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Juror bias accusations push We Build the Wall case toward mistrial

Jury is split 11-1 with holdout member of panel complaining about a 'government witch hunt'

A juror who said fellow members of the panel had a liberal bias appears ready to cause a mistrial in the case against one of the co-founders of a bogus charity to privately build former President Donald Trump’s border wall.

The jury began deliberations late Tuesday afternoon after three days of witness testimony and summations in a case that kicked off two years earlier against the four co-founders of a 501(c)(4) organization called We Build the Wall. Timothy Shea, who owns a Trump-themed energy drink company called Winning Energy, is standing trial alone on three criminal counts, but the Colorado businessman was charged in 2020 alongside Trump political strategist Steve Bannon, Air Force veteran Brian Kolfage and venture capitalist Andrew Badolato.

From the beginning, We Build the Wall promised that 100% of funds raised would go toward construction of a wall on the U.S.-Mexico border. It quickly raised some $25 million in private donations on GoFundMe but built a mere 3 miles of fencing. The rest, according to charging papers, lined its founder’s pockets. Prosecutors said Bannon and Kolfage alone used more than $1 million in We Build the Wall donations to pay for a boat, a 2018 Land Rover Range Rover, a golf cart, jewelry, cosmetic surgery and other assets.

Bannon, who was arrested off the eastern coast of Connecticut on a 150-foot yacht owned by Chinese billionaire Guo Wengui, would ultimately circumvent liability in the case when Trump pardoned him on his last day in office in January 2021. Kolfage and Badolato meanwhile pleaded guilty in April 2022.

Three days into deliberations on the charges against Shea, jurors informed U.S. District Judge Analisa Torres that they were deadlocked 11-1 and unanimously requesting that the court replace one male juror with an alternate juror because the juror had shown anti-government bias and had accused all the others of being liberals.

Earlier Thursday, the panel sent a bulleted note that quoted the holdout juror as saying things such as “government witch hunt” and accusing the federal prosecutors of bringing the case in New York City because they “knew people here vote differently.” The note said the juror added that the We Build The Wall trial “should have been tried in a Southern state.” The jurors also accused the renegade juror of saying: “Tim Shea is a good man. He doesn’t beat his wife.”

Defense attorney John Meringolo requested a mistrial in response to the first note, contending that the jury had revealed so much about deliberations that they had violated instructions to keep their talks secret. After the deadlock note, he resumed his request for a mistrial, telling the judge, “We think the jury’s done.”

Judge Torres rejected Shea’s lawyer’s motion for mistrial, instead reading the jurors what is known as an Allen charge, instructing them to continue deliberating and reach a unanimous verdict.

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During the government’s closing arguments on Tuesday morning, prosecutors directed jurors to “smoking gun” text messages, bank records and emails outlining Shea and Kolfage’s conspiracy to loot funds from We Build the Wall’s donations through fake invoices and then, after learning that investigations were underway, cover up that scheme with additional backdated contracts.

“We need a solid fucking plan … otherwise we go to prison,” Shea said in one message to Kolfage, Badolato and his wife — words that Assistant U.S. Attorney Nicolas Roos referenced repeatedly to jurors. “If it comes out we hired ourselves, it will be bad,” Shea makes plain in another text in the group chat.

“We need to create a company I hired you,” the texts continue. “I’m paying you for a service … consulting.”

Roos told jurors that investigators managed to retrieve these words even after Shea deleted the text messages from the devices he turned over to law enforcement. “He very much knew his words would convict him,” the prosecutor said.

This is because We Build The Wall repeatedly and falsely assured the public that the campaign’s president, Kolfage, would “not take a penny in salary or compensation” and that “100% of the funds raised … will be used in the execution of our mission and purpose,” privately building the centerpiece of Trump’s 2016 campaign promise to build a “big, beautiful wall” along the U.S.-Mexico border.

Prosecutors say that, despite such assurances, Shea created a shell company, the intentionally “vague-sounding” Ranch Property Marketing and Management, that created fake invoices and backdated payment requests to funnel hundreds of thousands of dollars in We Build the Wall donation funds to himself and his partners in the scheme.

Prosecutors showed evidence that Shea misappropriated $34,000 from We Build the Wall to buy 50,000 cans of his company’s Trump-themed beverage. Though he and Kolfage “papered it as a loan,” the government questioned what kind of loan doesn’t come with interest. “No repayment, no collection, that’s how you know it wasn’t a real loan,” Roos said during the government’s closing summation Tuesday.

Shea’s attorney, Manhattan lawyer John Meringolo, did not call any witnesses at trial, instead choosing to rest his brief defense last Thursday on about a dozen exhibits entered into evidence, including a pixelated video of We Build The Wall board member Kris Kobach speaking at one of the border wall construction sites. Meringolo did not initially tell jurors that it was Kobach — not Shea — in the clip.

Meringolo’s erratic and seemingly improvised defense hinged on insistence that the government had not proved the case beyond a reasonable doubt.

Deploying an exaggerated New York accent, Meringolo urged the 12 jurors and four alternates to use their common sense in delivering the verdict, directing them to a chaotic, flow chart on an oversized poster that read in thick marker scrawl, “Common sense = reasonable doubt = not guilty.”

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Anne Adrian/CC BY 2.0

The border wall at Sunland Park, New Mexico.