U.S. District Judge Clay Land denied all defense motions Wednesday to dismiss the drug, money laundering and other charges in a 40-count federal indictment against Columbus attorney Mark Shelnutt.
That paves the way for Shelnutt, a criminal defense attorney and former Muscogee County assistant district attorney, to face trial beginning Sept. 8 in Columbus.
Shelnutt’s attorneys asserted in a two-day hearing that the indictment should be dismissed because of “outrageous governmental misconduct.”
Before his ruling, Land said the conduct would have to be extreme to warrant what he repeatedly called “the ultimate sanction.”
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“It would have to violate ultimate fairness and as one court said, be shocking to the sense of justice,” Land said.
Although testimony showed an assistant U.S. attorney and FBI agent misled Shelnutt about recording a conversation, that did not justify throwing out the indictment, Land said.
Shelnutt’s attorneys tried to get the interview in question suppressed. Land also denied that motion.
“It’s fantasy to suggest an experienced criminal defense attorney sitting in a meeting with an assistant U.S. attorney and an FBI agent would think ‘this is just between us,’” Land said.
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.
It was that relationship with Hill, now a key prosecution witness against Shelnutt, that was the subject of much of Wednesday’s testimony.
At the end of the hearing, the defense raised an issue that will likely come up again during a July 27 pretrial conference and during the trial.
Defense attorneys argued that assistant U.S. attorneys Charlie Bourne and David Stewart should be taken off the case because they could likely be called as witnesses on an issue that is “at the heart” of Shelnutt’s defense.
In April 2008, Bourne and Stewart were in a room with Drug Enforcement Agent Steve Ribolla and a U.S. Marshal when a portion of a taped conversation with Shelnutt was played for Hill, who was in Macon, Ga., to testify in front of the grand jury.
Bourne and Stewart’s involvement in that meeting came out in court Wednesday.
“That is a key part of the defense, what happened when the government went to Mr. Hill to try and flip and turn him against Mr. Shelnutt,” Shelnutt’s attorney Craig Gillen said. “We know now that two prosecutors were in that room and we need to have them as witnesses.”
Stewart defended the action.
“Lawyers interview witnesses,” he said. “Just because a lawyer is present doesn’t mean they need to become a witness.”
Land, in denying the motion to take Stewart and Bourne off the case, made it clear that the prosecution should have a “Plan B” ready should it become necessary for Bourne to testify.
Bourne and Stewart, both out of the U.S. Attorney’s office in Augusta, Ga., are special prosecutors in the case.
It became necessary to move the prosecution out of the Middle District U.S. Attorney’s Office when Mel Hyde, an assistant U.S. attorney based in Columbus, became part of the case. One of the charges against Shelnutt is that he attempted to bribe Hyde with tickets to a University of Georgia football game in 2007.
Hyde was one of the witnesses who testified Wednesday.
During his testimony, he discussed an October 2008 death threat from Hill against Hyde and Shelnutt.
Shelnutt’s attorneys said their client was not offered the same federal protection that Hyde received.
They also said the federal authorities were under pressure to determine the threat was not credible.
“If the threat is credible, then the case against Mr. Shelnutt is largely destroyed,” Gillen said. “If that death threat is credible, then Mr. Hill’s deal and his testimony against Mr. Shelnutt goes away.”
Contact Chuck Williams at 706-320-4485