April 27, 2005 - After three years of investigation, delays and rejected plea bargains, a federal grand jury April 22 indicted Marana Mayor Bobby Sutton Jr. and Marana businessman Richard "Rick" Westfall on one count each of conspiracy and attempted extortion. Westfall received an additional charge of lying to federal investigators.
In the indictment, Assistant U.S. Attorney Howard D. Sukenic claims Westfall and Sutton, between January and April 2002, conspired to extort a consulting job and a lucrative waste hauling contract for Westfall from Waste Management Inc., the nation's largest solid waste hauler.
The indictment says the two men - if the requested job and hauling contract were not given to Westfall - would reveal to state authorities that contracted and subcontracted trucks hauling waste from the company's transfer station on Ina Road to a landfill in Pinal County were grossly overweight and in violation of state and federal highway trucking regulations.
Additionally, the indictment states Sutton threatened to use his position as Marana's mayor to interfere with or shut down the Ina Road transfer station, 5150 W. Ina Road, if Westfall wasn't given what he wanted.
The indictment bases its allegations on tape recordings of phone calls and meetings Sutton and Westfall had with three Waste Management employees. Two of the employees are identified in the indictment only as "Employee # 1" and "Employee # 2." The third employee is identified as "Steven Jones," however the indictment says that name was an alias used by a Waste Management security official. The indictment claims "Employee # 2" and "Jones" were working under the direction of the FBI to record their conversations with Sutton and Westfall.
The indictment identifies "Employee # 1" as Waste Management's district manager for Southern Arizona. According to several sources the district manager at the time was Dave Hauser.
Employee # 2 was identified in the indictment as a safety and compliance officer for Waste Management. According to several sources with knowledge of the investigation, Sutton and Westfall met on more than one occasion with Hauser and Greg Weiss, a Waste Management official based in Phoenix, and at least once with "Jones" and Weiss.
According to the indictment, "Jones" and "Employee # 2" met with Sutton and Westfall on April 2, 2002.
Hauser no longer works for Waste Management and could not be reached for comment. Calls to Weiss were referred to a company attorney who did not respond to calls for comment by deadline for this story.
Sutton, 35, and Westfall, 43, did not return calls for comment. However, in stories about the federal investigation in the EXPLORER published in February 2004, Sutton and Stephen Weiss, Westfall's attorney, said neither man had done anything wrong and Sutton indicated that he and Westfall were being retaliated against by a large corporation because they threatened to reveal the overweight hauling.
Sutton, at the time, said "In this whole matter, I have done nothing wrong, the town has done nothing wrong and no one has asked us to pursue any influence against anyone. Nothing has gone on inappropriately. I don't even think Mr. Westfall has done anything wrong.
"I think this is a clear matter of big business trying to hurt a whistle blower on something that they were doing wrong and they're trying to tie me up in that. But the town and myself have done nothing wrong in the entire thing and we are very positive that's how it will come out," Sutton said.
Sutton released a written statement April 22, saying, "I am disappointed that the federal government has chosen to bring this action. This matter has been turned over to my attorney to defend me and bring out the truth and nothing but the truth in a court of law. I am confident that I will be found not guilty."
Sutton's lawyer, Michael Piccarreta, said Sutton was the victim of a company with a controversial history and an "unscrupulous" FBI agent with a "history of inappropriate investigatory tactics."
Waste Management, over the last two decades, has been entangled in several corruption cases in New Jersey, Pennsylvania and California. The FBI agent Piccarreta is referring to is Cliff Goodman, who Piccarreta clashed with in 2003 when Pima County Superior Court Judge Lina Rodriguez dismissed perjury charges against Tucson Police Department Detective Joseph Godoy. Godoy had been accused of lying in court to secure the convictions of suspects in murders that occurred in 1992 and 1995 and Goodman was the prosecution's primary investigator in the perjury case.
In her July 16, 2003 ruling dismissing the charges, Rodriguez used terms such as "zealousness" and "exaggeration" to describe Goodman's testimony before a grand jury that later indicted Godoy. Piccarreta defended Godoy.
Piccarreta said Sutton's primary motivation in getting involved with Westfall and his dealings with Waste Management was public safety - halting the overweight hauling and other unsafe operations at the Ina Road plant - and secondarily righting a wrong for a constituent.
He said he's glad most of the conversations Sutton had with Waste Management officials were recorded, because he believes the full scope of the recordings, of which he said there were "lots, many more than have been included in the indictment," would exonerate Sutton.
"I say, thank God these (conversations) were tape recorded because I think the totality of all the conversations, coupled with the objective evidence, shows beyond any doubt that what Mayor Sutton was doing is what you would want any mayor to do on behalf of a constituent who had been wronged by a wrong doer," Piccarreta said.
"The other thing it establishes is that Mayor Sutton had no financial interest in this other than to do what he felt needed to be done to try to persuade Waste Management to do the right thing. When you wrong an individual you compensate that person for the effect of wronging that person.
"What's unusual about this case is that it's the only case we're able to find where the government ever went after a public official who had no financial interest in it. Bobby had no financial interest in this," he said.
The wrong committed against Westfall, he said, was that Westfall lost work because he reported the overweight hauling.
He said the case appeared to him to be Waste Management and the federal government joining together to "create a crime" rather than investigate one.
He said Sutton was "saddened and disappointed that the federal government would come after a public official who is just trying to do good for his community and his constituents."
He added that Sutton told him "he's comforted by the fact that he knows he's innocent and … by all the support he's receiving from people that know him and support him and who want the full story out, and so does he."
Steve Weis, Westfall's attorney, said Westfall has "not committed a crime" and that he intends to defend his client "vigorously."
He didn't want to comment on specifics of the indictment until he had a chance to review all of the material and evidence compiled by the U.S. Attorney's Office. He said he had "discussions" with Sukenic over the course of the last year, but didn't want to discuss the nature of the conversations or whether a plea bargain was offered. Sources close to the investigation told the EXPLORER in 2004 that both Sutton and Westfall had been offered plea bargains, but rejected them.
Each count of conspiracy and attempted extortion carry a maximum penalty of 20 years in prison, and/or a $250,000 fine, a U.S. Attorney's Office press release stated. The false statements charge against Westfall carries a maximum penalty of five years in prison and/or a $250,000 fine, the release stated.
Sukenic referred an e-mail seeking more information about the indictment and information about why it took three years to achieve to a public information officer. The PIO, in an e-mail, refused to comment, saying no one in the office could comment on ongoing cases.
The Government's Case
The charges against the two men center around Waste Management's transfer station on Ina Road, where trash collected in Pima County is dumped by neighborhood trash trucks, sorted and then placed on larger, over-the-road truck trailers and hauled to Waste Management's Adamsville landfill near Florence in Pinal County.
Before and during the time of the federal investigation, Waste Management contracted with CSU Transport, a national trucking company based in Portage, Ind., to haul the waste to Adamsville. CSU subsequently subcontracted some of the hauling with other trucking firms, including Westfall's.
In preparation for the February 2004 stories, the EXPLORER spoke to more than a dozen sources with knowledge of either the investigation or of the overweight hauling. Several of those sources requested and were granted conditions of anonymity due to reasonable fears they would lose their jobs or suffer other sanctions if their names were used. Some of those sources have been recontacted for this story and all requested they remain anonymous.
In late 2001- according to several sources close to the investigation, an Arizona Department of Public Safety audit of truck weight tickets and the indictment - thousands of CSU trucks and subcontracted trucks hauled overweight loads (more than 80,000 pounds) from Ina Road to Adamsville and to a massive regional landfill near Buckeye. Among the truckers who hauled these overweight loads was Westfall himself, according to records of the DPS audit.
On Jan. 2 or 3, 2002, according to sources close to the investigation, Sutton and Westfall met with Dave Hauser, Waste Management's district manager, to discuss the overweight hauling and other problems at the Ina Road transfer station.
A source close to Westfall said the nature of the meeting was for Westfall to air his concerns about CSU's performance of its contract and CSU reducing the amount of work it was giving him. The source said Westfall earlier in 2001 had bid for a contract with Waste Management to haul waste to Nogales, which upset CSU managers, who began using his trucks less. The source said Westfall had been a prominent operator at the transfer station when the hauling contract was held by a different trucking company, STS, even saying Westfall was "running" the station. However, in 2001, STS went bankrupt and reorganized as CSU. Subsequent to that, Westfall's role at the station was diminished, as was the amount of hauling subcontracting he was receiving.
The source said Hauser told Westfall at meeting in July 2001, and riterated in the January 2002 meeting with Sutton, that he would be "held harmless" by Waste Management, apparently meaning the company would make good on Westfall's lost income since the change to CSU.
The indictment doesn't say anything about what took place at that January meeting, but does say the first meeting in which the alleged conspiracy and extortion attempt began was held "around Jan. 3, 2002."
Westfall's hauling subcontract was terminated by CSU on Feb. 8, 2002. Waste Management replaced CSU with Mesa-based OttoTrucking at the end of CSU's contract in 2002.
According to the indictment, through January and March 2002, Sutton and Westfall had several meetings with Waste Management officials in which they laid out what needed to happen in order to keep Westfall from blowing the whistle on the overweight hauling and to keep Sutton from using his authority as Marana's mayor, or his political connections, to interrupt the company's Ina Road operation.
According to the indictment, the object of the conspiracy was two-fold, involving a "Plan A" and "Plan B," both designed to extort Waste Management and to remunerate Westfall.
Plan A, allegedly proposed by Westfall and Sutton, required Waste Management to pay Westfall a substantial sum of money, as high as $60,000 and as low as $15,000 a month, as a "consultant" regardless of whether there was consulting work available, to cover the operating expenses and losses purportedly incurred as a result of Westfall's termination by CSU.
Plan B, allegedly proposed that after six months Westfall would receive an operation contract for the transfer station, replacing CSU.
According to the indictment, both plans eventually melded into the only plan, as Sutton and Westfall insisted both happen.
A source close to the investigation said Westfall needed the consulting contract first in order to "ramp up" his operation so he could take over the CSU contract. The source said Westfall was a small trucking firm with only six trucks and needed the cash from the "consulting" work in order to expand his operation so that he could take over from CSU in the six-month time frame. CSU was using more than 14 trucks, plus several subcontracted trucks, to haul the trash from Ina Road to Adamsville, the source said.
In exchange for Waste Management's compliance with these demands, Sutton and Westfall allegedly communicated in a series of conversations and meetings with Waste Management that Sutton would do the following:
€Keep Westfall from blowing the whistle and/or cooperating in any official investigations into overweight loads leaving the transfer station.
€Agree not to take any official action that would cause the transfer station and its operations to be shut down.
€Agree not to take any official action that would cause the transfer station to be investigated by the town of Marana.
The source close to Westfall, though, said Westfall thought he was working with Waste Management to remove CSU as the contractor because of its poor performance as the hauling contractor. The source said Westfall was even told by Weiss, during a meeting at Westfall's house, that Weiss wanted CSU "out of there" and replaced by Westfall. At that meeting, the source said, Weiss agreed to a handwritten consulting contract seeking "$40,000 a month" from Waste Management. The source said Westfall later faxed a typewritten contract to Weiss that included the fee.
According to the indictment, Westfall, on Feb. 27, 2002, "faxed Employee #2 a copy of a contract" seeking $9,500 a week ($38,000 a month) for six months.
The indictment says the $9,500 a week fee was negotiated down by Sutton in which he talked Westfall into seeking less money from Waste Management than he originally asked for.
"On or about February 25, 2002, Sutton telephoned Employee #2. Sutton explained that he had talked to Westfall about the amount of money it would take to "gag" (Westfall). Sutton said, 'I got him to come down to ninety-five hundred [dollars a week],'" Sukenic wrote in the indictment.
The indictment lists more than a half dozen meetings between February and April 2002 between "Employee #2" and Sutton, Westfall or both of them together, and at least five telephone calls during the same time period involving some combination of the three, plus a sixth between Sutton and "Jones," in which the participants discussed aspects of the consulting or hauling contracts, how and when Westfall would be paid and how much, and potential repercussions for Waste Management if Westfall wasn't paid.
Among the recorded statements attributed to Sutton in the indictment are:
€ Sutton met with "Employee #1" and "Employee #2" at the Omni Tucson National Resort Feb. 21, 2002 and "reiterated to Employee #2 his displeasure about Westfall's termination by CSU and presented a 'deal' involving Westfall and the Transfer Station. Sutton stressed that one of the biggest pieces of the deal was going to be how Westfall benefited. Sutton also stressed that the potential deal involving Westfall is a big part of why the Transfer Station is still operating and has not been shut down."
€ In meetings and phone conversations Feb. 25, 2002, Sutton "explained that if Waste Management were to appease Westfall, Sutton would control Westfall in limiting his public criticism of CSU and furthermore, exonerate Waste Management. Sutton also suggested that if Waste Management were to put Westfall on a consulting contract, Westfall would be legally 'gagged' in a fashion where he could not publicly talk about any Waste Management issues. Sutton advised Employee #2 'if nothing else, you gagging him helps your company tremendously … I don't know if you, if you're really graspin' that.'"
€ During a meeting at Sutton's home Feb. 28, Sutton "assured Employee #2 that, at least in part, in return for the benefit Westfall would receive from Waste Management, the Transfer Station would not be investigated by officials from Marana and would not be shut down." Later, after the meeting, Westfall told "Employee #2 that Sutton has 'unbelievable power' and that if Employee #2 had backed out or reneged, Sutton would have crucified him."
€ According to the agreement reached between Westfall and Employee #2, Feb. 28, 2002, Westfall was to have received his first payment in early March. When the check didn't arrive, a series of phone calls took place in which how and when Westfall would be paid was discussed. Sutton, in a phone conversation March 11, urged Employee #2 to get Westfall "his check." On March 19, when Westfall was told by Employee #2 that the check hadn't been sent because Waste Management had gotten word Westfall had talked poorly of the company to a Pinal County official, Sutton told "Employee #2 that he would have Westfall contact this public official to straighten things out but that Westfall must receive a check or (Sutton) would do nothing." Later that same day, Sutton had another phone conversation with Employee #2 telling him that "if the contract does not go through for Westfall, the Transfer Station would be in jeopardy. Sutton tells Employee #2 that this would affect his trust in them and cause a possible inspection of the Transfer Station by 'his own guys' as to whether or not the Transfer Station was running in compliance. Sutton goes on to link the potential demise of the 'Westfall contract' to the fortunes of the Transfer Station by stating: 'It's a trust issue. It's a credibility issue. And at this point, I'd rather not do business with your … company in my town.'"
€ On April 5, 2002, Sutton, at the end of a phone conversation with "Jones," provided the undercover Waste Management official bank account numbers that "Jones" was to use to deposit money for Westfall's contract.
As for the false statements count against Westfall, the indictment claims that Westfall, on April 9, 2002, participated in an interview with FBI Special Agent Clifford Goodman at the FBI office in Tucson, witnessed by FBI Special Agent Arch Glen Gothard.
During the interview, Westfall reportedly said that Sutton had nothing to with his deal with Waste Management and that Sutton did not participate in the April 2, 2002, meeting with "Jones" and Employee #2. In response to Goodman's question as to who, other than Westfall, Employee #2 and "Jones," had been involved in any negotiations regarding the contract, Westfall stated no one else had been involved.
Westfall and Marana
Originally from Louisiana, Sutton has lived in Marana for 11 years and spent almost all of that time as a member of the Marana Town Council. Sutton is the town's first directly elected mayor and is serving his second term as mayor and third on the town council.
Westfall has lived in Marana most of his life and has been heavily involved in the Marana community. He is a member of Trico Electric Cooperative's Foundation board, has been a member of the Marana Health Center board and is the leader of the Marana High School athletics booster club. His children have all been star athletes at MHS.
At about the same time the FBI began investigating Westfall's dealings with Waste Management, a succession of stories were reported in the EXPLORER involving Westfall in which he was embroiled in controversy.
According to federal grand jury subpoenas obtained by the EXPLORER in 2002, the FBI also looked into Westfall's role in those other controversies.
Previous investigations by the EXPLORER indicate the bulk of Westfall's work for the town of Marana occurred between April 2000 and March 2002. In that time, Westfall's trucking business was paid $103,522 for hauling materials at the town's Marana-Northwest Regional Airport without having to go through the bidding process mandated by state and town regulations, according to town records.
In February 2002, at the height of the FBI's secret recordings of Westfall and Sutton, the Arizona Department of Transportation Department's Aeronautics Division suspended reimbursements to the town of state and federal grant money used for the airport construction projects. The state questioned the lack of any sealed bids for $75,000 worth of work awarded to Westfall's company, but eventually reinstated the payments despite the fact that the town was unable to produce documentation that procurement regulations were followed.
Westfall was paid an additional $23,000 from the town's general fund for a town road project at the airport, which also was not put out for competitive bidding, and which the town kept no record of beyond copies of payments made to Westfall.
Westfall also was paid $11,000 by Marana for clearing brush on land used as a parking lot for the town's 2002 Fourth of July celebration, according to town records.
That brush, at some point, was set on fire to reduce its bulk and the amount of trips necessary to haul it to property owned by the town southwest of Town Hall. The smoldering remains made at least one neighbor ill, sparking an investigation by the Arizona Department of Environmental Quality. No charges were filed. Westfall maintained he never set the brush on fire, saying it would have endangered the safety of his truck and driver to haul burning trash.
Other records obtained by the EXPLORER in 2002 showed the FBI also was interested in an incident in which Sutton involved himself in a police investigation when Marana police officers were called to Westfall's business in 2000.
According to Marana Police Department reports, Westfall was engaged in an argument with a construction foreman over road construction occurring in front of a cordwood business Westfall used to own at 5300 W. Ina Road.
After Westfall reportedly threatened to kill the foreman, the foreman called Marana Police and Westfall called Sutton.
The police report containing Westfall's alleged threat lingered at MPD until June 20, 2000 despite inquiries from the road worker to the MPD about the status of the case.
The case was eventually transferred to Oro Valley's municipal court for prosecution, but the road worker dropped the complaint against Westfall shortly after the case was transferred.
Though the FBI agents reviewed records about these incidents, and several sources who said they were interviewed by the FBI said the agents asked them about them, none of the incidents were mentioned in the April 22 indictment.
Hauling violations on a shelf
Also not mentioned in the indictment, and what is at the heart of Westfall's and Sutton's claim of whistle blowing, is the lack of sanction for the overweight hauling that occurred at the Ina Road Transfer Station in 2001.
An Arizona Department of Public Safety audit of records from scales at the transfer station that covered a period through the first nine months of 2001 uncovered more than 3,000 incidents of overweight trucks leaving the Ina Road plant.
Some of those trucks weighed as much as 105,000 pounds, more than 25,000 pounds above the legal limit.
The overweight trucks were not part of the FBI's investigation, a U.S. Attorney's Office official told the EXPLORER in 2003.
The overweight trash trucks, with their stability and braking ability compromised by the over loading, traveled on Ina Road and Interstate 10 on their trips north to landfills in Pinal and Maricopa counties. Waste Management managers at the facility estimate an average of 60 truck trips a day left the transfer station during the period covered by the records.
The semi trucks were operated by drivers from three subcontracting truck companies working for CSU. A source close to Westfall told the EXPLORER in 2004 that CSU had issued letters to all of its drivers in 2001 saying the drivers would not be financially responsible if they received citations for hauling overweight loads, the company would pay the tickets.
While both Waste Management and DPS officials say the overweight hauling at the Marana facility has ended, it's unclear which company or companies bear responsibility for the overweight hauling.
In 2004, officials from Pima County, DPS and the Arizona Attorney General's Office were at odds as to which agency was responsible for prosecuting the hauling violations. At the time of the EXPLORER's story in February 2004, the audit records documenting the overweight hauling had been sitting on a shelf at the Pima County Attorney's Office for more than two years.
In a brief phone interview April 25, Bruce Chalk, an investigator with the Pima County Attorney's Office, said he was uncertain if the records were still at the county and would try to determine where they were before this story's deadline but did not call back with the results of his inquiry.
Stephen Weiss, Westfall's lawyer, and Sutton's lawyer, Michael Piccarreta, each said they would be researching why the overweight hauling was never prosecuted as part of their defense of their clients.