Defense attorney wants DA’s office removed from Modesto bail bonds case

rahumada@modbee.comMay 30, 2014 

A defense attorney claims prosecutors focused an investigation on the owner of a Modesto bail bonds business to divert attention from wrongdoing within the Stanislaus County District Attorney’s Office.

Frank Carson alleges in court documents that District Attorney Birgit Fladager was afraid of negative publicity and persuaded federal authorities to halt their probe of a high-ranking investigator in her office. The Modesto defense attorney is running for district attorney against two-term incumbent Fladager in next week’s election.

“Ms. Fladager is believed to have intervened with federal authorities and headed off a possible federal indictment charging conspiracy, firearms trafficking and obstruction of justice,” Carson wrote in a motion filed May 20 to have her office removed from a case in Stanislaus Superior Court.

Prosecutors say Carson’s allegations have no supporting evidence and are an attempt to influence Tuesday’s election. The District Attorney’s Office says federal and state authorities refused to file charges against the investigator after Fladager tried to have the case prosecuted.

“Mr. Carson has made false, speculative and unsubstantiated accusations once again,” Chief Deputy District Attorney Dave Harris wrote in a filed response to Carson’s recusal motion. “This motion is merely a campaign attack.”

Carson represents Aleo John Pontillo, owner of AJ’s Bail Bonds, who has been charged with conspiracy to kidnap for the purpose of extortion, conspiracy to commit grand theft and violating state insurance regulations.

Carson says his client can’t receive a fair trial because prosecutors redirected their focus to conceal Fladager intervening in a federal investigation of one of her investigators.

“To deflect from criminal and ethical wrongdoing within the prosecutor’s office, the focus was shifted exclusively to Mr. Pontillo, alleging wrongdoing on his part,” Carson wrote.

The defense attorney’s motion asks Superior Court Judge Scott Steffen to replace the District Attorney’s Office with the state Attorney General’s Office on the Pontillo case.

Harris is asking the judge to deny Carson’s motion because it has no merit and is based on speculation. “The delusions, or deliberate misrepresentations, are not a legal basis to grant a recusal motion.”

The investigation into the alleged criminal activity at the AJ’s Bail Bonds business on Yosemite Boulevard in Modesto began with a complaint to the FBI made by a Turlock resident June 11, 2007. She claimed she had a friend at the District Attorney’s Office who told her about the business.

The complaint alleged that the business accepted drugs and guns as bail bond payments, forced women to give sexual favors as payments, extorted money from bail clients, used political connections to avoid paying bonds for clients who have skipped bail and delayed paperwork in the court system to exonerate bail.

The allegations are listed in an FBI complaint report attached to Carson’s motion. She also told the FBI that an investigator at the District Attorney’s Office, Aaron Gallagher, was friends with an employee at AJ’s Bail Bonds, David Nelson.

In September 2006, the Stanislaus Drug Enforcement Agency investigated Nelson. Nelson sold methamphetamine to a confidential informant, according to the U.S. Attorney’s Office. Nelson also worked as a longtime informant for Gallagher.

Carson says Gallagher warned Nelson of an impending law-enforcement raid because Gallagher was worried about a gun he gave to Nelson. The defense attorney claims the gun once was part of a Modesto Police Department arsenal taken by officers without paying for them or completing state-required paperwork.

On Thursday, Gallagher declined to respond to Carson’s allegations or comment further. “What Frank Carson says, I don’t care about,” Gallagher said.

The defense attorney alleges that Gallagher’s warning to Nelson worked, because Nelson hid the gun before the investigators arrived to serve a search warrant in 2006.

Carson attached to his motion a copy of a March 31, 1999, story in The Modesto Bee, where Modesto police said one of the guns sold to Gallagher, who was then a Modesto police officer, was recovered by Sacramento police. A city memo indicated the 9 mm Beretta was reported stolen by a man who received the gun as a gift from Gallagher.

Federal authorities arrested Nelson on Sept. 19, 2006, on suspicion of selling meth to the confidential informant, according to the U.S. Attorney’s Office. There’s no indication Nelson was suspected of possessing a gun that once belonged to the Modesto police arsenal.

When Nelson was taken into custody, he told investigators he knew they were coming with a search warrant because he had somebody on the “inside” giving him information.

The FBI and the Stanislaus County Sheriff’s Department launched an investigation of Gallagher, according to a Feb. 19, 2009, letter from Lawrence G. Brown, then the acting U.S. attorney for the Sacramento area. The letter was sent to Fladager detailing the reasons why federal prosecutors chose not to file charges against Gallagher.

Federal prosecutors believed Gallagher lied to investigators to cover up his actions, according to Brown’s letter.

“While the FBI investigation has revealed serious misconduct on the part of Lieutenant Gallagher, given the available evidence and the circumstances of the case, we do not believe that this office could convince a jury to convict Lieutenant Gallagher,” Brown wrote in the letter to Fladager.

The district attorney then submitted the investigation to the state Attorney General’s Office to file charges against Gallagher.

After federal and state officials refused to prosecute, Fladager fired Gallagher based on what they learned from the investigation. In a written statement to the court, Fladager said, “At no time did I ever intervene in the investigation on behalf of Aaron Gallagher.”

If Carson’s claims were true, Harris says, the simplest way to keep the Nelson and Gallagher connection a secret would have been to not prosecute Pontillo. “The evidence is clear there was never a coverup, Pontillo was never used to deflect from Gallagher ... ,” Harris wrote.

Harris, who is prosecuting the bail bonds business owner, questioned why Carson was making these accusations now. He says the District Attorney’s Office handed the defense all the information it had about Nelson and Gallagher in the initial phases of the case, and Carson used some of it to question an FBI witness in the December 2012 preliminary hearing.

Harris also points out that Carson asked Steffen to hear this recusal motion before the election next week. Steffen has scheduled a hearing on Carson’s motion to take place Wednesday, the day after the election. Pontillo’s trial is scheduled to start July 14.

Bee staff writer Rosalio Ahumada can be reached at rahumada@modbee.com or (209) 578-2394. Follow him on Twitter @ModBeeCourts.

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