Glasgow Daily Times, Glasgow, KY

November 23, 2011

Eastern Livestock defendants pre-trial motions continue

Glasgow Daily Times

GLASGOW — Defendants and attorneys involved in the state-level Eastern Livestock criminal case gathered in Metcalfe Circuit Court Tuesday morning for a pre-trial conference to discuss several motions that have been filed regarding the case.

Thomas P. Gibson, Steven McDonald, Grant Gibson and Darren Brangers have been charged with one count of engaging in organized crime, 17 counts of theft by deception over $10,000, 144 counts of theft by deception over $500 but less than $10,000 and 11 counts of theft by deception under $500, for their alleged role in the 2010 scandal in which farmers received bad checks when they sold their cattle to Eastern Livestock, the company at which all the defendants worked. Thomas Gibson and McDonald, owner and operator, respectively, of Eastern Livestock, have also been indicted in federal court on one charge of mail fraud for their part in an alleged check-kiting scheme that affected approximately 200 cattle sellers in Kentucky along with Fifth Third Bank and Wells Fargo Bank.

Assistant attorneys general Todd Lewis and Jeff Prather, the four defense attorneys and Judge Phil Patton addressed two motions during Tuesday’s pre-trial conference.

Benjamin Dusing, defense attorney for Grant Gibson, filed a motion before the court appearance to dismiss all charges against his client that stemmed from 52 alleged victims who have also filed civil suits against Fifth Third Bank, the bank that extended and subsequently froze Eastern Livestock’s line of credit, resulting in the cold checks. The 52 farmers are part of six civil suits with a total of 90 plaintiffs that are accusing Fifth Third Bank of freezing Eastern’s account with the knowledge that the livestock company would continue to issue worthless checks.

Dusing’s motion states that the counts within the prosecution that stem from those 52 farmers should be thrown out because the civil suits “flatly exculpate (exonerate) the defendant and his co-defendants as to the crimes charged in the enumerated counts and, accordingly, principles of due process, judicial estoppel, and fundamental fairness require that these counts be dismissed.”

The crux of the prosecution is the question of whether the defendants knew before writing the farmers bad checks that Fifth Third was going to freeze Eastern Livestock’s account, Dusing said, and the civil suits state that Fifth Third froze the account “without notice to Eastern Livestock.” Therefore, Dusing’s argument is that the civil suits clear the defendants of the charges against them in the criminal case.

It is not clear in the court documents why the motion asks for only 52 victims to be removed, and not the 90 that have filed civil litigation against Fifth Third. A total of 172 victims are listed in the four defendants’ indictment.

The prosecution responded to Dusing that his motion is equivalent to a request for a summary judgment against the indictment, which in essence would dismiss parts of the indictment before a trial and without all the evidence. Patton informed both sides at the pre-trial conference that in a criminal proceeding, once an indictment is returned, it is very difficult to dismiss any parts of it without having a trial.

The prosecution’s response continued to say that Dusing’s motion to dismiss also incorrectly characterized the charges against Grant Gibson and the other defendants. The defendants are charged with “theft by means of creating a false impression,” which does not just mean knowingly passing a cold check. The defendants did allegedly know there were insufficient funds to back those checks, whether or not they knew Fifth Third would freeze the account, the attorney general’s response stated.

Further, the civil suits have been filed by Glasgow attorney Thomas Davis, and his claim in a civil case cannot be attributed to the attorney general due to a matter of evidence law.

A motion filed by Davis was the other focus of the pre-trial conference. Davis filed a motion to make the discovery (or evidence) documents in the Eastern Livestock case open records, so the public can keep up with all aspects of the case. The discovery documents include more than 40,000 pages filed by the attorney general.

Dusing objects to the motion, because he said that the 40,000 pages included some comments between himself and his client. Dusing would be willing to reach an agreement with the court regarding the motion, he said, if his comments could be redacted.

Patton acknowledged the extensive public interest in the case, and indicated that he would like the documents to be public in some form. The issue is minor, Lewis said after the conference, and his office will work with Dusing and Davis to come to an agreement regarding the openness of the discovery documents. Patton scheduled a court appearance for Dec. 13 for Lewis and Prather, Dusing and  Steve Romines, Brangers’ attorney, to settle the issue of Davis’ motion. The parties may be able to reach an agreement before the Dec. 13 date, Lewis said.

The next pre-trial conference was set for Feb. 28 in Metcalfe Circuit Court at 9 a.m., at which time a trial date should be set, Lewis said.

Also on Tuesday, the four most recent civil suits against Fifth Third Bank were removed to federal court. Davis’ first two suits against Fifth Third Bank were previously removed to federal court.