Monday, March 10, 2014
Former Chelsea selectwoman Carole J. Swan goes on trial in federal court next week for the second time in nine weeks, and the stakes are much higher than they were at her first trial, in July.
Carole Swan is pictured outside U.S. District Court in Bangor in July, during her first federal trial. Jury selection in Swan's trial on three Hobbs Act extortion charges begins with jury selection on Wednesday, with opening arguments set for Tuesday, Sept. 10.
Staff file photo by Betty Adams
Swan's case is one of two scheduled for jury selection Wednesday in U.S. District Court in Bangor. Opening statements in her trial are set for 8:30 a.m. Tuesday, Sept. 10.
Swan, 55, is accused of seeking bribes on three separate days from Frank Monroe Construction, owned by Frank Monroe of Whitefield, in exchange for giving him town of Chelsea plowing business in 2010 and 2011. Each of the three counts of violating the Hobbs Act, which addresses public officials using their office to extort money, carries a maximum prison term of 20 years and $250,000 in fines.
Swan's attorney, Leonard Sharon, outlined his case in writing on Friday. In it, he says Swan denies allegations that she was seeking improper payments from Monroe and instead maintains Monroe approached Swan "asking her to secure favorable contracts and offering kickbacks."
Sharon says Swan "was herself in the process of investigating Monroe for possible wrongdoing."
Sharon says Swan suspected Monroe of engaging in fraud. "This would include billing the town of Chelsea and other towns that he served for sand that he does not own and did not provide," Sharon says.
The defense also asks the judge to rule on whether Swan's July convictions are admissible in the September trial. A jury in the same courtroom convicted Swan on July 29 of five counts of income tax fraud for the years 2006–2010 and two counts of defrauding the federal workers' compensation program. Those convictions carry maximum prison terms of three to five years.
Swan was cleared of two additional counts of defrauding the workers' compensation program March 15, 2010, and May 11, 2011, and of committing fraud on a federally funded program that paid for most of the 2007 Windsor Road culvert replacement project.
Some of the action in the extortion case took place last week in a series of pretrial motions.
Swan asked the judge to subpoena bank records of Monroe and his company, but later withdrew those requests as well as one for personnel records of Gregory J. Lumbert, a criminal investigator with the Kennebec County Sheriff's Office who is assigned to Maine Revenue Services and who occasionally drove a plow truck for Frank Monroe Construction.
Both Sharon and the prosecutor, Assistant U.S. Attorney Donald Clark, agreed to stipulate that Lumbert worked for the sheriff's office Jan. 1, 2010, through Jan. 31, 2011.
Chief U.S. District Court Judge John A. Woodcock Jr. initially deferred ruling on a defense request for sheriff's office manuals and training videos for interviewing people who are not under arrest. But on Thursday, the judge dismissed the request as moot after Clark filed a notice indicating that Kennebec Sheriff's Office Chief Deputy Ryan P. Reardon said the office did not have such a manual between Jan. 31, 2011, and Feb. 3, 2011.
Swan was questioned by deputies at the sheriff's office Feb. 3, 2011, shortly after her pickup stopped alongside Monroe's on snowy Chapel Street in Augusta. Monroe testified at the earlier trial that Monroe gave Swan a sting package prepared by Kennebec County Sheriff's Office deputies to resemble $10,000, the amount Swan allegedly requested.
Clips from the video of Swan being questioned show deputies David Bucknam and Reardon telling her repeatedly that she is not under arrest. The video shows about 19 minutes of the longer interview.
In it, she tells them she doesn't remember how she started taking kickbacks, but it began when Monroe gave her an unsolicited $1,000 at her home and later $6,000.
"That's where it all started," she said. She told the deputies she received over $25,000 over the years "for greasing the wheels," including the $10,000 amount she expected to get that day.
On the witness stand, Swan testified that she had lied to the deputies about the payments and did not tell them that she had undertaken an investigation of Monroe.
Woodcock allowed Swan to remain free on bail while she and her attorney prepare for the second trial.
A separate trial on the extortion charges was set after Swan said she wanted to testify in her own defense to tell jurors she was conducting a solo sting to prove that Monroe was shortchanging the town on winter sand. However, she said did not want to testify about the other charges.
That changed, however, and Swan spent a total of two days on the witness stand, testifying about her dealings with Monroe and about her home life. Part of her defense included testimony from her and her sons that she was subjected to domestic abuse by Marshall Swan, her husband of 29 years, and feared him so much she lacked intent to commit fraud.
Prosecutor Clark, in his opening statement at the earlier trial, said he had evidence showing that Swan received $3,000 in her driveway from Monroe around Jan. 25, 2010; an additional $7,000 from him on Dec. 3, 2010, at the Chelsea sand shed, and expected $10,000 from him on Feb. 3, 2011.
Monroe took the stand in July and testified that on the first two occasions he paid Swan with his own money. But when she told him to short the town on sand, bill the town for $20,075, and kick back $10,000 to her, he said he felt he had to go to sheriff's deputies. "I was wrestling with who to go to and not have it come back to bite me," he testified.
Monroe got immunity from prosecution with regard to those payments in return for telling the truth on the stand, he testified.
He allowed the deputies to listen in and record phone calls between him and Swan, and some of those calls were played for jurors.
Swan testified she believed she had to get more than $10,000 from him so she could go to the district attorney's office to get him prosecuted.
Several people testified that Swan told them of her efforts.
Clark, in the brief filed in the current trial, wants testimony about those efforts blocked unless they were made around Jan. 25, 2010, the time she allegedly sought the first bribe of $3,000 from Monroe.
"Given the testimony that was elicited at the first trial of the defendant regarding her duplicity and efforts, after the fact, to tell witnesses of her alleged undercover investigation (that she had no authority to conduct), this court may reasonably conclude that any such statements, even if contemporary, are untrustworthy and therefore unreliable, because the defendant had enough time to fabricate and misrepresent her story."
Clark lists 18 people — many of them former town officials or employees — as potential witnesses to be called by the government. At the previous trial, about 130 potential witnesses were listed and almost all of them testified during the 15 days of trial. Most were related to the tax evasion charges.
Sharon's list of potential witnesses for this trial lists 32 names, and some of those overlap the prosecutor's list.
Betty Adams — 621-5631