Horne attorneys want FBI agent’s testimony tossed

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Lawyers for Attorney General Tom Horne and ally Kathleen Winn alleged that an FBI agent who served as the prosecution’s key witness against them in their campaign finance case perjured himself on the witness stand and that his testimony should be thrown out.

Attorney Timothy La Sota, who represents Winn, alleged that FBI Agent Brian Grehoski falsely testified about a “fabricated” phone conversation that he said he and another agent had with Greg Tatham, a real estate broker whom the feds interviewed during their investigation into Horne and Winn.

La Sota said FBI Agent Mervil Mason’s cell phone records back up the perjury allegation. The records only show one call between Mason and Tatham on May 31, 2012, not two, as Grehoski testified.

In a motion filed on March 11 in the Office of Administrative Hearings, La Sota told Administrative Law Judge Tammy Eigenheer that such perjury is grounds to strike all testimony by a witness.

“The records show that never happened and all Agent Grehoski’s machinations and creation of a third phantom telephone conversation are a fabrication,” La Sota. “The proper remedy when a witness commits perjury on the witness stand is to strike that person’s testimony.”

The perjury allegation was a major point of conjecture during a three-day hearing last month in the Office of Administrative Hearings. Horne and Winn, who ran a pro-Horne independent expenditure campaign during the 2010 election, are accused of illegal coordination.

If Eigenheer throws out Grehoski’s testimony, it could be a major blow to Yavapai County’s case. He was one of only two witnesses the prosecution called to the stand.

Grehoski testified that he and Agent Mervil Mason had three phone conversations with Tatham, a real estate broker who assisted Horne with an October 2010 real estate deal, including one in which Tatham said he was unaware of Winn playing any role in the real estate deal. He said the agents had two substantive conversations with Tatham on May 31, 2012.

Horne and Winn have long asserted that they spoke frequently on the phone during October 2010 because Winn was assisting Horne with his sale of a strip mall at Seventh Avenue and McDowell Road. Grehoski’s testimony about the conversation with Tatham appeared to undermine their defense.

But Tatham testified that the conversation never occurred. He said he only spoke with the agents twice on the phone, and that he recorded both conversations. Grehoski played the recordings of the two other conversations. One was a brief talk on May 30, 2012, in which Tatham scheduled another talk with the FBI agents for the following day. The other was a 15-minute conversation in which the agents asked Tatham about Horne’s real estate deal, but never asked specifically about Winn.

The following day, Grehoski went back to the stand to refute Tatham’s allegation. He said Mason called Tatham on May 31, and that the two agents talked with him for eight to 10 minutes. It was during that conversation, Grehoski testified, that Tatham said he was unaware of Winn’s involvement in the real estate deal.

Grehoski said Mason made the call to Tatham from his cell phone.

But Mason’s cell phone records, which the Yavapai County Attorney’s Office submitted as evidence, don’t show the eight-to-10-minute call that Grehoski referenced. The records a call from Mason to Tatham on May 30, which Tatham said was a voicemail that the agents left him, and another, two-minute call from Tatham to Mason later in the day.

The only other call between them listed in the phone records was a 15-minute call initiated by Tatham, which he recorded, unbeknownst to the FBI agents. Tatham unveiled the recording during his testimony, and used it to undercut Grehoski’s claim that they spoke about Winn.

La Sota also wrote that the 15-minute conversation indicates that Tatham and the agents had not had any substantive talks prior to that. In that conversation, Grehoski explained who he was to Tatham and apologized for a previous incident in which he and Mason showed up at Tatham’s house to talk with his wife, who at the time worked for Horne at the Attorney General’s Office. Mason also asked Tatham if he was Horne’s real estate agent for the sale of the strip mall.

“The first clue that there was no earlier call is the fact that Agent Grehoski actually introduces himself!” La Sota wrote. “In addition, there is no reference in the 15-minute call to an earlier call that day. And there is no reference to them speaking substantively at all at any time previously. In addition, preliminary things that one would expect to have come in the first call that day (had it happened) actually come up in the second call.”

Grehoski bristled at the perjury accusation during the hearing, and he staunchly defended the truthfulness of his testimony.

The agent testified that he “vividly” recalled the conversation in which the agents asked Tatham about Winn, and said Mason wrote about it in his handwritten notes from the investigation. Grehoski also said the only reason they wanted to talk with Tatham was to ask him about Winn’s involvement in the real estate deal.

“It would have made no sense to not ask that question,” Grehoski said on the witness stand. “That was what we were looking to ascertain.”

Both the Yavapai County Attorney’s Office and the FBI declined to comment. The Yavapai County Attorney’s Office has yet to file its response to La Sota’s motion.