Former Countrymark CEO David Swanson has succeeded in getting a federal appeals court to hear his case for early release and is asking to be let out of prison until the court rules on the appeal.
The 68-year-old former financial executive is serving a 12-year sentence stemming from his 2002 conviction for wire fraud, money laundering and tax evasion.
Swanson argued during a March hearing in Indianapolis that the government failed to disclose evidence favorable to him and that he was denied his Sixth Amendment right to effective counsel.
But, in a May ruling, Judge Sarah Evans Barker picked apart Swanson’s arguments, including a claim that his attorneys—James Voyles and Jennifer Lukemeyer—were derelict in not seeking a mistrial after the government presented its case.
A federal appeals court in Chicago, however, has agreed to hear his appeal of Barker’s ruling the week of Sept. 26.
Swanson’s lawyers argue that he should be released from prison pending the appeal because, if successful, he already has served a sentence beyond what would have been appropriate.
They said in their Aug. 18 petition for his release that he should have served no more than eight years and one month had his previous counsel effectively defended him.
Factoring in credit for good behavior, which his lawyers say he is entitled to, he has served considerably longer than that.
“As the court knows, he did not appear for his original sentencing over eight years ago, a serious mistake, as he has already acknowledged,” his lawyer, Carol Brook of the Federal Defender Program in Chicago, said in a court filing. “And the intervening eight years demonstrate that he is not a flight risk.”
However, in opposing Swanson’s motion for release, federal prosecutors insist he is a flight risk and that he is unlikely to prevail on his appeal.
A jury found Swanson guilty in October 2002 of stealing $2.7 million from Countrymark, an Indianapolis-based agricultural cooperative, in the 1990s.
He failed to appear for sentencing in January 2003 and was apprehended in Seattle about three weeks later.
“Should Swanson not prevail on appeal, and the United States does not believe he will, he will face the choice of absconding or returning to prison,” U.S. Attorney Joseph H. Hogsett said in the government’s objection filed on Thursday. “Given Swanson’s record, the odds of his making the right decision are not promising.”
Swanson has indicated in court filings that if his request is granted, and if his appeal is successful, he will go to New York.
He is serving his sentence at a Duluth, Minn., federal prison.