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Federal judge throws out Haith petition

Friday, May 10, 2013 | 11:18 a.m. CDT; updated 7:19 p.m. CDT, Saturday, May 11, 2013

MIAMI — A federal judge has denied a petition by Missouri basketball coach Frank Haith, who wanted to subpoena Bank of America employees to determine if his checking account was illegally accessed by an unauthorized person during the NCAA's investigation of Miami athletics.

Haith coached at Miami from 2004-2011 before coming to Missouri. He filed his case Monday, saying he wanted bank employees interviewed and any relevant evidence preserved after it was discovered last October that someone accessed his records and viewed items that the NCAA was specifically seeking copies of during its investigation.

But U.S. District Judge Robin Rosenbaum said Haith had no basis for such a request and that he "failed to satisfy the requirements" needed for a successful Rule 27 petition, a tool used by parties try to collect things such as testimony or evidence that could be used in a future lawsuit. Rosenbaum also ordered the case closed.

Haith's attorney, Michael Buckner, said he respected the ruling, though was disappointed.

"What is important to note about the Court's order is that it did not rule on the merits of coach Haith's legal claims," Buckner said. "In fact, the order concludes that the current NCAA enforcement case is not a bar for coach Haith pursuing his claims against Bank of America in federal court. The question remains to be answered is, 'Who accessed coach Haith's bank account?' We remain committed to finding the answer."

Buckner said Haith's legal team will continue "exploring all options available to him, including, but not limited to, filing a lawsuit against Bank of America."

Rosenbaum's ruling does not affect the status of the Miami-NCAA investigation, which has gone on for more than two years and is finally scheduled for a hearing before the NCAA's Committee on Infractions starting June 13 in Indianapolis.

Haith's petition revolved around who may have seen records of three checks that he wrote for $3,200 each to former assistant coaches Jorge Fernandez, Jake Morton and Michael Schwartz. The checks were dated June 10, 2010, all were drawn on the account of Frank Haith Enterprises, and all included the word "Camp" in the memo line.

All three checks were cashed at a Bank of America location near Miami's campus. Haith said the checks were payment for work at his summer basketball camp. The NCAA, however, alleged that the money was used to repay former Miami booster Nevin Shapiro — the convicted felon who is serving a 20-year federal prison term for operating a $930 million Ponzi scheme.

Shapiro has said he provided $10,000 to help with the recruitment of former Hurricanes player DeQuan Jones.

And Jones' recruitment is a significant part of the NCAA's case against the Hurricanes. The NCAA alleged that Morton received at least $6,000 in supplemental income from Shapiro between October 2007 and October 2008, and in response to that claim the NCAA has asked Miami to provide an overview of how Jones was recruited.

Further, in the notice of allegations against Miami, the NCAA said "it is alleged that after June 10, 2010" Haith "failed to promote an atmosphere for compliance within the men's basketball program." That is the same date the three checks were written by Haith to the assistant coaches, and the NCAA said Haith did not make Miami officials aware that Shapiro was demanding money or else he would make public a claim that he paid to help recruit a player.

Haith has denied that those checks were used to repay Shapiro.

The NCAA asked Haith for copies of those checks on Oct. 22, the same day Haith's wife asked the bank for the information. She was then told by the bank that someone had already viewed those checks.

Haith has tried to ascertain who that was ever since.

Rosenbaum wrote that Haith's petition needed to be denied and the case would be closed for a number of reasons, including that he did not demonstrate that anything currently interferes with the ability to bring a lawsuit against Bank of America and that he did not show there's any risk of evidence related to his account records being lost or destroyed by the bank.

Without that, Rosenbaum said, the Rule 27 petition could not go forward.


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