MANHATTAN (CN) — Seizing on some uncertainty that won his client a mistrial four months earlier, the defense for a Colorado businessman indicted for his role in the We Build the Wall scheme told a new jury of New Yorkers on Tuesday that the case doesn't belong here.
U.S. District Judge Analisa Torres had refused just last month to move Tim Shea's trial to Colorado, rejecting Shea's claim that “political polarization” and publicity about his first trial made it impossible for him to get a fair result in Manhattan.
At the start of Shea's retrial Tuesday, defense attorney John Meringolo urged jurors not to conflate the allegations against Shea with those that faced Steve Bannon, Shea's erstwhile co-defendant who escaped prosecution only because former President Donald Trump pardoned him on his way out office.
Alongside Bannon, Air Force veteran Brian Kolfage and venture capitalist Andrew Badolato, the Castle Rock, Colorado-based Shea was charged in 2020 for scamming people who donated to their so-called charity We Build the Wall.
Shea, 51, faces three criminal counts just as he did in June when the court ordered a mistrial to deal with a holdout juror who spewed Trump-style MAGA catchphrases in a panel that was otherwise ready to convict.
According to a detailed note from the jury in Shea’s first trial, the holdout juror spoke about a “government witch hunt” and labeled other jurors "liberals." The jury also insisted, according to the note, that the government had indicted Shea in New York City only because they “knew people here vote differently.”
After the court ordered a mistrial, the holdout juror told reporters he was "very surprised" that Shea was being prosecuted in Manhattan given the source of donations to We Build the Wall: "99% are from somewhere else," the juror claimed.
Shea's attorney John Meringolo appeared to seize on that exact doubt during his peripatetic opening argument Tuesday morning, telling jurors to focus on whether the government sufficiently proves that it is prosecuting Shea in the appropriate venue.
We Build the Wall was founded on the premise that private citizens could help fulfill the then president's promise to build a wall on America's southern border. It quickly raised some $25 million in private donations on GoFundMe only to build a mere 3 miles of fencing.
Running contrary to a promise that 100% of contributions would go toward wall construction, according to the charging papers, the money instead lined the founders' pockets. Prosecutors said Bannon and Kolfage alone used more than $1 million in We Build the Wall donations to pay for a boat, a 2018 Land Rover Range Rover, a golf cart, jewelry, cosmetic surgery and other assets.
Kolfage and Badolato pleaded guilty in April. Their sentencing hearing is set for December. While Trump's pardon allowed Bannon to escaped federal prosecution, the state recently indicted him related to the We Build the Wall scheme.
For Shea's retrial, prosecutors expect that their case will take five days.
As they did in the spring, the government focused its opening argument Tuesday on the evidence against Shea. Assistant U.S. Attorney Derek Wikstrom told jurors that text messages and bank records will show Shea and Kolfage skimmed money from We Build The Wall’s donations and drew up phony documents to conceal and launder those pilfered funds.
“This is a case about lies,” Wikstrom began in an expeditious 15-minute opening argument this morning. “Lies that were told to raise money; lies that were told to steal part of it; lies that were told to cover it up.”
Wikstroke told jurors that Shea used phony invoices and backdated contracts to siphon money from We Build the Wall donations for himself and to pay kickbacks to Kolfage, the fundraiser’s triple-amputee figurehead who publicly pledged to “not take a penny in salary or compensation.”
As one co-conspirator told Bannon, according to the indictment, the promise to not take any compensation from the fundraiser “removes all self interest taint on this” and it “gives [Unindicted Co-Conspirator 1] saint hood.”
The state indictment charges Bannon with two felony counts of money laundering, two counts of conspiracy and a felony count of scheming to defraud. If convicted, Bannon faces up to 15 years in prison. He is charged alongside the corporate entity We Build the Wall Inc.
Bannon is expected to fight his state indictment on the basis of double jeopardy, but the argument is unlikely to land because his federal case in the Southern District of New York did not involve an acquittal or conviction.
Bannon pleaded not guilty and is free on bail until the case goes to trial in November 2023.
One block north of the Manhattan federal courthouse on Tuesday, jury selection is underway in the criminal financial fraud trial against the Trump Organization. The former president is not a party to the case, but prospective state court jurors are still being vetted for neutrality about him. Would-be jurors must answer on a questionnaire if they have “any strong opinions or firmly held beliefs about former President Donald J. Trump — either positive of negative — that would interfere with your ability to be a fair and impartial juror?”
Jury selection in Shea’s retrial took a single day Monday. In the Trump Organization trial, the process is expected to take up to two weeks.
Manhattan voters supported Democrat Joe Biden for president by a large margin in 2020: 87% to Trump's 12%.
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