County Mayor Mike Foster’s attorney has filed a motion in federal court asking for the dismissal of charges that he made false statements to the Upper Cumberland Development District’s (UCDD) board of directors in connection with the Living the Dream home for seniors in Putnam County.
The motion to dismiss, filed on Dec. 13, by Foster's attorney Hal Hardin, asserts that the charges should be dismissed on the grounds that his statements were “ambiguous to such an extent that they cannot be prosecuted as a crime".
A motion has also been filed for a Bill of Particulars to clarify the accusations against Foster, and a motion for severance, claiming that a joint trial with his co-defendants Wendy Askins and Larry Webb would be prejudicial for Foster.
Former UCDD Executive Director Wendy Askins and former Deputy Director Larry Webb were named in a sixteen count federal grand jury indictment in September accusing them of the mishandling of government funds meant for the Living the Dream complex.
Foster was indicted on charges that he read a statement that he knew was false to help cover up illegal activity by Askins and Webb at a UCDD board meeting in January 2012.
Hardin’s motion to dismiss claims that “There is no allegation that Foster was a member of the conspiracy described in the indictment, and no allegation that he ever received anything of value for reading the statement. While it is alleged that Foster knew that the read statement was false, it is not alleged that Foster knew that Askins and Webb had a criminal motive for asking him to read it.”
In a memorandum in support of the motion to dismiss, Hardin said that “The sole count against Foster essentially alleges that he, a local government official, read a ‘statement prepared by Askins’... to the executive committee of a local public board in a public meeting that all know was being filmed by a local television station. There is no allegation that Foster was a member of the conspiracy described in the indictment, no allegation that he ever received anything of value for reading the statement. While it is alleged that Foster knew that the read statement was false, it is not alleged that Foster knew that Askins and Webb had a criminal motive for asking him to read it. Significantly, as clearly shown by the video, another member of the board made a motion to approve the statement… that board member has not been indicted. After the executive committee members engaged in a full discussion of the motion, it was passed without dissent by the executive committee. Mr. Foster “passed” and did not vote on it… none of the numerous Executive Committee members (or the 64 Board members) who discussed the motion and approved it were indicted.”
Hardin went on to say that  Foster admitted  at the meeting that he could not remember whether the  vote in question was taken at the previous meeting.
“Foster’s statements before a local government board allegedly exposing him to criminal sanctions are, at a minimum, ambiguous to such an extent that, dismissal is required. For example, regarding the subject minutes he stated: ‘And we talked about it, we don’t think it was. We don’t know if it was voted on, we don’t know if it was properly presented, we don’t really know if it was done as it should have been done, and there’s been some problems about whether or not we did it. We talked about it in another meeting about amending it, I think, to include that. And I don’t think that we did it....’ This ambiguous rambling, quoted language, is the crime alleged in Count 16. Simply to read it is to answer the question – this was not and cannot be a crime. Other members of the Executive Committee, none of whom are indicted, also had similar memories of previous discussion of the subject transaction.
“Second, the prosecutor's own theory of the case, as we can see by the allegations of overt acts under Count One, shows that it was Askins and Webb who created the statement upon which Count 16 relies, not Foster. Foster read the statement for them. He did not make a motion to adopt it, he passed from voting on it. A different board member suggested bringing it before the board. There is no allegation in the indictment that Foster was aware of the allegedly criminal activity of the other defendants or that he knew that the statement was related to any criminal activity...”
In his motion for a Bill of Particulars, Hardin asked that prosecutors “State the exact false material statement” that Foster allegedly made.
“The defendant requests that the prosecutors:
“State with specificity how Foster ‘then and there well knew and believed the UCDD Executive Committee had not discussed nor intended to approve the transfer of UCDD money to CRDC for the Living the Dream Project on February 16, 2010;’ State with specificity how Askins ‘aided and abetted’ Foster; State with specificity how Foster ‘aided and abetted’ Askins. Basic fairness dictates such a disclosure at this time.”
Hardin’s motion for severance alleges that a joint trial with Askins and Webb would be prejudicial to his client.
In a memorandum in support of the severance motion Hardin said, “Even a cursory review of the allegations reveals that the indictment is directed at the alleged multi-year criminal acts of Askins and Webb, with the result that the indictment devotes the vast majority of its verbiage to those defendants. Foster is discussed in only the final count of a 16 count indictment, and his alleged participation in the alleged crimes of Askins and Webb is miniscule or non-existent in relation to both the amount of alleged wrongdoing of those defendants and the time span of that wrongdoing.
“A joint trial of all three defendants will unavoidably be prejudicial to Foster for at least two reasons. First, if Foster is tried jointly, he will be inescapably associated in the minds of the jury with the voluminous amounts of material that will be presented against Askins and Webb. Any jury would have great difficulty in trying to separate out the miniscule amount of evidence pertaining to him from the huge amount of evidence that will be presented against Askins and Webb. Thus, Foster will be prejudiced by the "spillover" effect of the evidence against Askins and Webb
“Second, Foster wishes to have a prompt disposition of this charge, and because the prosecution's case against Askins and Webb involved so many more counts, so much more evidence, and, likely, so many more pretrial disputes than the prosecution's case against him, Foster will not be able to enjoy his constitutional and statutory right to a speedy trial. The State court and Federal court defense of Askins will engender lengthy delays, and, without severance, Foster will not go to trial for many months or even years.”
The cases against Askins, Webb, and Foster are  set for trial on May 20, 2014 in U.S. District Court in Nashville.