Judge Blasts U.S. Attorneys' Pursuit of High-Profile Defense Lawyer

Judge Blasts U.S. Attorneys' Pursuit of High-Profile Defense Lawyer
R. Robin McDonald

12-21-2009

A federal judge in Columbus, Ga., has slammed federal prosecutors for making "sweetheart plea deals" with drug dealers to further their "relentless pursuit" of a criminal defense attorney whose trial ended last month when a jury acquitted him of drug conspiracy, attempted bribery and money laundering charges.

U.S. District Judge Clay D. Land issued his harsh criticism of the U.S. Attorneys' Offices for the Middle and Southern Districts of Georgia in an unusual 19-page order explaining why he more than doubled the recommended prison sentence of a federal witness who testified against Columbus lawyer J. Mark Shelnutt.

Land suggested that the judgment of the U.S. Attorney's Middle District office in Macon, Ga., which oversees federal prosecutions in Columbus, "may have become clouded by its zeal to bring down a prominent defense attorney."

"The Court became concerned that the focus of the U.S. attorney's office was on getting a high-profile lawyer and negotiating sweetheart plea deals with the actual drug dealers to accomplish that," Land wrote.

The U.S. Attorney's Office in Macon initiated the Shelnutt investigation when it was headed by F. Maxwell Wood, who stepped down July 31 and is now running for the Republican nomination for state attorney general.

Citing a conflict of interest, Wood's office turned the Shelnutt investigation over to federal prosecutors in the Southern District in Savannah more than a year before Shelnutt was indicted. But Land made it clear in his order that the Middle District, despite its recusal, continued its involvement in the Shelnutt investigation, in part, by "its continued representation of the government in the cases against various co-conspirators who testified against Shelnutt pursuant to cooperation agreements negotiated by the Middle District attorney's office."

Land held top management at the U.S. Attorney's Office in Macon responsible for "the zeal" with which federal authorities pursued Shelnutt.

"The Court also points out that it did not perceive the Assistant U.S. Attorney who was on the front lines in the present case as a rogue assistant making these significant decisions on his own, but instead as an inexperienced front-line soldier following orders from his experienced supervisors who were approving these decisions," Land noted in his order, which was issued Monday.

The judge also pointed out that statements by prosecutors at hearings make clear that the decision to make extraordinarily lenient plea deals for drug dealers in return for their testimony against Shelnutt "went to the highest levels of management" within the U.S. Attorney's Office.

Land said he issued Monday's order to explain his decision last week to reject federal prosecutors' sentencing recommendation for Shawn Bunkley -- a lieutenant in a drug ring that was broken up in 2005 after what federal authorities and local police touted as the biggest drug bust in Columbus' history. Land has presided over the pleas of many of the drug ring's members as well as Shelnutt's trial. Shelnutt, before his indictment, represented the drug ring's ringleader, Torrance "Bookie" Hill.

INDICTMENT AND ACQUITAL

Last May, a federal grand jury handed down a 40-count indictment against Shelnutt, charging him with conspiring to launder and then laundering more than $40,000 in illicit profits from his client's drug sales that were paid to him as legal fees. The grand jury also charged Shelnutt with aiding and abetting a drug conspiracy, making false statements to an FBI agent, two counts of failing to file an IRS tax form required for all cash transactions over $10,000, witness tampering and attempting to bribe a federal prosecutor with the offer of selling two University of Georgia football tickets at face value.

Before the jury heard closing arguments, federal prosecutors dismissed the witness tampering charge, the two IRS reporting charges and one of the false statement allegations. The jury acquitted Shelnutt of the remaining charges after the judge informed them that accepting legal fees to defend a client against criminal charges, even if those fees were derived from illegal activities, is not a crime. The judge also informed the jury that any attempt to disguise or hide those funds, as federal prosecutors alleged that Shelnutt and his clients did, also was not a crime.

Bunkley had testified for the government at Shelnutt's trial, claiming that he had met Shelnutt in a grocery store parking lot and paid him $125,000 in cash generated by illegal drug deals to help pay for Hill's defense. Bunkley's lawyer, Columbus attorney Mark A. Casto, also testified for the government after federal agents persuaded him to tape several private conversations with Shelnutt. (Casto has denied being a government informant.)

On Wednesday, Casto could not be reached for comment.

Shelnutt has told the Daily Report that Bunkley's testimony was largely fabricated. The lawyer acknowledged that Bunkley had once given him a $5,000 retainer to pass to Casto, whom Shelnutt had recruited to defend Bunkley. But Shelnutt said that Bunkley never gave him $125,000 in a box in a grocery store parking lot or anywhere else.

AN 'ASTONISHING' SENTENCE

In return for Bunkley's testimony against Shelnutt, federal prosecutors in the state's Middle District agreed to hold Bunkley accountable for possessing with the intent to distribute no more than 2 kilograms of cocaine and recommend a sentence of less than 37 months.

Land said in his order that the recommended sentence was "astonishing."

"As part of his trial testimony, Bunkley testified that his own involvement in the drug operation was substantial," Land wrote. "Construing his testimony conservatively, Bunkley admitted responsibility for at least 138 kilograms of cocaine, far in excess of the paltry two kilograms to which the government has stipulated."

Over the objections of Casto, who is still Bunkley's attorney, and federal prosecutors, Land sentenced Bunkley to serve nine years in prison.

George F. "Pete" Peterman III, acting U.S. Attorney of Georgia's Middle District, told the Daily Report on Thursday that he has read Land's order but declined to comment on the judge's findings or his criticisms of federal prosecutors.

"We don't usually comment on what the judges' orders say," Peterman said. "That's standard policy of the Department [of Justice] and our office. The judge's order speaks for itself. We have to accept the judge's order."

Asked how large a role Wood, his predecessor and former boss, had played in the Shelnutt investigation, Peterman replied, "I would let Max speak for himself."

Wood could not be reached via his cell phone or e-mail on Thursday. But he has previously told the Daily Report regarding the Shelnutt case, "I stand behind the prosecution."

First Assistant U.S. Attorney Joseph D. Newman of Georgia's Southern District said he had no comment on Land's order.

SHELNUTT REACTS

After reading Land's order, Shelnutt told the Daily Report on Thursday that the judge "has done the right thing and has seen this case for what it's been."

"I'm happy with the fact that the conduct of the U.S. Attorney's Office in this case has been brought to light, and, hopefully, something good will come out of this if people take time to see what happened," Shelnutt said.

"The scary thing about this whole case has been the position of letting the criminals go to take down the attorney … and I think that's what has been brought to light here in the order. I'm just glad that the truth of what's happened is coming out."

Shelnutt also said that the U.S. Attorney's Offices in both the Middle and Southern Districts share responsibility for what he has described as a vendetta against him by federal agents and prosecutors.

"It's clear from looking at this case that they were working in conjunction with each other," he said. Assistant U.S. Attorney Jason M. Ferguson, the lead prosecutor who struck the plea deal with Bunkley, "was cutting deals to secure testimony" for Carlton R. "Charlie" Bourne, an Assistant U.S. Attorney in Georgia's Southern District and one of two lawyers who prosecuted Shelnutt, the lawyer continued.

"To me, it seems like they were working hand in hand the entire time."

But Ferguson's actions were directed by Wood, Shelnutt suggested. "He was getting approval from above. If you go to the top, that's the man who is now running for attorney general; who was OK'ing, at minimum, and directing, at worst, this entire strategy of letting the actual criminals and drug dealers go free or get next to nothing [in prison time] to take down somebody who had been a thorn in their side. It never made any sense. It didn't make any sense at all."

'UNPERSUASIVE' RATIONALE

In his order, Land wrote that he was aware of the "aggressive pursuit" of Shelnutt and the office's attempts to turn Hill, Bunkley and other co-conspirators against Shelnutt.

"The U.S. attorney's office maintains that it made the various deals with the other co-conspirators, including defendant [Bunkley], because of a lack of evidence tying them to the larger drug conspiracy," the order said. "They claim that the only evidence they had would have been testimony from other members of the conspiracy, the credibility of which could be attacked at trial. Yet, that is the same type of evidence that the government relied upon to indict Shelnutt and take his case to trial. Thus, the court found the U.S. attorney's rationale unpersuasive."

Land acknowledged in his order that his decision to override prosecutors' sentence recommendation for Bunkley, and their stipulation as to the amount of cocaine for which Bunkley must be held accountable, has created a case of first impression in the 11th U.S. Circuit Court of Appeals in Atlanta.

The question Land said his ruling poses is whether the terms of Bunkley's non-binding plea agreement could be altered if the defendant's own testimony contradicted facts cited in the plea. Land noted that he had used independent testimony at Bunkley's sentencing that supported his decision to depart upward from the sentence outlined in the plea agreement. He added that Bunkley could have asserted his Fifth Amendment right not to incriminate himself while testifying at Shelnutt's trial but chose not to do so.

In his order, Land wrote that Bunkley and his counsel were notified before Bunkley testified at Shelnutt's trial "that the Court was concerned about the amount of drugs that he should be held accountable for and that the Court intended to explore additional evidence at the sentencing hearing. Thus, before defendant gave his trial testimony, he was on notice of the Court's skepticism as to the government's stipulation regarding the drug amount."

Land noted in his order that his sentence in Bunkley's case could have negative consequences. "It could send a message that defendants now have less assurance in this court that the government's sentencing recommendations will be followed, and that it is possible that information defendants provide pursuant to a cooperation agreement may be used to their detriment instead of their benefit," he wrote.

"The Court acknowledges that this could result in fewer defendants being willing to cooperate against other defendants, thus presenting extra challenges for the government in future cases. While the Court does not discount these concerns altogether, the Court finds that they pale in significance to the alternative: to allow a significant drug dealer who was a major player in one of the largest drug conspiracies in the city's history to return to the streets after serving a sentence that is typically given to the most modest street-level dealer.

"Such a sentence would not be consistent with the nature and consequences of the offense; nor would it reflect the seriousness and breadth of the defendant's illegal activities. While such a sentence may promote a respect for government deal-making with cooperating defendants, it would likely diminish the average citizen's respect for the law. It would allow a convicted defendant to escape a just punishment and, because of the lenient sentence, would likely not deter him or others similarly situated from future criminal conduct. Such a lenient sentence would certainly not protect the public to the same degree that the Court's sentence will."

The case is U.S. v. Bunkley, No. 4:08-CR-08-002.

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