declaration of ted w. cassman in support of jamie …1 i, ted w. cassman, declare: 1. i am one of...

Cristina C. Arguedas (CA Bar 87787)Ted W. Cassman (CA Bar 98932)Raphael M. Goldman (CA Bar 229261)Arguedas, Cassman & Headley, LLP803 Hearst AvenueBerkeley, CA 94710Telephone: (510) 845-3000Facsimile: (510) 845-3003

John M. O’Quinn (SBN 15296000)The O’Quinn Law Firm2300 Lyric Centre Building440 LouisianaHouston, Texas 77002Telephone: (713) 223-1000 Facsimile: (713) 223-0103

Lloyd E. Kelley (SBN 11203180)Lloyd E. Kelley & Associates2726 Bissonnet, Suite 240PMB #12Houston, Texas 77005Telephone: (281) 492-7766Facsimile: (281) 652-5973

Tammy Tran (SBN 20186400)Pete Mai (SBN 24029702)Of counsel: David Tang (SBN 24014483)The Tammy Tran Law Firm2915 FanninHouston, Texas 77002Telephone: (713) 655-0737Facsimile: (713) 655-0823

Attorneys for Petitioner Jamie Olis

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

UNITED STATES OF AMERICA

v.

JAMIE OLIS, et al.

H-03-CR-217

DECLARATION OF TED W. CASSMAN IN SUPPORT OFJAMIE OLIS’ MOTION FOR DISCOVERY

Case 4:03-cr-00217 Document 328 Filed 11/28/2007 of 18

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I, Ted W. Cassman, declare:

1. I am one of the attorneys representing Jamie Olis on his motion to set aside his

conviction pursuant to 28 U.S.C. § 2255, which is presently before this Court. I

have been admitted pro hac vice to represent Olis before the Southern District of

Texas.

2. I make this declaration in support of Olis’ motion for discovery.

3. As set forth in Part III of Olis’ Memorandum of Points and Authorities in Support

of His Motion to Set Aside His Conviction Pursuant to 28 U.S.C. § 2255 (“§ 2255

Memorandum”), compelling evidence from a recent civil trial demonstrates that

the United States Attorney’s Office (“USAO”) in Houston acted purposefully to

sabotage Olis’ ability to prepare and defend his case by blocking funding from his

former employer, Dynegy. I am informed and believe that the evidence

presented in Olis’ § 2255 Memorandum and the accompanying declarations

derives from limited discovery related only to the USAO’s contact with Dynegy’s

CEO, Bruce Williamson. However, testimony at the recent Yates v. Dynegy civil

trial demonstrates that the USAO had frequent contact with other Dynegy

employees — including attorneys in Dynegy’s general counsel’s office — during

the prosecution of Olis. See, e.g., Transcript of Testimony of Bruce Williamson

(attached as Exhibit B to the Declaration of Lloyd E. Kelley in Support of Olis’

Motion to Set Aside His Conviction) Vol. II, 105:20-106:9 (“there was

communications going on between the litigation team at Dynegy and the

investigative team of the FBI and Department of Justice”). For these reasons, we

are requesting discovery concerning communications between the USAO and


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Dynegy and its agents concerning Olis, fees and related issues from both the

USAO and Dynegy.

4. As set forth in the § 2255 Memorandum, the evidence now establishes that

government witness Jeffrey Heil presented false and misleading testimony, and

that the government presented the jury with false and misleading arguments

based upon Heil's testimony. See § 2255 Memorandum at 22-26, 54-63.

a. Heil testified that the University system sold its investment in Dynegy the

company after disclosed the S.E.C.’s objections to the accounting

treatment of Project Alpha on April 25, 2002. Trial Transcript Day 7 at

215:25-222:20. Heil further testified that the University system sustained

a huge loss of over $100 million. He further testified that he focused on

Dynegy’s positive cash flow numbers as a primary motivating factor for his

decision to have the University system purchase Dynegy stock. Id.

220:18-221:6. The government relied upon Heil’s testimony to argue to

the jury that Olis’ allegedly fraudulent conduct relating to Project Alpha

was intended to and did in fact inflicted enormous losses on shareholders,

such as the University of California and its pensioners. See, e.g., id. Day

1, 104:7-18; Day 8, 41:7-24, 43:17-23.

b. We have previously presented the Court with records demonstrating that

in fact the University of California did not respond to Dynegy’s April 25,

2002 disclosures by selling Dynegy stock. Instead the University

purchased an additional 900,000 shares. A defense investigator, David

Fechheimer, has spoken to Jeffrey Heil and to Melvin Stanton, who is the


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University’s Treasurer. I am informed and believe that Heil told

Fechheimer that he knew that the government was attempting to obtain

the University’s purchase/sale records for Dynegy stock prior to Olis’ trial

through Mr. Stanton, and (2) Stanton told Fechheimer that he obtained the

University’s purchase/sale records for what he understood was delivery to

the government prosecution team in this case. We seek discovery to

establish whether the USAO possessed these records at the time of Olis’

trial.

c. Entries in the docket of Pirelli Armstrong Tire Corporation Retiree Medical

Benefits Trust v. Dynegy, Inc., et al., Case No. 4:02-cv-01571 (S.D. Tex),

reveal that the parties deposed Jeffrey Heil in that civil action. According

to Dynegy’s filings, Heil testified during the deposition that he had

available to him as of April 29, 2002 an investment advisor’s report

discussing Project Alpha in detail. Nonetheless, Heil advised his employer

to purchase Dynegy stock on May 6 and 7 of that year. See Dynegy’s

Opposition to Motion for Partial Summary Judgment (No. 4:02-cv-01571

Docket # 596), a true and correct copy of a portion of which is attached

hereto as Exhibit A, at 10-11. This information would have severely

undermined Heil’s testimony. We seek discovery to determine whether

the government possessed it at the time of Olis’ trial.

5. Entries in the Pirelli docket also demonstrate that the University system’s

investment officers were well aware by May 1, 2002, that Dynegy would be

required to reclassify cash flows as financing rather than operations — but


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nonetheless recommended purchasing an additional 900,000 shares of Dynegy

stock. See Appendix in Support of Defendant’s Opposition to Lead Plaintiff’s

Motion for Class Certification, Volume 1 (No. 4:02-cv-01571 Docket # 433), true

and correct excerpts of which are attached hereto as Exhibit B, at Tab 2.

6. Other filings in the Pirelli docket demonstrate that the plaintiffs’ attorneys and the

USAO’s prosecution team actively cooperated in sharing evidence and preparing

their cases. See Exhibit C hereto, a true and correct copy of excerpts from the

Declaration of Paul G. Howes in Support of Final Approval of Class-Action

Settlement (No. 4:02-cv-01571 Docket # 682) at ¶ 46. This suggests that the

government likely was in possession of much of the information presented in the

class action — some of which appears to have been exculpatory, and was not

produced to Olis’ attorneys. We seek discovery on this issue.

7. The pleadings in the Pirelli docket also demonstrate that ICA — a participant in

one of the so-called “outside hedges” the government alleges Olis hid from

Arthur Andersen — was in fact owned by Arthur Andersen partners. See Exhibit

C at ¶ 39. We seek discovery from the government and from Arthur Andersen to

show the nature of the relationship between Andersen and ICA and the

government’s knowledge of it at the time of Olis’ trial.

8. I am informed and believe that Holli Nichols became Dynegy’s Chief Financial

Officer after Michael Mott and that witnesses testified during the Yates trial that

she provided accounting expertise to the USAO during the investigation and

prosecution of Olis. Ms. Nichols is therefore likely to have intimate knowledge

concerning the accounting issues relevant to Project Alpha and will know what


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information was shared with the government from Dynegy’s accounting experts

concerning its compliance with GAAP.

I declare under penalty of perjury that the foregoing is true and correct based upon my

personal knowledge, information and belief. Executed on November 28, 2007, in

Berkeley, California.

/s/ Ted W. Cassman Ted W. Cassman


ExhibitA


ExhibitB


ExhibitC


Case 4:02-cv-01571 Document 682 Filed 06/30/2005 Page 1 of 40Case 4:03-cr-00217 Document 328 Filed 11/28/2007 of 18

declaration of ted w. cassman in support of jamie …1 i, ted w. cassman, declare: 1. i am one of...

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