defendant has actually obstructed a real criminal investigation.
“Solofa, however, is alleged only to have attempted to obstruct a fake investigation,” he said, adding that the government relied only on one provision of the sentencing guidelines instead of all provisions.
According to the defense attorney, the appellate court should vacate Solofa’s conviction and sentence and order a new trial and re-sentencing. “At minimum, the court should remand for further proceedings regarding Solofa’s claim of ineffective assistance of counsel,” he said.