Dismissal sought in Chapman case

Defense says search of witness' office was effort to intimidate

August 03, 2004|By Stephanie Hanes | Stephanie Hanes,SUN STAFF

Federal agents searched the office of Baltimore accountant Wilkins McNair soon before he was scheduled to testify on behalf of Nathan A. Chapman Jr., a move "calculated to intimidate" McNair, defense attorneys said in a motion filed yesterday.

In the motion to dismiss the charges against Chapman, the defense also said prosecutors had engaged in other "gross misconduct," including inappropriate behavior before a grand jury by Maryland U.S. Attorney Thomas M. DiBiagio and racially motivated exclusions of black women from the jury.

Because of that, defense lawyers said, U.S. District Judge William D. Quarles Jr. should throw out the indictment of Chapman.

The defense filed its motion as jurors began deliberations after a seven-week trial. Chapman is accused of defrauding the state pension system, stealing from his publicly traded companies and lying on his tax returns.

FOR THE RECORD - An article in yesterday's Maryland section misspelled the first name of the spokeswoman for the U.S. attorney's office for Maryland. Her name is Vickie LeDuc.
The Sun regrets the errors.

The U.S. attorney's office declined to comment on many of the points in the motion, but it rejected the assertion that prosecutors had eliminated potential jurors because of their race.

"In fact, this allegation simply repeats a prior allegation made to the court at the close of the jury selection process," said Vicky LeDuc, spokeswoman for the office. "At that time, the government explained its reasons for striking each of the jurors, and the court found that the defense allegation was without merit."

Local lawyers unconnected with the case said the motion is unlikely to succeed.

"It will all be denied by the judge, in my opinion," said defense attorney David B. Irwin. "It's a very high standard for a judge to throw out a case, and it certainly hasn't been met here."

"It seems that much of what they're doing is an inappropriate attempt to re-litigate issues that were already decided through the course of the trial," said Andrew C. White, another local lawyer.

The defense motion says prosecutors engaged in a "continuous pattern of intentional, egregious, and highly prejudicial prosecutorial misconduct." It accuses DiBiagio, who questioned some witnesses during grand jury proceedings, of asking "misleading" questions with "self-serving comments."

One example the defense put forward is DiBiagio's questioning about Chapman's car, in which the prosecutor said: "Well, I have to admit my parochial background. I drive a Ford Taurus station wagon. So what price would you assign to that kind of Mercedes?"

The defense criticized the government for not producing some discovery materials promptly and said Assistant U.S. Attorney Jefferson Gray made "improper and misleading" characterizations during the closing argument.

The defense did not object, however, during Gray's closing argument.

The allegations that McNair was intimidated did not come out in open court.

According to trial testimony and court records, McNair was the accountant for Chapman's company after it fired Arthur Andersen. Other witnesses testified that McNair told Chapman he needed to pay personal income taxes on "business development" checks he had cashed because Chapman could not produce receipts for how he spent the money.

According to the defense motion, McNair "was expected to provide important exculpatory testimony for Mr. Chapman."

Several weeks into the trial, after "the importance of Mr. McNair's testimony had become apparent and was discussed in open court, federal agents acting with the approval of the United States Attorney's Office executed a search warrant on his offices, thereby essentially shutting down his business, seizing records, and striking fear in the witness prior to his proposed testimony," the motion said.

McNair never testified at the trial. Another witness, Robin Lord, a former Internal Revenue Service special agent, testified that McNair's lawyers told her he would not talk to investigators.

McNair could not be reached for comment yesterday.

The U.S. attorney's office would not say why his office was searched.

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