Will 'We Build the Wall' co-defendant get separate trial in fraud case? Here's what we know.

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NEW YORK — Colorado businessman Timothy Shea is continuing his efforts to get a separate trial in the federal money laundering conspiracy and wire fraud conspiracy cases involving Brian Kolfage, the Air Force veteran in Miramar Beach at the center of the case.

Shea, along with Kolfage, Florida financier Andrew Badolato and former Trump administration political strategist Steve Bannon, was indicted in August 2020 by a grand jury in the U.S. District Court for the Southern District of New York on the conspiracy charges.

Broadly, those charges contend that Badolato and Shea were involved with Kolfage and Bannon in activities that improperly steered donations to a Florida nonprofit organization to Kolfage and Bannon.

From his perspective: Kolfage says politics behind fraud conspiracy indictment

Kolfage is alleged to have received $350,000 in the scheme, while Bannon allegedly steered $1 million in donations to a separate nonprofit organization under his control. Bannon was pardoned by then-President Donald Trump in the last hours of his administration.

The nonprofit organization at the center of the federal case is We Build The Wall Inc., (WBTW). It was established by Kolfage to privately fund construction of sections of a wall along the U.S.-Mexico border. At one point, it held $25 million in donations, more than $8 million of which was used to build a 1-mile section of wall in Sunland Park, New Mexico. An additional $1.5 million in WBTW dollars were provided to a contractor pursuing a 3.5-mile section of wall in Mission, Texas.

According to Kolfage, the nonprofit subsequently worked with the U.S. Department of Homeland Security to investigate potential projects with which the department indicated it might have needed some help. Kolfage said the nonprofit also switched some of its work to education and advocacy on border issues.

Initial plans for the case were to try Kolfage, Badolato and Shea together. But in a February filing in the case, Judge Analisa Torres noted that COVID-19 protocols in effect for the Southern District prohibit trying more than two defendants at a time. The filing asked all parties in the case to propose which of the defendants should be tried together and which one should be tried alone in the event that COVID-19 protocols remained unchanged.

An earlier attempt: Brian Kolfage co-defendant denied separate trial

In response, government prosecutors filed papers in February indicating that they and Badolato were "in the final stages pf pre-trial discussions about a pre-trial resolution of the case (against Badolato) and do not anticipate that a trial on the charges against Mr. Badolato will be necessary."

Currently, there are two trial dates set, with May 16 tentatively set aside for two defendants — whom at this point appear to be Kolfage and Shea, according to court documents — and June 21 set aside for the third defendant, which appears to be Badolato.

Brian Kolfage, the founder of We Build The Wall, is given wrist bands from "Angel Families" at a press conference May 30, 2019, in Sunland Park, New Mexico. A co-defendant in a federal fraud and money laundering case connected with We Build The Wall is continuing to try to have his trial separated from Kolfage.
Brian Kolfage, the founder of We Build The Wall, is given wrist bands from "Angel Families" at a press conference May 30, 2019, in Sunland Park, New Mexico. A co-defendant in a federal fraud and money laundering case connected with We Build The Wall is continuing to try to have his trial separated from Kolfage.

However, if COVID-19 protocols change in time to allow it, all three defendants — Kolfage, Shea and Badolato if he is brought to trial — could be tried May 19, according to court documents.

We Build the Wall gets 'widespread publicity'

Shea's counsel, in a filing earlier this month in New York court, argued that Shea should be tried separately, contending that "Mr. Kolfage’s position as the founder and CEO of We Build the Wall (WBTW), which placed him front and center as the campaign’s spokesperson, garnered him large-scale publicity and notoriety."

The filing also argued that Badolato and Bannon, whose involvement with WBTW gave "widespread publicity" to WBTW, have been longtime associates. Additionally, Shea's counsel noted that "Badolato himself has enjoyed his fair share of media publicity ... from his own, separate criminal allegations."

A 2020 story in the Sarasota Herald-Tribune noted at the time that Badolato had been involved in "numerous lawsuits, substantial monetary judgments and sizable Internal Revenue Service liens filed against him; business dealings with convicted felons for stock-related fraud; an extortion attempt after he borrowed money from a self-described mobster that led to him wearing a wire for the FBI; (and) an association with a Costa Rican offshore firm that was called a 'money laundering hub' by the Justice Department ... ."

The meat of the argument in the filing on Shea's behalf is that "(o)verall, the notoriety and polarization that innately swirls around these individuals would be impossible for Mr. Shea to avoid in a joint trial. Furthermore, it would be difficult, if not impossible, to imagine any intelligent and competent prospective juror to adequately show that they do not possess any biases toward these well-known individuals, particularly Mr. Bannon. If (Shea were to be) tried alone, many of the above-mentioned topics could be curtailed, if not entirely avoided."

Shea 'not a public figure'

Elsewhere in the filing, Shea's counsel contended that "the allegations against Mr. Kolfage and Mr. Badolato are of a different nature than those against Mr. Shea. Although alleged to be part of the same conspiracies to commit fraud and money laundering, the distinct difference is that Mr. Kolfage is alleged to have received hundreds and thousands of dollars, while Mr. Shea is not alleged to have actually received any such monetary gain."

Shea's counsel also contended that " ... the representations made by Mr. Bannon, Mr. Badolato, and Mr. Kolfage in connection to fundraising — not those made by Mr. Shea — were the ones that formed the underlying basis of the fraud charges."

"(W)hile we appreciate the Court’s strong preference for trying alleged co-conspirators together, we respectfully suggest that Mr. Shea’s role is so nominal in comparison that a separate trial would be warranted ...," the letter from Shea's counsel concluded.

Previously: Brian Kolfage court date in Pensacola moved from March to September to accommodate federal trial

More: Dates set — again — for trials of local veteran in alleged We Build the Wall scheme

The recent filing marked the second time this year that Shea has attempted to have his case tried separately from Kolfage and Badolato. In that earlier motion for a separate trial, Shea's counsel argued that his client was "not a public figure nor did he receive any media coverage or personal notoriety from his involvement with WBTW."

The core of that previous argument, when all three co-defendants were set to be tried together, was that a joint trial would make Shea a victim of what his motion called "spillover prejudice." Specifically, the motion contended 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 co-defendants."

Torres, who had not responded as of Monday afternoon to the most recent letter from Shea's counsel seeking a separate trial for his client, ruled against his earlier motion for separate proceedings, noting in part that the "Court rejects Shea’s contentions regarding the relative levels of culpability among the three co-defendants, and the alleged disparity in the amount of proof against each defendant."

The ruling also noted that "the Court rejects Shea’s contentions regarding the relative notoriety of his codefendants," concluding in part 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."

This article originally appeared on Northwest Florida Daily News: We Build the Wall case: Timothy Shea still seeking separate trial