An independent investigation into various allegations made by sheriff candidate Dave Lauck has been concluded by District Attorney Michael Blonigen.

A memorandum issued this morning by the Campbell County Attorney’s Office explaining the nature of the independent investigation is displayed in its entirety below. 

Then, the complete memorandum from Michael Blonigen is given.  From his independent investigation, Blonigen wrote,    "I do not believe that further criminal prosecution or investigation is warranted in this case."

Here are both memorandums in their entirety:

On July 20, 2010, the County Attorney’s Office issued a memorandum outlining the various concerns contained in Mr. Lauck’s binder of information provided to the County Attorney’s Office, and other agencies for review.  Included in that memorandum were findings by the County Attorney’s Office as to those various issues.  In addition, at that time, the County Attorney’s Office asked that in the event someone believed that an issue of importance had been missed, that those be brought to the County Attorney’s Office attention so that they may be addressed.  Subsequently, Mr. Lauck identified three areas that he wanted addressed that were not addressed in the memorandum issued on July 20, 2010.

Given the potential impact these issues may have on the election, and to avoid any appearance that this matter was not evaluated objectively, the Campbell County Attorney’s Office forwarded the information to District Attorney Mike Blonigen in Casper to do an independent review of the materials to ensure fairness and accuracy for all involved.  Attached is the copy of Mr. Blonigen’s findings and conclusions.  If you have any questions, you may direct those questions to District5 Attorney Mike Blonigen at 307-235-9223.

cc:   Governor Dave Freudenthal
        DCI Director Forest Bright
        Attorney General Bruce Salzburg
        Campbell County Commissioners
        Sheriff William Pownall
        Mr. Dave Lauck
        Gillette News-Record
        Basin Radio

Michael A. Blonigen's response:

Dear Ms. Stone,

At your request, I have conducted an independent review of the allegations by David Lauck.  On July 23, 2010, I received a binder prepared by Mr. Lauck, a memorandum prepared by your office and various e-mails and letters relevant to his accusations.  There are three distinct areas I reviewed to determine if any further criminal investigation or criminal prosecution based on the allegations of misconduct in the Campbell County Sheriff’s Office is warranted.  This review is limited to state criminal charges or proceedings.  I have conducted that review in light of the materials provided and within the framework provided by the National District Attorney’s Association’ s Standards for Prosecution (hereinafter NDAA Standards).  The review is also conducted in light of the State’s obligation to prove any criminal offense beyond a reasonable doubt.

I would summarize the issues as follows.

(1)   Did Sheriff Pownall or other senior officers commit perjury when they testified in depositions in a civil action brought by Mr. Lauck by stating under oath that they did not believe the Campbell County Sheriff’s Office was a “racist” department?

(2)   Was the State’s nepotism statute, Wyoming Statute §9-13-104 violated by the hiring of Sheriff Pownall’s son, Skylar as a summer intern in 2006?

(3)   Did Sheriff Pownall violate the law in regards to the return of firearms to certain individuals and did he unlawfully possess an automatic weapon?

Some background is necessary for the discussion of these issues.  Mr. Lauck served as a deputy sheriff in Campbell County for many years.  Sheriff Pownall served as a deputy in various positions until he was elected Sheriff in 2002.  He was re-elected in 2006.  According to Mr. Lauck, he began tape recording his fellow officers in the early 1990’s.  It is unknown whether his tapes have been edited or whether other recordings would have placed certain items in context.  It is unknown what his motivation was for taping certain conversations and not others.  A complicating factor is whether all the recordings are legally obtained given any number of conversations that did not involve Lauck.

Despite Mr. Lauck’s protestations to the contrary, his own career has not been without black marks, including questions of use of force.  The grand jury he helped fuel; in the 1980’s was a legal disaster.  In 2002 Lauck was reported by another officer for use of excessive force.  Lauck was observed by several officers and videotaped spraying pepper spray in the face of a handcuffed Hispanic male.  When officers reported the incident as excessive force, Lauck attempted to have the reporting officer prosecuted for filing a false report.  No evidence supported the allegation and charges were not filed against the officer.  Despite having much of the information submitted for years, Lauck has not previously registered any complaint.  Lauck also threatened to sue the Sheriff’s Office on at least one occasion in 2002.  At that time, his tapes remained a secret.  Lauck was assigned to act as a paper server in November 2006.  When he failed to report for duty, he was discharged.  Lauck filed a civil suit concerning his termination, raising for the first time many of his factual allegations addressed herein.  The suit was dismissed by the Federal Court upon summary judgment motion.  Thereafter, Lauck asserted his complaints the law has been violated.  Lauck has also filed as a candidate for the office of sheriff and is running against Pownall.  In sum, the factual background indicates the primary information source is heavily biased and open to substantial impeachment.  It is also undisputed that Lauck took no steps to report items two and three on or near the time they occurred.  It is against this background the review of the allegations must be conducted.

The allegation most easily dealt with is the allegation concerning the handling of firearms by Sheriff Pownall. All the offenses, if true, cannot be prosecuted in state court.  These all involve allegations of Federal firearms offenses.  It is the writer’s belief that these allegations have been forwarded to the appropriate Federal authorities who have chosen not to act upon them.  Moreover, the fact a person has drug involvement or mental issues and then come into possession of a firearm is not enough, even if true, to establish a violation of 18 U.S.C. 922.  The use of drugs and possession of the firearm must be contemporaneous.  United States v. Bennett, 329 F.3d 769, 776-777(10th Cir. 2003).  A person is only prohibited by Federal law from possessing a firearm if they have been adjudicated a mental defective or committed to a mental institution.  18 U.S.C. 922(d) (4).  Mere allegations of mental health issues, even if true, could not support the charge.  The substance of these allegations, even if true, does not make a compelling case.  Even if further investigation was completed, no State charges could be brought in any event.

The second allegation is that Sheriff Pownall and other senior officers committed perjury in the civil suit depositions.  A review of the deposition summaries indicates that the officers were not asked if they recalled certain inappropriate statements by themselves or others.  They were asked about statements which, when placed in context, may or may not be racially insensitive.  The questions centered on memory and more often, whether other officers believed the Sheriff’s Office was a racist organization.  Most of these questions were asked in the present tense.  The laundry list of comments must be placed in context.  Many of Mr. Lauck’s comments are an interpretation of the other’s statements or are taken out of context.  For instance, on one occasion officers are discussing a movie and the dialogue in the movie.  Most of the statements which are of concern were in the 1990’s and many were made by other officers.  It also must be remembered that many comments are listed but they cover multiple officers over an almost twenty year period in a fairly large department.  No pervasive pattern of racial discrimination has been shown.  In the case of Sheriff Pownall, none of the comments attributed to him are overtly racist even if some might be construed as racially insensitive.  The questions at the deposition were not tied to Lauck’s dismissal.  They were all asked concerning the current office and not what may have occurred years before.

In order to prevail on a charge of perjury, the State must prove beyond a reasonable doubt the following elements.  (1)  That the evidence given in the previous proceeding was material to the issue upon which it was given.  (2)  That the Defendant testified as is alleged. (3)  That the testimony given was knowingly and corruptly false.  Smith v. State, 721 P.2d 1088, 1094(Wyo. 1986); Edwards v. State, 577 P.2d 1380, 1382(Wyo. 1978).  While it is clear what testimony was given, it is far from clear that racism was material to the deposition. The Defendant claimed he was discharged for being a “whistleblower”.  There are no allegations he ever complained about issues of race.  Nor would the senior officers personal views on race be material to why he was discharged.  More importantly, the questions asked at the deposition revolved around memory and opinion.  The actual existence of memory and or whether an opinion is truly held are difficult, if not impossible, to prove.  If one doesn’t remember an incident or holds an opinion (even in the face of other evidence), stating so is not knowingly and corruptly false.  None of the questions at the deposition involved anything other than expressions of opinion or memory.  Many of the questions involved officers other than the deponent.  No viable basis exists to conclude the testimony in the deposition constitutes perjury as that term is used in Wyoming criminal law.

The far more troublesome issue is the allegation of nepotism.  Wyoming statute provides that no public official or employee shall advocate or cause the employment or appointment of a family member of an office or position of a county nor shall they supervise or manage a family member.  Wyoming Statute §9-13-104(a).  The Sheriff is clearly a public official as defined by §9-13-102(a) (xiv).  However, the term public employee only includes certain state employees under the definition of that term in the nepotism statute.  Wyoming Statute §9-13-102(a) (xii).  A family member is defined as a spouse, parent, sibling, child, grandparent, grandchild or household member.  Wyoming Statute §9-13-102(v).  The violation of this statute would be deemed a minor offense.  A violation of the statute is only punishable by a fine of up to $1,000.  No jail time is possible.  It would be graded similar to a minor traffic offense and is a misdemeanor.

Applying all these definitions, most of the allegations involving family members and hiring are without merit as a criminal offense.  One incident does remain which must be discussed.  In 2006, Skylar Pownall, the son of Sheriff Pownall, was hired as an intern with the department.  The job assignment was temporary in nature but was compensated.  Skylar Pownall is a family member as defined by statute and his compensated intern position makes him an employee, albeit a temporary one.  Sheriff Pownall is the ultimate hiring authority.  My understanding is that there are several levels to the hiring process.  While the selection of candidates is handled by others, it is equally clear that the ultimate decision to employee Skylar Pownall rested with the Sheriff and this would appear to violate the misdemeanor statute.  Although further investigation would be required, and although there remains a presumption of innocence which must be overcome by proof beyond a reasonable doubt, there is a reasonable basis to believe a technical violation of the law has occurred.

Although a potential violation of the law has been identified, the question remains whether prosecution should ensure.  One could frequently write an offender a misdemeanor citation but warnings are often just as effective.  Both the NDAA Standards and ABA Standards on prosecution state that criminal charges need not be filed, even if a factual basis exists for a charge. Among the criteria cited by both bodies are the following, Their seriousness of the alleged offense, the age of the alleged offense, the deterrent effect of prosecution on the proposed defendant and others the frequency with which the criminal statute is enforced, undue hardship to the accused and a host of other factors which indicate whether prosecution is in the public’s interest.  One factor both bodies recognize is that reason to not charge may be founded on the existence of improper motives on the part of a victim or witness.  NDAA STANDARDS FOR PROSECUTION 43.6 AND ABA STANDARD 3-3.9.

A review of those factors leads unmistakably to the conclusion that criminal prosecution is not warranted.  The alleged conduct occurred four years ago.  Law enforcement knew of the situation but no charges were brought by any of them, including Mr. Lauck.  The offense is a minor offense.  Even most traffic tickets carry some possibility of jail.  The harm caused by the infraction has passed.  Skylar Pownall is not employed by the department.  Future events can be avoided by the warning this letter will provide.  To my knowledge, this statute has never been enforced as a criminal matter.  However the single most persuasive factor in declining prosecution is the existence of an improp0er motive on the part of the reporting party and chief witness.  Even if his allegations are believed, it is clear the report was sparked by personal animosity over Mr. Lauck’s dismissal and subsequent failed law suit.  In addition, the reporting of the facts some four years later was done just before a contested election with his now political opponent.  Nothing could be more damaging to the interest of justice that the use of the criminal justice system as an engine of personal revenge and petty political posturing.  This danger is particularly present in this case which involves enforcing a minor misdemeanor statute four years after the event.

In conclusion, I do not believe that further criminal prosecution or investigation is warranted in this case.  If you have any questions, please do not hesitate to contact me.

Sincerely,

Michael A. Blonigen
District Attorney