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Judge rejects Durham motion to throw out indictment

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A federal judge on Thursday rejected Indianapolis financier Tim Durham’s months-long quest to have his indictment dismissed on the grounds that the government used wiretaps before it had court authorization to do so.

The ruling by U.S. Judge Jane Magnus-Stinson is a big setback for Durham and his attorney, John Tompkins, who in court papers had alleged “outrageous government misconduct.” Tompkins had sought dismissal, or at least a court order suppressing all the wiretap evidence the government obtained.

Magnus-Stinson dispatched Tomkins’ arguments in a six-page order. She said this federal circuit does not recognize a doctrine of outrageous government conduct. So, she said, that would not be grounds for dismissal even if proven.

And she seemed untroubled by FBI testing of the wiretap on Nov. 2 — four days before a federal court authorized tapping of Durham’s cell phone.

“Given that Mr. Durham has been unable to marshal any case authority for his claim that merely testing software in anticipation of obtaining judicial authorization violates the statute, the court finds the … testing here — conducted on FBI lines with only an FBI technician speaking — falls within the express authorization that Congress provided the wire-tapping statute,” Magnus-Stinson wrote.

“FBI technicians can conduct as many audio tests using their own phone calls as they wish.”

Federal prosecutors have used the wiretaps to help build a case that Durham, owner of Akron, Ohio-based Fair Finance Co., was operating the business as a Ponzi scheme.

FBI agents raided Durham’s office atop Chase Tower in Indianapolis and Fair’s Akron headquarters in late November 2009, about a month after the wiretapping began. Fair Finance never reopened.

A grand jury in March 2011 indicted Durham, Jim Cochran and Rick Snow on charges of conspiracy to commit wire and securities fraud, wire fraud and securities fraud.

Durham and Cochran co-owned Fair Finance, while Snow was chief financial officer.

Prosecutors say that after buying Fair in 2002, Durham and Cochran raided its coffers to fund a lavish lifestyle as well as a host of money-losing businesses they controlled.

Authorities say Durham and Cochran pulled money out with such abandon that they left Fair without the means to repay Ohio investors who had purchased unsecured investment certificates from the company. More than 5,200 investors are owed more than $230 million.

Snow is accused of participating in the fraud, but unlike Durham and Cochran he isn’t accused of taking out millions of dollars in insider loans he lacked the means to repay.

Durham, Cochran and Snow deny wrongdoing. They’re all scheduled to stand trial in June.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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