Fulton wants evidence barred

Legislator accused in wire fraud case claims immunity

March 09, 2000|By Greg Garland | Greg Garland,SUN STAFF

State Del. Tony E. Fulton is asking a judge to bar key evidence against him in his mail fraud trial that begins in May, claiming legislative immunity. The Baltimore Democrat contends his actions as a lawmaker cannot be used to prosecute him.

Fulton's lawyer, Richard D. Bennett, argued in a motion filed in U.S. District Court in Baltimore that the Maryland Constitution affords legislators special protection from prosecution. But prosecutors say that does not apply to the federal prosecution of a state legislator.

Fulton and a prominent Annapolis lobbyist, Gerard E. Evans, were indicted in December on 11 counts of mail and wire fraud in connection with an alleged scheme to defraud Evans' paint and asbestos company clients. Both have pleaded innocent.

The indictment alleges that Fulton helped Evans collect $400,000 in lobbying fees over three years by proposing legislation that would make it easier to file lawsuits against paint companies and asbestos manufacturers.

Evans is accused of using the threat of such legislation to generate fees from the companies, which paid his firm to fight such bills. Prosecutors contend that Evans steered a lucrative real estate commission to Fulton as a reward for helping with the plan.

Among evidence Bennett wants excluded is a letter Fulton sent to then-Baltimore Mayor Kurt L. Schmoke in October 1998 seeking support for the legislation. Prosecutors argue the letter was part of the plan to persuade Evans' clients that such legislation was likely in the General Assembly. Fulton did not introduce the bills.

Bennett also wants to exclude a statement Fulton filed with the General Assembly's ethics committee in which he described his business relationship with Evans on the real estate deal and asserted it would not effect his decisions as a lawmaker.

In response, prosecutors said the U.S. Supreme Court has made it clear legislative immunity does not apply to the prosecution of a state legislator by federal authorities in federal court.

The prosecution's response also offers new details about the financial importance to Fulton of the real estate commission and the significant role authorities believe the delegate played in the plan.

Assistant U.S. Attorney Dale Kelberman, in his response to Bennett's motion, described the letter to Schmoke as a "phony letter" that Evans drafted for Fulton with the intent of deceiving the lobbyist's clients.

Fulton's reward was "a handsome real estate commission," Kelberman wrote.

Fulton, who is a real estate agent, collected a $10,125 commission when Evans' firm purchased an historic building in Annapolis in November 1998 for $600,000.

"Evans arranged for Fulton to receive that commission, which represented 30 percent of Fulton's income that year, even though Fulton had never before handled a commercial real estate transaction, his office was in Baltimore County, not Annapolis, and there were dozens of other, more knowledgeable Realtors Evans could have chosen," Kelberman wrote.

The defense attorney also wants the court to exclude from the evidence a "disclaimer of a conflict of interest" that Fulton filed with the ethics committee about his dealings with the Evans firm. Kelberman wrote that Fulton "falsely [claimed] that his relationship as a real estate agent for the lobbyists would not affect his legislative functions, as it already had." He added that Fulton "lied" about his role in the transaction when he was questioned about it by reporters from The Sun.

Bennett also wants the court to exclude evidence stemming from other legislative actions by Fulton from 1996 to 1999 related to Evans' clients.

In arguing that prosecutors should be blocked from using such evidence, Bennett appeared to be laying the groundwork for an appeal in the event his client is convicted.

Kelberman noted in his response that the U.S. Supreme Court ruled in 1980 that legislative immunity provisions -- called "speech and debate privileges" -- cannot be used to exclude evidence in a federal prosecution.

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