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Gilmer County Circuit Court Report – 06.04.13

The Gilmer Free Press

•  On Thursday, May 16, 2013 Judge Alsop heard the matter of State of West Virginia vs. Derrick Stalnaker, a boundover case from Magistrate Court awaiting indictment by the upcoming July grand jury in Circuit Court.

Stalnaker is represented by Christina Flanigan of Buckhannon and asked for his bond to be reduced.

Judge Alsop reduced it to $50,000.00 with home confinement in Jane Lew (with approval of Lewis County home confinement personnel).


On Tuesday, May 28, 2013, Chief Judge Richard A. Facemire presided over his regular monthly motion day in Gilmer County and dealt with a 3 page docket.


•  An infant guardianship matter was taken up.


•  Several juvenile hearings were conducted and reset as follows, two for Monday, August 26, 2013 at 9:00 AM, three were dismissed, one was heard but not reset at this time, two were set for Monday, September 23, 2013 at 9:00 AM, one for Monday, September 23, 2013 at 9:05 AM, one for Friday, July 19, 2013 at 10:15 AM, one for Monday, June 24, 2013 at 9:45 AM, one for Thursday, August 08, 2013 at 9:00 AM, and the final one for Monday, June 24, 2013 at 10:00 AM.


•  In the civil matter of Educap inc. vs. Gary Jenkins and Charley Gregory, Educap’s attorney did not appear but Gregory appeared pro se, having earlier filed a motion to dismiss based on the plaintiff’s attorney not providing information as directed by the Judge at a February 2013 hearing.

Later the clerk received the response from plaintiff’s attorney and Judge Facemire will address the matter further at a later date.


•  State of West Virginia vs. Donald Norman

He was before the Court for sentencing represented by his attorney, Loren Howley of Grantsville.

Probation was denied and he was sentenced to not less than 10 nor more than 20 years in the penitentiary.

He was not fined but must pay usual and customary court costs as calculated by the Circuit Clerk.

He was also given 50 year post supervised release after he discharges his sentence.


Two other criminal matters were cancelled:

•  One because the boundover case of State of West Virginia vs. Donald Skinner for bond reduction had already been granted.


•  The second matter was the sentencing of Carrie Sumpter which is now set for 9:00 AM on Monday, June 24, 2013, due to her attorney being unable to appear.

She is represented by David Karickhoff of Sutton.


•  An appeal was heard in a divorce case.


•  One name change was granted.


Judge Alsop will return to Glenville on Friday, June 07, 2013 for a couple matters as well as conducting his regular motion day on Monday June 10, 2013.

Gilmer County Family Court Report – 06.03.13

The Gilmer Free Press

•  On Monday, June 03, 2013 a divorce was granted between Billy D. Huffman (54) of Glenville, WV and Debra K. Huffman (53) of Linn, WV.

WV Governor: Praising Achievements of Established Drug Court

The Gilmer Free Press

On a visit to recognize the first adult drug court in West Virginia, Governor Earl Ray Tomblin ceremonially signed Senate Bill 371, the Justice Reinvestment legislation, which is designed to increase public safety and improve the effectiveness of West Virginia’s criminal justice system by expanding the use of these types of drug courts throughout the state, among other changes. Joined by West Virginia Supreme Court of Appeals Chief Justice Brent Benjamin, legislators, community leaders and representatives from the Council of State Governments, Governor Tomblin praised the achievements of the First Judicial Circuit Northern Panhandle Adult Drug Court, which serves Hancock, Brooke and Ohio counties, for its efforts to divert non-violent offenders facing drug-related charges from the criminal justice system to treatment.

“This court has helped our people and communities thrive by addressing the root cause of many crimes-substance abuse. West Virginia’s first adult drug court can serve as a model as we expand our Justice Reinvestment effort, establishing new drug courts across the state,“ Governor Tomblin said. “This past year I’ve worked with national experts, state law enforcement, and legislators in a bi-partisan effort, across the three branches of state government, to study the causes of our prison overcrowding problem and I’m proud to say we’ve developed a plan of action. This research-driven plan, known as Senate Bill 371 or ‘Justice Reinvestment,‘ will increase public safety by strengthening supervision of offenders on probation and parole, and expanding access to evidence-based substance abuse treatment. Through this legislation, we will reduce recidivism, decrease corrections costs and, most importantly, increase the safety of our hometowns for our families.“

Policies implemented as a result of Senate Bill 371 are projected to generate savings of over $100 million during the course of the next five years while preventing released inmates from committing new crimes. Highlights of Senate Bill 371 include the following:

•  The bill creates a new sentencing option that pairs intensive supervision with effective community-based drug rehabilitation treatment.

•  The bill requires all judicial circuits to participate in a drug court or regional drug court by July 01, 2016.

•  The bill holds individuals released on probation and parole accountable by responding to violations of probation or parole with graduated sanctions, otherwise known as “shock incarceration, instead of automatic revocation”

•  The bill mandates that all people convicted of violent crimes receive intensive supervision in the community after serving time in prison.

“Public safety is at the heart of this legislation. We are showing that we can be tough on crime, but also be smart about how we go about doing that,“ said West Virginia Senate President Jeffrey Kessler. “This legislation will usher in a new era of how we handle substance abuse in our state. No longer will we simply lock people up and pretend the problem will go away. We will combine treatment with effective supervision to hold offenders accountable and break the cycle of crime and addiction.“

“There are two important things about Justice Reinvestment. First, Justice Reinvestment is about safety, accountability, economy, and humanity,“ said West Virginia Supreme Court of Appeals Chief Justice Brent Benjamin. “It is a smarter way of approaching the punishment of crime and has proven itself in states like Texas where recidivism is down and millions of dollars of the public’s money has been saved. We have seen this type of success already in West Virginia’s court system with our Drug Court program and our Community Corrections program where recidivism for adults is less than 10 percent and millions have already been saved. Second, this year West Virginia saw in Justice Reinvestment what all three branches of government can do when they work in a bi-partisan manner for West Virginia.“

In June 2012, Goernor Tomblin, former Chief Justice Menis Ketchum, and senior legislative leaders solicited help from the Council of State Governments Justice Center, in partnership with The Pew Charitable Trusts and the U.S. Department of Justice Bureau of Justice Assistance, to participate in the Justice Reinvestment Initiative, a data-driven approach to reduce corrections spending and reinvest savings in strategies that increase public safety.

“West Virginia leaders were able to break through paralyzing partisan rhetoric on crime and punishment and find solutions through a data-driven process that brought key stakeholders to the table,“ said Adam Gelb, director of the Pew’s Public Safety Performance Project. “This legislation demonstrates that West Virginia’s policymakers are serious about protecting public safety while keeping corrections costs in check.“

“The data-driven justice reinvestment approach works to achieve cost savings and public safety improvements at the same time,“ said Denise O’Donnell, Director of the Bureau of Justice Assistance in the U.S. Department of Justice. “With approval of this legislation, West Virginia has set out to utilize the most current strategies in criminal justice that are tailored to the unique issues facing the state.“


The Northern Panhandle Adult Drug Court and DUI Court were implemented on August 01, 2005, and was the first adult drug court in West Virginia.

The Council of State Governments Justice Center is a national nonprofit organization that serves policymakers at the local, state, and federal levels from all branches of government. The Justice Center provides practical, nonpartisan advice and consensus-driven strategies-informed by available evidence-to increase public safety and strengthen communities.

The CSG Justice Center’s work in justice reinvestment is done in partnership with The Pew Charitable Trusts, and the U.S. Department of Justice’s Bureau of Justice Assistance. These efforts have provided similar data-driven analyses and policy options to state leaders in 16 other states.

WV Officials to Review Supreme Court Candidate Funding

The Gilmer Free Press

West Virginia is moving ahead with making public funds permanently available for Supreme Court candidates.

The State Election Commission is scheduled to review the financing program Thursday after the Legislature endorsed it this session.

The program operated as a pilot in 2012. It offered public money to qualifying court candidates as an alternative to traditional fundraising.

Justice Allen Loughry won in that two-seat race after being the only candidate who participated. But a court ruling had blocked his campaign from receiving so-called matching funds, meant to help him keep pace with opponents.

The legislation passed this session increases the initial amounts received by qualifying candidates.

The program now offers $300,000 for a contested primary and $525,000 for a contested general election.

G-LtE™: Nominee for the Golden Padlock Award

Investigative Reporters and Editors:

I submit to you what I’m confident will be this year’s hands-down winner of IRE’s inaugural Golden Padlock award.  It is the West Virginia Judicial Investigation Commission, and its counsel, Teresa Tarr.

JIC is the arm of the state Supreme Court that investigates allegations of misconduct against justices, circuit and family court judges and magistrates.  Last September, I submitted a Freedom of Information Act request to Tarr for the number of complaints filed by year against 27 judicial officers since they came under JIC’s jurisdiction. 

 

 

My request was largely prompted by two sets of formal ethics charges filed against a family law judge in Putnam County accused of, among other things, showing ill temper toward litigants in his courtroom.  In March, the Court voted unanimously to suspend the judge, William M. “Chip” Watkins III, for the remainder of his term.

The purpose of my request was to not only see if Judge Watkins’ misdeeds were well-know to JIC, but also compare the number of complaints against him with some of his peers. 

Shortly after receiving my FOIA request, Tarr called and e-mailed me asking me for an extension of time to fulfill.  The reasons she gave were an upcoming training conference in Morgantown, and a visit to her mother in Hancock County.

Like a nice guy, I graciously granted her extension.

Later that month, Tarr formally replied to my FOIA request.  I was livid when I read her letter.

Buried in her Clintonesque rambling was reference to a decision rendered in Kanawha Circuit Court last May in a FOIA lawsuit The Charleston Gazette filed two years earlier to details on, among other things, the results of use-of-force investigations against state troopers.  The judge in that case ultimately denied the request saying making that information public would violate the troopers’ privacy.

After reading the judge’s decision, I wrote back to Tarr pointing out how it did not apply to the information I was seeking.  I provided at least three solid reasons why.

First, since they are popularly elected, and are part of a constitutionally created branch of government, judicial officers do not have the same privacy interests as state troopers. 

Second, the case, The Charleston Gazette Company v. Col. Timothy Pack - the then-superintendent of the State Police - was not settled law since the Supreme Court had yet to hear it (which it is scheduled to do in the Fall).

Third, in her decision, Judge Bailey said among her concerns in granting the Gazette’s request is that the information they were seeking had never been released before.  I pointed out to Tarr that not a week prior to my mine, she granted a request from a citizen-activist in Morgan County who asked for identical information on many of the same judges, including Watkins.

Despite several attempts to persuade her it was in her best interest to release it, Tarr remained steadfast in her refusal to provide me the information.  This resulted in me two months ago filing suit in Kanawha Circuit Court against her and JIC to compel them to release the information.

The suit is still pending.

Aside from that, JIC, along with other other agencies under the Court’s jurisdiction - the Board of Law Examiners and the Office of Disciplinary Counsel - about three years ago moved into the top floor of a high-rise office in a upscale part of Charleston about two miles from the statehouse.  Access to the suite is restricted as visitors are allowed to enter the elevator only after they’ve been screened by someone in the suite via a camera.

Also, once someone arrives on the floor he or she will find the door to JIC locked, and a sign on the door saying that camera use is prohibited.  Anyone wanting information has to speak with the ODC secretary, on another part of the floor, though a glass partition.

I should point out that prior to becoming JIC counsel, Tarr worked at ODC, which investigates ethics complaints against attorneys.  Regardless the outcome, all complaints against attorneys are kept in a file open to the public. 

Before he became judge, nearly a dozen complaints were filed against Watkins, some of which alleged the same boorish behavior that resulted in his suspension.  Once he put on that black rope, the public was not permitted to evaluate him.

The fact that West Virginia citizens are locked out, literally and figuratively, from finding out the most rudimentary of information about their judicial officers is the reason why I’m asking IRE to bestow on JIC and Teresa Tarr the Golden Padlock award.  Though I believe I’ve provided a wealth of it, if there’s any information you may need please don’t hesitate to contact me.

Sincerely,

Lawrence J. Smith

WV Joins Other States In Urging U.S. Supreme Court to Consider Fight Over Greenhouse Gas Emissions

The Gilmer Free Press

Governor Earl Ray Tomblin and Attorney General Patrick Morrisey today announced West Virginia joined Kansas and Montana in filing an amicus, or “friend of the court,“ brief asking the U.S. Supreme Court to hear a challenge to Environmental Protection Agency rules that would allow the federal government to regulate greenhouse gas emissions from stationary sources.

The amicus brief asking for a writ of certiorari was filed Thursday, May 23, 2013 and follows a ruling by the U.S. Court of Appeals for the District of Columbia in favor of the EPA in four consolidated cases. If allowed to stand, the D.C. Circuit’s ruling will fundamentally alter the Constitution’s separation of powers and grant unprecedented authority to the EPA and other federal agencies.

Significantly, the states contend the EPA’s “tailoring rule” contradicts explicit provisions of the Clean Air Act and establishes new compliance levels for greenhouse gas emissions that are significantly higher than the levels specified in the statute.

West Virginia and the other amicus states maintain the U.S. Supreme Court should hear the case to clarify that the EPA has misinterpreted the Clean Air Act and acted outside the scope of its legal and Constitutional authority.

“In addition to this brief, I wrote to the President last month urging him, in the strongest of terms, to direct the EPA to discontinue its anti-coal policies,“ Governor Tomblin said. “The EPA’s proposed limits on greenhouse gas emissions threaten the livelihood of our coal miners to the point of killing jobs and crippling our state and national economies, while also weakening our country’s efforts toward energy independence. I hope the high court recognizes the urgency and critical importance of our brief for all Americans.“

Attorney General Morrisey said the EPA’s rules regarding greenhouse gas emissions are another example of the federal agency overstepping its role to the detriment of West Virginians.

“The EPA’s decision to regulate greenhouse gas emissions in this way will have a devastating impact on the industries that must comply with these rules, as well as consumers,“ Morrisey said. “Once again, the EPA is moving ahead on an issue with little regard for the plain language of the statute and the people who are directly impacted by these incredible new burdens.“

Federal Judge Recuses Herself from WVU Degree Lawsuit

The Gilmer Free Press

U.S. District Judge Irene Keeley has disqualified herself from hearing a lawsuit filed over a 6-year-old degree scandal at West Virginia University, citing a federal statute that requires judges to step aside if their impartiality could be questioned.

The order entered Tuesday doesn’t offer specifics, but Keeley is a past member of the WVU Board of Advisors, the predecessor to today’s Board of Governors. She has also served on the WVU Alumni Association’s board of directors and on the College of Law’s visiting committee.

Judge John Preston Bailey will now hear the case brought by former business school dean Stephen Sears and former associate dean Cyril Logar. They say WVU has ignored an academic integrity policy requiring “diligent efforts” to restore the reputations of people cleared of misconduct.

The lawsuit stems from a 2007 decision to award Heather Bresch an executive master of business administration degree that she hadn’t earned.

Bresch is the chief executive officer of Pennsylvania-based Mylan Inc. and the daughter of U.S. Sen. Joe Manchin. She was also a friend of then-WVU President Mike Garrison, who ultimately resigned over the scandal.

Last summer, Special Academic Integrity Officer Nigel Clark said there would be no further action against anyone involved in altering transcripts, creating grades and awarding Bresch the degree.

But Sears and Logar say WVU is ignoring an academic integrity policy that requires it to “undertake diligent efforts” to restore the reputations of people cleared of misconduct. They’re now alleging breach of contract and demanding damages.

WVU has said it won’t comment on pending litigation.

Braxton County Man Sues State Farm for Wrongful Termination

The Gilmer Free Press

The WV Record Reports:


A Braxton County man is suing State Farm Mutual Automobile Insurance Company for wrongfully terminating his employment because of his age.

Mary Adkins, an employee of State Farm, was also named as a defendant in the suit.

Richard M. Roach Jr. was employed for approximately 23 years as a claims representative for State Farm in West Virginia, handling claims in the company’s first-party claims unit, according to a complaint filed May 03 in the U.S. District Court for the Southern District of West Virginia at Charleston.

Roach claims during the course of his employment, he was entrusted to investigate, evaluate and mediate first-party claims made by State Farm’s policyholders and over the course of his employment, he was promoted numerous times, received positive evaluations and awards for exemplary customer service.

State Farm has recently begun implementing a series of cost-saving measures, including elimination of voluntary overtime and employee amenities, implementation of mandatory overtime and efforts to eliminate older employees believed to be more highly-compensated that younger employees, according to the suit.

Roach claims beginning in July 2011, Adkins began a campaign of petty harassment against him, disciplining him for purported infractions, such as clicking his computer mouse too quickly, tossing a notebook onto his desk with too much force for her liking, for tossing a pen inside his cubicle and for using his cell phone where other employees were not similarly disciplined.

Adkins also made negative comments about Roach’s attire, even though he never wore anything inappropriate to work, according to the suit.

Roach claims on September 11, he agreed to help an acquaintance and State Farm insured negotiate a settlement with Nationwide Insurance Company following a motor vehicle accident, as the acquaintance felt that she was being bullied by the Nationwide adjuster assigned to the claim.

As Roach was helping the acquaintance, he helped her on his own time, in an unofficial capacity and without the use of any of State Farm’s resources, according to the suit.

Roach claims on September 21, he was informed he was being placed on administrative leave for assisting with his acquaintance’s claim, and he was informed that was “acting like a lawyer,” and that he was giving the appearance that was “working on the side.”

Following his placement on administrative leave, Roach was informed on October 10, that his employment was being terminated for a conflict of interest based upon “his relationship with Nationwide Insurance,” according to the suit, and no one at State Farm was ever able to explain to Roach what actions he had taken that specifically constituted a conflict of interest.

Roach claims he believes his termination was motivated in whole or in part by a desire on the part of State Farm to rid itself of older employees and after his termination, the defendant failed to pay his final wages within 72 hours of termination.

State Farm is liable to Roach for the unpaid amount, as well as for liquidated damages in a sum of three times the amount, according to the suit.

Roach is seeking compensatory and punitive damages with pre- and post-judgment interest. He is being represented by Harry F. Bell Jr. and Jonathan W. Price of the Bell Law Firm PLLC.

U.S. District Court for the Southern District of West Virginia at Charleston case number: 2:13-cv-10215

~~  Kyla Asbury - WV Record  ~~

G-Comm™: Hoppy’s Commentary - Justice Delayed for School Principal

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This week, a Mason County grand jury indicted Point Pleasant intermediate school Principal Cameron Moffett on charges of child abuse causing risk of injury. The charge stems from an incident 14 months ago where Moffett physically removed an 11-year-old student from a school bus.

The child had apparently been involved in a disturbance with other students and was told by a teacher to move to another seat.  Later Moffett ordered the child off the bus.  The bus security video shows Moffett grabbing the student.  The student appears to collapse and then Moffett rolls the boy a short distance down the aisle.

Once off the bus, the child was restrained by Moffett on the ground.

The parents of the child, who is classified as a special needs student, claim the principal used excessive force.  They have sued and Moffett has been removed from his principal’s job, with pay, until the issue is resolved, which brings us to the first issue in this unfortunate case.

Moffett’s attorney, Jim Lees, is furious that it’s taken over a year to even bring the criminal case against Moffett to the grand jury.

“Regardless of how you feel about the case… if somebody accuses you of something and you have witnesses to it, you want your day in court as soon as you can,” Lees said on Metronews Talkline Wednesday.

Lees theorizes that the former Mason County prosecutor, Damon Morgan, just didn’t want to deal with the controversial case.  Morgan did not run for re-election and the case was held over for the newly-elected prosecutor, Craig Tatterson, who finally brought it to a grand jury.

Still, Moffett has been in legal limbo for the last year, and it will probably be another few months before the case comes to trial.  The excessive delay is unfair, particularly to Moffett, but also to the family of the alleged victim, as well as the potential witnesses.

The charge against Moffett suggests the principal abused the child in a way that “creates a substantial risk of serious bodily injury or of death.” It’s a felony which could land Moffett in prison for five years, if convicted.

Meanwhile, the criminal prosecution has a potentially chilling effect on teachers and administrators who have the arduous responsibility of trying to keep the peace in schools.  If a teacher grabs hold of a misbehaving student a little too forcefully, do they have to worry about getting hauled away by the police?

The West Virginia school system’s manual detailing the expected behavior for students and how teachers and principals are supposed to administer discipline is about 70 pages long.  It’s hard to imagine how school officials are supposed to follow the letter of the law in every instance, especially when a situation escalates quickly.

But under state code, teachers and administrators do have the right to use “reasonable force” to restrain a misbehaving student.

Did Moffett go a little too far?  Maybe, and the Mason County School Board, which is elected by the people of Mason County, can decide that.  But dragging Moffett through the criminal justice system and dangling a felony conviction over his head is an injustice, and worse yet, a delayed injustice.

Former Business School Deans Sue WVU Over 2007 Degree Scandal, Demand Reputations be Repaired

The Gilmer Free Press

Six years after a degree scandal shook West Virginia University and forced its president to resign, two professors are demanding their tarnished reputations be restored.

Former business school dean Stephen Sears and former associate dean Cyril Logar are suing in U.S. District Court in Clarksburg, accusing WVU of breach of contract and denial of due process.

They say WVU has ignored an academic integrity policy requiring “diligent efforts” to restore the reputations of people cleared of misconduct.

Spokeswoman Becky Lofstead declined comment Wednesday.

Last summer, Special Academic Integrity Officer Nigel Clark said there would be no further action against anyone involved in awarding an executive master of business administration degree to Heather Bresch.

She’s the chief executive officer of Pennsylvania-based Mylan Inc. and the daughter of U.S. Senator Joe Manchin.

Gilmer County Circuit Court Report – 05.14.13

The Gilmer Free Press

&Bull;  State of West Virginia vs. Timothy Furr

He was before the Court for reconsideration of sentence previously handed down by Judge Alsop.

After argument by defense counsel, Drannon Adkins of Sissonville and plea by defendant, Furr, Judge Alsop denied the motion and returned him to Central Regional Jail to complete his sentence.


Three juvenile matters were heard:

&Bull;  One reset for Monday, August 12, 2013 at 9:00 AM

&Bull;  One for Friday, June 07, 2013 at 1:00 PM

&Bull;  The last one for Monday, August 12, 2013 at 9:15 AM


&Bull;  State of West Virginia vs. Gerald Adkins II

He was before the Court for sentencing and after argument of counsel, Danile Grindo of Gassaway, and an impassioned request for leniency from the victim of the crime, and upon recommendation by Prosecutor Hough for probation, Judge Alsop sentenced Adkins to 120 days in Central Regional Jail for petit larceny and 1-10 years in penitentiary for forgery, with sentences to run concurrently.

Judge Alsop then ordered the petit larceny effective date of sentence to be March 10, 2013 and suspended the felony forgery sentence and placed Adkins on 5 years probation and ordered him to participate in an outpatient substance abuse program through Summit Center, make restitution in the amount of $2100.00 at a minimum of $150.00 per month, perform 120 hours community service per year of probation, maintain employment and keep child support current.


&Bull;  A bench trial was scheduled for Tuesday, August 13, 2013 at 9:00 AM in a civil case between John Jordan and Victor Jordan, Plaintiff is represented by Daniel Grindo and defendant is represented by Michael Asbury Jr. of Clay.


&Bull;  An injunction hearing was scheduled in the case of State of West Virginia vs. John Burrows and Charmed One Emporium, but due to the name of the company and defendant being incorrect per the Secretary of State’s Office, Gerald Hough was directed to amend the complaint and serve it through the Secretary of State’s Office and set the matter for an evidentiary hearing at 9:00 AM on Wednesday, July 03, 2013.


&Bull;  Judge Alsop will hold the July, 2013 term of Court in Gilmer County.

G-otcha™: Federal Guilty Pleads for Assault and Introduction of a Prohibited Object

The Gilmer Free Press

•  JOHN THOMAS CHINNICI, age 27; VICTOR AVILES, age 32 and ALEX TEJADA, age 31, former inmates at FCI Gilmer entered pleas of guilty to “Assault.”

On June 30, 2011, CHINNICI, AVILES and TEJADA assaulted another inmate by punching,  kicking and stabbing him eight times with prison-made knives.

CHINNICI, AVILES and TEJADA were each sentenced to 12 months imprisonment and remanded to the custody of the United States Marshal.

This case was prosecuted by Assistant United States Attorney Brandon S. Flower and was investigated by the Special Investigative Services Staff at FCI Gilmer.


•  ZSA ZSA DEE FIELDS, age 45, of Detroit, Michigan, entered a plea of guilty to “Introduction of a Prohibited Object - Marijuana.”

On December 17, 2011, FIELDS provided marijuana to an inmate at FCI Gilmer.

FIELDS was sentenced to 18 months probation.

The case was prosecuted by Assistant United States Attorney Brandon S. Flower and investigated by the Special Investigative Services at FCI Gilmer.

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