Weeks makes a compelling case that Fuller tried to defraud the Retirement Systems of Alabama (RSA) in 2002.
At the heart of the scheme was an effort to significantly enhance the pension benefits for Bruce DeVane, who had worked as an investigator for Fuller when Fuller was district attorney for Pike and Coffee counties.
Here was the gist of the scheme: In 1999, DeVane was paid $80,307. But in 2000, as he approached retirement, DeVane's pay was almost doubled, zooming to $152,014. Since state-retirement benefits are based on earnings in the highest three years during the last 10 years of work, that huge increase would have raised DeVane's retirement pay by $1,000 per month.
DeVane was 49 years old at the time, and if he lived the average life span expected for a man of his age, retirement officials estimate this one-year pay boost would cost RSA about $333,000.
How badly did Fuller want DeVane to get his extra retirement pay? Evidently bad enough to lie under oath.
In a letter to the RSA dated January 2, 2002, Fuller stated that the extra $70,000 he paid DeVane in 2000 was for additional duties the DA had requested of DeVane "beginning January 1, 1997. The letter also says the DA's office did not have the money to pay DeVane for this additional work until 2000.
When Fuller testified before the RSA appeal board on December 4, 2002, he had a different story. The extra $70,000, Fuller testified under oath, was for additional duties DeVane performed in the year 2000 only.
Why did Fuller change his story? Weeks' affidavit makes it clear. "If the entire $152,014 was paid for work in 2000 only, it would have substantially increased DeVane's average salary--causing DeVane's retirement benefits to increase another $1,000 a month for an estimated 330 months, or $330,000. However, if Fuller had stayed with the story he told in his letter to RSA dated January 2, 2002, his buddy DeVane would have received less benefits because the RSA would have averaged the $70,000-plus over the years 1997, 1998, 1999, and 2000--lowering DeVane's final average salary for purposes of calculating benefits."
This all raises a fairly obvious question: Why was Fuller so determined to help DeVane get enhanced retirement pay?
Weeks' affidavit also shines light on that. On a trip to Alabama in February 2003, Weeks states that he heard that Fuller was frequently gone or out of state while serving as district attorney for the 12th Judicial Circuit. Sources told Weeks that Fuller rarely was seen in court, even though he served as DA for two counties, and he spent large chunks of time in Colorado.
Weeks asked the U.S. Senate for a copy of the questionnaire Fuller completed as part of his confirmation process to become a federal judge. The questionnaire revealed that from 1989 to the present, Fuller was chairman and CEO of Doss Aviation Inc., headquartered in Colorado Springs, Colorado. The firm employed 300 people at the time.
"While Fuller was (supposedly) serving as a full-time district attorney for two Alabama counties between 1997-2002, he appears to have also been serving as chairman and chief executive officer for a 300-employee company headquartered in Colorado," Weeks writes. "This seems remarkable."
The questionnaire stated that Fuller received $58,972.56 in non-investment income from Doss for the year 2000. "This suggests Fuller was doing substantial work for Doss while supposedly serving as full-time district attorney in Alabama," Weeks writes.
So who made up for the time Fuller was away, two-timing Alabama taxpayers? Evidently it was folks like Bruce DeVane. "If Fuller was frequently gone . . . instead of performing his full-time duties as an Alabama district attorney, this could explain why Fuller paid questionable compensation and questionable bonuses to key DA office employees," Weeks writes. "These employees may have covered for Fuller while he was frequently out of the DA's office."
Weeks cites U.S. v. Lopez, 222 F. 3d 428 (2000) to show that Fuller might have committed federal crimes in making improper payment to DeVane and possibly others. Lopez involved a defendant who was convicted of conspiracy to embezzle and misapply credit-union funds and conspiring to execute a scheme to defraud. "The scheme also involved paying certain employees what were called 'bonuses' that were in fact payoffs for staying quiet and covering up," Weeks writes.
The affidavit goes on to note that the DA's office under Fuller was having extreme financial difficulties at the same time Fuller was handing out substantial "bonuses" to DeVane. (Note: Scott Horton, of Harper's, has reported that Don Siegelman, as governor, asked for an audit on the DA's office where Fuller had served. This may have so enraged Fuller that he vowed to go after Siegelman.) "If Fuller's DA office was having financial difficulties, this would suggest that Fuller and DeVane were handling the DA office money for their own personal benefit, rather than for the benefit of the citizens of Pike and Coffee counties."
Finally, Weeks makes an intriguing point about the relationship between Fuller and DeVane, and the money that changed hands between them. "Any investigation of Fuller should also determine whether DeVane, who made his living investigating people and their crimes, had anything on Fuller. If so, this would explain why Fuller did so much to put so much public money into DeVane's pockets."
This all raises the question we asked in an earlier post: Does Mark Fuller sound like the kind of person who should be in a position of public trust?