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Fen-phen lawyers ask for dismissal

A Lexington lawyer accused of cheating his clients out of millions of dollars in a diet drug settlement is asking a judge to dismiss new charges against him.

Last month a federal grand jury indicted William Gallion and Shirley Cunningham Jr. on eight new charges of wire fraud related to a $200 million settlement in 2001 with American Home Products, the maker of the fen-phen diet drug thought to cause heart problems. They were also reindicted on conspiracy charges.

The indictment accuses Gallion and Cunningham of taking $94 million that should have gone to 440 former clients.

An attorney for Gallion filed a motion Friday asking U.S. District Judge Danny Reeves to throw out the new charges, saying they constituted "vindictive prosecution."

Noting that Gallion and Cunningham's first trial deadlocked at 10-2 for acquittal, attorney O. Hale Almand Jr. said the government was attempting to suppress the defense's best arguments to win a conviction. He said the government is trying to force the defense to come up with a new case in a short period of time.

Defense attorneys for the two men argued during the previous trial that there was never any criminal intent to defraud their clients. To prove there was a conspiracy, federal prosecutors had to show that there was criminal intent. By adding the eight wire fraud charges, prosecutors do not have to show criminal intent.

Almand accuses the government of continuing the prosecution to assist the collection efforts of victims in a civil suit against the lawyers. A $42 million civil judgment is pending against them.

Almand also says the government improperly combined three separate conspiracy allegations into one criminal charge to bypass the statute of limitations.