KNOXVILLE, Tennessee — Don't get your hopes up, federal prosecutors.
That's the message of defense attorneys for two key defendants in the years-long Pilot Flying J. fraud case that's on the brink of a retrial.
A panel of the Sixth Circuit U.S. Court of Appeals ruled 2-1 in October to toss convictions against former Pilot president Mark Hazelwood, former vice president Scott Wombold and former sales exec Heather Jones.
The Office of the Solicitor General must by the end of the day Monday decide if it'll approve the government seeking a broader judicial review of the appellate decision. It's called an en banc review, and it doesn't happen often.
Even if acting Solicitor General Jeffrey Wall does clear the way for prosecutors to challenge the split ruling tossing the convictions, the chances are very slim they'll get their wish, defense attorneys argue in motions filed this month.
From 2001-09, the Sixth Circuit granted en banc review in 0.13 percent of all cases on appeal, according to papers filed by Hazelwood's lawyers, Jim Walden and Bradley Henry.
From 2011-16, the court granted 17 re-hearings for en banc review "out of thousands of cases."
Another option: the U.S. Supreme Court could step in. But again, attorneys argue, there's slim chance of that happening.
"We need not spill much ink exploring the rarity of Supreme Court review," the Hazelwood lawyers wrote.
The appellate panel found last month that it was wrong for prosecutors to present and the judge to allow jurors in the fraud case against Hazelwood, Wombold and Jones to hear secretly made, racially charged tapes featuring Hazelwood at a small 2012 gathering of Pilot executives.
Hazelwood and Wombold say the government's case is essentially back to square one, meaning they're innocent men. As a result, they both want Senior Judge Curtis Collier to ease conditions that limit their ability to move about.
Wombold, for example, is limited to travel in East and Middle Tennessee. Hazelwood has had to wear a monitoring device and been ordered basically to stay home in Knoxville.
Wombold also wants $75,000 back that he paid to the government. After a jury convicted him of a single count of wire fraud in the case in February 2018, Wombold paid a mandated fine.
No reason for the government to keep his money now when he's not been convicted of anything, his attorney John E. Kelly Jr. argues in a Nov. 2 motion.
It'll be up to Collier to decide the release status for the defendants. He hasn't ruled yet.
Government prosecutors are urging caution. They must wait on the solicitor general.
"In the event the government seeks rehearing of the panel’s decision, the government would request that this Court maintain Hazelwood’s current conditions of release through the resolution of any such petition for rehearing. In the event the United States does not seek rehearing of the panel’s decision, the government agrees that the panel’s decision would vitiate the rationale supporting Hazelwood’s home confinement, namely the incentive to flee arising from an imposition of a sentence of incarceration," prosecutor Trey Hamilton writes.
As for Wombold's request, the government has said it can't take a position on his request for his money back until after Monday. And it's correct to say the government will defer to Collier and U.S. Probation and Pretrial Services about changing the terms of Wombold's release.
Assuming the government continues to pursue the case against the three, it'll be months or years before it's presented again to a jury.
Collier presided over a criminal trial in Chattanooga for the three that lasted from November 2017 to February 2018. They were accused of taking part in a conspiracy among some sales staff to cheat some trucking customers out of millions in promised diesel fuel rebates.
Hazelwood faced the stiffest sentence after being convicted -- 12 1/2 years. Wombold got a six-year sentence. Collier gave Jones more than 2 1/2 years in prison.
More than 10 Pilot employees reached plea deals with the government, many getting probation.
Pilot, then called Pilot Flying J, agreed among other things to pay a $92 million penalty and accept legal responsibility for the criminal conduct of employees in the scheme.