LeNature's appeal tied to attorney

| Tuesday, Dec. 3, 2013, 12:01 a.m.

Another former LeNature's executive is asking a federal judge to set aside his 15-year prison sentence because his defense attorney would not allow him to testify in his own defense and allegedly did not deliver on promises he made as part of his trial strategy, according to recently filed court documents.

Robert Lynn, 68, of Ligonier, asked a judge to vacate the sentence he is serving at a federal prison in Cambria County because his attorney, Thomas J. Farrell of Pittsburgh, would not let him testify in his own defense and failed to call a forensic accountant as a defense witness to rebut prosecution testimony, according to a motion filed in U.S. District Court in Pittsburgh.

Lynn was convicted last year on 10 of 24 counts of bank, mail, wire fraud and conspiracy in connection with the financial collapse of the Latrobe-based beverage company that resulted in the theft of more than $800 million from banks and other lenders. A federal appeals court upheld his conviction.

“… Mr. Farrell provided ineffective assistance of counsel during critical stages of my trial proceedings and I was greatly prejudiced by the deficient conduct,” Lynn wrote.

He said Farrell insisted Lynn not testify because Farrell believed he had discredited government witnesses and didn't want to give the jury “another bite at the apple.”

Lynn said he and Farrell had a heated exchange about the decision not to call Lynn as a witness. “It is my call and you are not going to take the stand, that's final,” Farrell told Lynn, according to his account.

Farrell declined comment on Monday.

In the court document, Lynn said he protested the change in strategy because he wanted Farrell to call a handwriting expert to show that Lynn's signatures on certain financial documents were forgeries.

To buttress his argument, Lynn submitted a March 12 letter from Farrell in which Farrell advised Lynn on what legal steps to take.

“Right now, the only allegation of which I can conceive is my ineffective assistance at trial,” Farrell wrote. “You might argue that I gave you bad advice in discouraging you from testifying, in particular, I overestimated the likelihood that we would prevail on appeal with our argument that the prosecutor improperly commented on your right not to testify.

“Rest assured that I take no offense if you choose to pursue an effective assistance of counsel petition. I will do whatever I can to assist you in advancing your cause, within the limits of the law. I must testify truthfully,” Farrell wrote.

According to federal prosecutors, Lynn played a critical role in helping CEO Gregory Podlucky defraud investors and lenders into believing LeNature's was a successful company when in reality it was hemorrhaging red ink.

Lynn misled investors about the company's true financial status by hiding bleak financial news from investors, prosecutors said.

After his conviction, Lynn appealed his sentence, but an appeals court judge upheld the punishment, saying the 15-year term was “substantively reasonable.”

Under sentencing guidelines, Lynn could have been sentenced to anywhere from 27 to 34 years.

Podlucky is serving 20 years in prison. He filed a similar motion in October, arguing that his attorney misled him about the terms of a plea bargain, which Podlucky claimed would have reduced his sentence and prevented his wife and son from going to prison.

Podlucky's wife, Karla, is serving more than four years; his son, Jesse is serving nine years; a brother, Jonathan, is serving five years. Another company executive, Andrew Murin, is serving 11 years.

Richard Gazarik is a staff writer for Trib Total Media. He can be reached at 724-830-6292 or rgazarik@tribweb.com.

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