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United States v. Loughry

United States District Court, S.D. West Virginia, Charleston

January 11, 2019



          John T. Copenhaver, Jr. Senior United States District Judge

         Pending is the defendant's second motion for a new trial, filed November 6, 2018, by defendant Allen H. Loughry, II, seeking a judgment of acquittal, or in the alternative, to vacate the convictions and grant a new trial. The government filed a response on November 16, 2018, to which the defendant did not reply.

         I. Background

         On October 12, 2018, after a six-day trial and two days of deliberation, a jury rendered a verdict finding the defendant, Allen H. Loughry, II, guilty of eleven counts of the second superseding indictment, consisting of one count of mail fraud (Count 3), seven counts of wire fraud (Counts 5, 6, 10, 11, 12, 15, and 18), one count of witness tampering (Count 20), and two counts of making false statements (Counts 23 and 25). He was found not guilty on ten counts and the jury was unable to reach a verdict on Count 8.

         The defendant filed this motion seeking a judgment of acquittal pursuant to Fed. R. Crim. P. 29, or, in the alternative, to vacate the convictions and grant a new trial, pursuant to Fed. R. Crim. P. 33. The defendant challenges his convictions for mail fraud, wire fraud, and witness tampering; he does not address his convictions for making false statements.

         II. Legal Standard

         Rule 29 states that “[a]fter the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). The court may, as here, reserve the decision on the motion until after the jury returns a verdict of guilty, and thereafter “decide the motion on the basis of the evidence at the time the ruling was reserved.” Id.

         A judgment of acquittal under Rule 29 is “a ruling by the court that as a matter of law the government's evidence is insufficient ‘to establish factual guilt' on the charges in the indictment.” United States v. Alvarez, 351 F.3d 126, 129 (4th Cir. 2003) (quoting Smalis v. Pennsylvania, 476 U.S. 140, 144 (1986)). “The test for deciding a motion for a judgment of acquittal is whether there is substantial evidence (direct or circumstantial) which, taken in the light most favorable to the prosecution, would warrant a jury finding that the defendant was guilty beyond a reasonable doubt.” United States v. MacCloskey, 682 F.2d 468, 473 (4th Cir.1982). The defendant bears a heavy burden, and “reversal for insufficiency must ‘be confined to cases where the prosecution's failure is clear[.]'” United States v. Edlind, 887 F.3d 166, 172 (4th Cir.), cert. denied, 139 S.Ct. 203 (2018) (quoting Burks v. United States, 437 U.S. 1, 17 (1978)). The court does not “weigh the evidence or assess the credibility of witnesses, but assume[s] that the jury resolved any discrepancies in favor of the government.” United States v. Kelly, 510 F.3d 433, 440 (4th Cir. 2007) (citing United States v. Romer, 148 F.3d 359, 364 (4th Cir.1998)).

         Under Rule 33, the court may “vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33. “A trial court ‘should exercise its discretion to award a new trial sparingly,' and a jury verdict is not to be overturned except in the rare circumstance when the evidence ‘weighs heavily' against it.” United States v. Burfoot, 899 F.3d 326, 340 (4th Cir. 2018) (quoting United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003)).

         III. Discussion

         The court addresses the motions as to the three categories of convictions - mail fraud, wire fraud, and witness tampering - separately.

         a. Mail Fraud

         The defendant challenges his conviction on Count 3 for mail fraud in violation of 18 U.S.C. § 1341.

         The defendant was convicted of mail fraud in connection with an event conducted by the Pound Civil Justice Institute in July 2014. Specifically, the defendant, then a Justice of the Supreme Court of Appeals of West Virginia, requested, and received, reimbursement in the form of a check for his travel expenses to the Pound Institute event in Baltimore, Maryland, despite having had no such expenses because he had used a state-owned vehicle assigned to the Supreme Court of Appeals of West Virginia and had used a state government credit card to purchase gasoline.

         18 U.S.C. § 1341 states, in pertinent part:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, . . . or knowingly causes to be delivered by mail . . . according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing . . .

         shall be guilty of an offense against the United States.

         The defendant's sole ground for contesting this conviction is that the testimony at trial did not support the conclusion that he “used or caused the use of the U.S. mail” to defraud the Pound Institute. Defendant's Motion, ECF # 96 at 1. In making this contention, the defendant overlooks an important portion of the testimony at trial. Mary Collishaw, the executive director of the Pound Institute, testified at trial that the check sent to then-Justice Loughry on August 29, 2014, for $488.60 (government's Exhibit 30), to reimburse him for travel expenses, was sent by regular U.S. postage:

Q. [W]as [the Pound Civil Justice Institute check made payable to Allen Loughry] sent to the defendant?
A. Yes, it was.
Q. How was it sent?
A. Regular U.S. Postage.

         Transcript of Proceedings, Testimony of Mary Collishaw, ECF # 70 at 14. Additional testimony about the Pound Institute's regular practice of using the U.S. mail, including Ms. Collishaw's testimony that attendees would “complete their reimbursement request and return it to [the Pound Institute] via mail with their receipts[, ]” Id. at 10, only serves as further evidence that the defendant used the Postal Service in defrauding the Pound Institute. Accordingly, the court finds that the jury reasonably could have found the defendant guilty beyond a reasonable doubt of mail fraud.

         b. Wire Fraud

         The defendant challenges his convictions for wire fraud under 18 U.S.C. § 1343.

         The defendant was found by the jury to be guilty of the seven wire fraud offenses charged in Counts 5, 6, 10, 11, 12, 15 and 18. Each count stems from the defendant's purchase of gasoline with a State of West Virginia credit card in order to fuel a road journey that he took for personal rather than official purposes.

         18 U.S.C. § 1343 states, in pertinent part:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, . . .

         shall be guilty of an offense against the United States.

         Five of these seven counts (6, 11, 12, 15 and 18) relate to a total of four trips from Charleston to the Greenbrier Hotel Resort in White Sulphur Springs, West Virginia. The defendant, a resident of Charleston, is the author of a 2006 book on public corruption in West Virginia, entitled “Don't Buy Another Vote, I Won't Pay for a Landslide.” While at the Greenbrier on these four trips, the defendant appeared on a Saturday at a shop located in the Hotel, out of which copies of the book were sold, in order that he could personally sign the book or answer questions about it if requested by a purchaser. The shop set out, on public display, an ad announcing the sale and his presence. The proceeds of the sales, except for the shop's share, were deposited in a joint bank account maintained by the defendant and his wife.

         Those four trips to the Greenbrier took place over a fifteen-month period that included the Saturdays of December 14, 2013 (Count 6), March 22, 2014 (related to Counts 11 and 12), December 20, 2014 (Count 15) and March 14, 2015 (Count 18). On his personal calendar there is noted “Greenbrier Book Signing” on each of those four Saturdays, accompanied by the figures “1:00-3:00” or “1-3” except for March 22, 2014, which was marked “11:00 a.m.”

         The transponder in the vehicle he used for these four trips provided EZ Pass through the two I-64 West Virginia toll booths at Pax and Chelyan for travel from Charleston to White Sulphur Springs. On two of those four trips (December 14, 2013 and March 14, 2015), the vehicle was recorded as having passed through those two booths while proceeding south and again while returning north. The other two (March 22, 2014 and December 20, 2014) record passage through the two booths only while proceeding south because the return trip was routed next to Parsons, in Tucker County, where the parents of the defendant reside.

         Of the two remaining trips, Count 5 occurred on Thanksgiving Day, November 28, 2013, at the end of travel from Charleston to Morgantown (156 miles north of Charleston) and return to Charleston. The other, Count 10, took place during the period of Saturday, January 18 to Sunday, January 19 at the end of round trip travel from Charleston to Parsons (156 miles northeast of Charleston) and return to Charleston.

         All of these six trips occurred at a time when the defendant requisitioned, from the West Virginia Supreme Court car pool, a 2012 Buick La Crosse for a period of week-end days (other than the one on Thanksgiving) that covered the dates of travel noted above except that he checked out a 2009 Buick Lucerne for the Counts 10 and 15 travel that took him to Parsons. In every such instance, the defendant gave no destination for his travel. In every such instance gas was purchased with the state credit card normally assigned to the vehicle he requisitioned.

         In connection with five of the seven counts (Counts 5, 10, 12, 15 and 18), the state credit card was used to purchase gas, inter alia, in Charleston before departure on December 20, 2014 (Count 15) and otherwise in Charleston upon return. As the defendant acknowledged in his trial testimony, “a lot of times, the Sunday evening is just filling up the vehicle and returning it on Sunday evening.” Transcript of Proceedings, Testimony of Allen H. Loughry, II, ECF # 102 at 96-97.

         Of the remaining two counts, on the December 14, 2013, Greenbrier trip (Count 6), gas was purchased at Beckley, a near half-way point along I-64, on the return route to Charleston. In the March 23, 2014, trip, which started with a March 22 trip to the Greenbrier, with an extension to Parsons, gas was purchased near Charleston (Count 11) on March 23 at Amma (28 miles northeast of Charleston), being a point on the I-79 portion of the return route from Parsons to Charleston.

         On each of those seven occasions, the defendant's cell phone number, (304) 546-6316, was detected, by virtue of incoming or outgoing calls or by texting or by “data sessions”[1]consisting of such internet usage as e-mail or Instagram or Facebook updates, to be in communication with nearby cell towers located in the vicinity of places en route to or visited by the defendant; and on all but two of those occasions, being the two same-day trips to and ...

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