Yuma father expresses concern in son's federal trial

Yuman Robert Kelley says he is hoping for the best but expecting the worst in the federal trial of his son, a former Wyoming Air National Guardsman who was assigned in 2007 to help construct the border fence along the Arizona/Mexico border.

"I'm optimistic, but I just don't understand how the case ever got to this point. I don't think he did anything wrong," Kelley said. "Now he is facing a possible felony conviction, possible jail time, a possible monetary fine and an unknown amount of probation."

The trial got under way Monday morning in U.S. District Court in Tucson. A conviction of theft carries a maximum penalty of 10 years in prison, a $250,000 fine, or both.

"The government is ready to proceed to trial and the matter will be placed in the hands of a judge and a jury of his peers," said Wyn Hornbuckle, public affairs coordinator for the U.S. Attorney's Office, District of Arizona.

Kelley said his son, Master Sgt. Robert J. Kelley, who is now retired, but spent 28 years with the Wyoming Air National Guard, has been charged with theft of government property for events that occurred during his deployment in 2007 to the Arizona border for Operation Jumpstart, which is the U.S. Department of Homeland Security's border fence project.

His son, Kelley said, was assigned to work on the construction of a section of the border fence along the international border between Mexico and the United States near Sonoita, Ariz.

Based on what his son has told him, Kelley said after working for 8-1/2 months on the project, his son was asked to take over the responsibility as the NCOIC "noncommissioned officer in charge" for the sector of fence he was working on.

"During the 11 months he had that responsibility, my son and the people working with him were able to triple the amount of fence constructed per month over that of the previous NCOIC," Kelley said.

While he was the NCOIC, Kelley said his son told him that he was asked several times by the U.S. Border Patrol and state park personnel to remove the scrap iron that was accumulating at the worksite.

Kelley said during two staff meetings with the Army lieutenant colonel in charge of the project and the NCOICs from the other eight sectors, his son asked what procedures were in place to dispose of the scrap iron.

"On both occasions (the lieutenant colonel) told my son and the other NCOICs that he would think it over and get back with them later," Kelley said. "He also remarked they were there to build a fence, not to clean up the scrap iron from the work sites."

Prior to his son becoming the NCOIC, Kelley said his son knew that the previous NCOIC was taking loads of scrap iron to a scrap dealer in Tucson, selling it and dividing the proceeds with the people on the crew.

After getting no direction from the lieutenant colonel in charge of the project, and knowing how the previous NCOIC disposed of the scrap iron, Kelley said his son decided that he and his crew would haul and sell the scrap iron themselves.

"The other alternative was to hire someone to do it, which would mean they would get the proceeds from the sale," Kelley said. "Instead they decided to use the proceeds for boosting crew moral and other project needs so they did it themselves."

However, the federal government, court records shows a different account of the events.

According to the criminal complaint filed against him, Kelley, while wearing his National Guard uniform and driving a government-owned dump truck, took at least five loads of scrap metal belonging to the government to Metal Management between Dec. 14, 2007, and March 7, 2008.

There, according to the complaint, Kelley sold the scrap iron and received five checks in amounts ranging between $1,046 and $2,265. 

The complaint also alleges Kelley, during that approximate time frame, deposited checks totaling $8,154 into his personal account.

"Kelley did not have permission from anyone in a position of authority to sell the scrap metal belonging to DHS, or to convert the proceeds to his personal use," the complaint states.

Kelley said his son told him that he even went so far as to ask the Border Patrol what do with all the scrap iron, which supposedly suggested selling it also. He said since Border Patrol was the agent for the Department of Homeland Security, and the U.S. Army was working for the DHS, when he was told to sell the scrap metal, that constituted permission.

The total proceeds of the sale of the scrap iron amounted to approximately $12,000 during the 11 months when he was the NCOIC of that sector of the border fence, according to Kelley, based on what his son told him.

Kelley added that his son also told him that he opened a checking account to deposit the money he made from selling the scrap iron, but that he did not use the money for anything that wasn't project-related.

Some of the things Kelley said his son told him he used the money for included new coveralls for crew members, tools, tires and repairs for rental trucks, car washes, plumbing parts for the water well, water pump parts, going-away parties when crew members left the unit, and ice-breaker parties for new unit members on the project.

According to the court records, Kelley's son used the money to buy items such as a semi-automatic pistol with night sights, an automatic garage door opener, a pair of cowboy boots, a 14-inch Makita electric saw, a 69-piece chrome socket set and a wet/dry shop vacuum.

By having this scrap metal account, Kelley said his son told him that he was able to keep his crew working, triple the production of the previous NCOIC, and save the project in excess of $250,000 in crew and equipment downtime.

Moreover, Kelley said at times the scrap iron account would run low on funds, and his son would write checks from his personal checking account to meet project needs. He would then repay his personal account when more scrap iron was sold. 

"My son has no formal training in accounting or bookkeeping and didn't think he needed to keep a complete accounting of these funds," Kelley said. "He had permission to sell the scrap iron and no direction on how to handle the proceeds. He did try to keep receipts for all the expenditures from the scrap iron account when he received them from his crew."

Kelley said when his son was informed that he needed to halt the sale of the scrap iron, he asked what should be done with the remaining money in the account, to which he was told to give it to a charity.

At the time, Kelley said his son told him there was $3,800 in the account. After repaying his personal account $1,300 that the scrap account owed him, Kelley said he wrote a check to the Sierra Vista Salvation Army for $2,500.

"My son said he was able to account for all but $600 to $800 of the scrap iron account," Kelley said.

Kelley said his son did spend $900 to buy a pistol prior to this, but that he used money that he was repaying himself for money he had taken from his personal account to keep the scrap iron account solvent.

An investigation into the scrap iron fund started after two fellow Guardsmen went to the FBI with their complaint rather than going up the military chain of command to stop any alleged misbehavior on the disposal of the scrap iron.

"The previous NCOIC also sold scrap iron and split the proceeds with the crew," Kelley said. "The two guys who brought the case have made statements that they have been given envelopes with money in the past."

Kelley said the other eight sectors of border fence were also supposedly selling the scrap iron so he is wondering why his son is the only one facing prosecution for doing it. He also questioned where the proceeds went from those sales, which he estimates being approximately $216,000.

The worst part of this whole ordeal, Kelley said, is that his son's federal public defender advised him that he should consider pleading guilty to the felony. His son instead offered to plead guilty to a misdemeanor, just to have the matter resolved.

Kelley said his son, in addition to having served 28 years, has received several medals for superior and above-average performance, and has been deployed throughout the world many times working on projects for the Air National Guard.

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James Gilbert can be reached at jgilbert@yumasun.com or 539-6854.