The attorney for a Basalt business owner accused of hacking a competitor’s computer system lambasted Wednesday’s move by the district attorney’s office to drastically lower the level of felony he faces, saying it is the latest example of prosecutors overcharging defendants.
Gregg Mackey, the head of Red Eagle Roofing, had been charged with a class 2 felony known as computer crime, which his attorney, Ryan Kalamaya of Aspen, said is the equivalent of charging someone with attempted murder.
On Wednesday, during what was supposed to be a preliminary hearing in which a judge decides whether to bind someone over for trial, deputy district attorney Matt Barrett told Judge Chris Seldin that Mackey is still charged with felony computer crime but at the class 5 level. The difference is huge: The class 2 count means authorities initially believed Mackey’s alleged actions — he has pleaded not guilty, and a trial is set for July — cost the competitor more $5 million in losses; the new level puts the alleged loss at $5,000 to $20,000. It led to the cancelling of the preliminary hearing, which are reserved for higher-level felony cases.
“I think this DA’s office is falling into the habit of shooting first and aiming later,” Kalamaya said after the hearing. “People in Pitkin County deserve better than the DA filing charges and then reducing or dismissing them. Our client was overcharged from the beginning, and that is a problem.”
Kalamaya, who blamed the turnover in the Aspen DA’s office, also represented an Aspen bartender who had been charged with cocaine distribution. The case was dismissed completely on Jan. 16. Kalamaya at the time derided the handling of that matter as well.
His client “was disappointed that he was arrested, taken to jail, forced to pay a $10,000 bond, advised in court, have a newspaper article written about him portraying him as a drug dealer and then have it dismissed summarily without any explanation or apology,” Kalamaya said in January.
District Attorney Jeff Cheney on Wednesday defended both decisions, saying they were based on additional evidence coming to light as his office continued to investigate — something prosecutors and the office’s investigators are ethically bound to do, he said. The charge against a fellow defendant in the roofing case, Richard Acerra, was also reduced from a class 2 felony to class 5. Two new misdemeanor counts were added for both men.
But Kalamaya noted that, in Mackey’s case, authorities were first told of the allegations in August but that he wasn’t charged until last month, ample time for a thorough investigation.
“And what has changed since January?” he said.
Cheney said part of the decision was based on new evidence about what the alleged loss was, but also because more experienced prosecutors were looking at the case. The charge was filed by former deputy district attorney Sarah Oszczakiewicz, who left the office last month to work in private practice.
“The more experience and trial work prosecutors have, the more experience they have to make charging decisions,” Cheney said. “I don’t want to criticize Sarah, she made an independent decision. Also, more things came to light after Sarah filed the charges.
“Could that have been discovered last year? Possibly,” he continued. “We dug in deep on that [evidence] in the last few weeks, and things did change somewhat on the probable cause to believe what had happened.”
The inquiry into Mackey, 49, and Acerra, 51, began on Aug. 10, when Trevor Cannon, the owner of Umbrella Roofing, met with Brad Gibson, chief of investigations at the Pitkin County Sheriff’s Office. Cannon said Red Eagle Roofing accessed his company’s software to underbid Umbrella on construction jobs. This was allegedly done by Acerra, who told The Aspen Times last month that he was acting under Mackey’s orders.
A former employee of Red Eagle Roofing who took a job with Umbrella Roofing showed Cannon a photo of a Red Eagle computer screen with “Umbrella Roofing’s [computer] program running” on it.
According to this employee, Acerra told him that, for any address that was looked at for a bid, he was to cross-check it with Umbrella’s computer system to see if the latter was also bidding on the job.
The employee “said Acerra told him to undercut Umbrella Roofing’s bid by 7 percent,” Gibson wrote in Mackey’s arrest warrant. According to the employee, when he showed Mackey what Acerra had allegedly instructed him to do, Mackey replied, “Oh man, we don’t do that! That is not right! I don’t do things like that … I’ll make sure that’s fixed, and I don’t believe that’s happening.”
A search warrant executed on Red Eagle Roofing’s office revealed “13 records with obvious connections to Umbrella Roofing,” the warrant says.
Cannon estimated that his company lost, because of the alleged hack and underbidding, nearly $5.5 million.
But Cheney said as evidence continued to be gathered, “it illuminated, I think, particular evidence in regards to the value of the loss. The evidence has chipped away against that, and it’s not as great” a loss as authorities once thought.
Most theft cases are charged based on that value, “and again, we have to do the right thing,” Cheney said. “We have to be ethical. We’re consistently analyzing that evidence, and I can’t say that the case won’t change again.”
Because of the new, lowered felony level, Judge Seldin reduced Mackey’s bond from $25,000 to $2,500.
Since Mackey’s arrest, Kalamaya said his client has lost a substantial amount of business. Mackey denies “any criminal conduct and is looking forward to fully clearing his name,” he said.