The reasoning cited by a federal judge when he threw out the most serious corruption charges against former New Castle County officials was so flawed, according to prosecutors, that defense attorneys did not even attempt to defend it in arguments to uphold the dismissal.
Prosecutors, in their filing with the U.S. 3rd Circuit Court of Appeals in Philadelphia, are seeking to have the charges against former New Castle County Executive Thomas P. Gordon and his one-time aide Sherry L. Freebery reinstated.
“Instead of defending the district court’s opinion, defendants largely attempt to ignore what the district court actually said. Indeed, the answering briefs’ references to the district court’s opinion are so sparse that a reader could be forgiven for thinking there were no district court proceedings,” wrote U.S. Attorney Colm F. Connolly and Assistant U.S. Attorney Leonard P. Stark.
Also, the government’s racketeering and fraud case against Gordon and Freebery may, as a technical matter, be stronger than it has appeared.
In the brief, prosecutors state that while Senior U.S. District Judge John P. Fullam said last year he was going to dismiss three of five criminal schemes against Gordon and Freebery, he only officially dismissed one.
No order
If correct, this means Gordon and Freebery are still under indictment for the so-called “harassment” and “investigation” schemes, thought to be dismissed in July along with the “Fieldstone” scheme.
But according to federal prosecutors, Fullam “has not yet entered an order dismissing” them.
The “harassment” scheme alleges that Gordon and Freebery authorized spending $260,000 in taxpayer money to settle an employee’s sexual harassment claim and keep their own alleged sexual relationship secret. The “investigation” scheme claims that the two spent $36,000 of county money to hire a private investigator to spy on two unnamed county employees.
The focus of the government’s filing this week was to urge the appeals court to revive the “Fieldstone” charges against Gordon and Freebery, which prosecutors believe Fullam improperly dismissed.
The Fieldstone scheme alleges Freebery improperly gave preferential treatment to the Fieldstone golf course development after she was given a $2.7 million loan by the developer, du Pont heiress Lisa Dean Moseley.
Saw no conflict
Fullam tossed out the Fieldstone charges, saying Freebery was “merely providing normal constituent service to a friend of hers” and that the loan did not pose a conflict of interest.
William W. Taylor III, attorney for Freebery, and Ronald H. Levine, attorney for Gordon, would not comment Wednesday. They said they had not yet read the government brief.
Prosecutors charge Fullam committed four legal errors including misstating the law on honest services fraud and conflict of interest, and in failing to accept the factual allegations in the indictment as true when considering a motion to dismiss.
Prosecutors argue that Gordon and Freebery, rather than defending Fullam’s flawed logic, instead make new arguments and offer explanations for the dismissal in their court filings that are not supported by Fullam’s actual ruling.
Mundane pretrial issues
At a pretrial hearing in a separate prosecution against Freebery, attorneys said they expect to appear before the appeals court in the spring for oral arguments.
That separate case against Freebery — on two mortgage fraud counts — is set to go to trial before a jury in Philadelphia on Monday.
Fullam held a private telephone conference Thursday with attorneys in that case, and, in a rare interview with The News Journal, denied the paper’s request to listen to the discussion.
He said it would cover mundane pretrial issues such as whether to handle jury questions verbally or in writing. “It will be of no conceivable interest to anyone,” he said, adding he also was “going to try to encourage lawyers to agree on some facts to shorten the trial.”
In the mortgage fraud case, Freebery is accused of failing to disclose her $2.7 million debt to Moseley on two mortgage applications, thereby getting better terms than she would have otherwise.
