Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Clem

United States District Court, N.D. West Virginia

October 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROGER D. CLEM, JR. and ALTON L. SKINNER, II, Defendants.

          MEMORANDUM ORDER DENYING GOVERNMENT'S MOTION TO CONTINUE [DKT. NO. 40], GRANTING DEFENDANTS' ORAL MOTIONS TO CONTINUE, AND RESCHEDULING PRE-TRIAL CONFERENCE AND TRIAL

          THOMAS S. KLEEH, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Motion to Continue [Dkt. No. 40] filed by the Government in this case based on proposed Deferred Prosecution Agreements for Defendants Roger D. Clem, Jr. (“Clem”) and Alton L. Skinner, II (“Skinner”). A hearing was held on October 7, 2019, at which the motion to continue was addressed [Dkt. No. 44].

         For the reasons set forth on the record at the October 7, 2019, and explained herein, the Government's motion [Dkt. No. 40] is DENIED and the Proposed Deferred Prosecution Agreements [Dkt. No. 40-1 and 40-2] are REJECTED. The oral motions to continue the pre-trial conference and trial made by counsel for Defendants at the hearing are GRANTED, and the October 10, 2019, pre-trial conference and October 22, 2019, trial dates are CONTINUED. The pre-trial conference is now scheduled for February 6, 2020, at 10:00 a.m. at the Elkins, West Virginia point of holding court, and the jury trial is scheduled for February 18, 2020, at 9:30 a.m. at the Ekins, West Virginia point of holding court.

         I. Indictment and Background

         On May 7, 2019, a Federal grand jury in Clarksburg, West Virginia returned an Indictment against Defendants Clem and Skinner, in their capacities as duly elected West Virginia Magistrate Judges in Lewis and Gilmer Counties [Dkt. No. 1]. The Indicted charges are as follows: Count One charges Clem and Skinner with Conspiracy to Commit Mail Fraud and Wire Fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1349; Counts Two and Three charge both Defendants with Wire Fraud, in violation of 18 U.S.C. § 1343; Counts Four and Five charge both Defendants with Mail Fraud, in violation of 18 U.S.C. § 1341; Counts Six and Eight charge Skinner and Clem, respectively, with Obstruction of Justice in violation of 18 U.S.C. § 1512(c)(2); Count Seven charges Skinner with False Statement to a Federal Agent in violation of 18 U.S.C. § 1001(a)(2) [Id.]. The Indictment further includes a forfeiture allegation against Defendant Skinner for property including, but not limited to, a money judgment of $18, 900.00 [Id.].

         The charges relate to Defendants' duties, as magistrates, required by West Virginia state law “to furnish a detainee with a written list of all persons engaged under the authority of the circuit court in the business of becoming surety for compensation, when the detainee indicated a desire to communicate with a surety” [Dkt. No. 1 at 2]. Clem was a duly elected Lewis County magistrate authorized to admit bail in all criminal matters in Lewis County except capital offenses [Id. at 1]. According to the Indictment, Lewis County magistrates would present detainees “with a collage of business cards of the bonding companies authorized to engage in the business of becoming surety for compensation in criminal cases” [Id. at 2]. E-Z-Out Bonding, LLC (“E-Z-Out”) was a company authorized to engage in the business of becoming a surety for compensation in criminal cases in Lewis County, conditioned upon it being underwritten by Lexington National Insurance Corporation (“Lexington National”) [Id.]. Dave Bourne Bail Bonds, Inc. (“Dave Bourne Bail Bonds”) was a general agent of Lexington National [Id.]. The Indictment explains that T.E.S. was an organizer and sole member of E-Z-Out and worked as a bonding agent for the company [Id.]. S.D.S. worked as a bonding agent for E-Z-Out [Id.]. Defendant Skinner, a duly elected Gilmer County magistrate, is the spouse of T.E.S., and the father of S.D.S. [Id.]. In addition to E-Z-Out, the following companies were authorized to engage in the business of becoming surety for compensation in criminal cases in Lewis County: A-1 Walton's Bonding and Bill's Bail Bonds, both of Buckhannon, West Virginia; M&M Bonding, based in Clarksburg, West Virginia; Minard's Bail Bonding, of Fairmont, West Virginia; AAA Bail Bonds, based in Granville, West Virginia; and Weatherholz Bonding, LLC, of Cumberland, Maryland [Id. at 3].

         The Indictment further alleges that the Central Regional Jail is in Flatwoods, Braxton County, West Virginia, and a jail at which Lewis County arrestees could be detained pending arraignment via video teleconference before a Lewis County magistrate and pending trial [Dkt. No. 1 at 3]. West Virginia law, West Virginia Code § 51-10-7, prohibits a bonding agent from entering a place of detention, including a county courthouse, for the purpose of obtaining employment as a bonding agent, without having been previously called by a detainee, or by some relative or other authorized person acting for or on behalf of the detainee [Id.].

         The Indictment alleges that from on or about December 2016 and continuing through May 7, 2019, Defendants Clem and Skinner engaged in a conspiracy and scheme to defraud and obtain money and property from other authorized bond companies by means of materially false and fraudulent pretenses [Dkt. No. 1 at 4]. It is further alleges that the purpose and object of the conspiracy was to enrich Skinner through mail and wire fraud, and to hide, conceal, and cover up the Defendants' dealings with one another regarding E-Z-Out business [Id.]. The manner and means of Defendants' conspiracy include the following: Defendant Clem would take official actions favorable to E-Z-Out, including, but not limited to, setting an unnecessary surety bond; Clem would make fraudulent comments to detainees and to friends and family of detainees that were favorable to E-Z-Out to the exclusion of the other bonding companies; Clem would conceal from detainees and friends and families of detainees certain material facts including, but not limited to, the existence of authorized bonding companies in addition to E-Z-Out; Clem would fail to disclose material facts, which he was under a legal, professional, and contractual duty to disclose, to detainees and to friends and family of detainees, and to other authorized bonding companies, including, but not limited to, his relationship with Defendant Skinner; Clem would call Defendant Skinner to arrange the bond of a detainee without presenting a list of authorized bonding companies to the detainee; Clem would call Defendant Skinner to arrange for T.E.S. or S.D.S. to be present at the arraignment of a detainee without being so requested by the detainee or a representative of the detainee and without presenting a list of authorized bonding companies to the detainee; Defendant Skinner would ensure the underwriting of E-Z-Out was maintained through Lexington National via use of the mail and interest and foreign wire transmissions; and Skinner would ensure the collection of the bonding fees, all in violation of 18 U.S.C. §§ 1341, 1343, and 1349 [Dkt. No. 1 at 4-5].

         The Indictment states that on or about January 17, 2019, Defendant Skinner made false statements and representations during an interview conducted in furtherance of a grand jury investigation as to his involvement with E-Z-Out and that he believed detainees had selected E-Z-Out from a list posted in the Lewis County courthouse [Dkt. No. 1 at 10]. It also alleges that on or about January 17, 2019, Skinner made a materially false, fictitious, fraudulent statement to a special agent of the Internal Revenue Service-Criminal Investigation concerning Skinner's involvement with E-Z-Out and his alleged belief that detainees had selected E-Z-Out from a list posted in the Lewis County courthouse [Id. at 11]. The Indictment further alleges that on or about February 27, 2019, Defendant Clem did corruptly attempt to obstruct a grand jury investigation by making false statements during an interview conducted in furtherance of the investigation [Id. at 12]. The false information included the following: during arraignments, Clem presents detainees with a list of authorized bonding companies, comprised of a collage of business cards; he does not select the bonding company for the detainee; he had not directed bonds to E-Z-Out; he asks defendants “which one do you want, I will call for you”; if a defendant voluntarily appeared in court, he would not require the defendant to post bond to remain fee; no one had told him to stop calling E-Z-Out for defendants; and since a suspension of S.D.S., Clem had not admitted any defendants to the bail of E-Z-Out [Id.].

         Defendant Clem filed a Motion to Dismiss the Indictment for Insufficiency on August 19, 2019 [Dkt No. 34] and Defendant Skinner filed his own motion on the same date [Dkt. No. 35]. The Government responded in opposition to the respective motions on August 26, 2019 [Dkt. No. 36]. The motions were referred to the magistrate judge for consideration by order entered on August 29, 2019 [Dkt. No. 37], and on September 13, 2019, Magistrate Judge Michael J. Aloi entered a Report and Recommendation (“R&R”) recommending that the motions to dismiss be denied [Dkt. No. 39]. No. objections were filed to the R&R and the Court adopted its recommendation by order entered October 2, 2019 [Dkt. No. 43]. After a continuance of the initial scheduling orders, the Defendants were scheduled for a pre-trial conference on October 10, 2019, at 12:30 p.m., and a jury trial on October 22, 2019, at the Elkins, West Virginia point of holding court [Dkt. No. 33].

         II. Government's Motion to Continue

         On September 25, 2019, the Government filed a Motion to Continue Trial as to both Defendants, attaching proposed Deferred Prosecution Agreements (“DPAs”) for each [Dkt. No. 40]. The Government requested that the Court continue the trial date “for the 12-month period contemplated” in the attached DPAs [Id. at 1, Exhs. 1 and 2]. The Government states that “[s]ubject to the approval of the Court, the defendants and the United States entered into DPAs … which contemplate the dismissal of the Indictment in the event that the defendants successfully complete a 12-month diversion program” [Id. at 2]. The Government confirmed that “[u]nlike a traditional pretrial diversion agreement, a deferred prosecution agreement is strictly between the parties and does not require oversight or any involvement from the United States Probation Office” [Id. at n.1].

         In support for its request, the Government cited a decision by United States District Judge John Preston Bailey for the doctrine that “[t]he decision of whether a particular defendant may participate in a pretrial diversion program is entrusted to the United States Attorney, ” and that “these decisions are ill-suited for judicial review, and courts should be hesitant to examine the government's decision whether to prosecute” [Id. at 2 (citing United States v. Presgraves, Jr., 3:11-cr-38 (N.D. W.Va. Bailey) [Dkt. No. 22] (internal quotations and citations omitted))]. The Government argues that the period for delay for the purpose of allowing the Defendants to demonstrate their good conduct “is properly excluded from the Speedy Trial Act clock pursuant to 18 U.S.C. § 3161(h)(2), ” which excludes “[a]ny period of delay during which prosecution is deferred by the attorney for the Government pursuant to written agreement with the defendant, with the approval of the court, for the purpose of allowing the defendant to demonstrate his good conduct” [Id. at 2]. Defendants offered no objection to the continuance request [Id.], and the motion was scheduled for hearing by order entered October 2, 2019 [Dkt. No. 41].

         A. Deferred Prosecution Agreement, Defendant Clem

         The DPAs proposed by the Government and accepted by Defendants were attached as exhibits to the motion to continue [Dkt. Nos. 40-1, 40-2]. Defendant Clem's DPA is seventeen (17) paragraphs in length and includes provisions for the indictment, acceptance of responsibility, remedial actions, continuing obligation of cooperation, and deferral of prosecution [Dkt. No. 40-1]. Notably, the provision governing acceptance of responsibility states that Clem “accepts responsibility for the conduct set forth in the Indictment by entering into this agreement and by” (a) the remedial actions that he will take as described in the Agreement; (b) his commitment to full cooperation, also described in the agreement, with the Government and its law enforcement agency partners; (c) his agreement to fulfill all of the undertakings he has made in this agreement, “including his agreement to comply in the future with all federal and state criminal laws[1]” [Dkt. No. 40-1 at 2]. As to remedial actions, the DPA requires Clem to resign his position as Magistrate of Lewis County, West Virginia within seven (7) days of its execution and his agreement to never seek public office by election or appointment anywhere in the United States [Id.]. The DPA further sets forth Defendant Clem's agreement to cooperate with the West Virginia Judicial Investigation Commission[2](“JIC”) by entering into an agreement with “Judiciary Disciplinary Counsel within thirty (30) days of execution” of this agreement [Id.].

         Defendant Clem's proposed DPA states that the Government conferred with West Virginia Judiciary Disciplinary Counsel, and that the JIC agreement for Clem shall include certain terms and conditions [Dkt. No. 40-1 at 2]. Clem will agree that “the JIC has sufficient evidence to support the following facts”: that from about March 2017 to about March 2018, Defendant Skinner was significantly involved in the operation of a bail bonding company called E-Z-Out in Lewis County, West Virginia, and that during this period, Clem was a Lewis County magistrate who admitted multiple defendants to the bail of E-Z-Out; that during the same period, Clem used his cell phone approximately two-hundred (200) times to call E-Z-Out, usually calling the cell phone of Skinner; the majority of the telephone calls were in close proximity to arraignments conducted by Clem and related to bonding, and following these phone calls, Skinner would ensure that an E-Z-Out bonding agent appeared at the Lewis County courthouse to post bonds; and that during the same period, on multiple occasions, Clem willfully failed to present a list of authorized bail bonding companies to a detainee, and instead called Skinner directly to ensure that E-Z-Out would be the company to post the bond [Id. at 2-3]. Additional proposed terms and conditions include: that Clem will not contest that he violated Rules 1.1, 1.2, 1.3, 2.4(B), and 2.13(A) of the Code of Judicial Conduct as a result of the above facts; that he will resign his position as magistrate; that he will agree to never again seek public office by election or appointment in West Virginia; that he will “agree with the Judicial Disciplinary Counsel to jointly recommend to the Judicial Hearing Board and the Supreme Court of Appeals of West Virginia[3] that” Defendant Clem be censured, that he pay a fine in the amount of $1, 000.00, and that he pay the costs of the disciplinary proceedings “and no further sanctions”; that he will agree that the decision to accept the recommendation of censure, fine and costs rests solely ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.