The defense team for Columbus attorney Mark Shelnutt took two avenues Tuesday trying to persuade U.S. District Judge Clay Land to dismiss the 40-count indictment against their client.
Land ruled against Shelnutt on his requests to have all but two of the individual charges dropped. That prompted the defense to turn its attention to a motion that would wipe out the entire indictment.
Land heard more than five hours of testimony from federal agents, an assistant U.S. attorney and others as Shelnutt’s attorneys from Gillen, Withers & Lake LLC of Atlanta and Savannah tried to make a case of “outrageous governmental misconduct” in the nearly three-year investigation and ensuing indictment of the local criminal defense attorney.
No decision on that motion was reached and the hearing will resume at 10 a.m. in the federal courthouse in downtown Columbus.
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Shelnutt faces charges that include aiding and abetting a conspiracy to distribute cocaine, money laundering, witness tampering and attempted bribery. The charges stem from Shelnutt’s relationship with convicted drug dealer and former client Torrance Hill.
Two of the charges Shelnutt’s attorneys, Thomas A. Withers and Craig Gillen, tried to have dismissed individually involved Shelnutt making false statements to FBI Special Agent Todd Kalish.
“The defendant’s arguments relate to deficiency of evidence, and that will be heard at trial,” Land said.
The judge asked the prosecution to file an amendment to make it clear what crime Shelnutt is accused of committing in two of the charges of failure to file financial forms with the IRS.
“The court does think the government should make it absolutely clear that the proceeds were received solely from or on the behalf of Torrance Hill,” Land said.
Much of Tuesday’s testimony revolved around Shelnutt’s motion to dismiss the indictment because of “outrageous governmental misconduct.” While Shelnutt was representing Choici Lawrence on Superior Court drug charges in Harris County, he met with Assistant U.S. Attorney Jason Ferguson and Kalish, who was assigned to the Columbus FBI field office, on Feb. 28, 2008.
The nearly four-hour meeting was recorded by Shelnutt and the assistant U.S. attorney, as was a 20-minute phone conversation between Ferguson and Shelnutt one day earlier.
At one point, according to testimony, Shelnutt was led to believe by Kalish that the recording devices were off. But the government’s recorder continued to function. At some point, Kalish said, ‘It’s just us talking.”
“He knows it’s not just ‘us talking’ ... especially since he is an experienced criminal defense attorney,” Land said. “I am here with a U.S. attorney and an FBI agent, and we are just shooting the breeze. That is not reasonable, if that is the argument.”
One of the issues was if the assistant U.S. attorney was obligated to inform Shelnutt whether he was the target of a federal investigation when Shelnutt asked.
Near the end of the phone conversation, Shelnutt asked whether he was a target. Ferguson said he could not disclose that one way or the other.
Shelnutt’s attorneys contended that Ferguson, who at the time knew Shelnutt was a target, should have disclosed that.
“That conduct, even if it is true, is not sufficient to support the drastic remedy of dismissing the indictment,” Land said.
Land did take exception to the fact that Ferguson at one point told Shelnutt he was not recording a conversation when he was. Ferguson defended the decision to mislead Shelnutt because his boss told him it was “not to be disclosed.”
Land responded abruptly, “How are you any different from the snitch you put a bug on and send into a drug house?”
Drug Enforcement Agency Special Agent Steve Ribolla drew the harshest questioning from Withers.
Ribolla, who is no longer working in the Columbus DEA office, was heavily involved in building the case against Shelnutt. He was questioned about playing a portion of a tape recording of Shelnutt for Hill, the convicted drug dealer Shelnutt represented.
“I don’t think we ever told him he lied to him,” Ribolla said of a conversation with Hill about Shelnutt. “But I think he thinks he lied to him. ... We played the truth and let him make his own decision. We played Mr. Shelnutt’s own words.”
After that line of questioning, Land asked the defense, “What is it Ribolla did that is so outrageous the indictment should be dismissed?”