[CPProt.net] Ex-Cosmosphere chief wants evidence tossed

[Ellie Bruggeman]

Ex-Cosmosphere chief wants evidence tossed

BY RON SYLVESTER
The Wichita Eagle

On Monday, Max Ary, founder and former chief of the Kansas Cosmosphere &
Space Center, will go to the federal courthouse in Wichita and ask that
much of the criminal case against be him be thrown out.

In documents submitted to U.S. District Judge Thomas Marten, Ary claims
that authorities illegally searched his home nearly two years ago and that
prosecutors used private communications with his lawyer to compile their
criminal case against him.

At Monday's hearing, Ary's lawyer will ask that all of the evidence
gathered during that raid be thrown out.

The government, meanwhile, says it's prepared to defend the search and
denies it violated Ary's attorney-client privilege.

Ary faces 19 charges including wire and mail fraud, embezzlement of public
funds and money laundering.

Complicating his criminal case is the fact that Ary has brought civil
suits against the Cosmosphere and the company that insures the attraction.

In a federal suit filed earlier this month, Ary claims the
Hutchinson-based Cosmosphere wrongly withheld more than $300,000 in wages,
retirement benefits and personal property.

He also brought a federal suit against an insurance company, who he says
should pay for his defense.

Marten is also the judge in Ary's suit against the Cincinnati Insurance Co.

Ary is arguing that the Cosmosphere bought the policy to cover the
museum's director against allegations of misconduct.

The insurance company has refused to pay. Ary has asked Marten to enforce
the policy as a ruling of law, without having to go to trial.

A spokeswoman for the Cosmosphere last week said the space center had no
comment on either suit. Jeff Ollenburger, the current director, was out of
town last week.

The contentions in the insurance lawsuit strike at the core of Ary's
defense in the criminal case.

His lawyer, Lee Thompson, has argued in other documents filed in court
that a dispute between Ary and the Cosmosphere's board of directors over
his contract led to accusations that resulted in the criminal indictment.

Thompson, who represents Ary in all three cases, began working for the
Cosmosphere's former chief a month before the federal raid in 2003.

Ary left the Cosmosphere in 2002 after 26 years. He started the science
museum as a part of Hutchinson Community College in 1976 and helped build
it into the second-largest space museum in the U.S.

Soon after resigning in Hutchinson, Ary became director of the Kirkpatrick
Science and Air Space Museum at Omniplex in Oklahoma City, where he is
currently on leave.

In November 2003, Ary saw an article in The Eagle about an FBI
investigation into claims of missing artifacts at the Cosmosphere. Ary
hired Thompson.

In a letter dated Nov. 13, 2003, to U.S. Attorney Eric Melgren, Thompson
said Ary had been in a contract dispute with the Cosmosphere's board.

Thompson claimed some board members had made the accusations as a way of
"stirring the pot" to gain an advantage in personnel negotiations.

The letter also told Melgren that Ary maintained a private collection of
space artifacts at his home.

On Dec. 18, 2003, federal agents showed up at Ary's Oklahoma home with a
search warrant.

Thompson now says that the agents gave a judge false and misleading
information to obtain a warrant so vague it allowed them to go in and take
what they wanted.

Thompson contends that agents went in to search for property belonging to
the Cosmosphere but ended up with artifacts that belonged to Ary's private
collection. Thompson writes that agents seized property that was not
tagged and identified appropriately for the Cosmosphere.

Among the items:

• A mission chart autographed by Gene Cernan, among the last astronauts to
land on the moon with Apollo 17.

• A mission patch autographed by the crew of Apollo 13.

• Rolls of film from Apollo 13 and 16 missions.

• Fifty-four autographed photos of astronauts.

• A space boot from the Gemini program.

Prosecutor Deb Barnett has argued that just because the artifacts weren't
numbered doesn't mean they don't belong to the Cosmosphere.

For example, a person who ran the museum's collection for years could
determine if an artifact, numbered or not, was part of the Cosmosphere's
collection or merely maintained on the premises, Barnett wrote in a
pleading.

Thompson said the agents came away with more than they were entitled to --
including a black box and computer files that included privileged
communications between him and Ary.

Those documents, which Thompson said were meant for his eyes only, have
now turned up as evidence in the government's case.

"It is abundantly clear that the investigatory efforts of the government
relied heavily on the information prepared by defendant for his attorney,"
Thompson wrote in a court memo.

Barnett says Ary and his lawyer had plenty of opportunity to speak up, but
didn't until this summer. Thompson filed his objection in July.

"The United States is concerned that this was a tactical decision by the
defense to create the appearance that the United States improperly
obtained and retained the materials," Barnett wrote in her argument to the
court.

Barnett said the government's investigation isn't tainted. Prosecutors who
aren't involved in the case searched through evidence first, separating
anything that might be privileged communications between Ary and his
attorney. The government returned computer files to Ary's lawyer on a disk
and later gave him back his computer.

"The government in this case has been far more diligent about protecting
the defendant's attorney-client privilege than the defendant or his
counsel has been," Barnett wrote.

Ary's criminal trial is set for Oct. 18.

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