A day after the presiding judge effectively removed the conspiracy count from the government's case against former budget director Bert Lance and three business associates, the prosecution today pressed forward on lesser charges.
An FBI agent who had examined bank records of the defendants, their families and friends, testified that their accounts were almost continuously overdrawn, some of them for years at a time.
His testimony also showed that massive overdrafts at the Calhoun First National Bank were eliminated with loans arranged by Lance at other friendly banks while he headed the Calhoun bank.
The testimony summarizing the government's case in U.S. District Court here came at the end of the 12th week of the criminal trial of Lance and three other defendants, H. Jackson Mullins, Richard T. Carr and Thomas M. Mitchell.
The government attempted to show that the loans Lance made to cover his associates' overdrafts amounted to misapplication of bank funds. They were made in willful disregard for the interest of the bank, the government alleged, and were arranged by Lance even though he knew the borrowers were not creditworthy.
FBI special agent Gary M. Morgan reviewed a list of seven loans, ranging from $30,000 to $100,000, each of which was extended despite the fact that the borrower's bank account was severely overdrawn at the time.
In one instance in 1974, Lance, while chairman of the Calhoun bank, arranged $45,000 in loans for his wife, LaBelle, whose account was overdrawn, Morgan testified.
She wrote $260,000 worth of checks on that account to pay for stock, the government alleged. Prosecutor William Gaffney said, "Lance, as lending officer, was loaning money to his wife . . . for personal investments he was directing. The payments were made with overdrawn checks."
In cross-examination of Morgan Lance's attorney, Nickolas P. Chilivis, dismissed the agent's testimoney as "misleading," because he said it didn't show that the loans were eventually repaid. The government attorneys objected. Chilivis countered that he called Morgan's testimony misleading "because I believe it is."
At this point, chief prosecutor Edwin J. Tomko leaped from his seat and shouted, "This is absolutely incredible."
Judge Charles A. Moye Jr., dismissed the jury, then angrily told Chilivis: "You know an expression of personal opinion by a lawyer in a case is grossly improper."
"The court rebukes you as severly as it can," Moye concluded.
When the jury returned, Moye told the panel that Chilivis' remarks had been "highly improper," and asked the jurors to disregard them.
Earlier, Moye disclosed to the jury his Thursday decision about the conspiracy count. He said: "Yesterday we made a ruling that will have the effect of limiting the proof. We will not be receiving any evidence any more with respect to count one."
The conspiracy count permitted the government to prosecute the Lance defendants without regard to the statute of limitations. With the count struck from the case, however, the prosecution must prove that the alleged crimes were committed no earlier than May 23, 1974, five years to the day before the defendants were indicted by a federal grand jury here.
Elimination of the conspiracy count greatly simplifies the complex case. That single count took up 47 pages of the 71-page indictment.
However, the defendants still face 32 other counts of falsifying bank records, misapplying bank funds and filing false financial statements to get loans.