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Advocate for Smaller Schools Says West Virginia Needs a New Educational Philosophy


An advocate for small community schools says, 30 years later, it should be clear the Recht decision has not worked for the benefit of West Virginia’s students.

Challenge West Virginia Executive Director Thomas Ramey says the ruling, issued in May 1982, was supposed to help students in the state’s poorest, most rural areas.

“The education systems in those counties and the education those children in those counties receive has not improved.  In many cases, it’s gotten worse,“ Ramey said on Monday’s MetroNews Talkline.

In the landmark decision in the case of Pauley v. Bailey out of Lincoln County, Ohio County Circuit Judge Arthur Recht helped change education in West Virginia when he ruled the state’s school funding system violated the Constitution and did not create a “thorough and efficient” education system.

As part of that decision, Recht ordered an overhaul to equalize the system, an order that lead to the creation of the state School Building Authority.

Now, twice a year, members of the SBA determine how the millions of dollars available for school construction and maintenance projects in West Virginia are spent.

Ramey says, over the years, the SBA has favored consolidations.

Since 1990, he says 350 schools in West Virginia have closed because of those consolidations, creating long bus rides for some students who no longer attend school in their communities.

SBA officials, though, say consolidations have led to better facilities and create more educational opportunities for students.

At the same time, they say they are helping with local projects that may not have adequate funding without the SBA.

Ramey does not agree.

He says West Virginia needs a new education philosophy.

“I actually think that children, low income children and children in rural areas, have just as much as a difficult time succeeding today than they did prior to the Recht decision,“ he said.

Braxton County: Duck Resident Enters Plea to Using a Communication Facility to Commit a Drug Felony


A 28 year old Duck, West Virginia, resident entered a plea of guilty on May 08, 2012,in United States District Court in Clarksburg before Magistrate Judge John S. Kaull.

United States Attorney William J. Ihlenfeld, II, announced that: JOCELYN M. GRAHAM entered a plea of guilty to one count of the illegal use of the United States mail on August 03, 2010, to facilitate the distribution of methamphetamine and oxycodone.

GRAHAM, who is on bond pending sentencing, faces a maximum exposure of 4 years imprisonment and a fine of $250,000.

This case was prosecuted by Assistant United States Attorney Robert H. McWilliams, Jr. and was investigated by the United States Postal Inspection Service.

Award-Winning ‘War on Kids’ Documentary Featuring John W. Whitehead


Documentary Channel to Air Award-Winning ‘War on Kids’ Documentary Featuring John W. Whitehead on Sunday, May 06, 2012, 8:00 PM EST

On Sunday, May 06, 2012, at 8:00 PM EST, the Documentary Channel will air The War on Kids, a documentary directed by Cevin Soling which examines the increasingly authoritarian nature of the public schools and their long-term impact on young people.

The documentary features an interview with constitutional attorney John W. Whitehead, who has been a vocal critic of overreaching school zero tolerance policies—one-size-fits-all disciplinary procedures that mandate suspension or expulsion for students who violate the rules, regardless of the student’s intent or the nature of the violation. The Rutherford Institute has come to the defense of hundreds of students who have run afoul of school zero tolerance policies.

Most recently, Institute attorneys asked the U.S. Supreme Court to hear the case of a 14-year-old honor student who was suspended for shooting plastic “spitwads” while at school.

“For the millions of students attending elementary and secondary public schools, their time in school will be marked by overreaching zero tolerance policies, heightened security and surveillance and a greater emphasis on conformity and behavior-controlling drugs—all either aimed at or resulting in the destruction of privacy and freedom,” said John W. Whitehead, president of The Rutherford Institute. “As The War on Kids shows, the moment young people walk into school, they find themselves under constant surveillance: they are photographed, fingerprinted, scanned, x-rayed, sniffed and snooped on. Between metal detectors at the entrances, drug-sniffing dogs in the hallways and surveillance cameras in the classrooms and elsewhere, America’s schools have come to resemble prison-like complexes.”

Named the best educational documentary by the New York International Independent Film and Video Festival, The War on Kids is a 2009 documentary film about the American school system.

The film takes a look at public school education in America and concludes that schools are not only failing to educate, but are increasingly authoritarian institutions more akin to prisons that are eroding the foundations of American democracy.

The documentary features interviews with schoolchildren, high school teachers, administrators, prison security guards, renowned educators and authors, including attorney John Whitehead.

As Whitehead points out, under the guise of protecting and controlling young people, school officials have adopted draconian zero tolerance policies, which punish all offenses severely, no matter how minor.

School systems began adopting these tough codes after Congress passed the 1994 Gun-Free Schools Act, which required a one-year expulsion for any child bringing a firearm or bomb to school.

Zero tolerance rules in many states also cover fighting, drug or alcohol use and gang activity, as well as relatively minor offenses such as possessing over-the-counter medications and disrespect of authority.

Nearly all American public schools have zero tolerance policies for firearms or other “weapons,” and most have such policies for drugs and alcohol.

In the wake of the Columbine school shootings, legislators and school boards further tightened their zero tolerance policies, creating what some critics call a national intolerance for childish behavior.

In some jurisdictions, carrying cough drops, wearing black lipstick or dying your hair blue are expellable offenses.

The Rutherford Institute is regularly called on to defend students dealt excessive punishments for violating unreasonable zero tolerance policies.

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Gilmer County Circuit Court Report - 04.23.12


Judge Richard A. Facemire appeared in Gilmer County for his regular monthly motion day on Monday, April 23, 2012,

Several cases were heard by him before Noon:

•  A juvenile case was heard and rescheduled for Thursday, July 19, 2012 at 9:00 AM.


•  State of West Virginia vs. Kevin Curry

He was sentenced to 1-5 years in the penitentiary upon his former plea of guilty to child neglect creating risk of injury.

This sentence will run consecutive with other sentences he is currently serving.

He received no fine but must pay customary court costs within 18 months of his release from incarceration.

Curry was represented by Christina Flanigan of Buckhannon.


•  State of West Virginia vs. Amanda Smith

She was ordered to undergo 60 days diagnosis and classification (upon her former plea of no contest to the same charge Kevin Curry pled to) before being sentenced on Monday, August 27, 2012 at 9:00 AM.

She also flunked her urine screen before the probation officer today.

Smith was represented by Garth Beck of Clarksburg.


•  State of West Virginia vs. Casey Cottrill

She appeared for sentencing today after having a bench warrant out for her arrest earlier for failure to appear in Court.

She was also wanted in Lewis County Circuit Court and was served a capias from their Court later in the day.

She also received 60 days D&C before her scheduled sentencing on Monday, August 27, 2012 at 9:15 AM.

She too was represented by Garth Beck.


•  State of West Virginia vs. Osmond Brown Jr.

He was before the Court for sentencing upon his former plea.

He received 1-5 years in the penitentiary with his sentence being suspended and he being placed on 5-years’ probation and must perform 100 hours of community service.

At this time he is working and playing football in North Carolina, and is paying child support.

Later his probation may be transferred to North Carolina after he graduates from Glenville State College.

He was represented by Christina Flanigan also.


•  State of West Virginia vs. John Gorzynski

He was before the Court for sentencing as well.

He was denied probation or alternative sentencing and was sentenced 1-10 years in the penitentiary, with no fine but he must pay customary court costs within 18 months of his release.

Central Regional Jail was ordered to do a full medical evaluation on Gorzynski and to provide all medical treatment necessary for him.

He was represented by Daniel Armstrong of Gassaway who stood in for David Karickhoff of Sutton.

•  One name change was heard and granted.

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Weston Resident Enters Plea to Child Pornography Charge


A 45-year old Weston, West Virginia, resident entered a plea of guilty on April 20, 2012, in United States District Court in Clarksburg before Magistrate Judge John S. Kaull.

United States Attorney William J. Ihlenfeld, II, announced that: LARRY ALLEN THOMPSON entered a plea of guilty to one count of Possession of Child Pornography on December 02, 2010, in Weston.

THOMPSON, who is on bond pending sentencing, faces a maximum exposure of 10 years imprisonment and a fine of $250,000.

The case was prosecuted by Assistant United States Attorney David J. Perri and was investigated by the West Virginia State Police Crimes Against Children Unit.

This case was prosecuted as part of Project Safe Childhood, a nationwide initiative to combat the growing epidemic of child sexual exploitation and abuse, launched in May 2006 by the Department of Justice.

Led by United States Attorneys’ Offices and the Criminal Division’s Child Exploitation and Obscenity Section, Project Safe Childhood marshals federal, state, and local resources to better locate, apprehend, and prosecute individuals who exploit children via the Internet, as well as to identify and rescue victims.

For more information about Project Safe Childhood, please visit

West Virginia Juvenile Justice System to Be Examined


West Virginia’s juvenile justice system will be examined by a court-hired monitor due to concerns that it focuses more on punishment than rehabilitation.

“Currently there seems to be too little emphasis on individual programming and re-entry strategies,“ state Supreme Court administrative director Steve Canterbury said Monday in a news release.

The court has tapped Cindy Largent-Hill, a former director of the Division of Juvenile Services, for the job. Largent-Hill is a member of the Adjudicated Juvenile Rehabilitation Review Commission, which is looking at the division’s programs and operations plan for the Industrial Home for Youth in Salem and the Honey Rubenstein Center in Davis.

“This is a monitor, not a special master and not a receiver,“ Justice Margaret Workman said in the release. “It would be premature without full information and study to appoint a special master or receiver. We want to work cooperatively with the other branches of government.“

Largent-Hill will work with circuit courts and their probation staffs, visit facilities, review files of juveniles at the Salem and Davis facilities and talk with residents.

She told the Charleston Daily Mail that she wants to help change the system, and not just police it.

Most youths entering the system were abuse victims or have drug problems. But treatment opportunities sometimes are overshadowed by a focus on punishment, she said.

“They are stunted in so many ways — socially, emotionally, behaviorally — so they are much more complex, so it’s not just a teenager with a bad attitude anymore,“ she said.

The system offers vocational and educational classes and is less like prison that it was several years ago. But it could do a better job, said Denny Dodson, the current Juvenile Services director.

Dodson said some juveniles don’t want to take advantage of educational or vocational programs. Some judges also are part of the problem.

“The good judges use that rehabilitation, but some courts use it as a punishment, and it’s out of exasperation, realizing the change wasn’t going to happen,“ he told the newspaper.

WV School Building Authority Agenda for 04.23.12 – The Day of Decisions


Governor’s Press Conference Room
State Capitol Complex
1900 Kanawha Boulevard, East, Charleston.
April 23, 2012
9:30 AM

Please note: Click on the Attachment for each item to see the back-up documentation.

I. CALL TO ORDER – Mr. Kurt Dettinger


III. APPROVAL OF MINUTES - SBA Meeting of March 19 and 20, 2012   ATTACHMENT A

IV. CONSTRUCTION COMMITTEE – Steve Burton / Mr. David Sneed

          A. Cabell County – Request Green School Funding for the Huntington East Middle School ATTACHMENT B

This school was designated as one of the SBA’s LEED Silver schools when it was approved by the Authority.

Cabell County received and approved bids for the new Huntington East Middle School. Cabell County is requesting $500,000 in additional Green School Funds to provide funding for of the LEED Silver certification building components for the school.

The Construction Committee will consider this matter and will recommend approval of the final worker verification policy.

          B. SBA Project – Construction Progress Report – (Information) – ATTACHMENT C

During the recent March SBA meeting, Mr. Tom Lange requested that the SBA staff provide the status of each active SBA project awarded by the Authority. The SBA staff has compiled a progress report for all currently active SBA projects that are not closing out. The details of this report are provided in Attachment C.

V.  FINANCE COMMITTEE – Mr. Nicholas Preservati / Dr. Mark A. Manchin – (Action)

          A.Consideration and Approval of a Parameters Resolution for SBA Bonds – (Action)

Jackson Kelly PLLC (Bond Counsel) - Goodwin & Goodwin LLP (Issuer’s Counsel) - Bowles Rice McDavid Graff & Love (Bond Underwriters Counsel) - Citigroup (Senior Bond Underwriter) - Attachment D will be provided as a hand out for the Authority members review and approval on the day of the meeting.

In order to issue Lottery Capital Improvement Revenue Bonds, the members of the SBA must adopt a binding resolution. The Authorizing Resolution will Give final approval of the bonds; Set maximum principal amount and parameters of the bonds; Set parameters for the bonds and sale thereof; Approve form of bond documents; Authorize closing, incidental action and Certificate of Determinations procedure; Make related approvals and take related action; and Establish Projects to be financed by proceeds of the bonds.
Supplement and amend the original reimbursement resolution for the projects.

I respectfully recommend the Authority’s approval of the Parameters Resolution as detailed in the draft version provided in Attachment D.

          B. Consideration and Approval of a Resolution Adopting SBA Post-Issuance Compliance Policies  – (Action) – ATTACHMENT E

In 2011 the Internal Revenue Service (IRS) revised a key form (known as Form 8038-G for governmental borrowers) that the Authority executes when it issues tax-exempt bonds.

The IRS revisions to the form require a more formal approach to the Authority’s post-issuance compliance procedures. Counsel to the Authority and bond counsel for the Authority’s 2012 Bonds recommend that the Authority adopt the post-issuance compliance procedures set forth in Exhibit A of the Resolution provided in Attachment E of this agenda.

The Finance Committee will consider this matter and will be providing recommendations during the April 23, 2012 meeting.

          C. Putnam County – Return of QZAB Funding  – (Action/Information)  ATTACHMENT F

Putnam County received two allocations of Qualified Zone Academy Bond (QZAB) funding during the December 12, 2011 SBA meeting.  An $840,632 allocation was provided from 2010 QZAB Funds and $824,000 from the remaining 2011QZAB Funds.

Putnam County has determined that they do not have enough qualified expenditures to expend the full amount.

On Mach 20, 2012 we received notification that they are returning their 2011 allocation of $824,000. These funds are now available for reallocation to other counties. If the SBA approves these QZAB funds for another county, these funds must be encumbered or under contract with a vendor by December 31, 2013.

The Finance Committee will consider this matter and will be providing recommendations during the April 23, 2012 meeting.

          D.  Putnam County – Approval of an amendment of the expenditure of Putnam County’s 2010 QZAB Remaining Allocation - (Action/Information)  ATTACHMENT G

Putnam County has requested approval to adjust their 2010 QZAB funding expenditures to include projects from Conner Street Elementary School as originally approved and Winfield Elementary School.  Expenditure of these funds at both schools will allow the county to deplete all the remaining 2010 funds for projects that meet the requirements of the QZAB funding guidelines.

The Finance Committee will consider this matter and will be providing recommendations during the April 23, 2012 meeting.

          E.  School Construction Funds Available For Distribution - (Information)  ATTACHMENT H

Mr. Stewart will provide the Authority a breakdown of funds available for distribution prior to consideration of the projects.


For your study and deliberation, the SBA staff has provided staff comments regarding each of the projects submitted for “Needs” funding.

Mr. David Sneed will provide a review of staff comments and answer any questions the Authority members may have regarding each project.

At the conclusion of the review, the Authority will consider each project submitted and select those to be funded in the 2012 cycle.

To review the project details, click on the county name and the information will be shown:

•  Barbour

•  Boone

•  Brooke

•  Cabell

•  Clay

•  Fayette


•  Gilmer

•  Grant

•  Hardy

•  Jackson

•  Kanawha


•  Lewis

•  Logan

•  Marshall

•  McDowell

•  Mingo

•  Morgan

•  Pocahontas

•  Preston


•  Ritchie

•  Tyler

•  Wirt

•  Wyoming.



The Authority reserves the right to enter into executive session, based upon WV Code §6-9A-4(2) (A) relating to matters of SBA personnel.


The 2012 summer quarterly meeting of the School Building Authority of West Virginia is scheduled at 9:00 AM on June 25, 2012 with the meeting to be held at the New Cameron High School in Marshall County.

The 2012 fall quarterly meeting of the School Building Authority of West Virginia is scheduled at 9:00 AM on September 17, 2012 with the location to be determined.

The 2012 winter quarterly meeting of the School Building Authority of West Virginia is scheduled at 9:00 AM on December 17, 2012 at 2300 Kanawha Boulevard, East, Charleston.


Complaint: Calhoun Attorney Engaging in ‘Legal Tomfoolery’


The WV Record Reports:

A New York woman is accusing a Calhoun County attorney of “legal tomfoolery” in representing her interests in an estate dispute in neighboring Gilmer County.

Marlea Cottrill on April 9 filed an ethics complaint against F. John Oshoway with the Office of Disciplinary Counsel, the arm of the state Supreme Court that investigates attorney misconduct.

In her complaint, Cottrill, 51, of Jump, N.Y., a suburb of Syracuse, hired Oshoway, 60, a sole practitioner in Grantsville, to defend her in a lawsuit involving the estate of her late father, Willard, only to have him do next to nothing.

According to her complaint, Willard Cottrill passed away in October 2010 “under extreme and unusual circumstances.“ In June, Cottrill was named as a co-defendant in a suit to quiet title filed by the estate’s executor, Michael W. Murphy, her brother-in-law in Gilmer Circuit Court.

F. John Oshoway

The suit seeks to divest any interest on Willard’s property in Linn claimed by Ruth Mitchell, the other co-defendant. According to the suit, Willard in his will dated Nov. 1, 2006, requested Mitchell, “be provided a residence on his real property,“ but “‘shall not preclude divestiture of the property by heirs, and is not intended to establish a life tenancy.‘“

It was not until two months later, Cottrill says, that she found out about it, and only through Mitchell. In a panic, she says she drove nine hours to Gilmer County to find an attorney to answer the complaint or risk losing all her rights to inheritance.

Eventually, she found Oshoway who agreed to accept her case for $2,000. Initially, Cottrill paid him $500, and sent him a check for the balance after returning to New York.

Between then and last month, Cottrill says Oshoway has failed to communicate with her about not only the status of the case, but its implications. Also, he has failed to provide her copies of any court documents filed since then including her answer.

All documents she’s received have either been provided by Mitchell or her attorney, Dan Grindo. A copy of the answer Oshoway filed for Cottrill, that Grindo’s office sent her via fax on Sept. 2, 2011, does not bear the time-stamp of the circuit clerk’s office.

Because she was not properly served with a summons, and copy of the complaint, Cottrill says Oshoway should’ve moved to have her dismissed from the suit. However, he failed to do that.

Eventually, Cottrill says she received a telephone call from Oshoway early last month. In it, she says he expressed bewilderment she hadn’t received any documents from him, but would ensure she receive a copy of all pleadings made since she hired him.

However, when she did not receive anything after two weeks, Cottrill wrote him a letter asking him to withdraw from the case. In her letter, she also asked he provide an accounting of his work, and a refund of her retainer.

Shortly thereafter, Oshoway responded saying he would be filing a motion to withdraw as her attorney. However, he disputed receiving an additional $1,500 from her after the initial $500. Instead, he said the check she sent was for $1,000.

In her complaint, Cottrill says that “is absolutely untrue” and provided a copy of the cancelled check Oshoway cashed for $1,500. Also, she made clear the basis of her complaint she was not disputing Oshoway’s fee, but instead his “lack of communication, and zealous representation for the work I thought I paid him to do.“

“One of my concerns,“ Cottrill said, “is the area of West Virginia that Mr. Oshoway works from is severely economically depressed and I wonder how often this sort of legal tomfoolery happens.“

“I fear for the people of Calhoun and Gilmer counties that have no other means of justice as Mr. Oshoway doesn’t seem the least bit inclined to follow up on clients’ needs or wishes once he has been paid,“ Cottrill added. “And even then, Mr. Oshoway doesn’t seem to feel the need to accurately reflect records of payment received by those clients.“

When reached for a comment about Cottrill’s complaint, Oshoway said “I was not aware it.“ Also, he said “I wouldn’t comment on it” after seeing it.

According to ODC, Cottrill’s complaint is one of four pending against Oshoway.

~~  Lawrence Smith - The WV Record  ~~

Gilmer County Family Court Report - 04.18.12


Family Court Judge Larry Whited heard a full docket on Wednesday, April 18, 2012.

Three domestic violence cases were heard and one was rescheduled.

Two other domestic cases were heard with no orders entered as of yet.

Two divorce cases were heard and one was granted:

Geanna Matthews (41) of Weston, WV divorced Wayne Matthews (age unknown) of Glenville, WV.

Gilmer County Circuit Court Report - 04.19.12


On Friday, April 13, 2012, Chief Judge Jack Alsop presided over 2 cases in Circuit Court.

•  A bench trial in the civil case of CitiMortgage Inc. vs. Hannah Smith was heard and Judge Alsop granted judgment against defendant in the amount of $31,473.36 plus interest.

Jane Ann Pancake represented the plaintiff and the defendant represented herself.

•  An adoption hearing was heard and the attorney was given 45 days to get personal service on the natural father.

On Wednesday, April 18, 2012 Judge Alsop presided over Court until 4:30 PM hearing several cases:

Imprisonment Status:Pre-Trial Felon
Full Name: Bonnell,Thomas William
Height: 5’11”
Weight: 160 lbs.
Birth Date: 01.01.1975
Gender: Male
Booking Date: 04.03.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
11F-16 GILMER COUNTY - Bail Amount: $100,000.00

•  State of West Virginia vs. Thomas Bonnell Jr.

He was before the Court for docket call, having missed it earlier because he was in the hospital.

He is represented by Kevin Duffy of Clay and his pre-trial is set for Thursday, May 31, 2012 at 2:00 PM with his trial being Tuesday, June 19, 2012 at 9:00 AM.

He remains in Central Regional Jail in lieu of $100,000.00 bond.

•  One defendant was before the Court for pre-trial but there were no motions to be heard so his case remains on the docket for jury trial on Tuesday, April 24, 2012 at 9:00 AM.

He is represented by Daniel Grindo of Gassaway.

•  Several juvenile cases were heard and reset as follows:

1) Monday, July 09, 2012 at 9:30 AM

2) Thursday, May 31, 2012 at 11:00 AM

3) Friday, April 27, 2012 at 1:30 PM

4) Thursday, May 31, 2012 at 9:00 AM

5) Monday, June 11, 2012 at 10:00 AM

•  State of West Virginia vs. Timothy Furr

He was before the Court for a bond reduction hearing.

However, after his attorney failed to appear the matter was continued.

He is represented by Drannon Adkins of Sissonville and remains in Central Regional Jail under $100,000.00 bond.

•  State of West Virginia vs. Joshua Hoover

He will enter a plea at 10:00 AM on Thursday, May 31, 2012.

He is represented by David Karickhoffof Sutton.

A fugitive from justice was before the Court.

Imprisonment Status:Pre-Trial Felon
Full Name: Thomas, Calvin
Height: 5’6”
Weight: 185 lbs.
Birth Date: 04.14.1967
Gender: Male
Booking Date: 04.18.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
12P22 FUGITIVE - Bail Amount: $0.00

•  Calvin Thomas was wanted in the state of Ohio and waived extradition and will be released to authorities from Ohio by 4:00 PM on Monday, April 30, 2012 or Central Regional Jail will release him.

He was represented by Daniel Grindo of Gassaway.

On Thursday, April 19, 2012, Judge Alsop came to Gilmer County for recall of March term grand jury.

The jurors returned 2 criminal indictments, received their jury pay and were free to go before l0:00 AM.

Those indicted were:

•  State of West Virginia vs. Jimmie Glen Stewart

He was indicted for 5 counts of sexual abuse in the first degree.

Stewart is represented by Steve Nanners of Buckhannon.

•  State of West Virginia vs. Charles Dale Emerson

He was indicted for 2 counts of sexual abuse in the first degree and 2 counts of sexual assault in the first degree.

Emerson is represented by Kevin Duffy of Clay.

Both new indictees will be arraigned at 1:30 PM on Friday, April 27, 2012.

•  Judge Alsop also performed a marriage ceremony before leaving Gilmer County for hearings in Braxton County.

West Virginia Joins Multi-State Challenge to EPA


West Virginia Governor Tomblin has joined twenty-one other states in challenging President Obama’s Environmental Protection Agency (EPA) and its latest attack on jobs and West Virginia coal.

Governor Tomblin directed West Virginia Attorney General Darrell McGraw to join a Petition for Review in the United States Court of Appeals for the District of Columbia Circuit challenging the EPA’s MACT Rule.

This rule has already caused electric utilities to announce plans to shut down coal-fired power plants in West Virginia.

“This is a shining example of the EPA, an unelected federal bureaucracy, making policy without regard to the economic impact of its decisions,” said Governor Tomblin. “I will continue to fight for West Virginia jobs and against the EPA’s ideologically driven, job-killing agenda.”

Last year, the State of West Virginia joined twenty-four other states and the Territory of Guam in filing a brief, as amici curiae, in the underlying MACT Rule litigation.

The MACT rule regulates emissions of hazardous air pollutants from coal-fired electric plants.

Lewis County Man Sentenced on Incest Charges


Lewis County Circuit Judge Thomas Keadle sentenced Harry Goldsmith of Lewis County to 10 to 25 years in jail on Monday, April 16, 2012 for 4 counts of incest involving his children and grandchildren.

Goldsmith sexually abused his children and grandchildren 20 to 40 years ago.

Trooper Also Defendant in ‘96 Shooting Death of Calhoun Woman


The WV Record Reports:

Records show prior to the one filed against him recently, a State Trooper was also named as a co-defendant in another civil rights suit involving a Calhoun County woman 16 years ago.

Last month, Jackie L. Denmark filed suit in U.S. District Court against Cpl. D.B. Starcher accusing him of falsely arresting her in March 2010 on charges of aiding and abetting kidnapping. In her suit, Denmark alleges Starcher arrested her in an effort to get her disclose the location of David Wayne Beech, a missing teenager from Roane County.

Denmark’s son, Seth, was also arrested in March 2010, and charged with kidnapping Beech, whose body has yet to be discovered. Though charged with it last year, Seth Denmark was formally indicted for Beech’s murder by a special grand jury last month.

Last April, the aiding and abetting charge against Jackie Denmark was dismissed.

In 1998, Starcher was named as the lead defendant in suit filed by Donald Jones, as the administrator of the estate of his wife, Patricia. In his suit, Jones alleged Starcher, the State Police, then Calhoun County Sheriff William Stemple and Deputy Sheriff George Settles were negligent in shooting, and killing Patricia two years earlier when Starcher and Stemple were called to the Joneses home in Big Springs in response to an apparent domestic dispute.

‘Confrontation’ turns fatal

According to the suit, which was filed on June 11, 1998, also in U.S. District Court, Starcher and Settles were dispatched to the Jones home on June 14, 1996 “to investigate an allegation of domestic violence.“ After arriving at the scene, Starcher and Settles “entered into a confrontation” with Patricia.

The nature of the confrontation is not specified in the suit. However, as a result “Starcher and/or ...George Settle [sic], negligently, willfully, wantonly and intentionally, in disregard of the civil rights of the said Patricia Ann Jones, shot and killed” her.

The suit does not provide much detail about Jones’ death except she “was severely wounded by one or more gunshots and later died.“ Also, the suit maintains Starcher and Settles “used excessive force to restrain ... Jones at a time when they were not permitted to do so.“

According to an Associated Press report in the June 16, 1996, edition of the Charleston Gazette, Jones, 38, was shot after she pointed a rifle at Starcher and Settles, and fired one shot. According to 1st Sgt. Carl Berlin with the State Police’s Spencer detachment, “Police returned fire, killing Jones.“

Four days later, The Calhoun Chronicle reported that, after they arrived at her house, Jones pointed an unspecified weapon at Starcher and Settles. When she fired at Starcher, “Settles had no choice but to fire once, fatally wounding Jones,“ the article said.

According to her death certificate, Jones died of a shotgun wound to her chest.

Prior to the shooting, The Chronicle reported Stemple, and Deputy Steve Lampos spoke with Jones via telephone. Along with Starcher and Settles, Stemple and Lampos “repeatedly asked and ordered [Jones] to surrender her weapon.“

According to The Chronicle, Donald Jones was not at the home after Starcher and Settles arrived.

Along with a claim the State Police did not do likewise with Starcher, the suit alleges Stemple “failed adequately to train or otherwise direct ... George Settle [sic], concerning the rights of citizens, thereby causing ... [him], to engage in the unlawful conduct described above.“ According to the state Law Enforcement Professional Standards Subcommittee, Settles never received the training necessary to be a certified law enforcement officer.

Suit dies, too

In the suit, Jones asked that he be awarded $500,000 in damages for Patricia’s death. Also, his attorney, Keith White of St. Marys, asked he recover the costs of litigating the suit, including his fee.

Records show, those proved to be minimal as Judge Irene B. Keeley dismissed the suit on Jan. 25, 1999 on the grounds White failed to serve any of the defendants with a copy of the complaint, and a summons. Though Keeley dismissed the suit without prejudice which allowed an opportunity for White to re-file it, records show he never did.

The West Virginia Record attempted to obtain a comment from White about the suit. He did not return repeated calls by presstime.

Also, repeated messages left with Settles and Stemple were not returned by presstime.

Because he was constitutionally barred from seeking a third successive term as sheriff, Stemple successfully ran for the House of Delegates in 1996. He held the seat, which, along with Calhoun included Gilmer and Clay counties, until 2008.

In May’s Democratic primary, Stemple, 64, is again a candidate for sheriff. His opponent is incumbent Sheriff Allen Parsons, who succeeded Stemple in 1997.

Currently, Starcher is assigned to the Wirt County detachment in Elizabeth.

U.S. District Court for the Northern District of West Virginia case number 98-cv-96

~~  Lawrence Smith - The WV Record  ~~

G-TechNote™: West Virginia Joins E-Book Lawsuit


West Virginia is one of 15 states now part of a law enforcement action filed against Apple and three of the largest book publishers in the United States.

The claim is that those companies worked together to artificially inflate prices for electronic books.

The action was filed in U.S. District Court for the Western District of Texas.

In addition to Apple, Penguin Group USA, Macmillan Holdings and Simon & Schuster are named in the filing.

The alleged conspiracy drove up the price of e-books from $9.99 to $12.99 and $14.99.

Officials with state Attorney General Darrell McGraw’s Office say the rights for those books had previously been sold to online sellers like Amazon so the books could be sold at any price.

However, as part of the scheme, contract terms were imposed that required all e-book outlets to sell their products at the same price, eliminating retail price competition.

Customers ended up paying $100 million more because of it.

“These companies colluded to allow publishers, rather than the marketplace, to set the price of e-books,“ Attorney General McGraw said in a statement.

Sentencing Set For Lena Lunsford


The mother of missing Lewis County three-year-old Aliayah Lunsford will be sentenced in May on welfare fraud charges.

A May 22, 2012 sentencing was set on Thursday, April 12, 2012 for Lena Lunsford.

She pleaded guilty previously to selling her food stamp card.

Aliayah Lunsford went missing last September.

Gilmer County Circuit Court Report - 04.10.12


On Monday, April 09, 2012 Chief Judge Jack Alsop had his monthly motion day in Gilmer County.

•  State of West Virginia vs. Jerry Duelley II

He was before the Court for revocation of his home confinement.

He was represented by Daniel Grindo of Gassaway.

After taking much testimony Judge Alsop released Duelley from Central Regional Jail pending final hearing on Thursday, May 31, 2012 at 2:00 PM.

Several juvenile matters were heard and reset as follows:

•  1) Monday, July 09, 2012 at 9:00 AM
•  2) Monday, July 09, 2012 at 9:15 AM
•  3) Wednesday, April 18, 2012 at 2:30 PM
•  4) Monday, May 14, 2012 at 11:15 AM
•  5) Wednesday, June 13, 2012 at 11:30 AM
•  6) Monday, June 11, 2012 at 9:30 AM
•  7) Wednesday, June 13, 2012 at 1:00 PM
•  8) Wednesday, June 13, 2012 at 1:30 PM
•  9) Monday, June 11, 2012 at 9:45 AM

Two civil matters were before the Court as follows:

•  First Resolution Investment vs. Leonard F. Terrango

The case was heard with plaintiff’s attorney, Steven Mulrooney of Mapother & Mapother of Louisville, KY appearing by telephone.

Defendant Terrango did not appear.

However, service had been made upon him by Gilmer County Sheriff’s Department and no answer had been filed on his behalf so Judge Alsop directed Mulrooney to submit an order for entry of default judgment.

•  Ford Motor Company vs. Lucas McCune

Mulrooney appeared by telephone and a default judgment order came in the mail to the Circuit Clerk later in the morning and was granted and entered by Judge Alsop.

An expungement hearing was held in the case of Roxanne McAtee who represented herself in the proceedings.

Judge Alsop took the matter under advisement and will issue his ruling at a later date.

•  State of West Virginia vs. Jimmie Stewart

He was represented by Steve Manners of Buckhannon

He was before the Court and several motions were heard.

The state through her prosecutor moved to amend the indictment, which motion the Judge denied.

Defense counsel moved to dismiss the indictment, which the Judge took under advisement until after the grand jury meets again on Thursday, April 19, 2012 for further consideration.

WACO Oil and Gas, XTO Energy Dismissed from Drilling Lawsuit


A federal judge has dismissed Glenville-based Waco Oil and Gas from a lawsuit that a Marion County man filed over plans to use his property for deep, horizontal wells that would drain natural gas from his neighbors’ reserves.

Richard Cain initially sued Waco and Exxon Mobil subsidiary XTO Energy in circuit court last summer, but the case was transferred to U.S. District Court in Clarksburg. In a recent ruling, Judge Irene Keeley said she’ll retain jurisdiction, but she granted Waco’s motion to dismiss claims against it.

The case illustrates the complexity and intertwined nature of mineral and surface rights in a region where companies are rushing to tap the vast deposits of the Marcellus shale field.

Cain concedes he does not own the mineral rights, which were sold in 1881 and have changed hands several times. But he claims ownership of those mineral rights does not give a company the authority to drill multiple wells or disrupt 36 of his 105 acres to get oil and gas from neighboring estates.

Cain contends the amount of gas to be recovered is too minute to justify such extensive surface disruption and insists he is the only party with the “legal right” to lease his surface.

There is no dispute that Cain bought the land in 1989, Keeley said.

“The ownership history of the oil and gas rights themselves, however, is somewhat more convoluted.“

Waco, which sold leases to Linn Energy Holdings LLC in 2003, argued it had done nothing wrong and that Cain’s fight is with the current leaseholder, XTO.

After Cain sued the two companies, Waco sold “the entirety of its interests in the oil and gas estate” under Cain’s property to XTO.

XTO, meanwhile, has also denied doing anything illegal.

It argues it paid $63,000 for a pipeline right-of-way easement to transport oil, gas water and other substances across Cain’s property.

The court ruled that XTO’s lease gives it the clear right to access adjoining property through pipelines but said it “does not otherwise provide the right to use the surface of the tract to explore for or produce oil and gas from neighboring oil and gas estates.“

Still, Keeley said, Cain lacks grounds for a dispute with Waco.

Cain and XTO have until Friday to submit a proposed plan for evidence in the case.

A scheduling conference is set for April 20, 2012.

Ohio Man Appeals Dismissal of Ethics Complaint against Gilmer Prosecutor


The WV Record Reports:

Citing a failure to consider new evidence, an Ohio man is asking a state ethics panel to reconsider his complaint of improper conduct by Gilmer County’s prosecuting attorney in his 2005 criminal case.

The Office of Disciplinary Counsel on Sept. 6 dismissed the complaint Dan Bingman filed against Gerry Hough. In her dismissal letter, Lawyer Disciplinary Counsel Jessica Donahue Rhodes, said the information Bingman included in his Aug. 24 complaint of Hough paying one of Bingman’s relatives to testify against him, and advertisements Hough placed in the Glenville Democrat-Pathfinder accusing Bingman of “cyberbulling,“ not only failed to show a violation of the Rules of Professional Conduct, but was also time-barred.

“Nothing in those two (2) documents reflect [sic] any violation of the Rules of Professional Conduct,“ Rhodes said. “Furthermore, you have not provided any proof that Mr. Hough paid Mrs. Rafferty to testify during the trial.“

“Those allegations are far too vague and unclear to discern what actions you believe Mr. Hough has taken that amount to an allegation of a violation of the Rules of Professional Conduct,“ Rhodes added. “It appears you have been aware of most of what you allege in your second complaint when your first complaint was filed and two (2) years before the first complaint was filed.“

“Thus, your complaint appears to be time-barred,“ Rhodes said.

Records show, Bingman, of Cuyahoga Falls, Ohio, was indicted in March 2005 by the Gilmer County grand jury on a charge of grand larceny, a felony. He was accused of stealing, and later selling farm equipment, a brush hog, valued at nearly $2,500 on Jan. 31, 2002.

However, a jury on Dec. 14, 2005, convicted Bingman of petit larceny, a misdemeanor. Bingman maintained he should’ve never been indicted, let alone convicted, since the brush hog was valued at less than $400, and sat idle for over 20 years on property belonging to his family.

In his complaint, Bingman accused Hough of suborning perjury by getting Roanna Rafferty, Bingman’s aunt, to testify falsely she had a 1/6th interest in the property. Also, Bingman maintains Hough was aware the value of the brush hog was well below the $1,000 threshold for a grand larceny charge.

The allegations raised in his Aug. 24 complaint were similar to ones raised in a complaint he filed against Hough on Dec. 20, 2007, that was dismissed a month later. However, in his response dated Sept. 8 to their dismissal letter, Bingman said ODC failed to consider two new pieces of evidence included in his recent complaint that came to light last year.

One was a title opinion that was introduced last July in a civil suit showing Rafferty did not own the 1/6th share of the property she claimed. Another was bills received in October for back taxes on the property that, Bingman said the county previously refused to let his family pay.

The title opinion and tax tickets, Bingman says, show that his new complaint against Hough not only falls within the statute of limitations, but also he had no business prosecuting him in what amounted to a family squabble.

“The new evidence in this case proves that it should not be time-barred,“ Bingman said. “It proves that due diligence was not practiced and a human being suffered severely as a result.“

“A case should never be brought to court by a Prosecutor who has not used due diligence to establish the facts,“ he added. “When Hough could not locate the 1/6th claimed, the court should have been notified (despite his embarrassment) a mistrial declared and perjury charges brought against the Prosecutors [sic] witness in my opinion.“

“Because there was no title proof of ownership, the jury, and the court could not know that there was equal ownership in a property dispute that somehow turned into a criminal case, although experts say it should have been a civil action all along.“

In response to his letter, Chief Lawyer Disciplinary Counsel Rachel L. Fletcher Cipoletti said ODC was treating Bingman’s dissatisfaction of their dismissal of his complaint as an appeal and would be placing it on the agenda for the next meeting of the Lawyer Disciplinary Board’s investigative panel. Though she did not say when the next meeting would take place, Cipoletti said she would notify Bingman in writing of their decision.

When reached for a comment about Bingman’s complaint prior to its dismissal, Hough said he had yet to see it. However, he said this was Bingman’s latest attempt to retry his case.

“Every citizen has a right to complain and have their voice heard somewhere,“ Hough said. “He’s been busy for the last four years reinventing the trial that took place, and his conviction, which was found by a jury of his peers guilty of larceny from his family.“

~~  Lawrence Smith - WV Record  ~~

Gilmer County Family Court Report - 03.28.12


On Wednesday, March 28, 2012 Family Court Judge Larry Whited appeared and held Court in Gilmer County.

Three divorces were granted as follows:

•  Tina M. Ward (37) of Sand Fork, WV divorced Mark Aaron Ward (37) of Sutton, WV .

•  Elizabeth Moss (47) of Glenville, WV divorced Jeffrey Moss (52) of Glenville, WV .

•  Maria Taylor (29) of Sand Fork, WV divorced Andrew Taylor (30) of Sand Fork, WV .

•  A contempt hearing was dismissed.

Gilmer County Circuit Court Report - 03.27.12


On Monday, March 26, 2012 Judge Richard A. Facemire held his regular monthly motion day in Gilmer County.

Several juvenile hearings were held and reset as follows:

•  One for Monday, June 25, 2012 at 10:00 AM,

•  One at 10:10 AM,

•  One at 10:20 AM,

•  One at 10:30AM.

•  Another one was set for judicial review on Friday, July 06, 2012 at 10:00 AM.

•  A status conference was held in a criminal case wherein the defendant is in a group home and further status will be held on Monday, September 24, 2012 at 9:00 AM.

•  State of West Virginia vs. Roy Jenkins Jr.

He was before the Court for reconsideration of his sentence, which was denied by Judge Facemire and he was returned to Central Regional Jail.

Jenkins was represented by Clinton Bischoff of Summersville.

•  vState of West Virginia vs. Mark Aaron Ward

He was before the count for sentencing and received 2-10 years in the penitentiary with no fine, but customary and usual costs to be paid within 18 months of his release.

He was denied probation by Judge Facemire and was represented by David Karickhoff of Sutton.

•  State of West Virginia vs. John Gorzynski

He was before the Court for sentencing but upon motion to continue being filed his sentencing was reset for Monday, April 23, 2012 at 10:15 AM.

He was also represented by David Karickhoff.

•  An infant summary case was before the Court and granted and completed.

•  A forfeiture of $565.00 in a drug case was granted and directed to be paid to the State Police, who already had the money in their custody.

•  State of West Virginia vs. Holly Morning McCraw

She was before the Court for revocation of her probation and after she admitted to the allegations in the petition filed against her.

Judge Facemire sentenced her to 1-5 in the penitentiary, with credit for time previously served.

She may also ask for reconsideration if a suitable placement is found for rehab for her.

She was represented by David Karickhoff.


On Tuesday, March 27, 2012 Chief Judge Jack Alsop presided over Court in Gilmer County.

•  A jury trial had been scheduled in the case of State of West Virginia vs. Matthew Capelety.

However, last week Capelety decided to enter a plea.

Judge Alsop accepted his plea to failure to register change of information as a sex offender, and set sentencing for Monday, May 14, 2012 at 10:30 AM.

He was represented by Christopher Moffatt of Charleston.

•  A juvenile matter was heard and set for further hearing on Wednesday, April 18, 2012 at 1:00 PM.

•  State of West Virginia vs. James McCune

He was before the Court for revocation of his home confinement.

McCune had recently been found with his ankle monitor removed and he was intoxicated when Deputy Huffman responded to a late night call about residents being disturbed by a 4 wheeler.

McCune admitted to violating home confinement rules and regulations and Judge Alsop sentenced him to not less than 1 year nor more than 5 years in the penitentiary upon his earlier conviction.
Moffatt also represented Mr. McCune.

Lewis County Man Sues Springfield Armory, Individuals for Gun Shot


A Lewis County man is suing Springfield Armory for a gun shot he sustained while at a friend’s residence.

Devon McCartney and James E. McCartney were also named as defendants in the suit.

On March 05, 2010, Joshua Shane Davisson was visiting the home of William H. McCartney with his friend Vernon Groves when Devon McCartney came to visit the residence, according to a complaint filed in Monongalia Circuit Court.

Davisson claims Devon McCartney and/or James McCartney are the owner(s) of a .40 caliber Springfield Armory XD-40 Subcompact pistol.

Devon McCartney negligently and carelessly transported the loaded gun from James McCartney’s home to the home of William McCartney and negligently and carelessly handled the gun causing it to discharge into Davisson, according to the suit.

Davisson claims as a result of the defendants’ negligence, he was shot in the sternum with the bullet ultimately becoming lodged in his left thigh.

James McCartney negligently permitted Devon McCartney to access the gun without verifying that they had the requisite knowledge to handle and/or disassemble the gun in a safe manner, according to the suit.

Davisson is seeking compensatory damages with pre- and post-judgment interest.

He is being represented by Timothy J. Manchin and Taylor B. Downs.

Monongalia Circuit Court case number: 12-C-148

~~  Kyla Asbury - WV Record  ~~

West Virginia Court Spells Out Re-Registry Requirements


A West Virginia appeals court has ruled that sex offenders are only required to re-register their information after a conviction, not after an arrest.

The court ruled last week that the West Virginia State Police lacked the right to arrest 30-year-old Timothy Judge of Tyler County for failure to re-register on a sex-offender list upon his release from jail in 2010.

Judge complied with re-registering after being convicted on a third-degree sexual abuse charge in 2002.

He was arrested in May 2010, on a charge of accessory after the fact to breaking and entering.

Police arrested Timothy Judge because he didn’t update his sex-offender registry entry.

The Charleston Gazette reports that last week’s opinion says the language regarding the offender-registration requirements should be rewritten to more clearly reflect the law’s requirements.

WV Judges Continue Crackdown on Truancy


Judges in Cabell and Kanawha counties are holding parents of chronically truant students responsible for their children’s absences.

Media outlets report that Kanawha County Circuit Court Judge Duke Bloom and Cabell County Paul Farrell held hearings this week for several parents.

Bloom fined one parent $50 and ordered her to perform community service.

He scheduled a jury trial for another parent and told a third parent to get the proper forms for absences.

Farrell fined three parents $50. The fines will be waived if their children do not miss any school in the next 60 days.

Both judges warned the parents that a second offense could land them in jail. The state also could take their children if the truancies continue.

GFP - 03.25.2012
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Calhoun Couple Indicted In Infant’s Death

Imprisonment Status:  Pre-Trial Felon

Ashley Nicole Kreh

Full Name: Kreh,  Ashley Nicole
Height: 5’  3”
Weight: 160 lbs.
Birth Date: 04.05.1990


Booking Date: 02.22.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon - Charged with death of a child by parent by child abuse

Offender Court Order Information

Court Info Number Issuing Agency Location
12F-26 CALHOUN COUNTY - Bail Amount: $750,000.00


A Calhoun County couple has been indicted in the death of their infant daughter.

Ashley Kreh, age 21 and Ordie Rogers, age 30 are charged with murder and child abuse resulting in death.

Their 2-month old daughter died of blunt force trauma to the head last month.

She was taken to Roane General Hospital on February 17, 2012 with a skull fracture and a broken arm and died two days later.


Imprisonment Status:  Pre-Trial Felon

Ordie Jackson Rogers

Full Name: Rogers,  Ordie Jackson
Height: 5’  8”
Weight: 150 lbs.
Birth Date: 06.26.1981


Booking Date: 02.22.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon - Charged with a death of a child by neglect

Offender Court Order Information

Court Info Number Issuing Agency Location
12F-27 CALHOUN COUNTY - Bail Amount: $300,000.00

Calhoun County Woman Sues WV Trooper for Civil Rights Violations


The WV Record Reports:

A Calhoun County woman alleges she was falsely arrested by a West Virginia State trooper to leverage her cooperation in the investigation of a missing Roane County teenager.

Jackie L. Denmark on March 12 filed a civil rights suit against Cpl. D.B. Starcher in U.S. District Court. In her complaint, Denmark, 58, of Orma, alleges Starcher arrested her two years ago for the sole purpose of getting her son, William Albert “Seth” Denmark, to disclose the whereabouts of David Wayne Beech III.

According to the suit, Starcher with the Grantsville detachment first interviewed Denmark in May 2006 shortly after Beech, 17, from Spencer, was reported missing. Starcher and two deputies from the Roane County Sheriff’s Department received information Beech might be at the Denmark residence.

In the course of the interview, Denmark denied knowing Beech’s whereabouts.

Four years later, Starcher obtained a warrant to search the Denmark property. The warrant, according to the suit, was a result of Veronica Cottrill saying she, at gunpoint, was made to help Seth bury Beech’s body on a nearby hillside.

In her statement, Cottrill stated Denmark was aware Seth abducted Beech, and later killed him. Though some evidence was discovered at the scene, Beech’s body was never discovered.

Based mostly on Cottrill’s statement, Starcher arrested Denmark on March 12, 2010, and had her charged with one count of aiding or abetting kidnapping. Following her arrest, Denmark remained in jail for an unspecified period before being released on bond that included a period of house arrest.

According the suit, Calhoun Circuit Judge David W. Nibert dismissed the charge April 02.

Her arrest, and subsequent incarceration, Denmark alleges, was done out of Starcher’s “desire to accomplish a collateral advantage” of charging Seth with murder. In the suit, Denmark states while Seth was incarcerated at the Anthony Correctional Center in Greenbrier County on unrelated charges prior to his arrest for Beech’s kidnapping, Starcher interviewed him, and said he would have her arrested if Seth did not tell him the location of Beech’s body.

In her suit, Denmark maintains Starcher’s abuse of the legal process based largely on Cottrill’s uncollaborated statement resulted in a depravation of her constitutional rights. As a result, Denmark says that along with losing her full-time job, she’s “suffered great hardship, physical and mental emotional harm [and] enjoyment of life.“

Denmark seeks unspecified damages, attorney’s fees and court costs. She is represented by Henry E. Wood III of Charleston and Lee F. Benford II of Ripley.

The case is assigned to Judge Irene M. Keeley.

U.S. District Court for the Northern District of West Virginia case number 12-cv-43

~~  Lawrence Smith - Harrison Bureau – WV Record ~~

G-FYI™: Little Action Taken in Clay Man’s FOIA Suit against County Development Agency


The WV Record Reports:

A year after it was filed, a Clay County man’s Freedom of Information Act suit remains at square one.

Since he filed it on Feb. 17, 2011, Michael Boggs’ suit in Kanawha Circuit Court to compel the Clay County Business Development Authority to disclose three years’ of records has seen little action. The most recent was a motion filed Dec. 9 by his attorney David R. Karr Jr. to file an amended complaint.

Karr’s motion came in response to a combined answer, and motion to dismiss filed by the state Development Office which was named as co-defendant in Boggs’ suit. The WVDO is the reason the suit is in Kanawha Circuit as after Boggs filed his original suit in Clay Circuit Court two years ago against the BDA and the Clay County Commission, Judge Jack Alsop dismissed it finding WVDO had an interest in determining some of the funds it gave the Authority.

Kanawha County has original jurisdiction in lawsuits involving state agencies.

In its answer, and motion to dismiss filed July 19, Assistant Attorney General Mary Downey denied Boggs’ allegations. Also, she asserted a defense WVDO “acted within its legal rights and within the proper standard of practice in the conduct of all activities.“

In response to Downey’s motion, Karr stated the amended complaint corrected the “perceived flaws in the original complaint argued by the West Virginia Development Office to exist, as per the West Virginia Development Office’s motion to dismiss previously filed herein, which has yet be heard by the Court.“ Among the language omitted in the amended complaint is Boggs’ claim WVDO is not only CCBDA’s funding source, but it also “has an interest in the determination of various receipts and disbursements.“

Boggs’ amended complaint contains all the original claims he made against CCBDA and the Commission that include the Authority holding meetings, and making decisions without the minimum number of members, failing to publish its quarterly and annual reports from 2008-2010 and re-appointing him as member on a month-to-month basis instead of a three-year term. Also, the amended complaint continues to aver Boggs’ termination from the Board in July 2010 was due to his refusal in “remaining quiet about the above-mentioned statutory violations”

Records show, Judge Charles E. King Jr. has yet to rule on any of the motions including another one made by Karr seeking default judgment against the Commission and the Authority for failing to answer Boggs’ suit after 30 days of receiving notice of it.

Kanawha Circuit Court case number 11-C-269

~~  Lawrence Smith – WV Record ~~

GFP - 03.21.2012
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Gilmer County Circuit Court Report - 03.15.12


Chief Judge Jack Alsop held 2 arraignments as follows:

•  State of West Virginia vs. Tonya Ramsey

She was back before Court and entered a plea of not guilty to the indictment returned against her.

Her bond remains at $20,000.00 but until she can pass a drug test Judge Alsop refused to let her out of jail and took the matter under advisement until that time.

She is represented by Kevin Duffy of Clay and her pretrial is set for Friday, June 01, 2012 at 3:00 PM and her trial is Wednesday, June 27, 2012 at 9:00 AM.

•  State of West Virginia vs. Catherine McGhee

She was back in Court and entered a plea of not guilty to the indictment returned against her earlier this month.

Her pretrial is Monday, June 11, 2012 at 11:00 AM and her trial is Thursday, June 28, 2012 at 9:00 AM.

She is represented by Daniel Grindo of Gassaway and posted $25,000.00 bond later in the day with AAA Bonding and she was released from Central Regional Jail.

Judge Richard A. Facemire also presided over Court on Thursday, March 15, 2012 and heard 4 cases as follows:

•  One fugitive from justice, Geovanic Berrios, waived extradition back to New York and authorities there have until 4:00 PM on Monday, March 26, 2012 to pick him up or Central Regional Jail will release him.

He was represented by Daniel Grindo.

•  Two juvenile cases were heard and completed.

•  A bench warrant was issued for the arrest of Holly McCraw formerly of Burnsville, but whereabouts unknown at this time for failure to appear for revocation of probation.

Bond was set at $200,000.00 cash only.

Gilmer County Circuit Court Report – 03.12.12


On Monday, March 12, 2012 Chief Judge Alsop presided over his motion day.

•  One fugitive from justice from Maryland, Nevelion Short, waived extradition back to his state.

Imprisonment Status: Pre-Trial Felon

Short, Nevelion Deforst

Full Name: Short, Nevelion Deforst
Height: 5’6”
Weight: 145 lbs.
Birth Date: 02.04.1987


Booking Date: 03.09.2012
Facility: Central Regional Jail
Imprisonment Status: Pre-Trial Felon

Offender Court Order Information

Court Info Number Issuing Agency Location
12E-4 GILMER COUNTY - Bail Amount: $0.00


He was represented by Daniel Grindo of Gassaway and authorities in Maryland have until 4:00 PM, Wednesday, March 21, 2012 to pick Short up or he will be released from Central Regional Jail.

•  State of West Virginia vs. John Carder

He had a bench warrant issued against him last week which was later quashed by Judge Alsop and set for hearing at 9:00 AM today appeared with his attorney James Hawkins Jr. of Buckhannon and moved for continuance of his trial until the next term of Court.

Judge Alsop denied the motion to continue to the July 2012 term of Court and set his trial for Tuesday, June 12, 2012 at 9:00 AM with pretrial motions to be heard at 1:00 PM on Friday, June 01, 2012.

•  A juvenile case was heard and reset for 9:00 AM on Monday, June 11, 2012.

•  Another was heard and set for 9:15 AM on Monday, June 11, 2012.

•  A third juvenile was heard and reset for Monday, April 09, 2012 at 11:15 AM.

GFP - 03.13.2012
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United States Court of Appeals, Fourth Circuit: U.S. v. HENRY (Rosedale, WV)





KIMBERLEY HENRY, Defendant-Appellant.



EDGAR HENRY, Defendant-Appellant.

Nos. 10-5201, 10-5219

United States Court of Appeals, Fourth Circuit.

Argued: December 06, 2011.

Decided: March 08, 2012.


ARGUED: Brian Joseph Kornbrath, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellants.

Shawn Angus Morgan, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.

ON BRIEF: Charles T. Berry, Fairmont, West Virginia, for Appellant Edgar Henry.

William J. Ihlenfeld, II, United States Attorney, Clarksburg, West Virginia, for Appellee.

Before WILKINSON, KEENAN, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge Wilkinson and Judge Wynn joined.






Kimberley Henry and her husband Edgar Henry (collectively, the Henrys) were convicted in a jury trial of two offenses related to their conduct of growing marijuana at their home in a rural area of West Virginia. The Henrys raise three issues in this appeal: 1) whether a thermal-imaging search warrant that led to the seizure of marijuana on their property was valid; 2) whether the district court erred in excluding testimony that Edgar Henry used marijuana for medical purposes; and 3) whether the district court erred in determining that the Henrys were ineligible to receive “safety valve” sentencing consideration under 18 U.S.C. § 3553(f). Upon our review of these issues, we affirm the Henrys’ convictions and sentences.

In September 2003, Sergeant Steve Jones of the West Virginia State Police received information that the Henrys were growing large amounts of marijuana at their residence in Rosedale, West Virginia. Jones relayed this information to Sergeant James M. Manning, a West Virginia State Police officer who also was serving as a deputy task force agent with the United States Drug Enforcement Administration. After receiving this information, Manning began investigating the Henrys.

On July 13, 2004, Manning filed an application for a search warrant to conduct a thermal-imaging scan of the Henrys’ property. In his affidavit filed with the warrant application, Manning stated that he received information from a deputy sheriff that a confidential informant had revealed that the Henrys had been growing and distributing marijuana in the Rosedale area for the past four years.

The affidavit also contained the information that Manning received from Sergeant Jones, including an account from an anonymous source who stated in 2003 that the Henrys maintained a large indoor marijuana “grow operation” at their residence near Rosedale. This source also stated that the Henrys once had lived in New Jersey. Manning confirmed with the West Virginia Department of Motor Vehicles that the Henrys’ physical address was in Rosedale, West Virginia, which is located in Gilmer County. Manning additionally confirmed that Kimberley Henry‘s social security number was issued in New Jersey.

Also in the affidavit, Manning stated that in November 2002, two West Virginia State Police officers interviewed an inmate named Phillip Lee Sandy in a jail in Braxton County, West Virginia, regarding his knowledge of drug-related activity. Sandy told the officers that he had purchased small quantities of high-quality marijuana from Kimberley Henry on four or five occasions. Sandy also stated that the Henrys had constructed a building behind their residence to grow marijuana hydroponically, and Sandy provided the officers with a hand-drawn map of the Henrys’ property.

According to Sandy, the Henrys moved to West Virginia from the Washington, D.C. area. Manning corroborated this information when he conducted a criminal history review and learned that Edgar Henry had an arrest record in certain areas of Maryland located near Washington, D.C. Manning’s investigation further revealed that Edgar Henry’s first arrest in that area, in 1972, was based on drug-related charges, and that his second arrest in Maryland, in 1993, was for possession of marijuana.

Manning corroborated Sandy’s description of the Henrys’ property by conducting an aerial surveillance of the property in February 2004. During that surveillance, Manning observed a tan-colored residence with an attached, enclosed walkway leading to a building behind the residence.

As stated in the affidavit, several weeks after conducting the aerial surveillance, Manning and two other officers walked “along the roadway in the area of the [Henrys’] residence” to view the property. Manning observed in the rear building two large hooded lights and two ceiling fans, and heard the sound of a “large ventilation fan” emanating from the roof of the building.

The affidavit also stated that in May 2004, Manning learned that Edgar Henry had been arrested and charged with assault and disorderly conduct after threatening individuals at a grocery store in Rosedale who were trying to organize a “neighborhood watch program.“ Following Henry’s arrest, police discovered marijuana on his person, and Henry later was charged with possession of marijuana.

Manning also included in the affidavit the fact that Kimberley Henry did not have an arrest record. However, Manning further stated that Kimberley Henry appeared to have a particular interest in a 2002 federal prosecution of another individual from Rosedale who was charged with growing marijuana. A West Virginia State police officer had informed Manning that Kimberley Henry was present for every court appearance made by that defendant.

Finally, Manning stated in the affidavit that he received power usage records for the Henrys’ residence, which revealed an average bi-monthly electric usage of 10,870 kilowatt hours, with an average cost of about $728 for each bi-monthly billing period. Additionally, Manning confirmed that the Henry residence was not heated by electric power, but by gas.

After reviewing this affidavit along with Manning’s application, a magistrate judge concluded that there was probable cause to support a thermal-imaging scan of the Henrys’ property, and issued the requested search warrant. Manning executed the thermal-imaging search warrant in July 2004.

During the search, although the outside temperature in the area was about 58 degrees Fahrenheit, an air conditioning unit was operating in the rear building. However, the air conditioning unit in the residential portion of the property was not operating. Using night-vision goggles and a thermal-imaging unit, Manning and another officer determined that the rear building emitted a high amount of heat, which was much greater than the residential portion of the structure.

Relying on the information obtained during this search, along with the information provided in his initial affidavit, Manning applied for a second search warrant to conduct a physical search of the Henrys’ property. The magistrate judge issued the requested warrant.

During the physical search of the Henrys’ property, the police seized numerous items, including a total of 85 marijuana plants in various stages of development. The police also seized evidence of a recent harvest, including 31 marijuana plant roots.

Additionally, the police discovered various types of “growing equipment,“ processed marijuana, triple-beam scales, gallon-sized plastic bags, drug usage paraphernalia, and a binder containing handwritten notes, most of which were entered by Kimberley Henry and involved the growing of marijuana from 2000 through 2002. Finally, the police seized $1,800 in cash, in the form of $100 bills.

The Henrys were indicted in the United States District Court for the Northern District of West Virginia on three counts: 1) conspiracy to manufacture, distribute, and possess with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B); 2) aiding and abetting in the manufacture of 100 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2; and 3) aiding and abetting in the possession with the intent to distribute less than 50 kilograms of marijuana.

The Henrys filed a motion to suppress the evidence obtained from the searches of their property, arguing that the warrant application for each search was insufficient, and that the initial affidavit for the thermal-imaging search warrant was so deficient that it constituted a “bare bones” affidavit. The magistrate judge conducted hearings on the Henrys’ motion and issued an opinion recommending that the district court deny the motion. The district court agreed with this recommendation and denied the Henrys’ motion to suppress.

Also before trial, the district court considered the government’s motion in limine. In that motion, the government sought to preclude the Henrys from offering testimony that Edgar Henry personally used the marijuana grown by the Henrys to alleviate symptoms relating to his medical illnesses. The purported purpose of this testimony was to show that the Henrys lacked any intent to distribute the marijuana being grown on their property.

After conducting a hearing, the district court granted the government’s motion in limine. The district court concluded that the Supreme Court’s holding in United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001) (Oakland Cannabis), prohibited the Henrys from presenting a “medical necessity defense.“ However, the district court permitted the Henrys to offer evidence that they possessed and manufactured the marijuana solely for their personal use.

The case proceeded to a jury trial. The jury convicted the Henrys of two charges, the charge of conspiracy to manufacture, distribute, and possess with intent to distribute 100 or more marijuana plants, and the charge of aiding and abetting in the manufacture of 100 or more marijuana plants. The jury found the Henrys not guilty of the charge of aiding and abetting in the possession with the intent to distribute less than 50 kilograms of marijuana.

The Henrys’ pre-sentence reports reflected that the Henrys both were subject to a five-year mandatory minimum sentence under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). The Henrys objected to the pre-sentence reports and contended that they should not be subject to the statutory minimum sentence because they qualified for a sentencing benefit under the “safety valve” provision of 18 U.S.C. § 3553(f). In support of their argument, the Henrys relied on a written “offer of proof” submitted to the district court before sentencing, in which the Henrys described the details of their marijuana operation.

After conducting a sentencing hearing during which the parties presented testimony and other evidence, the district court determined that the Henrys were not credible, and that they had not provided the government with all relevant information relating to the offenses. Thus, the district court concluded that the Henrys failed to establish that they qualified for safety valve relief. The district court imposed on each defendant the mandatory minimum sentence of 60 months’ imprisonment. The Henrys timely filed this appeal.




We first consider the Henrys’ contention that the district court erred in denying their motion to suppress. The Henrys’ argument on this issue is limited to challenging the sufficiency of the affidavit submitted to obtain the thermalimaging search warrant. We review this issue of law de novo. See United States v. Wellman, 663 F.3d 224, 228 (4th Cir. 2011). 

A judicial officer’s determination of probable cause generally is accorded “great deference” by reviewing courts. Illinois v. Gates, 426 U.S. 213, 236 (1983); Wellman, 663 F.3d at 228. In deciding whether there was probable cause to support the issuance of a search warrant, we consider whether the known facts and circumstances were sufficient such that a reasonable person could conclude that the described evidence would be found in a particular place. Wellman, 663 F.3d at 228. The probable cause standard “is not defined by bright lines and rigid boundaries” but “allows a [judicial officer] to review the facts and circumstances as a whole and make a common sense determination” whether there is a fair probability that evidence of a crime will be found. Id. (quoting United States v. Grossman, 400 F.3d 212, 217 (4th Cir. 2005)). 

The Henrys assert that the affidavit at issue failed to meet this probable cause standard. The Henrys focus their argument on the information provided by the two unidentified sources and by Sandy, the cooperating inmate. According to the Henrys, these sources failed to explain how they obtained the information they relayed to the authorities, and failed to provide sufficient details to demonstrate that they were credible and reliable sources. The Henrys further contend that Sandy’s information was “stale,“ because he was interviewed by the police more than twenty months before the thermal imaging search warrant was issued. Additionally, the Henrys argue that although Manning submitted information to the magistrate judge regarding power usage at the Henrys’ property, Manning failed to show that such usage was irregular.

We disagree with the Henrys’ arguments, because they isolate certain aspects of the affidavit to the exclusion of other supporting facts and circumstances. Initially, we observe that the Henrys accurately identify certain weaknesses in the affidavit concerning the information obtained from Sandy and the two unidentified sources. The individual statements from each of these three sources were not based on recent information. Rather, the sources only were able to state that the Henrys had grown large amounts of marijuana at their residence in the past, and that the sources had purchased marijuana from the Henrys at some unidentified earlier time.

Because these accounts were not based on recently acquired information, the accounts, if considered separately, may well have been insufficient to establish probable cause. However, when considered collectively, that information demonstrated that three individuals with no connection to one another provided consistent statements regarding the Henrys’ alleged illegal conduct involving the manufacture and distribution of marijuana.

We also observe that many details provided by these three sources were corroborated by Manning’s independent investigation. Manning confirmed that Kimberley Henry had lived in New Jersey, that the Henrys likely moved to West Virginia from the Washington D.C. area, and that the Henrys’ property, when viewed by Manning during an aerial surveillance, appeared as described by Sandy. In addition, the magistrate judge’s determination was supported by other details, including Edgar Henry’s threats to residents seeking to organize a neighborhood watch program, and Kimberley Henry’s acute interest in court proceedings involving a person accused of manufacturing marijuana in the Rosedale area.

Regarding the electric power usage information submitted to the magistrate judge, the Henrys correctly observe that Manning failed to provide information to assist the magistrate judge in determining whether the Henrys’ power usage was excessive for a property of that size. However, Manning did determine that the residence was heated by gas, rather than by electric power. Therefore, the magistrate judge was able to consider the Henrys’ electric power usage information in that relevant context.

In view of the collective strength of this information, we conclude that the affidavit provided a sufficient basis to establish probable cause for issuance of the thermal-imaging search warrant. Therefore, we hold that the district court did not err in denying the Henrys’ motion to suppress.



We next consider the Henrys’ argument that the district court erred in granting the government’s pre-trial motion in limine, thereby preventing the Henrys from presenting evidence that Edgar Henry used marijuana to improve symptoms related to his medical illnesses. The Henrys contend that the district court erroneously applied the Oakland Cannabis case in granting the motion in limine. We disagree with the Henrys’ argument.

We review a district court’s refusal to admit evidence under an abuse of discretion standard. United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009). A district court abuses its discretion when it acts in an arbitrary manner, when it fails to consider judicially-recognized factors limiting its discretion, or when it relies on erroneous factual or legal premises. Id. (citing United States v. Uzenski, 434 F.3d 690, 709 (4th Cir. 2006)). 

We conclude that the district court did not abuse its discretion in limiting the scope of the Henrys’ defense based on the decision in Oakland Cannabis. In that case, the government filed an action seeking an injunction against a California cooperative to enjoin the cooperative from manufacturing and distributing marijuana to patients who qualified under California law to receive marijuana for medical purposes. 532 U.S. at 486-87. After the district court granted the government’s request for a preliminary injunction, the cooperative asked the court to modify the injunction to permit distributions that were “medically necessary.“ Id. at 488. The district court denied the cooperative’s request and, on appeal, the Ninth Circuit reversed the district court’s ruling. Id.

The Supreme Court disagreed with the Ninth Circuit’s decision. The Supreme Court held that the district court was not permitted to consider the cooperative’s medical necessity defense in fashioning injunctive relief, because medical necessity is not a defense to the conduct prohibited by the Controlled Substances Act (the Act), 21 U.S.C. § 801 et seq. Id. at 494.

In reaching this conclusion, the Court observed that the Act contained only one exception to the general prohibition of manufacturing marijuana or possessing marijuana with the intent to distribute, namely, the exception afforded to government-approved research projects. Id. at 489-90 (citing 21 U.S.C. §§ 823(f), 841(a)(1)). The Court further explained that for a drug to qualify as a Schedule I controlled substance under the Act, that drug cannot have any “currently accepted medical use” in treatment in the United States. Id. at 491 (citing 21 U.S.C. § 811). Thus, the Court reasoned that Congress, by including marijuana as a Schedule I controlled substance, made a determination “that marijuana has no medical benefits worthy of an exception” beyond the single exception for government-approved research stated in the Act. Id.

As the Henrys accurately observe, the facts and circumstances in Oakland Cannabis differ significantly from those before us in the present case. Here, the Henrys were not seeking to defend their acts of distribution of marijuana on the basis that marijuana provided some medical benefit. Rather, the Henrys sought to bolster their defense of personal use of marijuana by explaining their belief that marijuana had a beneficial impact on Edgar Henry’s health.

Despite this distinction, however, a critical component of the Supreme Court’s rationale in Oakland Cannabis is relevant here. As the Supreme Court explained, because Congress has determined that there is no medical benefit from the use of marijuana, such use cannot serve as a defense to conduct prohibited by the Controlled Substances Act. Given Congress’ determination, we cannot say that the district court acted arbitrarily or relied on an erroneous legal principle in determining that the Henrys’ reason for personally using marijuana should be excluded from evidence. Therefore, we conclude that the district court did not err in granting the government’s motion in limine.

Finally, the Henrys argue that the district court committed sentencing error in determining that they both were ineligible for safety valve relief under the provisions of 18 U.S.C. § 3553(f). Because a district court’s decision regarding the eligibility for such relief presents a question of fact, we review the district court’s decision for clear error. United States v. Aidoo, ___ F.3d ___, ___, slip op. at 11 (4th Cir. 2012) (citing United States v. Wilson, 115 F.3d 429, 432 (4th Cir. 1997)). This standard of review permits reversal only if this Court is “left with the definite and firm conviction that a mistake has been committed.“ United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 562, 573 (1985)). In conducting our review, we accord the district court’s credibility determinations great deference. United States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).

When applicable, the safety valve provision permits a district court to impose a shorter sentence for first-time offenders who otherwise would be subject to a mandatory minimum sentence. 18 U.S.C. § 3553(f); United States v. Withers, 100 F.3d 1142, 1146 (4th Cir. 1996). A defendant seeking this statutory relief must establish that (1) the defendant does not have more than one criminal history point; (2) the defendant did not use violence or possess a firearm in connection with the offense; (3) the offense did not result in death or serious bodily injury; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense; and (5) no later than the time of sentencing, the defendant truthfully provided the government with all evidence and information the defendant had concerning the offense or offenses comprising the same course of conduct or a common scheme or plan. 18 U.S.C. § 3553(f); see also U.S.S.G. § 5C1.2; United States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th Cir. 1996).

In the present case, the district court concluded, and the government agrees, that the Henrys satisfied the first four requirements necessary to qualify for safety valve relief. Therefore, the only issue before us is the district court’s finding regarding the fifth requirement for safety valve relief, namely, that the Henrys failed to provide truthful information to the government concerning the offense or offenses that were part of the same course of conduct or common scheme or plan. See 18 U.S.C. § 3553(f)(5).

The Henrys argue that they provided the district court with all relevant information regarding their marijuana operation. They also contend that they provided financial documentation supporting their contention of legitimate income, including evidence that they regularly received income from their rental of farm equipment. The Henrys maintain that based on these submissions, they satisfied the fifth requirement of 18 U.S.C. § 3553(f) and were entitled to application of the safety valve provision. We disagree.

As we have explained, section 3553(f)(5) “requires broad disclosure from the defendant” and mandates that a defendant supply the details of his own culpability. Aidoo, slip op. at 13-14. The district court is obligated to determine whether a defendant has truthfully provided the government with all known relevant information, and the court may consider any false statements a defendant may have made when evaluating the defendant’s credibility. Aidoo, slip op. at 14-15. (citing United States v. Nuzzo, 385 F.3d 109, 119 n.25 (2d Cir. 2004); United States v. Brownlee, 204 F.3d 1302, 1305 (11th Cir. 2000)).

In the case before us, the district court found that the Henrys were not credible witnesses, and that certain representations they made were inconsistent with a full and truthful disclosure of all relevant information. The district court first cited Kimberley Henry’s trial testimony, in which she stated that the $1,800 in cash seized by the authorities came from a rental payment received for leasing their farm equipment. The district court contrasted this testimony with other evidence presented by the government, which showed that the equipment rental was paid for by check, not in cash. The district court also stated that although the Henrys presented some evidence that a portion of the $72,000 flowing into and out of their bank accounts during the time period covered by the conspiracy may have come from legitimate sources, the court found that the general absence of financial records was consistent with cash income based on illegal drug sales.

In addition, the district court noted that several items seized during the search of the Henrys’ property, including the triplebeam scales and the large plastic baggies found in close proximity to 299 grams of marijuana, indicated that the Henrys were distributing marijuana and not merely using it as they had maintained. Based on these considerations, the district court determined that the Henrys did not truthfully disclose all relevant information as required by section 3553(f)(5). We hold that the district court did not clearly err in reaching this determination, which was supported on the several bases described above.

Our conclusion is not altered by the fact that the district court rested its decision in part on its finding that the Henrys were not truthful when they denied that they had distributed marijuana. Although the jury found the Henrys not guilty of the charge of aiding and abetting in the possession with the intent to distribute marijuana, the issue remained at sentencing whether the Henrys truthfully disclosed all information regarding the $1,800 in cash seized by the police and the other undocumented income. Thus, the district court was entitled to evaluate the Henrys’ credibility on this issue, including whether their testimony revealed the true source of that income or instead was an attempt to obscure other illegal conduct related to the distribution of marijuana.

Based on the district court’s credibility finding, which we accord substantial deference, Layton, 564 F.3d at 334, and the several sound bases on which the district court relied, we hold that the district court did not clearly err in determining that the Henrys failed to carry their burden of proving that they satisfied the requirements of 18 U.S.C. § 3553(f)(5). Accordingly, we affirm the district court’s decision denying application of the safety valve provision.



For these reasons, we affirm the district court’s judgment.


GFP - 03.13.2012
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