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Texas Federal District Judge Throws Out VitaPro Convictions

by Matthew T. Clarke

In another bizarre twist to an already bewildering prosecution history, on September 9, 2005, Texas federal district judge Lynn Hughes, by judicial fiat, acquitted Andy Collins, the former executive director of the Texas Department of Criminal Justice (TDCJ), and Yank Barry, the Canadian ex-con owner of VitaPro, of the bribery-related charges a jury convicted them of four years ago. Collins and Barry were never sentenced. VitaPro manufactures a soy-based protein meat substitute that was purchased by TDCJ and fed to prisoners.

In 1995, George W. Bush was governor of Texas and TDCJ was in the middle of a multi-billion dollar rapid expansion phase that more than quadrupled its prisoner capacity to 150,000 in seven years. To facilitate the rapid expansion, special emergency purchasing contracts that sidestepped the state bidding requirements were authorized. Thus, under then-TDCJ executive director Collins, multi-imillion-dollar no-bid contracts were allowed. VitaPro received a $33.7 million no-bid contract to supply its inedible meat substitute to TDCJ kitchens.

Amidst the then-breaking prison procurement scandal, the freshly-retired Collins gave an interview published in the May 1996 issue of Texas Monthly magazine. In the interview, Collins stated that people well above him in the state government were involved in the VitaPro scam and that he would take them down with him if he was indicted by the State of Texas. As the executive director of a department of State government, the only person in the Texas state government over Collins was then-Texas Governor George W. Bush. Texas never indicted Collins.

However, in January 1998, with one day left until the statute of limitations expired, a federal grand jury indicted Collins and Barry on the bribery-related charges. The conspiracy was uncovered when Collins associate, Patrick Graham, was caught extorting $150,000 from a woman to set up the escape of her husband, a Texas prisoner. The escape plot included unwitting help from Collins, and the ensuing FBI investigation led to the discovery of the VitaPro scam.

Trial started in 2000 but was halted when Hughes expressed his shock that the primary prosecution witness was a convicted felon. Patrick Graham was indeed convicted--convicted of prison-construction-and-procurement-related fraud--including the VitaPro bribery and juvenile prison construction scams in Louisiana.

In August 2001, after the presidential election, trial resumed and a jury found Collins and Barry guilty of four counts each of charges related to Barry giving Collins two $10,000 bribes to secure a no-bid contract for TDCJ to buy $33,700,000 worth of VitaPro that had Texas paying more for an inedible Canadian soy substitute than it did for real Texas beef. They faced up to 65 years in prison and a $1,750,000 fine. However, neither Collins nor Barry was sentenced in the ensuing four years. Instead, the court reporter allegedly suffered a nervous breakdown and was unable to complete the appellate record [PLN, Nov. 2003, p. 12]. Collins and Barry remained free on bond and were allowed to travel to exotic foreign locations.

Judge Hughess explanation for the abrupt acquittal was a lack of credibility of the prosecutions main witness, Patrick Graham.

Graham had a secret deal with the United States Attorney for the Eastern District of Louisiana that--in exchange for his testimony in numerous cases--the U.S. Attorney would not prosecute him for his crimes in Louisiana and would even seek a sentence reduction for his crimes in other states, according to Hughes. With this motivation, Graham conveniently knew all sorts of information about nefarious dealings in other districts. The testimony of the Graham brothers, Patrick and Michael, helped convict former Louisiana Governor Edwin Edwards and former Houston, Texas, Mayor Fred Hofheinz of corruption charges related to prison construction and procurement. Edwards was convicted of federal racketeering charges and sentenced to ten years in prison. Hofheinz plead guilty to failing to report himself as a victim of an extortion attempt in exchange for prosecutors dropping felony bribery charges against him.

Hofheinz and the Graham brothers were partners in the N-Group, a private prison venture that hired Collins after he retired from TDCJ. The failure of N-Group led to the indictment of Patrick Graham for antitrust violations and a $35-million-dollar judgment against him in an investor lawsuit Hughes presided over.

Hofheinz had testified against Collins in the grand jury investigation of the VitaPro scam and Patrick Graham was carrying a card that identified him as a representative for VitaPro when he was arrested for the escape conspiracy. Thus, one possibility that Hughes seems to have overlooked is that Graham, whose company employed Collins after he retired from TDCJ and who was a card-carrying VitaPro representative, might have actually known about the VitaPro bribery scam. Apparently the jury found him to be credible, even though they knew about his sordid past. Furthermore, it is passe for the government to use co-conspirators, felons, criminals and other miscreants as witnesses, hardly the shocking development Hughes feigned it to be.

The order acquitting Collins and Barry is appealable, but Hughes also granted them a new trial should the order be reversed on appeal. Thus, the best outcome the prosecutor can hope for is having to try the case again.

The U.S. Attorney Chuck Rosenberg has not decided whether to appeal the order or not. See: United States v. Collins, US DC, SD TX, Case No. H-98-18. The courts ruling is available on PLNs website.

Sources: KPFT 90.1 FM (The Prison Show), Houston Chronicle.

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Related legal case

United States v. Collins