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Appeals court grants lawyer a new trial By Chris Bristol A Medford attorney is entitled to a new trial on charges he tampered with evidence at the request of a business client who happened to be an international drug-smuggling fugitive, a federal appeals court has ruled. In a 2-1 ruling issued Friday, a panel representing the 9th U.S. Circuit Court of Appeals in San Francisco upheld a lower court decision granting Daniel F. Kellington a new trial. The ruling was a huge victory for Kellington, whose 1996 conviction on obstruction-related charges set off a legal roller coaster of government appeals. The verdict was tossed out by the trial judge, reinstated on appeal and then tossed again. Prosecutors have not decided whether to file yet another appeal. In Eugene, Assistant U.S. Attorney Frank Papagni said he expects a decision within the next 30 or 40 days. His office has already filed for an extension on the deadline. "If we decide not to appeal, the case will be retried," Papagni vowed. Kellington�s attorney, Portland lawyer James Collins, said his client � who had continued to practice � is ready for whatever move the government makes. If the appeals court had upheld the conviction again, Kellington could have been sentenced to up to 18 months in prison under federal sentencing guidelines. "It would be nice to have it behind us," Collins said, "but it�s not." Kellington�s odyssey began in 1994, when a business client he had previously known only as Robert Parker called him from jail and said he was a federal fugitive whose real name was Peter Scott Christopher MacFarlane. MacFarlane had eluded authorities for 10 years after he failed to show up for court in Vermont on a 15-year sentence for smuggling 1,000 pounds of hashish into the United States. He landed in the Rogue Valley and began building drift boats before someone turned him in. At his client�s request, Kellington called one of MacFarlane�s employees and instructed him to retrieve assets, including a briefcase, boat and stereo equipment, from MacFarlane�s home and destroy a certain envelope. The employee was subsequently detained by federal agents, who set up a sting to catch Kellington with his client�s belongings. The briefcase contained $20,000 in cash. The envelope, which the employee partially burned at Kellington�s direction, contained financial documents and a checkbook used by MacFarlane under a different alias. During trial, Kellington insisted he never realized he might be destroying evidence. Prosecutors argued he knew or should have known that those items could be part of new criminal proceedings against MacFarlane. A jury sided with the government, but trial judge Michael Hogan threw out the verdict, ruling the jury had insufficient evidence to convict Kellington. It was the first time Hogan had overruled a jury in 23 years as a federal magistrate and trial judge. "The evidence supports that the defendant acted carelessly, perhaps imprudently, and some might even venture stupidly," Hogan said, "but not criminally." The government appealed, and the 9th Circuit reversed Hogan with orders reinstating the verdict and sending the case back for sentencing. But Hogan refused the order, ruling instead that mistakes he made during the trial warranted a new trial. Among other things, Hogan questioned his decision to limit expert testimony on legal ethics and how such evidence might help the defense establish Kellington�s intent. In March, a trial panel of the Oregon State Bar dismissed disciplinary charges against Kellington, who�d practiced law since 1965 without a blemish on his record. The panel said Kellington believed his client�s request was business-related and that he was guilty only of being "somewhat naive." Obituaries | Sports | Business | Classifieds | Tempo | Prime Times | So Oregon Sites | Outdoor Journal | Subscribe | Contact | Movies | Advertise | Real Estate Showcase | Archive | Editorials | Letters to the editor | Religion | Wake-up Call | NIE | Cyber Chef | Job Network | So Oregon Weather | WSJ Northwest | Forums | AP Wire | AP Money | F.A.Q. | Awards Ottaway Newspapers, Inc. The Community Newspaper Subsidiary of Dow Jones & Co, Inc Copyright �The Mail Tribune 2000, Medford, Oregon USA