money We Build the Wall federal fraud case: Brian Kolfage co-defendant denied separate trial
NEW YORK — A co-defendant in a federal wire fraud and money laundering case involving Miramar Beach wounded warrior Brian Kolfage — and that had involved Steve Bannon, former political strategist for former President Donald Trump — has been denied in his attempt to have his case severed from Kolfage and another co-defendant.
Timothy Shea, along with Kolfage, Bannon and Florida financier Andrew Badolato, was indicted in 2020 by a New York Southern District grand jury on charges that hundreds of thousands of dollars donated to We Build The Wall, Inc., (WBTW) — a nonprofit organization headed by Kolfage to privately fund construction of walls along the U.S.-Mexico border — had been improperly diverted to Shea, Kolfage and Bannon.
Bannon, however, was pardoned by Trump in the final hours of his presidency in January of last year.
Previous coverage of the case: Kolfage says politics, misunderstanding behind fraud conspiracy indictment
Florida charges: Brian Kolfage disputes federal tax fraud indictment
Kolfage is alleged to have gotten $350,000 in the scheme, while $1 million was steered to a separate nonprofit organization controlled by Bannon. According to court documents, Shea also profited from the scheme, as "hundreds of thousands" of dollars in donor funds were steered to a limited liability corporation created by Shea for "social media" work that was not performed.
Shea, a Colorado businessman whose enterprises include the energy drink "Winning Energy," advertised as including "liberal tears," had argued in a Nov. 15 motion that the highly public profiles of Bannon and Kolfage would unduly prejudice jurors against him.
New York Southern District Court Judge Analisa Torres on Monday denied Shea's motion to have his trial severed from the upcoming trial of Kolfage and Badolato. The three men face possible penalties of up to 40 years in prison if convicted on the federal wire fraud and money laundering conspiracy charges. The case is being pursued through the New York Southern District Court in part because several calls, emails, and wire transfers associated with the alleged fraud and money laundering moved through the New York City borough of Manhattan.
Timothy Shea's arguments
In court documents supporting his motion to have his proceedings severed from proceedings against Kolfage and Badolato, Shea argued that Bannon, although no longer a codefendant in the case, " ... continues to be, a main figure in WBTW's history ..." and that the "notoriety and fame of Mr. Bannon, a media executive, political strategist, and former White House cabinet member (Bannon was a presidential adviser and strategist in the Trump White House), cannot be overstated."
Shea also argued that Kolfage, who lost both legs and an arm in a rocket attack while serving with the Air Force in Iraq in 2004, was particularly visible as "... inarguably the figurehead and spokesperson of the organization, traveling the country to speak with countless individuals who believed in his mission." Kolfage was, Shea also noted, "... active on all WBTW websites, social media, and other online written communications."
Shea contended that, unlike his co-defendants, he "is not a public figure nor did he receive any media coverage or personal notoriety from his involvement with WBTW."
The core of Shea's argument was that a joint trial would make him a victim of what his motion called "spillover prejudice." Specifically, the motion contends that "... a joint trial would compromise Mr. Shea’s rights and would prevent the jury from making a reliable judgment about guilt or innocence from the spillover prejudice of the other codefendants."
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Judge Analisa Torres' ruling
In her five-page ruling denying Shea's motion, Torres noted that it is allegedly Shea who suggested to Kolfage, Bannon and Badolato that he create a "shell corporation" to steer money to himself and Kolfage. Torres also cited a ruling in a 1998 federal case that held that "(t)he preference for joint trials 'is particularly strong where . . . the defendants are alleged to have participated in a common plan or scheme'.”
Torres additionally wrote that Shea's "... concern about the potential stigma which might arise from his association with his co-defendants and Bannon can be addressed at voir dire, when the Court may question potential jurors about any biases they may have against those individuals."
Federal prosecutors also weighed in on Shea's motion for severance, arguing in a Dec. 5 court filing that they plan to present evidence regarding his role in the alleged conspiracy that is not substantially different from the evidence set to be presented against Kolfage and Badolato.
According to the prosecutors' filing, they anticipate introducing "... evidence of Shea’s conduct in furtherance of the charged offenses, including, among other things, his written and oral communications with co-conspirators and others, financial transactions in which he engaged, and how he disposed of his portion of the crime proceeds."
Prosecutors told the court that "(a)lthough Kolfage, Badolato and Shea played different roles in the charged conspiracies ... there is simply nothing about the nature or quantity of the evidence in this case that sets Shea so far apart from Kolfage and Badolato that would require Shea to be tried separately."
Shea's latest motion marked the second time he has attempted to have his trial severed from his co-defendants. His first attempt came just three months after their 2020 indictment, when he asked that his trial be moved to federal court in Colorado. In that instance, Torres ruled that “severing the case against (Shea) and conducting two trials on the same conspiracy” would impose "a double burden on the judiciary.”
The case's trial has been postponed numerous times, most recently as a result of Kolfage acquiring new counsel who asked the court for time to review the case record. A trial now is tentatively planned to begin sometime "in mid to late March 2022," according to a ruling from Torres in connection with New York attorney Cesar de Castro's August 2021 request for review time.
This article originally appeared on Northwest Florida Daily News: Timothy Shea denied separate trial in Kolfage 'We Build the Wall' case
