A federal jury has acquitted a guard at the Atlanta federal penitentiary of graft and trafficking in contraband, apparently unconvinced that his was the voice on covert recordings made by the inmate who had reported him.
The jury deliberated less than a day before acquitting Kenneth Holsey—who has worked at the Atlanta penitentiary for more than 22 years—of all charges, said Kenneth Glenn, one of Holsey’s two attorneys. Jonesboro attorney Michael King was lead attorney on the case.
If convicted, the 45-year-old Riverdale prison guard could have faced as much as 15 years in prison and a fine of up to $250,000. He was suspended and assigned to "home duty"—where an officer stays at home for what would normally be an eight-hour shift—last year after federal investigators accused him of supplying inmate Jonathan Middlebrook with a contraband cellphone and then lying about it.
Glenn said the Bureau of Prisons has not yet reinstated Holsey, despite his Jan. 17 acquittal.
The jury reached its verdict—which also included an acquittal on a charge of making false statements to a U.S. Justice Department investigator—after Holsey testified that it was not his voice on audio recordings Middlebrook made in cooperation with federal authorities. The trial took place a month after Holsey was indicted, a result of his lawyers’ demand for a speedy trial.
Middlebrook recorded four conversations he claimed were with Holsey—three in which he attempted to buy a contraband cellphone and several ounces of marijuana, according to unofficial trial transcripts. Middlebrook, serving 24 years for bank robbery, began cooperating with officials to prosecute Holsey after being caught in 2011 by another corrections officer with a bootleg cellphone. He identified Holsey as his source, Glenn said.
"One of the big issues at trial was who was going to identify Mr. Holsey’s voice on behalf of the government, and, basically, it came down to Middlebrook," Glenn said.
The defense lawyer said Middlebrook’s audio recordings were suspect because the three tapes that included incriminating statements attributed to Holsey were not bolstered by video and rested largely on Middlebrook’s identification of Holsey as the speaker. "It was supposed to be him. But I could clearly tell it wasn’t him," Glenn said. "It was always apparent to us the voice [on the tape] did not match [Holsey's] at all."
First Assistant U.S. Attorney John Horn said prosecutors recognized that convincing a jury that Holsey was guilty "was going to be an uphill battle" because it rested largely on the word of an inmate against a prison officer. "We don’t believe our case was lacking in evidence," he said. "We respectfully differ with the final decision of the jury."
Horn said that in the last 18 months, at least four prison guards and one civilian have pleaded guilty to charges associated with smuggling contraband into prisons. But he told the Daily Report some smuggling cases brought against prison guards have resulted in acquittals. "These cases are incredibly difficult because you are taking the word of an inmate against a sworn law enforcement officer," he said.
In Holsey’s case, prosecutors relied on Middlebrook, a bank robber and forger who has used more than seven aliases, at least five fake dates of birth and multiple Social Security numbers, as their chief witness.
Jurors were faced with a choice: believe Middlebrook, whom King described as "a master con man," or Holsey—a veteran corrections officer with exceptional performance evaluations who said he often read the Bible and shared passages of Scripture with Middlebrook, according to the transcripts.
The investigation that led to Holsey’s trial began with the seizure in 2011 of a cellphone from Middlebrook. He acknowledged when he testified at Holsey’s trial that he also had been running a contraband operation inside the prison that supplied bootleg cellphones, heroin, cigarettes and marijuana to other inmates.
After a corrections officer caught Middlebrook with the contraband phone, the bank robber—concerned that he might be transferred to a prison out of state, or lose commissary privileges or "good time," which would have shortened his sentence—said when he testified that he offered up Holsey as his supplier, according to an unofficial transcript.
Middlebrook explained that Holsey had agreed to provide him with a phone because over several years the two men had developed a cordial relationship. "I would kid with him, sit with him, eat with him," Middlebrook said. "We talked about any and everything. We got real close with each other. … He trusted me and I trusted him."
Middlebrook said that during those conversations, he began "hinting" that he wanted a cellphone and that Holsey eventually agreed. Middlebrook said his girlfriend met Holsey at a gas station across from the prison and paid him $300 to smuggle the cellphone inside.
Middlebrook also told the jury that after he was caught he agreed to wear a wire while engaging Holsey in conversations about smuggling contraband. But only one of the four recorded conversations was videotaped, and prosecutors acknowledged that Holsey said nothing in the video recording that implicated him in smuggling contraband.
In the three other recordings, a voice Middlebrook identified as Holsey’s cited a price for smuggling contraband, said he needed the money "up front" and asked for Middlebrook’s girlfriend’s phone number. But no corroborating photo evidence showed Holsey and Middlebrook in conversation.
Glenn said that prosecutors also never conducted a voice analysis of the recording to back up Middlebrook’s identification. First Assistant U.S. Attorney Horn said that is not unusual in federal cases based on wiretaps or other covert recordings.
At trial, the DOJ investigator who handled the probe backed up Middlebrook’s contention that he had recorded Holsey, saying he had reached that conclusion after interviewing Holsey and then listening to the recordings.
Prosecutors were never able to link the cellphone seized from Middlebrook to Holsey because—in violation of prison policies—the Bureau of Prisons destroyed it, Glenn said. Instead, prosecutors used a photo of the phone taken shortly after it was seized as evidence.
Prosecutors did not call Middlebrook’s girlfriend as a witness, although she was on the witness list. Assistant U.S. Attorney Nekia Hackworth, who prosecuted Holsey, acknowledged during her closing argument that Middlebrook’s girlfriend was unable to identify Holsey as the man she had paid to smuggle the cellphone to Middlebrook. Hackworth explained to the jury that the girlfriend "had never seen this man before and was nervous and anxious" when making the alleged payoff. "That’s why she couldn’t make an identification."
While cross-examining Middlebrook, defense attorney King noted that the inmate’s girlfriend also had told a federal investigator that Middlebrook had "told her to lie" and claim she had twice met Holsey.
When Holsey took the witness stand, the veteran corrections officer told the jury that he had never attempted to smuggle in contraband, that he had never discussed smuggling contraband for Middlebrook and that he had never met Middlebrook’s girlfriend or sought a way to contact her.
"I have never brought anything into the penitentiary to give to inmate Middlebrook in exchange for anything," he said. "I never gave Middlebrook a dime."
He acknowledged that he was the man in the single video recording Middlebrook had made, explaining that Middlebrook had been waiting for him as he was leaving for home and attempted to ask him about buying a house or investing in real estate. In addition to being a corrections officer, Holsey also works for real estate firms. But he said he had "no idea" whose voice was on the three audiotapes Middlebrook had recorded.
Under cross-examination, Holsey testified, "I have no relationship with inmate Middlebrook," while acknowledging, "We, as correction officers, have to have some form of rapport with inmates. … I just think that I’m a very welcoming person, and I just listen to the conversations."
When Hackworth accused him of lying to federal investigators after Middlebrook identified him as the supplier of the contraband cellphone and lying to the jury on the stand, Holsey replied, "Of course not. … I never brought a cellphone in to Jonathan Middlebrook."
Hackworth attempted to corroborate Middlebrook’s identification of Holsey with independent information that he was working in the prison unit where Middlebrook was housed when Middlebrook made his recordings. She argued that Holsey had taken a vacation around the time the recorded voice discussed going on and then returning from vacation; that the recorded voice—like Holsey—said he owned a Jeep Cherokee, and that Holsey drove a green Ford Explorer like the one driven by the man Middlebrook’s girlfriend had paid.
But Holsey told the jury that although he owns a Jeep Cherokee and an Explorer, his Explorer was black and he had never owned or driven a green Ford Explorer. At one point, the voice on one of Middlebrook’s tape recordings mentioned a sick mother. Said Holsey: "My mother has never been sick. My mother is actually in the courtroom."
King told the Daily Report that the case should never have gone to trial. "There was no evidence in the records showing he [Holsey] had committed those acts alleged in the indictment. … There was no evidence of bringing any contraband into the prison system. … There was no evidence identifying my client as one of the speakers during the alleged conversations. My position was the inmate went and got another inmate to pretend he was my client, and the FBI and prosecution fell for that scam."
"What they were relying on were alleged recorded conversations between my client and a prison inmate," he continued. "The jurors told me they listened to the tapes and they did not believe my client was one of the speakers."
King said the case has been "an emotional, tragic experience" for Holsey. "Nobody should go through that… unless a prosecutor has sufficient evidence to present to a criminal jury," he said.
The case was U.S. v. Holsey, No. 1:12-cr-391(N.D. Ga.).