In the clear
Former water official prevails in multi-year criminal case
It was partly cloudy in Las Vegas—abnormally humid too—on May 10, 2011. The weather was perfect for the Las Vegas Metropolitan Police Department to send two SWAT teams down a northwest Las Vegas street. A police helicopter followed overhead.
They were on the chase for an alleged criminal facing several serious felonies.
Eight years later, the situation is recalled as a militarized version of the Keystone Cops.
“They showed up at my house with two SWAT personnel carriers and a dog team and probably a dozen people,” said Bob Coache, a retired Nevada water official who ultimately spent 16 months in prison. “I was not even home. My neighbors tell me stories of watching the two armored personnel carriers cruising down the street with SWAT guys hanging off the side—the whole nine yards, [including a] dog team in my neighbor’s backyard.”
The charges against him amounted to more than four dozen felonies, including extortion by a public officer, bribery, misconduct by a public officer, and money laundering. It was, according to the Clark County District Attorney’s office, an elaborate scheme.
Here’s how the Las Vegas Sun reported Coache’s arrest at the time: “Bret Whipple, who represents Coache, said ’there’s been a tremendous misunderstanding’ and that prosecutors have ’missed the mark.’”
“What happened here is a farmer, who used to use water to grow alfalfa, sold it to the Southern Nevada Water Authority,” Whipple told the Sun. “That’s what happened. There’s no theft.”
That was Whipple’s defense for Coache. He, and Coache’s other attorney, stuck to this defense all the way to the Nevada Supreme Court.
In July of 2019, the Nevada Supreme Court issued a relatively brief ruling: there was—despite this eight-year battle, the prison sentence that started in 2017 and multiple front-page headlines—little to no evidence for the felony convictions.
More than eight years later, Bob Coache was exonerated and, once again, a free man.
The last time I had spoken with Coache was nearly 10 years ago. At the time, I was the public information officer for the Nevada Department of Conservation and Natural Resources, the state agency that has within it the Division of Water Resources. DWR is the home to Nevada’s state engineer, the person who approves or denies water rights.
Coache was the deputy state engineer under then-State Engineer Tracy Taylor.
Coache is a tall, thick, no-nonsense guy with a dry sense of humor. He is also deeply knowledgeable about Nevada water law. We worked briefly together on some of the major Southern Nevada Water Authority (SNWA) water rights cases in the mid- to late-2000s. I did not know him well and never worked closely with him, but we were on a first-name basis.
Coache served on the panel of engineers and legal staff. Their job: weigh days worth of evidence, pro and con, on the water pipeline from White Pine County to Las Vegas.
A ruling on one of those cases in 2007 favored, with some restrictions, SNWA’s request to pipe water from hundreds of miles away.
A Las Vegas Sun columnist at the time, Nevada Independent Editor Jon Ralston, called the ruling murky. He wrote:
“Yes, [SNWA water chief Pat] Mulroy and the growth-first crowd are the big winners this week. But when it comes to what the consequences of those victories could mean, the state engineer has a simple answer. … He has no idea.”
That ruling, which was appealed and ultimately redecided—granting much less water—in 2018 was predicted in the mid-2000s to be the first in what would continue as a decades-long legal fight. Sure enough, the Las Vegas water pipeline battle continues through today.
Coache had been retired for about a year by the time he was arrested. I was surprised to hear the charges against him. I left DCNR for another state agency, so I only loosely followed his case. The last I heard, he was convicted in the alleged bribery scheme.
The case against Coache, and his co-defendant Michael Johnson, was complex and drawn out. Johnson, a hydrologist with the Virginia Valley Water District (VVWD), was alleged to have conspired in two water right transactions on the Virgin River.
A Mesquite-area businessman, John Lonetti, allegedly secured Johnson’s services as a private consultant for the sale of water rights between Lonetti, SNWA and VVWD. Coache allegedly aided in the process.
Las Vegas police’s original request to subpoena Coache’s bank records, prior to his arrest, noted that Coache may have “received some sort of financial incentive to approve [a water right] sale” affecting VVWD.
Coache, Whipple maintained, had nothing to do with the deal’s approval. He did not influence the approval of the water right transfer. He never communicated with anyone at the state—where he was still working when all of this transpired—about the deal.
Lonetti, who was not charged in the deal, sold the Virgin River water rights to SNWA for nearly $8.5 million.
Whipple said the state engineer did not rely on Coache for information about the water right transfer decision. And he had nothing to do with the granting of the permit. Nor did Coache receive any cash in the deal.
Even “Johnson testified that Coache had nothing to do with the granting of [a water right] permit,” Whipple said.
Whipple described the transaction as a win-win for both VVWD and SNWA. VVWD received more water and flexibility on how it could be used, while SNWA “was able to have the water go from the river into the lake [where] SNWA could draw it out [of] a pipeline from the lake saving a lot of money.”
Coache did, however, earn more than $500,000 in ownership interest of a piece of property co-owned with Johnson.
“The undisputed evidence at trial was that, in 2004, Johnson and Coache legally bought the [property] as an investment,” Whipple argued. “Coache owned 60 percent of the investment, and Johnson owned 40 percent of the investment.
“Johnson gave Coache $600,000 of the Lonetti payment that Johnson had placed into the Rio Virgin bank account. Coache then transferred his ownership share in [the property] to Johnson. … Only then, in May 2008, did Coache become an owner of Rio Virgin LLC.”
The pair wanted to use their cash to purchase real estate and stocks. Whipple said that Coache’s accountant had prepared “thousands of these returns and testified that Coache’s returns were typical.”
The land deal, they said, was a separate transaction from the water right deal. Clark County’s Chief Deputy District Attorney, Marc DiGiacomo, however, claimed it was an elaborate money laundering scheme.
The Las Vegas police department launched its investigation in 2010 with a grand jury subpoena.
“The case involves an allegation that in 2005 an appointed state employee (now retired engineer) … reviewed and approved a water rights purchase by Virgin Valley Water Authority in which the water authority and its members paid over $750,000 too much to a private seller for water rights,” wrote Colin Haynes with the Las Vegas Metropolitan Police Department. “The investigation centers on whether Coache received some sort of financial incentive to approve this sale.”
The problem, Whipple said: That’s not possible. Only the state engineer ultimately approves water right transfers, and the state has no role in approving water right sales. Sales are private-party transactions.
Coache said prosecutors nevertheless were able to secure the grand jury subpoena.
“They fabricated law,” Coache said. “They claimed that I approved a water rights sale for too high a price. They were able to get a grand jury subpoena based on an email that contained [nothing] that was against the law. Nobody in the state of Nevada approves water rights sales.”
Court documents show testimony by Metro detectives who had little knowledge of Nevada water law.
“He did not even know if this case was about groundwater or surface water,” Coache said of one of the detectives involved in his prosecution.
Whipple called the government’s case against Coache malicious.
“The prosecution failed to present sufficient evidence to convict Coache for any of the crimes for which he was charged,” Whipple argued. “They truly made up evidence and information to get the subpoenas. At worst, there was conflicting evidence at trial that prevented the jury from finding Coache guilty beyond a reasonable doubt.”
The Clark County District Attorney’s office did not respond to a request for comment for this story.
Ultimately, Coache was offered a plea deal, which he refused. Ignorance of Nevada water law, he maintained, should not lead to criminal convictions, especially when he said he had done nothing wrong.
“I refused to plead guilty to something I did not do,” he said. “We ended up going to trial. We never could get a favorable ruling from the judge.”
A jury also ruled against him.
How did it get that far? Edwin Brown, Coache’s attorney in front of the state Supreme Court, gave this answer: “This water law is very complicated,” he told the judges. “There’s no doubt in mind that this jury … did not understand the law and therefore relied upon the prosecutor to tell them what the law was .”
Former state engineers, who had been Coache’s supervisors, each testified that Coache did not have the power to do what he was alleged to have done, Brown argued.
Conflicts of interest
Coache had worked as a consultant while working for the state. Court records reveal that his outside consulting activities had been a source of potential concern for the Division of Water Resources for years.
He said that those activities were kept separate from state his work. Records show that he had been warned internally, and at one point state officials had an ethics panel consider his external employment for possible conflicts.
While dodgy in appearances, running a side business while a state employee is not uncommon. Employees are required each year to divulge any potential conflicts of interest with outside employment.
In Coache’s case, it was the appearance of a conflict of interest that generated concern for the prosecution.
“The court allowed into evidence an 11-year-old state engineer office memorandum … stating Coache was interviewed because of concern regarding his outside consulting work,” Whipple said. “Coache identified his clients and stated that he had been above board in his outside work and maintained separation between those activities and his state engineer work. [The] ethics panel did not see any conflict with Coache’s activities.”
The state Supreme Court did indicate Coache’s actions could have been unethical.
“Although Coache’s conduct may have been unethical and constituted self-dealing, we are not convinced that a rational juror could reasonably find, beyond a reasonable doubt, that Coache committed the charged offenses based on the evidence presented at trial,” the three judges ruled.
They reversed his conviction.
Johnson’s case is still winding its way through the legal system. A civil case was settled with the VVWD, in which some of the water rights were returned in addition to a cash settlement.
Now that he’s been exonerated, Coache said he plans to attempt to recover some of his costs. A new Nevada law will only be marginally helpful to him.
“Effective October 1, [2019,] I’m eligible to apply for money that the legislature just put in statutes for … wrongful prosecution,” he said. “I can get $50,000 a year for being in prison, $25,000 a year for being on parole, and $25,000 for attorney’s fees, which, of course, is an embarrassment to the system of what an attorney costs to do these things.”
All told, Coache said he will be petitioning the state for $200,000 under Assembly Bill 267, which went into effect last year. He is also considering other legal options. He recently received an agreement with Las Vegas Metro Police to return his assets, including cash plus interest, seized from him in 2011.
He said the process has permanently changed him.
“It’s part of my life now,” he said. “People want to whine and bitch about their lives. Go spend 30 days in solitary confinement. Your view will change quite a bit.”
Whipple, who also successfully defended Cliven Bundy against federal prosecutors, said Coache’s case is a warning.
“It shows how dangerous the process can be when people are not fair,” he said. “There’s a tremendous amount of power on the side of the state, between … law enforcement and the district attorney’s office. They have so substantial an amount of power.
“When they intentionally choose to use that power in a way that the only thing that matters is winning, then the process can be turned upside down,” he added. “In my mind, that’s what happened. It was a horrible injustice.”
The news media glommed onto Coache’s case for years. There were repeated front-page stories showing him shackled and in prison garb.
Once tried and convicted, the media went silent. Once exonerated, the silence continued.
Jeff German, an investigative reporter with the Las Vegas Review-Journal, covered Coache’s case. When asked about why there was no follow-up on the Nevada Supreme Court ruling, he said he was busy with other stories.
“I’ve moved on from that case,” he said. “My plate is full [of] other stories.”
Barbara Ellestad, who was publishing an independent news website during the time, wrote numerous articles about the Virgin Valley Water District case. She later became a board member on the Virgin Valley Water Board, only to resign in 2018.
Her dual role as journalist and board member came into question while she served on the board. News reports raised concerns about a conflict of interest. Ellestad now works for the Mesquite Local Citizen.
The most recent report found on the Ellestad’s website mentioning Coache is from July 18, the day before the Nevada Supreme Court ruled in his favor.
“Johnson and Coache were later convicted in a criminal trial and sentenced to almost three years in prison,” she reported.
In 2015, while serving on the VVWD board, she wrote in the Mesquite Local News: “As Editor/Publisher of the Mesquite Citizen Journal, I wrote numerous articles about the Virgin Valley Water District civil lawsuit from its beginning in 2011. It’s only fitting to write one more article detailing its conclusion.”
When asked recently about Coache’s case, and his exoneration by the Nevada Supreme Court, Ellestad said she was uncomfortable answering questions.
“I can see where this is going, so I’m not going to talk with you,” she said before hanging up the phone.
Except for the Nevada Today news website, there has been no mention in the news media of Coache’s exoneration by the Nevada Supreme Court.
Walter Pavlo, author and expert on white collar crime, recently penned an essay in Forbes about the news media’s role in convictions.
“When a government organization makes an allegation of a fraud or a crime, it gives the press free reign to write exactly what they put in the indictment,” he said. “That should be taken as a great responsibility on behalf of the government. If the person is exonerated or found not guilty, you can’t undo the damage that’s been done.”
The news media, he said, aids in that process.
“Not guilty or a reversal is really seen as somebody who got off on a technicality,” he added, not as the prosecution being wrong in the first place. “The media allows the prosecutors to walk away without consequence.”
Whipple said lack of news coverage about Coache’s exoneration is highly unfortunate, because, legally, cases such as Coache’s are incredibly rare.
“I’ve seen cases reversed for error,” he said. “But not because there’s no evidence.”