The attorney for County Mayor Mike Foster has filed a motion asking the federal court to dismiss the case against Foster alleging that the former UCDD Chairman made false statements to the agency's board of directors relating to the Living the Dream facility, a home for seniors in Putnam County.
In his motion to dismiss filed Friday, December 13, Foster's attorney Hal Hardin claims that "Mr. Foster is entitled to dismissal of the charge because the "statements" he made are ambiguous to such an extent that they cannot be prosecuted as a crime".
Hardin has also filed a motion for a "Bill of Particulars" seeking specificity of the charge against Foster, and a motion for "Severance" claiming that Foster would be prejudiced by a joint trial with his co-defendants Wendy Askins and Larry Webb.
In September, Former UCDD Executive Director Wendy Askins and former Deputy Director Larry Webb were named in a sixteen count federal grand jury indictment accusing them of conspiring to misuse government funds at the "Living the Dream" complex.
The grand jury also indicted Foster alleging that he read a statement that he knew was false at the UCDD board's January 19, 2012 meeting to cover up Askins' and Webb's alleged illegal activity.
In his motion to dismiss, Hardin contends "There is no allegation that Foster was a member of the conspiracy described in the indictment and no allegation that he ever received anything of value for reading the statement. While it is alleged that Foster knew that the read statement was false, it is not alleged that Foster knew that Askins and Webb had a criminal motive for asking him to read it."
A memorandum in support of the motion to dismiss is summarized as follows:
"In Count Sixteen, it is alleged that Mr. Foster violated 18 U.S.C. § 1001 when he presented or read a proposed amendment to the minutes on behalf of Askins and Webb to the Executive Committee of the 64-member Board of the UCDD on January 19, 2012. The purported purpose was to consider a correction to the minutes of the February 16, 2010, Board meeting to show that the Board had at that time discussed the transfer of funds for the benefit of one of the corporations owned by Askins and Webb."
"Thus, the sole count against Foster essentially alleges that he, a local government official, read a "statement prepared by Askins." Yes, read a statement prepared by Askins… to the Executive Committee of a local public Board in a public meeting that all know was being filmed by a local television station. There is no allegation that Foster was a member of the conspiracy described in the indictment, no allegation that he ever received anything of value for reading the statement. While it is alleged that Foster knew that the read statement was false, it is not alleged that Foster knew that Askins and Webb had a criminal motive for asking him to read it. Significantly, as clearly shown by the video, another member of the board made a motion to approve the statement… that board member has not been indicted. After the executive committee members engaged in a full discussion of the motion, it was passed without dissent by the Executive Committee. Mr. Foster “passed” and did not vote on it… none of the numerous Executive Committee members (or the 64 Board members) who discussed the motion and approved it were indicted."
"In pretrial discovery, prosecutors furnished a video of the January 19, 2012, meeting. It is rare that an alleged verbal crime can be shown on video. The Court is implored to examine the video. That video shows that Foster told the Executive Committee that his memory on the matter at issue was not clear. The video shows that present at the meeting were attorneys and scores of nonprofit board members who agreed with Defendant Foster’s recollection and with the statement read by him. There were no dissents or objections. Foster passed from voting on the issue. Federal crime? Also telling of Defendant Foster’s lack of involvement in any crime is the government’s complete discovery responses which contain tens of thousands of pages of documents unrelated to Mr. Foster."
"By way of basic criminal law, not all false statements violate § 1001, rather only false statements that may affect and influence the operation or the integrity of the government. Once jurisdiction has been determined, issues of materiality, knowledge and falsity arise."
"There are multiple reasons why Count Sixteen must be dismissed for failing to state a § 1001 violation. First, Foster’s statements before a local government board allegedly exposing him to criminal sanctions are, at a minimum, ambiguous to such an extent that, dismissal is required. For example, regarding the subject minutes he stated: “And we talked about it, we don’t think it was. We don’t know if it was voted on, we don’t know if it was properly presented, we don’t really know if it was done as it should have been done and there’s been some problems about whether or not we did it. We talked about it in another meeting about amending it, I think, to include that. And I don’t think that we did it…..was intended to be done and it was either left out or it wasn’t properly recorded. I don’t know which, I wasn’t, I’m not sure…. And I know we talked about it and I… John and I talked about remembering it and Michael and I did and Herb (other board members) nodding his head. We all remember this. But whether or not it was officially done or not but…..And I don’t know if it was properly done…” This ambiguous rambling, quoted language, is the crime alleged in Count 16. Simply to read it is to answer the question – this was not and cannot be a crime. Other members of the Executive Committee, none of whom are indicted, also had similar memories of previous discussion of the subject transaction. Federal crime? For full context of the statements, see the video. The Court is again implored to actually watch the supposed “crime.”
Second, the prosecutor's own theory of the case, as we can see by the allegations of overt acts under Count One, shows that it was Askins and Webb who created the statement upon which Count 16 relies, not Foster. Foster read the statement for them. He did not make a motion to adopt it, he passed from voting on it. A different Board Member suggested bringing it before the Board. There is no allegation in the indictment that Foster was aware of the allegedly criminal activity of the other defendants or that he knew that the statement was related to any criminal activity. Further, U.S. Courts historically, because of the delicate balance, only carefully tread on political matters involving local government officials. Here, such concerns and the First Amendment protects the ambiguous statement of Foster as protected speech. As held in United States v. Alvarez, 132 S. Ct. 2537 (2012), a case that struck down the Stolen Valor Act as an unconstitutional content-based restriction on free speech, there are limits on the government's ability to prosecute expressions of speech, and those limits extend to even false speech. The Supreme Court recognized in Alvarez that as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content, and as a result, the Constitution demands that content-based restrictions on speech be presumed invalid and that the government bear the burden of showing their constitutionality."
"Third, Foster’s alleged statement was not material and is not a “statement” for the purposes of a prosecution via § 1001. A violation of § 1001 is comprised of five elements: a statement by the defendant; which must be false or fraudulent material; knowingly and willfully made; pertinent to an activity within the jurisdiction of a federal agency."
"Here, as clearly shown by the video, Foster was merely making a suggestion of action the Executive Committee might take. He had no ability to alter the minutes, he had no ability to implement any policy or to take any action or to control the other members of the UCDD Board, many of whom also made similar alleged “statements” and none of whom are indicted. Only the Executive Committee of the UCDD Board had the ability to make any “statement” which affected federal function, not Mr. Foster. Federal Crime?"
"This Court has the clear authority to dismiss an indictment prior to trial when it fails to state an offense. Finally, while summary judgment is not mentioned in the criminal case context, a Court may consider if there has been a crime, and if not, dismiss it with prejudice."
In his motion for a "Bill of Particulars", Hardin wants the prosecutors to "State the exact false material "Statement" that Foster allegedly made. "Count Sixteen of the indictment alleges that, on or about January 19, 2012, Foster and Askins "aided and abetted by each other, did willfully and knowingly make and cause to be made materially false, fictitious, and fradulent statements and representations..and represented to the UCDD Executive Committee of the Board of Directors...had discussed and intended to approve the transfer of UCDD funds to CRDC for the purpose of the Living the Dream project at the February 16, 2010 UCDD Executive Committee Board meeting.... whereas in truth and in fact as Askins and Foster then and there well knew and believed, the UCDD Executive Committee had not discussed nor intended to approve the transfer of UCDD money to CRDC for the Living the Dream project on February 16, 2010."
"The defendant (Foster) requests that the prosecutors:
"State with specificity how Foster "then and there well knew and believed the UCDD Executive Committee had not discussed nor intended to approve the transfer of UCDD money to CRDC for the Living the Dream Project on February 16, 2010; State with specificity how Askins "aided and abetted" Foster; State with specificity how Foster "aided and abetted" Askins". Basic fairness dictates such a disclosure at this time."
In his motion for a severance, Hardin claims a joint trial with Askins and Webb would be prejudicial to Foster.
A memorandum in support of the motion is summarized as follows:
" Even a cursory review of the allegations reveals that the indictment is directed at the alleged multiyear criminal acts of Askins and Webb, with the result that the indictment devotes the vast majority of its verbiage to those defendants. Foster is discussed in only the final count of a sixteen count indictment and his alleged participation in the alleged crimes of Askins and Webb is miniscule or non- existent in relation to both the amount of alleged wrongdoing of those defendants and the time span of that wrongdoing."
"A joint trial of all three defendants will unavoidably be prejudicial to Foster for at least two reasons. First, if Foster is tried jointly, he will be inescapably associated in the minds of the jury with the voluminous amounts of material that will be presented against Askins and Webb. Any jury would have great difficulty in trying to separate out the miniscule amount of evidence pertaining to him from the huge amount of evidence that will be presented against Askins and Webb. Thus, Foster will be prejudiced by the "spillover" effect of the evidence against Askins and Webb."
"Second, Foster wishes to have a prompt disposition of this charge, and because the prosecution's case against Askins and Webb involved so many more counts, so much more evidence, and, likely, so many more pretrial disputes than the prosecution's case against him, Foster will not be able to enjoy his constitutional and statutory right to a speedy trial. The State court and Federal court defense of Askins will engender lengthy delays, and, without severance, Foster will not go to trial for many months or even years."
As WJLE reported previously, the cases against Askins, Webb, and Foster are currently set for trial on May 20, 2014 in U.S. District Court in Nashville.