Fulton County Daily Report

September 27, 2010

http://www.law.com/jsp/article.jsp?id=1202472538844&Ga_Attorney_Arrested_on_Drug_Charges_for_Giving_Prescription_Pills_to_Friend

Criminal defense lawyer Mark Shelnutt was previously acquitted of money laundering charges

Agents with the Georgia Bureau of Investigation have arrested a Columbus criminal defense lawyer who was acquitted last year of federal money laundering charges, charging him with eight felony counts of drug distribution for giving 11 prescription pills over a two-month period last summer to a friend who turned out to be an undercover informant.

Around noon Thursday, in front of waiting television cameras and members of the Columbus news media, the GBI made a traffic stop of Columbus attorney J. Mark Shelnutt in front of the county Government Center, Shelnutt told the Fulton County Daily Report on Friday. As television news crews filmed the arrest, GBI agents handcuffed Shelnutt and took possession of his car, he said.

"They obviously tipped the press off," he said, adding that agents searched his car and have taken his cell phone.

Shelnutt was arrested after a three-month undercover investigation by the GBI on multiple warrants charging him with providing a single tablet of prescription painkiller Percocet; eight tablets of Xanax, an anti-anxiety medication; and two tablets of hydrocodone, a pain reliever and cough suppressant, in amounts ranging from one to three pills at a time, to a woman acting as the GBI's confidential informant, according to the arrest warrants.

Shelnutt is accused of giving the prescription medications to the informant during seven separate meetings between July 7 and Aug. 27, according to the warrants.

Six of those encounters were recorded by the GBI informant either on audio, video or both, according to the warrants.

On Friday, Shelnutt said that he believes the GBI's undercover informant, whom he declined to identify, is "a very close friend of many, many years."

"My understanding is that I've been charged with giving my lawfully prescribed medication, usually a single pill, to her six times over the past 2 1/2 months," often over lunch, he said.

Shelnutt told the Daily Report that his arrest comes on the heels of multiple calls over the past several months that he has received from clients and others warning him that "they have been asked by particular law enforcement agents to sign statements they know are false against me and wear wires ... and try to get me to take medicine for a legal fee or anything they could say was illegal," he said.

"When you get that from multiple places, that is enough to scare you," he said.

GBI Maj. Rodney Wall, special agent in charge of the GBI's Columbus office, confirmed Thursday that Shelnutt was not selling the prescription pills but "giving them away" and "just to our informant."

Wall said that Shelnutt was "absolutely wrong" to think that agents tipped off the media about his arrest. "There was one camera there," he said. "The person was coming out of the government center from another meeting and just happened to be there."

Shelnutt was released Thursday evening on a $5,000 bond. Shelnutt said that he has not retained a lawyer because defending himself against the federal charges virtually destroyed his law practice and left him deep in debt.

The GBI began its investigation in July after agents in its Columbus office were contacted by Chattahoochee Circuit District Attorney Julia A. Slater, who had been contacted by a woman who subsequently became the GBI's informant, said Appalachian Circuit District Attorney Joe W. Hendricks Jr. Hendricks was appointed by the state attorney general to handle the new case against Shelnutt. Hendricks would not identify the informant.

When the GBI "needed some direction in terms of legal issues," during the undercover probe, Slater, a former associate at Shelnutt's law firm who was elected district attorney in 2008, recused and contacted the office of Georgia Attorney General Thurbert E. Baker to request the appointment of a special prosecutor, Hendricks said.

In her letter to the AG, which she wrote after the GBI had been investigating Shelnutt for nearly a month, Slater said she had a conflict and that, "Because of the nature of this investigation, it would be inappropriate for me to reveal my relationship to the case."

On Aug. 3, Baker appointed Hendricks to handle the Shelnutt investigation.

In a news release, the GBI noted that the prescription medications that Shelnutt is charged with distributing are "subject to being highly abused and addictive, especially in circumstances when it is not being prescribed and monitored by a licensed physician." Under federal and state law, prescription medications can only be distributed or dispensed by licensed physicians, authorized medical practitioners or pharmacists.

Hendricks explained that under state law, if anyone offers one of their prescription pain pills to someone, even a friend or family member, it is considered felony distribution of a controlled drug.

Hendricks said that when Shelnutt was arrested, the GBI had not determined whether the pills he gave to the agency's informant had been prescribed to Shelnutt by his doctor.

"We haven't done that part of the investigation yet," he said. "He may have a prescription for everything he gave this informant."

But, he added, "It didn't matter if he had a prescription or not, he couldn't give them to her [the informant]."

Savannah attorney Thomas A. Withers, who defended Shelnutt in the federal case but is not currently representing him, said that in his 25 years of experience as both a prosecutor and defense counsel, "I have never seen individual handouts of a controlled substance without payment prosecuted as a case."

In May 2009, a federal grand jury in Columbus handed down a 40-count indictment charging Shelnutt with conspiring to launder money, 31 counts of money laundering, aiding and abetting a drug conspiracy, lying to federal agents, intimidating a grand jury witness, failing to report cash transactions over $10,000 and the attempted bribery of a federal prosecutor.

The federal case against Shelnutt stemmed from his longtime representation of Columbus drug kingpin Torrance "Bookie" Hill and Shelnutt's acceptance of legal fees that federal prosecutors claimed were derived from illegal drug sales by Hill or his network.

Shelnutt was charged even though it is not a federal crime to accept legal fees that may have been generated by illegal drug sales as long as they are used to pay for a criminal defense. In October 2009, just two weeks before Shelnutt's trial opened, the 11th U.S. Circuit Court of Appeals affirmed the legality of the practice.

In November, a jury in Columbus acquitted Shelnutt of all charges.

U.S. District Judge Clay D. Land, who presided over Shelnutt's trial, later slammed federal prosecutors for making "sweetheart plea deals" with some of Columbus' most notorious drug dealers and suggested that the judgment of federal prosecutors in the office of the U.S. Attorney in Macon "may have become clouded by its zeal to bring down a prominent defense attorney."