Monday, December 9, 2013
By BETTY ADAMS Kennebec Journal
BANGOR — Carole Swan, who spent 19 years as a Chelsea selectwoman signing warrants and conducting other town business, testified in federal court here Wednesday that she is illiterate.
"I can't read or write," she said. "I never took minutes. I can read numbers."
Swan made the surprising statement when she took the witness stand during a pretrial hearing in U.S. District Court, where she faces federal extortion charges for allegedly accepting kickbacks from a town road contractor, as well as other crimes.
Shortly after saying that, she provided the names of four people she said witnessed her efforts to investigate that same contractor, Frank Monroe, of Whitefield, and spelled the last name of one of those witnesses.
At the hearing, her attorney, Leonard Sharon questioned two investigators as well as Swan and her son Jacob in a bid to keep her Feb. 3, 2011, statements to investigators from being used at trial.
In his written motion to suppress, Sharon maintained Swan was not given Miranda warnings, that she was in custody during the interview at the Kennebec County Sheriff's Office that afternoon, and that her statements were made involuntarily in response to pressure.
Assistant U.S. Attorney Donald Clark, the prosecutor, maintained that the videotaped admissions should be used and that Swan's rights were not violated.
The judge is expected to rule later in writing.
Neither attorney presented oral arguments. They confined their efforts in the 2 1/2-hour hearing to questioning the witnesses. A court affidavit by sheriff's office Detective David Bucknam about that interview says Swan admitted receiving kickbacks from other contractors as well as Monroe and had taken money for years for "greasing the wheels" and was "the guilty one."
On the stand, Swan admitted to saying all of that and responded "yes" to Clark's question about whether she knew she was "ripping off the town" by having Monroe overbill it for sand.
U.S. Magistrate Judge Margaret Kravchuk halted questioning by Clark after he asked whether Swan previously had taken bribes from Monroe.
"We're not going to try the whole case this afternoon," Judge Kravchuk said. Clark told the judge some of his questions were designed to test the credibility of Swan's testimony.
Bucknam testified Wednesday that Swan was not under arrest during the interview and was told repeatedly she could leave at any time.
Swan was arrested a week after that interview on state charges of aggravated forgery, attempted theft from the town and improper compensation for services. Those charges were dismissed later in favor of federal charges.
Swan was a selectman from 1992 until early 2011. She was indicted by a federal grand jury Feb. 29 on 17 separate charges, and her husband, contractor Marshall Swan, 55, was indicted on 10 charges. Both Swans have pleaded not guilty.
If found guilty, Carole Swan faces maximum penalties of up to 20 years in prison on some of the federal charges and Marshall Swan faces a maximum of 10 years in prison on some of his federal charges.
In a written motion filed before Wednesday's hearing, Sharon said deputies at the Feb. 3, 2011 questioning did not permit her to use her cellphone. Her son Jacob Swan also testified he was unable to reach her when he called her cellphone and the family's home phone that day to find out why she had not brought his lunch as she had promised.
"The officers did not act out the time-worn good cop-bad cop routine," Sharon said. "This was a bad cop-worse cop scenario."
In contrast, Bucknam painted a more cordial picture of the interview. He said Swan was told several times that she was not under arrest and could leave if she wished and that she was allowed to call her husband in private.
In his affidavit and on the stand, Bucknam described a sting set up so deputies could watch Swan receive cash from Monroe. He said Monroe, who maintained Chelsea's roads, contacted the sheriff's department Jan. 31, 2011, to say Swan asked him "to submit a fictitious bill (to the town) for sand and asked for a $10,000 cash kickback."
"The primary purpose of the interview was to confirm the kickback scheme and determine whether others were involved," Bucknam said in the affidavit.
At deputies' direction, Monroe faxed the bill to the town and later retrieved a check for $22,075 from Swan's mailbox, Bucknam said. Bucknam said he used sheriff's office funds to resemble a stack of $10,000 and gave it to Monroe, who passed it to Swan when she drove up next to his vehicle on Chapel Street in Augusta.
Clark put into evidence still photos of some of these alleged events, as well as a videotape and transcript of the interview. Deputies approached Swan immediately afterward when she stopped in thr parking lot of a dry-cleaning business, Bucknam said.
Lt. Ryan Reardon, of the Kennebec Sheriff's Office, testified he told her in a gruff voice, "I want my money back."
He said Swan responded, "What money?" Then she said Monroe owed that money to her husband. Reardon testified she agreed to go with them to the sheriff's office, which was a block away.
Swan testified she felt she had to agree because they had essentially boxed in her and her vehicle. The detectives said they did not.
The Swans are free on bail with conditions that they not commit any criminal acts and that they stay away from Monroe and his family and from people who might be victims or witnesses in the investigation or prosecution.
Carole Swan is accused of extorting money from Monroe on three occasions in exchange for awarding him town contracts.
Carole Swan faces three counts of Hobbs Act extortion related to dealings with Monroe (the Hobbs Act covers extortion or robbery that affects interstate commerce); five counts of tax fraud and false statements, allegedly for failing to report $600,000 in income to the Internal Revenue Service over a five-year period; fraud involving the Federal Emergency Management Agency for work Marshall Swan did on a Windsor Road culvert project; and four counts of making false statements to gain federal employee compensation.
Marshall Swan faces the same five counts each of tax fraud and false statements and five counts of aiding and abetting fraud on a program receiving federal money. His attorney, Walter McKee, has asked the court for a separate trial for his client and is awaiting a ruling on that.
Ten days ago Kravchuk recommended dismissal of five charges against Carole Swan, all involving allegations she misled bidders on the project by saying a culvert cost $130,000 rather than the actual cost of $58,000.
The contract was awarded to Marshall Swan Construction, a company owned by Carole and Marshall Swan. Kravchuk said the government could seek a superseding indictment essentially rolling all those counts into one.
"The facts and circumstances at hand, from an objective standpoint, call for a single count for one misrepresentation in the context of the project/contract, not a separate count for each payment installment, Kravchuk said.
She also said the five related counts against Marshall Swan should also be amended.