Judge orders specific performance of plea deal

A circuit judge upheld a plea deal last month in a cigarette-trafficking case, questioning the credibility of a prosecutor who denied there was a deal to drop additional charges.

The defense lawyer for two accused traffickers claimed the Shenandoah County prosecutor’s office sought to delay dismissal of the remaining charges until after a contested commonwealth’s attorney election.

An assistant commonwealth’s attorney denied any agreement to dismiss the charges and denied any connection to the election, which was won by the incumbent.

Fairfax Circuit Judge Lorraine Nordlund, sitting by designation, rejected the prosecutor’s account and ruled the plea agreement could be enforced in an action for specific performance of an oral contract.

The judge pointedly questioned the credibility of assistant commonwealth’s attorney Louis T. Campola.

“Mr. Campola was not truthful with this Court as to what exactly was discussed,” Nordlund said, according to a transcript of a June 8 hearing.

Nordlund’s ruling ended three years of skirmishes between Campola and defense lawyer David A. Downes of Front Royal over an $11 million undercover investigation of cigarette trafficking.

Downes’ efforts to pry open the files of the Shenandoah County Sheriff’s office led to law enforcement requests for closed-door hearings, sealed case files and a gag order directed at Downes.

Undercover operation

Ultimately, some information about the operation was disclosed, including revenue and expense figures for a three-year period ending in 2013. In that time, the cigarette operation took in more than $11 million and spent almost $10 million, according to figures produced by the sheriff’s office.

The two defendants were indicated in 2013 on a total of 50 felony counts related to buying and selling untaxed cigarettes.

With high taxes in New York and other northern states, cigarettes purchased in Virginia can bring huge profits, especially if bought in bulk without any tax.

The Shenandoah County sheriff’s office sold $2 million in unstamped smokes to Thaer Khashman and John Taveras, according to Downes, who represented the two New York men.

The authorities kept the operation going until Taveras was accused of 46 separate transactions, Downes claimed.

Downes argued the charges were undermined by language in the Virginia cigarette trafficking statute applying it to transactions for “distribution to persons within the Commonwealth.”

Agree to plea

With trial approaching last August, Downes proposed a plea deal. Campola — the prosecutor — demurred. He said there were political problems with a plea agreement, according to Downes.

“Campola advised that he would rather lose the case at trial than dismiss the charges prior to the election,” Downes wrote in a motion. In that election, Campola’s boss, Commonwealth’s Attorney Amanda Wiseley, was facing a challenge from attorney Chad Logan.

Campola reportedly accepted an offer to have the defendants each plead to one count of money laundering with all remaining charges continued until the day after the Nov. 3 election. Downes said he agreed and also promised to drop his Freedom of Information Act requests about the cigarette operation.

A draft plea agreement spoke of a “gentleman’s agreement” that there was a “reasonable prospect” that the remaining charges would be dismissed.

Downes said he called to confirm the pending dismissal of the charges on the day before the election. Campola reportedly said the state intended to go forward with the charges.

“I was livid, incensed,” Downes said in an interview.

The next day, Wiseley won the election with a five-point margin.

In December, her office set the cases for trial on March 22. Downes asked the court to compel specific performance of the purported plea agreement.

Lawyers testify

Nordlund was appointed to hear the issue. Because the lawyers were witnesses, Downes’ clients were represented by Marvin Miller of Alexandria and the state was represented by Jerrold J. Negin, a Prince William County prosecutor.

Downes testified there was a deal to drop the charges; Campola contended there was no such deal. Nordlund said she believed Downes.

“The testimony from Mr. Downes made perfect sense,” the judge said, according to a transcript.

She pointed to an early email from Downes that expressly referred to the coming election. Although a confirmation email was vaguely worded “to hide what was essentially the true agreement from the press,” Nordlund said the communications indicated a deal had been struck.

She said Downes would never have had his clients make admissions of guilt under oath with such “huge exposure later down the road.”

The judge rejected Campola’s explanations to the contrary.

“I found … the testimony from Mr. Campola lacking in credibility,” Nordlund said. It “didn’t make any sense and it’s totally irrational,” she said.

Campola was “nervous and flustered. He was stuttering. He was not answering questions clearly. He was not answering questions directly,” Nordlund said in court.

“Mr. Campola testified that this decision had nothing to do with the election. And it was just fortuitous that they picked the day after the election. Well, that’s just not credible. It had everything to do with this election,” Nordlund said.

Campola said he disagreed with the judge’s ruling.

“I obviously don’t make a good witness and was ill at the time of the hearing,” Campola said in an email.

“We obviously wished more weight was applied to the actual communication exchanges, including the actual plea agreement where it clearly states that there [was] no other agreement at [that] time,” Campola said.

Downes signed his name to that agreement, Campola said.

Wiseley did not immediately respond to an inquiry about a possible appeal. Miller declined to comment.

Federal courts have enforced plea deals based on specific performance of contract theories.

In one recent decision, the 4th U.S. Circuit Court of Appeals vacated a firearms conviction because prosecutors breached an agreement not to support a sentence enhancement.