U.S. District Court Judge Charles A. Moye Jr. today effectively struck one count in the government's bank fraud case against former U.S. budget director Bert Lance.
The judge said the government had failed to show that Lance and one of his three co-defendants made false statements to an Atlanta bank to borrow about $390,000 to pay off debts from Lance's unsuccessful 1974 Georgia gubernatorial compaign. He said the prosecution could not present any further evidence on this count.
It was the second time Moye had taken an action that had the effect of striking a charge in the case. Last week he said he would acquit Lance and his three do-defendants of a conspiracy charge.
Today's action came as the government was winding up its case against the four men. Prosecutors expect to rest their case Wednesday.
The trial, in its 13th wek, then will turn to the defense, which is expected to file a series of motions for dismissal. Should those motions be denied, attorneys said today, Lance's team will lead off the defense.
The defense also hopes that Lance himself can repeat his persuasive performance of September 1977, when he effectively defended his financial dealings at a hearing before a Senate committee.
The prosecution called as its final witnesses FBI agents who traced loan proceeds and analyzed financial statements submitted to banks by Lance and two of his co-defendants.
Defense attorneys had attempted Monday to halt testimony about loan tracing, charging that the prosecution was still trying to present evidence of a conspiracy, a charge that was dropped last week. The agents testified that proceeds of many loans were used to pay off overdrafts and other loans, many of which were involved in the conspiracy charge.
But prosecutors contended that the purpose of a loan is part of a banker's credit decision, and they hope to persuade the jury that those decisions and other actions by the defendants constituted willfull intent to defraud.
The defendants argue that they were simply examples of the informal, sometimes unorthodox, dealings that typify country banking in Georgia and elsewhere.
From the beginning of his troubles nearly three years ago when he was President Carter's budget director, Lance has maintained that he was simply a Georgia country banker whose financial affairs were misunderstood by the press and regulators alike.
However, the Justice Department, after a massive investigation, indicted Lance and three others on charges of conspiring to defraud those same country banks -- and a few a city banks, too.
Last Thursday, Judge Moye concluded that the government had failed to show a criminal conspiracy involving the four defendants, and said he would acquit them of the charges.
But that still leaves Lance and the others to face 31 separate criminal counts of falsifying bank records., misapplying bank funds and filing false financial statements to get loans.
The conspiracy count, which takes up 47 pages of the 71-page indictment, included these same allegations. By saying he would strike the element of conspiracy from the government's case, the judge made no finding as to whether the defendants actually committed the alleged criminal acts. He merely concluded that the prosecutors were unable to show that the four defendants acted in concert to commit any or all of the alleged crimes.
The conspiracy count permitted the government to prosecute the Lance defendants without regard to the statute of limitations. Now, the government must prove that the alleged crimes were committed no earlier than May 23, 1974, five years to the day before the defedants were indicted by a federal grand jury here.
Also, with the 218 overt acts allegedly committed by the defendants eliminated, the amount of money involved in the allegedly illegal transactions has been reduced from $20 million to less than $3 million.
Of the remaining counts against Lance, five involve misapplication of bank funds -- $350,000 in loans he arranged for himself and $973,000 in loans he got for his co-defendants. Then, Lance is charged with four counts of making false statements to banks to get $675,000 in personal loans.
Another count accuses Lance of falsifying the records of the National Bank of Georgia when he headed it in order to arrange a loan to co-defendant H. Jackson Mullins. The remaining 11 counts of the indictment do not directly involve Lance.
Co-defendant Mullins is a 50-year-old former druggist in Lance's hometown of Calhoun who allegedly lent his name to a number of Lance's financial dealings. Looking bored and a bit bitter at times, Mullins spends his trial days staring impassively into space.
By contract, Thomas M. Mitchell, 45, who handled Lance's business affairs when he was in Washington, is a lawyer and follows closely the legal manuevering in the complex case.
The fourth defendant is Richard T. Carr, 43, a onetime northwest Georgia banking associate of Lance's. Like Lance, who got him the job as president of one of the pivotal banks in the case, Carr went deeply into debt to support a lavish life style, according to testimony. But Carr apparently was far less sophisticated in his finances than was Lance. The government alleges he blantantly inflated his personal financial statements to gain hundreds of thousands in loans, the interest on which his small town banker's salary could not begin to pay.