Sept. 9, 2005, 10:18PM
Judge acquits 2 men convicted in VitaPro kickback scheme
By HARVEY RICE and STEVE MCVICKER
Copyright 2005 Houston Chronicle
WHAT THE JUDGE SAID
From U.S. District Judge Lynn Hughes' ruling:
* The key witness: Lied because he had a secret deal with prosecutors
* Retrial: If his decision is overturned, the defendants should get a
A federal judge has overturned the 4-year-old bribery convictions of
a former Texas prisons director and a Canadian businessman, ruling
that the prosecution's key witness lied to curry favor with a federal
prosecutor in Louisiana.
U.S. District Judge Lynn Hughes late Thursday acquitted James "Andy"
Collins, former executive director of the Texas Department of
Criminal Justice; and Yank Barry, owner of VitaPro, a company that
made a soy-based meat alternative fed to inmates.
The judge ordered that should the U.S. Attorney's Office successfully
appeal his decision, Collins and Barry will get a new trial.
Hughes' decision comes four years after the pair's convictions because of delays in obtaining a trial transcript so that the defense could file a motion seeking the acquittal. The court reporter suffered a nervous breakdown and the transcript was filled with errors, according to Hughes' opinion.
A federal jury in August 2001, found that Barry paid two $10,000
bribes to Collins in return for pushing a no-bid contract with
VitaPro to feed its product to Texas prisoners. The two were
convicted on bribery, conspiracy and money laundering charges.
Hughes overturned the convictions, ruling that the government's key
witness, Patrick Graham, lied during the trial to please then-
Assistant U.S. Attorney Jim Letten in the Eastern District of
"Graham had a secret deal with the United States Attorney for the
Eastern District of Louisiana that ó in exchange for his testimony in
numerous cases ó the U.S. Attorney would not prosecute him for his
crimes in Louisiana and would even seek a sentence reduction for his
crimes in other states," Hughes wrote. "With this motivation, Graham
conveniently knew all sorts of information about nefarious dealings
in other districts."
Graham and his brother, Michael, were key witnesses in Letten's
prosecution of former Louisiana Gov. Edwin Edwards and former Houston
Mayor Fred Hofheinz on corruption charges. Letten is now U.S.
Attorney for the Eastern District of Louisiana.
Edwards was sentenced to 10 years on racketeering charges and was
sent to prison. Hofheinz pleaded guilty to failing to report he was
the victim of an extortion attempt, and federal prosecutors dropped
felony charges that he paid bribes to win a state contract.
Charges of misconduct
Kent Schaffer, one of Barry's attorneys, charged that the secret deal
between the Graham brothers and federal prosecutors in Louisiana
represented prosecutorial misconduct "in its highest form."
"They wanted Gov. Edwards so bad that they were willing to do
anything and everything it took to get him. And they got him. But
along the way, they blew their credibility with the court," Schaffer
Nothing about the deals was ever put in writing, he said.
"The judge was very troubled about it," Schaffer said, "because these
(plea agreements) are supposed to be very transparent."
Even local federal prosecutors were ignorant of the deals, he added.
Letten did not respond to a request for comment.
"I do want to say that I know Jim Letten both personally and by
reputation, and he is an extraordinary public servant and a very
honorable man," Chuck Rosenberg, interim U.S. Attorney in Houston,
Rosenberg said he had not decided whether to appeal Hughes' acquittal
order. "We are studying the decision and weighing our options," he
Even if the 5th U.S. Circuit Court of Appeals overturns Hughes'
decision, defense attorneys believe they are ensured a new trial.
"What Judge Hughes is saying is that, even if the 5th Circuit
reinstates the conviction, we still get a new trial," said Schaffer.
"The 5th Circuit can't take away the new trial."
He added that he does not believe the government would try the case
Hughes said Patrick Graham's testimony was "riddled with
contradictions," and that he concocted testimony to match documents
shown him by FBI agents.
The opinion says Graham has a reputation for dishonesty and that he
is "a thief and a tax evader." Hughes signed a $35 million civil-
fraud judgment against Graham in 1995.
Attorney Bill Habern, who has represented Graham in other cases, said
that, despite the court's opinion, the jury apparently found Graham's
Theft, tax case convictions
Graham also was convicted of theft in 1997 for accepting a $150,000
payment to break a man out of prison and of tax evasion in 1998 for
failing to pay taxes on $5 million.
After Hughes was assigned the VitaPro case in 1999, he ordered the
surrender of all records of immunity agreements, payments or
government interventions made on behalf of the Graham brothers.
In the opinion, Hughes said, "while other agencies were forthcoming,
Letten resisted. He wanted to keep his deal with Graham secret."
Austin attorney William White, who represented Collins, said, "I
think the judge summed up Patrick Graham as a liar, a cheat and a
Austin attorney William White, who represented Collins, said his
client is "going to be happy to get on with his life."
"This has affected his family greatly, and has affected him
personally and professionally," White said. "He's hoping this will
vindicate him in some way."
Collins currently lives in Dallas, his lawyer said.
Barry is living in the Bahamas working in real estate development,
said Michael Ramsey, another of his attorneys.
"He's ecstatic and feels like he's finally been vindicated," Ramsey
said. Barry and Collins had remained free on bond during the appeal
This article is: http://www.chron.com/cs/CDA/ssistory.mpl/ metropolitan/3347316