Last Friday, after five years of litigation, a federal judge in Louisiana ordered the U.S. government to pay $1.7 million in damages for maliciously prosecuting Hubert Vidrine, a used-oil processing plant manager. The facts of the case, in which the Washington Legal Foundation participated as one of Vidrine’s counsels, evoke daytime TV drama. But Vidrine is an actual victim of federal overcriminalization, and government agencies’ enduring lack of respect for business civil liberties, which this case illuminates, is a real and growing, national problem.
This tale of prosecutorial indiscretion, malice, personal vendettas, hypnotism, a clandestine affair, and perjury began in 1996. As a part of a broader hazardous waste investigation, the U.S. Environmental Protection Agency ordered its SWAT-like special operations team (equipped with M-16 rifles and police dogs) to raid Canal Refinery, Vidrine’s workplace.
The EPA agents initially concluded that there was insufficient evidence to indict Vidrine. Despite that determination, EPA brought in a rookie criminal investigator, Keith Phillips, to run the investigation.
Within two days of taking the post, Phillips recommended to the U.S. attorney’s office that Vidrine be indicted for a knowing violation of the Resource Conservation and Recovery Act.
As Judge Rebecca Doherty concluded in her exhaustingly detailed 142-page malicious prosecution ruling, that recommendation “reste[d] primarily on selective information fed to the prosecutor . . . and upon false testimony given before the grand jury and Agent Phillips’ selective and filtered interpretation of the information provided by Mike Franklin.”
Franklin claimed to have test samples, which proved that the waste for which Vidrine was responsible was hazardous. Franklin, however, never provided Phillips with the physical reports. Phillips consciously overlooked this, and pressed the indictment forward.
The EPA’s Phillips also failed to inform the U.S. attorney that Franklin held a business-related grudge against Vidrine; had a criminal record; and was a cocaine addict.
Because of the many glaring holes in his story, the judge presiding over Vidrine’s criminal case prohibited Franklin from testifying. Panicked by this mortal wound, the government hypnotized Franklin in the hopes he would remember the location of the waste reports. This failed, and, on the eve of trial, the government dismissed the RCRA charges against Vidrine.
Vidrine, who Doherty accurately described as “an independent, hard-working, scrappy, almost stereotypical Cajun gentleman,” didn’t go away quietly. He filed a malicious-prosecution lawsuit against the federal government. Because the U.S. attorney had voluntarily abandoned the Vidrine indictment, the first element of malicious prosecution — lack of probable cause — was presumed.
The court’s assessment of whether EPA investigator Phillips acted with malice exposed the most stunning revelations in the Vidrine case. In addition to the repeated misstatement and false statements Phillips made to keep his case alive, Phillips was having an extra-marital affair with an FBI agent working with him on the investigation.
The court wrote that the evidence “strongly indicated that Agent Phillips used the investigation and prosecution . . . to foster, further, facilitate and cloak his affair.”
Phillips denied the affair, and urged his partner to do the same. Her decision to tell the truth was Phillips’ downfall, and led him to be charged with perjury, a crime to which he pleaded guilty last week.
Phillips, a man who in Doherty’s words could be seen as “giddy with the newly minted power and authority he had previously lacked,” was indeed a rogue agent.
But the federal government and the culture of criminalization it has fostered, cannot escape blame. Throughout her opinion, Doherty openly wonders how Phillips’ actions could have escaped EPA scrutiny, or why he was in charge to begin with. Those questions deserve answers.
When a federal agency like the EPA equips bureaucrats with badges and guns, and then publicly sets quotas on how many environmental criminal cases it should initiate, injustices like the Vidrine case are inevitable.
Add to that hundreds of hyper-technical, poorly drafted federal laws and regulations that, like Phillips did in this case, can be manipulated and molded to fit a “crime.”
The result of this equation is overzealous agents with the motivation and the means to eschew more appropriate civil remedies and pursue business- or life-destroying criminal charges.
Thankfully, a federal court has held the government financially accountable for the actions of its rogue agent. Shouldn’t those with oversight of agencies like EPA and the Justice Department now make those involved in the Vidrine debacle accountable to the public for the millions it wasted destroying the life of an innocent business manager?
Examiner contributor Daniel J. Popeo is chairman and general counsel of the Washington Legal Foundation.
