Philpot asks to have federal indictment thrown out
By Teresa Auch Schultz firstname.lastname@example.org August 16, 2012 9:51AM
Updated: September 18, 2012 6:15AM
Ignorance is bliss.
Or as former Lake County Clerk Thomas Philpot sees it, ignorance is an acquittal.
Just five days before his criminal trial is scheduled to start, Philpot, who now serves as the Lake County coroner, has filed a motion to dismiss federal charges claiming he illegally took money while he was Lake County clerk that he was not supposed to receive without the Lake County Council’s approval, which federal prosecutors claim he didn’t have.
The motion says that not only did Philpot not know about this requirement or that the council never approved the payment but that federal prosecutors purposely misled a federal grand jury about these and other facts in the case.
“The government knew that a Grand Jury presented with accurate information about Philpot would be unlikely to return an indictment,” the motion says. “So it altered its evidence in order to obtain an indictment of Mr. Philpot. Numerous items of false and misleading evidence were presented to the Grand Jury.”
The indictment, which was filed last September, charges that from 2004 to 2009, Philpot paid himself a total $24,702 from a state and federal incentive fund paid to county employees who help collect child support payments. Indiana law requires elected officials to have the permission of their fiscal body, which in this case is the Lake County Council, take payments from the fund.
Philpot argues throughout his motion to dismiss that he never knew about the law, which he calls obscure, and that he couldn’t have known the County Council never gave its permission because he rarely attended its meetings.
Philpot also filed another motion Wednesday evening, arguing that the government had no evidence to prove that Philpot knew he wasn’t supposed to take the money.
“While the materials are utterly devoid of evidence necessary to establish the requisite criminal knowledge and intent, we expect to adduce ample evidence of Mr. Philpot’s good faith,” the filing says.
The motion also points to his steps to seek legal advice in 2008 — four years after he first started taking the payments — from the clerk’s attorney, David Saks, who said in a letter that the funds in question for 2007 had been approved by the Lake County Council and thus were permissible.
When the question arose again two years later after a report by the Post-Tribune, Philpot sought the legal opinion of the County Council’s attorney, John Dull, who informed Philpot he did not have the permission of the council.
Philpot argues in the motion to dismiss that the grand jury never heard about him seeking legal advice from Dull, something else that federal attorneys hid from them.
However, federal attorneys say in their own motion, filed Wednesday evening, that any evidence regarding Dull’s legal opinion is not relevant to the case because it came after the period, 2004 to 2009, named in the indictment. The government’s motion asks that that evidence not be allowed at the trial.
Philpot: FBI agent lied
Philpot’s motion to dismiss also claims that when the possibility of the payments was first brought to his attention in 2004 by his deputy, Sandra Radoja, he asked her to find out if it was legal. Radoja then asked a state employee, the motion says, who never mentioned the requirement for elected officials.
However, Philpot claims an FBI agent lied to the grand jury about this and claimed Radoja was not clear in previous testimony about what she told Philpot.
The motion also disputes testimony by the FBI agent claiming that no state official had any duty to check that Philpot had the legal authority to take the payments. It says that the Lake County auditor should have checked.
It also notes that both the auditor and two members of the Lake County Board of Commissioners signed off on all the checks Philpot received from the fund.
Philpot also argues that prosecutors should have told the grand jury he returned the money after news of it came out in the Post-Tribune.
The motion says the federal government didn’t even start investigating the case until Philpot admitted in public he erred in taking the money and paid it back. However, Philpot’s admission came after the Post-Tribune’s report, which U.S. Attorney David Capp has said helped spark the investigation.
The motion to dismiss says the defense did not get the evidence from the grand jury hearings until earlier this month.
It is unclear what the motion means for Philpot’s trial, which is scheduled to start Monday morning with jury selection at the U.S. District Court in Hammond.