Marc Rosenthal Linked to Bribery According to Brownsville Herald

Ex-deputy: Rosenthal employee gave me $4,000

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Posted: Saturday, October 6, 2012 9:42 pm


BY EMMA PEREZ-TREVIÑO The Brownsville Herald





An investigative review of court records reveals ties between three high-profile cases, including the federal indictment against Austin attorney Marc G. Rosenthal.


The review, by The Brownsville Herald, links the testimony of a former Kenedy County deputy sheriff — who says he received $4,000 from a Rosenthal employee after signing an affidavit containing false information and giving false information in a civil deposition — to the cases.




The two civil cases are Deyanira Gallegos Tapia et al vs. Union Pacific Railroad et al and Viviana Sosa et al vs. Union Pacific Railroad et al. Rosenthal represented the plaintiffs in both of those civil cases.


Former Kenedy County Deputy Sheriff Michael Allen Goss, in a hearing June 5 of this year before 197th state District Judge Migdalia Lopez, admitted that in October 2006 he signed an affidavit containing false information about a collision with a Union Pacific Railroad train, and that he later provided false information in a deposition about the accident.


The June 5 hearing was to consider a Union Pacific motion that Rosenthal be sanctioned in the state civil lawsuit he filed on behalf ofViviana Sosa et al against Union Pacific et al. In that hearing, Goss testified that Rosenthal employee Gilbert Benavides handed him about $4,000 in cash, public records show. However, he testified that there was no agreement that he would be paid in exchange for his false testimony.  Benavides, of Brownsville, did not respond to numerous attempts over a number of days to contact him for comment.


Union Pacific earlier this year sought sanctions against Rosenthal for what Union Pacific et al defense attorney Mitchell C. Chaney described at the hearing as “a nightmare of repeated unethical behavior” on Rosenthal’s part, involving “paid-for perjured testimony.”


Public records show that the affidavit Goss signed in October 2006 was in connection with a civil lawsuit Rosenthal had filed in the U.S. District Court for the Southern District of Texas in May 2006 against Union Pacific on behalf of Deyanira Gallegos Tapia et al.  U.S. District Judge Andrew S. Hanen was assigned to the Tapia case.


Because Rosenthal, in Sosa’s 2007 lawsuit, referenced the allegedly false information from Goss’ affidavit in the Tapia case, Union Pacific attorneys subpoenaed Goss to testify at the June hearing.


“Your Honor, we are going to show that Mr. Rosenthal or someone in his firm paid for perjured testimony, and that perjured testimony has made it into this case,” Chaney told Lopez at the June hearing. Mark Alvarado, the Austin attorney for Rosenthal and Sosa, countered, “It’s ridiculous.”


THE ORIGINAL ACCIDENT REPORT


The chain of events that eventually led to the June 5 hearing started simply enough, when then Deputy Sheriff Goss responded to a report of a train accident 2.5 miles north of Armstrong in Kenedy County. It was April 22, 2005.  The next day, Goss wrote his report:


The train was traveling slowly north on the tracks, and a Deyanira Gallegos Tapia and two men were on the west side of the train tracks when all three attempted to jump onto the northbound train. The report notes that Tapia’s legs were caught in the wheels of the train and she was pulled down. The train did not stop. The engineer of a southbound train radioed the northbound train and advised of the accident.


“I made contact with the (northbound) engineer (James Oniel Gant) just south of the La Parra railroad crossing in Sarita,” Goss writes in his report. “He stated he was unaware of the accident until he was notified by the other engineer.”  Here, Goss’ report ends.


Tapia, pregnant at the time, miscarried and she lost her legs in the accident, according to court records.  She filed a personal injury lawsuit in federal court against Union Pacific et al in May 2006 claiming that the railroad and employees had been negligent. Union Pacific maintained that neither it nor anyone acting on its behalf had been aware of Tapia or gave her permission to board its train. The parties reached a confidential settlement in October 2007.  The attorney on her case was Marc Rosenthal.


THE CONTACT


Sometime after the Tapia accident, Goss says, he started getting phone calls from a Gilbert Benavides, who said he worked for attorney Rosenthal and that he was calling about the Tapia accident. Benavides left several messages on his cell phone.


“I wouldn’t return the calls,” Goss said.  By that time, he no longer was a deputy sheriff and instead was working at a correctional facility in Willacy County.  So, Benavides contacted an educator at the correctional facility, saying he was a friend of Goss’ from high school and wanted to talk to him. He left a phone number.  Goss said when he called the number, it was Benavides. He told Benavides that everything he had to say about the Tapia accident was in the report, “and (that) he was wasting my cell phone minutes.”  “I was getting tired of being pestered by him,” Goss testified.


“A couple of days later I received an either FedEX or UPS mailer, one of the flat ones for documentations. Inside of it was about $150 with a note, ‘For your cell phone bill’,” Goss testified at the June 5 hearing.  Goss and Benavides subsequently met up at the Pizza Hut in Raymondville, where Benavides questioned him about the Tapia accident and wrote down some things.  They also went over the accident report.


“A couple of days later he contacted me by phone again,” Goss testified. “He said he had the paperwork ready for me to sign.


So they again met at the Pizza Hut. According to the affidavit, the date would have been Oct. 19, 2006.


“He handed me the affidavit and said, ‘I’ve added a few things in there. Will you still go ahead and sign this for me?’” Goss testified. “And I said, ‘Yeah, if this will make you go away, then, yes, I will sign it.’”  Goss maintains he did not prepare the affidavit, but rather, that Benavides handed it to him to sign.


“Were you paid money by Mr. Benavides?” Chaney, the lawyer for Union Pacific, asked at the June hearing.  “Yes,” Goss responded.  After he signed the affidavit, and also gave a deposition in the case at the law office of former state Rep. Jim Solis, he received about $4,000 in cash.  “I was handed the money, if I remember right, by Gilbert.”  Goss also said no one gave him a Form 1099 to report the money to the IRS.


On cross-examination by Alvarado, Rosenthal’s and Sosas’ lawyer,Goss testified that he spoke to a man one time whom Benavides introduced over the phone as Marc Rosenthal.


“I remember them (Benavides and Rosenthal) thanking me for helping them out with the case. Exact details, I don’t recall,” Goss said.  He also testified he didn’t remember if he missed work to give the deposition or if he had complained about having to use personal time to give the deposition.


“And were you asked — Was there some sort of an understanding of a quid pro quo, you say this, I’m going to give you that, buddy?”  Alvarado asked of the phone conversation with Rosenthal and Benavides.
“No,” Goss testified.


Benavides never told him that if he gave a deposition and testified a certain way, Benavides would make sure that he got $4,000, Goss said. He also said he could not recall that anyone had implied there would be a payment of money.  Court records also show that Goss said he had not given any indication that he expected to be paid, and that he does not remember what he thought when he got the money. He also testified he was having money problems at the time.


Alvarado told the court: “This man who testified here today never said that anyone paid him for any particular testimony. He didn’t say, ‘They are going to give me money if I say this stuff.’ No one offered the man money for any type of testimony.”


THE FRAUDULENT AFFIDAVIT


When Goss signed the affidavit dated Oct. 19, 2006, containing the false information that Benavides handed him at the Pizza Hut, the account of the Tapia accident differed from his original report. According to Goss’ testimony on June 5, the affidavit contained the following false information:


“I asked the engineer, a black male who identified himself as James Oniel Gant, if he had seen a female and two males trying to board the train back at the place where the accident occurred. Mr. Gant denied having seen two males trying to board the train, but he told me that he had invited a Hispanic-appearing female, who apparently was Deyanira, to jump on the train because he felt sorry for her when he saw her and he told me that the train was going slow enough because he was just taking off from a parked position that he thought it would be safe for her to jump on without him having to completely stop the train. Mr. Gant referred to the woman as a ‘wet-back’. I did not include this portion of what I learned during my investigation in my Texas Peace Officer’s Accident Report concerning this accident because it was discretionary on my part whether to include such extra, non-critical information in the report and I chose not to include such information because I felt that it would cause Mr. Gant problems with his employer.”


SOSA vs. UNION PACIFIC


Little did anyone know at the time just how critical Goss’ original accident report and fraudulent affidavit regarding the Tapia accident would become.  Enter Viviana Sosa.  On Jan. 23, 2007, Sosa, then nine-months pregnant, was a passenger in a truck driven by her father-in-law, Matias Sosa.  They came to a railroad crossing in Raymondville, according to court records, where the truck was struck by a moving Union Pacific train.  Sosa underwent an emergency cesarean section shortly after the collision and Destiny Sosa was born.  The baby died two days later.


In February 2007, Sosa and her husband, Jesse Sosa, sued Union Pacific Railroad and train engineer Ernesto Ortegon, claiming negligence in Union Pacific’s failure to maintain the crossing in a safe condition and install crossing devices, to keep a proper and safe lookout, and to sound the train’s horn at the required intervals, among other failures.  The case was filed in the 197th state District Court of Judge Migdalia Lopez.  The attorney on her case is Marc Rosenthal.


Attorneys for Union Pacific and Ortegon are Colvin, Chaney, Saenz & Rodriguez LLP., of Brownsville.  They are alleging that Matias Sosa ran a stop sign and collided with the moving Union Pacific train.  The litigation is pending.


SECOND MENTION OF THE FRAUDULENT AFFIDAVIT


In the course of litigating the Sosa case, Rosenthal again referred to the false information in the Goss affidavit.  The following is contained in court documents that Rosenthal signed and that were filed in Viviana Sosa et al:


“This is the same Union Pacific attitude that recently (resulted) in an incident in neighboring Kennedy (sic) County involving a Union Pacific train that ran over and completely severed the legs on a young pregnant woman, after which the engineer of the offending Union Pacific train admitted to the investigating peace officer that ‘Union Pacific does not care if its trains run over wetbacks.’”


At the June 5 hearing, Union Pacific defense attorney Mitchell C. Chaney told the court, “I just can’t imagine the cold calculation that must have gone into the crafting of this affidavit. Michael Goss is not innocent. What he did was wrong. It’s obvious. But you don’t pay a witness $4,000 to sign an affidavit that you make up.”  Chaney further told the court “they” just didn’t care in branding Gant, an African-American who is married to a Hispanic woman, a racist, and didn’t care when they accused Gant of calling someone a wetback.


“That’s a lawyer-crafted slur to make the case explosive, to make the case more valuable. That’s not something that Mr. Goss would have thought up on his own,” Chaney said.


Alvarado cross-examined Goss at the June hearing, telling him, “So you lied in this affidavit, you lied when you gave sworn testimony in deposition. When did you decide that you are going to stand up and, by golly, you are going to tell the truth? When did the Lord God Almighty put his hand on you and tell you, ‘The truth will make you free?’”


Responded Goss, “I don’t know if any God put his hand on me, but the FBI came to talk to me.”


THE CRIMINAL CASE


Goss’ testimony in the June 5 hearing also intersects with several charges in the 13-count indictment a federal grand jury returned against Rosenthal in August 2011, a comparison of state and federal public records show.  The indictment alleges Rosenthal paid witnesses or had witnesses paid in return for false testimony in state and federal cases in Cameron County and surrounding counties.  The indictment states that unindicted co-conspirator 1, at Rosenthal’s instruction and direction, located and paid witnesses or had witnesses paid for false testimony. The indictment also charges Rosenthal with tampering with a witness and tampering with a proceeding by false affidavit.  According to the indictment, on or about Oct. 19, 2006, Rosenthal, aided and abetted by others, persuaded co-conspirator 2 to sign a false affidavit.  Rosenthal also is charged with tampering with a proceeding by perjured testimony in the Tapia case by persuading co-conspirator 2 to provide perjured deposition testimony.


The names of the unindicted co-conspirators are not noted in the Rosenthal indictment.


BENAVIDES AND GOSS


The names of Benavides and Goss first appear in the federal court record in the criminal charges against Rosenthal on December 2011. That’s when Rosenthal’s defense attorney, Ernesto Gamez Jr., of Brownsville, filed a motion noting that the U.S. Attorney’s Office had sought a search warrant for records, including emails to and from Rosenthal, Jim Solis and others, including Benavides and Goss.


The search warrant was for emails concerning or relating to the payment or attempted payment of witnesses or purported witnesses for statements or testimony of any kind.  Mentions of Benavides and Goss recently have escalated, federal records show.  In a July 14, 2012, filing, Rosenthal’s attorneys noted that the government would be offering the testimony of cooperating witnesses — including Benavides.  In a July 16 filing, Rosenthal’s attorneys said the Rosenthal indictment contains allegations that are directly contrary to information in the possession of the government and that Rosenthal should have access to the grand jury testimony of Goss and Benavides.


“Goss, for example, recently testified under oath in a civil proceeding that he did not falsify his testimony in exchange for payments, yet that is what is alleged in the indictment,” the filing states.  The filing adds that the testimony cannot be ignored and must be compared to grand jury testimony.


“(Rosenthal) provided evidence to the government that exculpates (Rosenthal) from some of the allegations in the indictment from statements made by Benavides, yet the government stays silent,” the filing further noted.  In an August 10 filing, Rosenthal’s attorneys again requested grand jury testimonies, alleging the government intimidated witnesses to secure false testimony against Rosenthal, and that the government may have falsely presented or concealed evidence from the grand jury.  That filing refers to the alleged payment of $4,000 to a witness in alleged return for his false testimony.


“Yet that same witness ... has testified the opposite under oath in another judicial proceeding: that he was not told by defendant to lie, that defendant did not pay him for his testimony, albeit false, was not done in exchange for money,” the filing states. “(Rosenthal) understands that a witness can initially lie and then state the truth to the government when confronted with evidence. But the reverse can also happen: a witness may start off with the truth but feel pressure to conform his testimony to fit the government’s version of the facts, or else face government retaliation against the witness or his family.”


Rosenthal on Friday confirmed for and The Brownsville Herald that Benavides worked as his legal assistant for four or five years.


STATUS


In the federal criminal case against Rosenthal, a hearing will be held on his motion that the indictment against him be dismissed and that the court initiate a judicial investigation into alleged prosecutorial misconduct.
Insofar as the request for sanctions against Rosenthal and Sosa, Judge Lopez issued a “death penalty” sanction, meaning that Sosa’s lawsuit against Union Pacific will be dismissed. Rosenthal said he will appeal.  A hearing to determine attorney fees that should be assessed against Rosenthal is pending.  Rosenthal responded to the notice of a upcoming hearing by filing a motion to disqualify Lopez from continuing to preside over the Sosa case. It is the second motion he filed in the case, alleging that Lopez is biased. Senior Appellate Judge Linda Yáñez again denied Rosenthal’s motion on Monday.  Gamez, Rosenthal’s attorney, on Friday told the The Brownsville Herald that Goss himself has testified that there was no quid pro quo.


“As I’ve been saying all along, here’s a prime witness for the government (Goss) who has made allegations against our client, and then when there’s a judge present, he totally exculpates Marc Rosenthal. He makes it clear that there was no money paid to him by Marc Rosenthal or any money paid to him for an exchange for testimony.


“He (Goss) did take money from someone,” Gamez said, “but it wasn’t my client.”  Rosenthal on Friday said he wishes he could comment more freely, but the case is ongoing.


“It is clear from Mr. Goss’ testimony under oath during that hearing that I am innocent, as my attorney and I have said all along, and that I did not engage in wrongdoing as has been alleged,” he said.

Assistant U.S. Attorney Michael J. Wynne, who is prosecuting the criminal case against Rosenthal, on Friday told The Brownsville Herald that, as always, he cannot comment on an ongoing case.

“We’ll just have to wait for trial,” he said. “The evidence will be presented at that time.”