Judges toss charges against 9 over US Attorney Darin Smith’s ‘deeply concerning’ misconduct

Three federal judges dismissed felony grand jury indictments against nine defendants Friday, citing misconduct by interim U.S. Attorney for Wyoming Darin Smith that could have prejudiced the jurors.

“This is not a case where a few offhand statements were improperly sprinkled throughout the presentation of evidence in one defendant’s case,” the judges’ order reads. “This misconduct began with some of the first words spoken to the grand jury (and) the misconduct continued to penetrate the proceedings in off-the-record conversations, occurring on the breaks between indictments.

“This is deeply concerning,” the judges wrote.

The judges dismissed felony indictments against Cheyenne Swett, Richard Allen, Michael Scott Hopper, Brian Joseph Johnson, Dennison Jay Antelope, Mathew Christopher Jacoby, Matthew Miller Jr., Wolf Elkins Duran and Jose Benito Ocon. The now-dismissed charges ranged from felony possession of firearms, drug distribution and possession of child pornography, among other things.

Defense attorneys sought the dismissals on the grounds that Smith improperly told the grand jury the defendants were “bad guys,” stated they were “murderers” and that deliberations “won’t take long.”

The statements were prejudicial and tainted the grand jury, which is supposed to be unbiased and “the sole evaluator of evidence,” the judges’ dismissal order reads.

“The cumulative effect of the many known instances of misconduct leaves the court with ‘grave doubt that the (grand jury’s) decision to indict was free from the substantial influence of such violations,’” the judges wrote in a 14-page order.

The judges stayed the order — meaning the dismissal won’t happen — until Wednesday or when Smith declines to contest it, whichever occurs first. The stay allows Smith to argue against the order.

The dismissal is without prejudice, meaning Smith could empanel another grand jury and present the cases again “with a clean slate,” the order states.

Smith’s office would not comment on the order, referring to his statements in court files. He faces a vote next week to confirm his troubled nomination in the U.S. Senate.

His nomination by former U.S. Attorney General Pam Bondi has been fraught with accusations of incompetence and tainted by his attendance at the Jan. 6 riot at the U.S. Capitol. The Senate Judiciary Committee advanced his nomination along party lines.

U.S. Sens. John Barrasso and Cynthia Lummis, who have supported Smith and will vote on his nomination, did not respond to email questions about whether they would continue to back him.

Defendants want Smith out

Soon after the order was filed, defense attorneys began filing motions asking the three-judge panel to reconsider and instead make the dismissals permanent. In the alternative, the defense attorneys asked that the judges punish Smith.

Defense attorneys said the judges didn’t give them a chance to respond, as allowed, before issuing the dismissal order. Their motions suggest the cases are now a hot mess, a shambolic prosecution, a cluster.

Allowing Smith to file cases again with a clean state “inadvertently rewards the United States Attorney’s Office for an institutional cover-up,” the motions state.

Smith’s misconduct “was not an isolated lapse in judgment by a single attorney; it metastasized into systemic, institutional failure by the United States Attorney’s Office,” the new motions state.

“The government’s own filing reveals that the misconduct was known to multiple attorneys and deliberately withheld,” the new motions state. An assistant United States attorney witnessed Smith’s inappropriate comments, the motions state.

“This highly prejudicial, exculpatory information was known to the government in March,” the motions state, yet, Smith’s office “suppressed its chief executive’s constitutional violations for nearly two months.

“The taint in this case is therefore widespread and continuous,” the motions state.

“Allowing the government to quietly ‘cure’ this pervasive, top-down misconduct by simply re-presenting the case offers zero deterrence to future constitutional violations,” defense attorneys argue.

They asked the judges to disqualify Smith’s entire office, “a drastic measure, but … required here due to an unresolvable conflict of interest.”

“(S)ubordinate attorneys cannot reasonably be expected to impartially police the constitutional violations of their own chief executive, rendering the local office structurally ill-equipped to conduct a fair presentation before a new grand jury,” the motions read.

“(T)he District of Wyoming (U.S. Attorney’s Office) is now simultaneously trying to prosecute (defendant) Mr. Hopper while actively minimizing and managing the fallout of its own leadership’s ethical failures,” one of the new motions read.

Defense attorneys asked to transfer the cases to the Department of Justice in Washington, D.C., or to a different United States Attorney’s Office.

In the alternative, they said Smith should be disciplined. Smith should explain why he should not be disciplined and judges should refer the matter to the U.S. Department of Justice “for the initiation of disciplinary proceedings.”

‘Tainted everything’

The grand jury in question met in Casper on March 15, and before a judge entered the chamber, Smith began to talk. His statements about bad guys and murderers — which Smith never denied — “tainted everything the grand jury would hear afterwards,” the dismissal states.

“They were inflammatory and inappropriate,” the judges wrote about Smith’s words.

Judges also worried about Smith telling the grand jury members that the deliberations “won’t take long.” Those statements amounted to Smith giving “his subjective evaluation of the strength of the evidence,” which was not his role.

“There is a genuine risk the grand jury may have absorbed this,” the dismissal order reads, “and thought three minutes is an appropriate or standard time to deliberate.”

Smith had fought the defendants’ efforts to dismiss the grand jury indictments. Among other things, his office argued that the judge who oversaw the grand jury proceedings gave instructions to the jurors that made up for any missteps he may have made.

“None of these explanations carry water when viewed against the volume and flagrancy of the misconduct,” the dismissal order reads.

During a break in the grand jury proceedings, Smith handed out his business cards and invited members to reach out to him. That was “concerning on two fronts,” U.S. judges Kelly Rankin, Scott Skavdahl and Alan Johnson wrote in the dismissal order.

“At a fundamental level a prosecutor should not be soliciting ex parte (private) communication with grand jurors,” nor trying to buddy up to them, the dismissal reads.

“Together with the U.S. Attorney’s attempts to bond with the grand jury and curry its favor, the conduct was ‘flagrant to the point that there (was) some significant infringement on the grand jury’s ability to exercise independent judgment,’” the dismissal order reads, citing precedent.

The cumulative effect of the “many known instances of misconduct” gave the three judges “grave doubt” that the indictments were free from the influence of Smith’s violations, the order states.

“This is one of the few rare cases that rises to the level of dismissal,” the judges wrote.

Tennessee Watson contributed to this story.

This story was originally published by WyoFile and distributed through a partnership with The Associated Press.