Disgraced money manager Tim Durham wants the charges against him dropped. Durham's attorney filed a 650-page motion Wednesday, accusing the government of gross misconduct and of violating the constitution.
They argue investigators tapped Durham's phones before a judge signed off on it and then tried to cover it up.
"If information is obtained without proper authorization it's not admissible and any evidence that is derived from the unauthorized capture is also not admissible," said John Tompkins, Durham's attorney.
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It was just before thanksgiving in 2009 when the FBI swarmed Monument Circle and raided the offices of Tim Durham's companies Obsidian Enterprises and Fair Finance. It was almost a year and a half later when Durham was indicted and arrested in his Los Angeles home.
A 29-page federal indictment alleges Durham and his associates ran a ponzi scheme and defrauded more than 5,000 people out of $230 million. Prosecutors also said Durham spent the money lavishly on himself, buying homes, an impressive car collection that was later seized by the feds and taking luxurious vacations.
Durham's attorneys said the raid that led to the criminal charges should never have happened because the government tapped Durham's phone lines before a judge said they could.
"The motion alleges that the wire tap that the federal government initiated was started four days prior to getting the title 3 authorization and was tested with voice by government agents four days prior to having the authorization to do voice capture."
U.S. Attorney Joe Hogsett said the government will prevail when it goes before a federal judge.
"We believe in this case everything that was done from an investigative stand point was done appropriately with appropriate legal sanction."
In the court filing, Durham's attorneys are also calling on the prosecutors to be investigated for what they call covering up the wiretap mistakes.
Hogsett said Durham's case is slated to go to trial next June and he expects a resolution by then.
