Pubdate: Tue, 23 Feb 2010
Source: Ledger-Enquirer (Columbus,GA)
Copyright: 2010 Ledger-Enquirer
Author: Alan Riquelmy


U.S. District Court Judge Clay Land denied Monday the motion by
Columbus attorney Mark Shelnutt that asked for attorney fees and expenses.

Shelnutt, acquitted in November of charges including money laundering,
aiding and abetting a conspiracy to distribute cocaine, attempted
bribery and making false statements, argued in his December motion
that prosecutors waged a "baseless, vexatious, frivolous, bad faith,
harassing and stubborn" case against him. He stated in an exhibit to
his motion that he paid or must pay several attorneys more than
$190,000 and that he incurred some $35,000 in expenses while defending

In the motion, Shelnutt cites the "Hyde Amendment," enacted in 1997,
which enables a judge to award reasonable attorney's fees and expenses
to a defendant, "where the court finds that the position of the United
States was vexatious, frivolous or in bad faith," the motion states.

"Although the court has concerns about the prosecutorial discretion
exercised by the Department of Justice in its handling of this case,
the Hyde Amendment does not authorize an award of attorney's fees for
an abuse of such discretion, unless the government's position in the
case was vexatious, frivolous or in bad faith," Land states. "The
present record does not support such a finding, and therefore,
defendant's motion is denied."

Shelnutt said he knew he had a "heavy burden" to overcome in order to
prevail, and that he respected the judge's decision. Defense attorney
Thomas Withers, who represents Shelnutt, also said he respects Land's

"With respect to the issue of an appeal, we'll have to evaluate the
criteria for an appeal and see if an appeal is readily available to
us," Withers added.

Acting U.S. Attorney Pete Peterman said Land reached the right

During Shelnutt's trial and in written orders, Land has questioned
prosecutors' actions in Shelnutt's case and in the cases of some who
testified against the Columbus attorney during his trial. In a
footnote to Monday's order, Land said he remained "troubled" by senior
officials in the U.S. Department of Justice insisting that an attorney
is committing a felony when he takes a legitimate attorney's fee and
does something with it that makes someone think he was trying to conceal it.

"Whether the attorney then decides to deposit the proceeds in his
operating account, a private safe, his desk drawer, or bury them in a
coffee can in his back yard is irrelevant," Land states. "Money
laundering contemplates transforming 'dirty' money into 'clean,' not
hiding one's own 'clean' money.

"Admittedly, the distinction between illegal money laundering and
legitimate legal representation can be difficult to discern in some
cases, particularly when the evidence is circumstantial in nature, but
it is precisely these types of cases that require the judicious
exercise of prosecutorial discretion by a justice department focused
on justice and not a high-profile conviction," Land continues.

Shelnutt said he appreciated the judge's comments about justice being
the driving force behind a prosecution.

"I appreciate the court's expression of concern about the case,"
Shelnutt said. "I'm just so grateful and will always be grateful to
have been vindicated by a jury of my peers." 
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