Carole Swan’s attorney objects to some aspects of a confidential report that apparently places her in jeopardy of receiving a longer sentence for obstruction of justice, including perjury.
The attorney for the former longtime Chelsea selectwoman also asks the judge to determine whether Swan’s three extortion convictions should be treated as one because the payments were related and seeks to avoid having her get a duplicate enhancement for the convictions on those charges because she was a public official.
Leonard Sharon, Swan’s defense attorney, made those objections in a written filing Wednesday in U.S. District Court in Bangor.
Rather than determine that Swan intentionally lied, Sharon asks U.S. District Court Chief Justice John A. Woodcock Jr., to make independent findings as to whether “the defendant gave false testimony under oath concerning a material matter with the willful intent to deceive, rather than as a result of confusion or mistake,” before applying any enhancement for perjury.
Swan is set to be sentenced in federal court on June 13 following two separate jury trials last year. She was convicted of three counts of extortion by a public official for seeking kickbacks on three separate dates from Whitefield contractor Frank Monroe, who held a contract to plow Chelsea’s roads and provide sand. At that time, Swan was chairwoman of the Chelsea selectmen. Each count carries a maximum penalty of 20 years in prison and $250,000 in fines.
A separate jury on July 26 found Swan guilty of two federal workers’ compensation fraud charges and five counts of falsifying income on five years’ worth of federal tax returns. She was cleared of two additional workers’ compensation fraud charges and of fraud in connection with a 2007 Windsor Road culvert project, which was done by her husband, Marshall Swan, and funded largely with federal money.
Each of the workers’ compensation fraud convictions carries a maximum penalty of five years in prison, and each of the tax fraud convictions a maximum of three years in prison.
At stake now is precisely where Carole Swan, 55, falls under the sentencing guidelines used in federal court. A judge has leeway to deviate from those guidelines for specific mitigating and aggravating circumstances, but must state the reasons in writing.
Swan, for instance, has no prior criminal record. That will count in her favor and place her at the lower end of the sentencing table, which lists offense levels from 1 to 43 with months of imprisonment ranging from zero to life.
The only indication of placement at all is Sharon’s reference to the presentencing report assigning Swan “a base offense level of 14 because the defendant was an elected selectman for the town of Chelsea” in connection with the convictions for extortion under color of official right — a violation of the federal Hobbs Act, which deals with public corruption. A base level of 14 shows a sentencing range of 18-24 months.
While it is unclear at this point where all of Swan’s convictions place her on that grid, the prosecutor, Assistant U.S. Attorney Donald Clark, is seeking an upward two-level enhancement on Swan’s sentence by saying she obstructed justice by tampering with a witness — Frank Monroe — by committing perjury and by giving false information to a judge.
Clark, in the government’s first sentencing memo, says Carole and Marshall Swan were behind substantial property damage done to Monroe’s trucks on Feb. 4, 2012, four days after the Swans were indicted on a number of charges by a federal grand jury.
Monroe had gone to authorities in January 2011, saying Carole Swan asked him to falsify a bill for sand and to kick back $10,000 to her. That triggered an investigation into Swan first by state authorities and later federal agents because of Swan’s role as a public official.
Marshall Swan was convicted of the same five counts of falsifying income on five years’ worth of federal tax returns as Carole Swan, and he is due to be sentenced June 2 in the same court.
Clark says Carole Swan lied on the witness stand about a number of things, including saying that she cannot read or write well, that she was conducting her own investigation of Monroe, and that she was a battered spouse for more than 30 years.
Sharon’s filing, identified as a Summary of Law, follows a March 3 presentencing conference in Carole Swan’s case, and outlines his current position.
“Testimony that is in conflict with a jury verdict does not automatically or necessarily constitute perjury for the purposes of assessing an obstruction of justice enhancement,” Sharon says.
Sharon also asks for the judge to make an independent finding as to whether Swan’s three payments to Monroe — in January and December 2010 and January 2011 — “were related payments or were separate discrete acts of bribery.”
He also asks the judge to consider “whether the presentence report is double-counting by applying two public official adjustments.”
Sharon also indicated he will file a written sentencing memo on behalf of the defense.
Betty Adams — 621-5631 [email protected]