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The lawyer of a man charged with swindling investors says the restrictions are intended to unfairly punish Robert Swain.
By ED QUIOCO, Times Staff Writer
© St. Petersburg Times, published April 5, 2002
When Belleair developer Robert Swain appeared before Pinellas-Pasco Circuit Judge Brandt Downey last week, the judge imposed strict restrictions on the racketeering suspect because of concerns that he would skip town if he made his $500,000 bail.
Swain, 56, has since been released on bail, and now he is challenging the limits that Downey placed on his freedom of movement. His attorney recently appealed Downey's restrictions to the 2nd District Court of Appeal.
"A flight risk?" defense attorney Jeffrey G. Brown asked Thursday. "The guy's been in my office every day getting documents and preparing his defense. Every day. I have never had a client so interested in proving his innocence."
At a March 28 hearing, Downey prohibited Swain from leaving Pinellas County, ordered him to wear a satellite-monitored electronic ankle bracelet and required that he pay for the cost of the device.
In a petition filed this week, Brown contended that Downey "abused (his) discretion in making findings based on newspaper articles and nonrelevant prosecutorial hearsay regarding pending civil litigation."
"I clearly think this was punitive," Brown said. "This was a prejudgment to punish Swain. There is no evidence that he is going to run . . . because he is facing some ridiculous criminal charge."
Swain is charged with swindling three investors who put up more than $300,000 to help develop three residential projects: Tarpon Pointe and Tarpon Highlands in North Pinellas and Rutland Estates in St. Petersburg.
Tarpon Highlands and Rutland Estates were never fully developed and have languished for years. Tarpon Pointe was sold to a company unrelated to Swain who renamed the property Pointe Tarpon Marina Townhomes and has since built it out.
Prosecutors contend that the harm rippling out from the failure of Swain's projects went far beyond the three investors named in the charges. In all, they have estimated the direct and indirect economic damage at $25-million or more.
Swain was charged with racketeering and faces up to 30 years in prison if convicted. Authorities also say they are investigation his business dealings, both locally and in New England.
Brown said prosecutors are stretching on their allegations and categorized the charges as "some investors are sour now because they lost $300,000."
Pinellas prosecutor Bill Burgess declined to comment on Brown's statements.
"This case is more complex than what it looks like from the outside," Burgess said Thursday. "We are going to play this right down the middle and the facts are what the facts are."
Prosecutors charge that Swain misled investors and failed to tell them about a lengthy string of previous business failures that might have caused investors to pause before entrusting him with their money.
Because of the nature of the investments and the way they were offered, prosecutors say, they were securities that should have been registered with the state Department of Banking and Finance.
Brown counters that his client has never been arrested before this incident, never been convicted, has strong family ties, lived for more than 20 years in the community with a long employment history and has never failed to appear in court.
Plus, Brown added, his client is charged with a securities fraud violation.
"We are talking a technicality here . . . and that's assuming the case can be proved," Brown said.
That's why they were caught by surprise when Downey required Swain to wear the ankle bracelet and stay in the county, he said. The requirements are unreasonable because Swain operates a business in Boston and has numerous legal and business reasons to travel to Massachusetts, Rhode Island and Tampa.
Swain also can no longer go grocery shopping because supermarkets have metal roofs that inhibit the ankle bracelet's signal and cause the satellite to lose track of Swain.
"We don't know where (Osama) bin Laden is, but darn it, we want to know were Swain is," Brown said. "I just don't understand this. To me, this makes absolutely no sense."
The state still has to respond in a court filing to Brown's petition before the court of appeals will issue a judgment.
"When we get our day in court, there are a lot of facts that will be straightened out," Brown said. "They picked a fight and they got it."
-- Staff writer Richard Danielson contributed to this report. Ed Quioco can be reached at (727) 445-4183 or at quioco@sptimes.com.