Feds largely back media's push for public scrutiny of secret records in Pilot Flying J case

The prosecutors are not backing the full disclosure sought by the media of all documents and recordings, but are supporting the unsealing of a substantial portion.

CHATTANOOGA, Tenn. - The U.S. Attorney’s Office is lending its support to the media’s push for the unsealing of a cache of court documents involving racist recordings of former Pilot Flying J president Mark Hazelwood and his subordinates.

Assistant U.S. Attorneys Trey Hamilton and David Lewen have filed a response to a legal effort by USA TODAY NETWORK - Tennessee and other media organizations in Knoxville, Chattanooga and Cleveland, Ohio, to convince U.S. District Judge Curtis Collier to release court documents and recordings that have served as the basis for his decision-making in the ongoing trial of former Pilot Flying J executives and staffers on federal fraud charges.

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The prosecutors are not backing the full disclosure sought by the media of all documents and recordings, but are supporting the unsealing of a substantial portion of the information believed to be hidden from public view – including a redacted transcript of a sealed hearing Collier held in chambers and out of public view in December that led him to allow prosecutors to introduce portions of racist recordings.

Secret hearings

Collier has held two such secret hearings since the trial of Hazelwood, former vice president Scott “Scooter” Wombold, and former account representatives Heather Jones and Karen Mann began in November.

Both involved racist recordings made by secret FBI and IRS Criminal Investigation Division mole Vincent Greco – another former executive of the truck stop giant – during a meeting of Hazelwood and his top sales executives at a lake house in Rockwood in October 2012.

Greco and 15 other executives and staffers of the nation’s largest diesel fuel retailer have admitted a plot to boost Pilot Flying J’s market share and profits and pad their own pay by luring truckers with promises of big fuel discounts they never intended to fully pay.

Pilot Flying J’s board of directors has forked out $92 million to federal authorities and $85 million to trucking companies. Chief Executive Officer Jimmy Haslam, who owns the Cleveland Browns, denies any knowledge of the five-year fraud scheme and is not charged.

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Hamilton and Lewen filed a motion early in the trial seeking to introduce evidence of bad behavior by Hazelwood that was sealed by Collier’s order. No details were made public, and Collier held a hearing in his chambers about the motion. He ordered all documents related to the prosecutors’ request, including defense responses, and the transcript of the hearing to be kept from public view.

In December, the prosecutors made another run at introducing the same evidence after Hazelwood’s attorney, Rusty Hardin, began portraying Hazelwood via his questioning of witnesses as too astute a businessman to engage in behavior that would cast Pilot Flying J in a bad light. A flurry of documents was filed by all four defendants and the prosecutors – all under seal. Collier held a second secret hearing.

Low volume blues

He then announced in open court that he would allow the prosecutors to play portions of Greco’s recordings in which Hazelwood and his subordinates made racist comments, used racial epithets, mocked Haslam’s football team, its fans and its home base of Cleveland, Ohio, to jurors.

Hazelwood is heard asking someone to play a racist country song, and the former Pilot Flying J sales executives can be heard singing along.

When the trial resumed in January, the prosecutors told Collier in open court that they had decided to limit how much of the racist recordings they would play. When the audio recordings began to play in the courtroom, the volume was set too low, prompting Hamilton to ask that it be raised.

The recording was not stopped during this adjustment. Jurors, who were given transcripts of the snippets of the recordings to be played, continued to read along without lifting their eyes toward the speakers.

Judge holds hearing on racist recordings

The transcripts identified the speakers on the recordings. It was not always clear from the recordings who was speaking, and Hamilton only displayed – for less than a minute at a time – a few lines from the transcripts onto a public screen.

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USA TODAY NETWORK - Tennessee immediately sought copies of the recordings and the transcripts as well as the unsealing of all documents, transcripts and recordings – including the entirety of the racist recordings the prosecutors first proposed to play.

USA TODAY NETWORK - Tennessee is joined in the effort by the Cleveland Plain Dealer, WBIR-TV in Knoxville, WKYC-TV in Cleveland, and the Chattanooga Times Free Press.

No 'fake news,' attorney says

Attorney Richard Hollow, who is representing the media organizations, filed a formal motion urging Collier to lift his sealing orders so the public can fairly judge how the judicial system is working in what Hollow wrote was a case involving a corporate giant.

“Pilot Flying J is a corporation which, according to its own website, has annual sales in excess of $19.6 billion,” Hollow wrote. “This is indicative of a potentially strong public interest in the allegations that this corporation, through its officers and employees, engaged in acts leading to the defrauding of purchasers of fuel … This is not something fabricated by the media.”

Hamilton and Lewen wrote that the “government offers no grounds to keep” under seal the lion’s share of documents hidden from public view now and sought by the media organizations. They wrote that others, such as the transcript of Collier’s December secret hearing, could be made public with certain redactions, which are not detailed in the response because of a previous sealing order by Collier.

Hazelwood’s defense team has not filed a response. Wombold’s defense team is fighting the media’s efforts, arguing his reputation will be sullied and jurors prejudiced against him. Because records remain sealed, it’s not clear if Wombold’s voice is on the racist recordings. His voice was captured in related recordings at the same lake house meeting. Mann and Jones were not at the meeting but also are resisting the media’s efforts.

Hollow noted jurors are not allowed – by Collier’s order – to read, watch or research anything about the case, including media reports, so the unsealing of records would have no impact on the verdict. Collier has not said when he would rule or whether he will make his ruling via a written order or commentary from the bench in open court.

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