CHARLESTON –- A federal judge has refused to grant former Wyoming County Council on Aging and All Care director Bob Graham a "certificate of innocence" and says both Graham and the state should be ashamed of his conduct.
Judge David Faber denied Graham's request in a harshly worded opinion published Feb. 3. Faber's decision actually came in December. (Read Faber's opinion here.)
"Graham's story is a sordid tale of abuse of a position of public trust for his own personal benefit," Faber wrote. "This court finds shocking the lack of governmental oversight that permitted such abuse to occur and does not fault the United States Attorney for his prosecution of Graham, a welcome deterrent to similar conduct by others."
After a bench trial, Graham was convicted Aug. 30, 2006, for stealing $31,129 from the non-profits he ran.
He originally was indicted on 39 counts of defrauding a federal program but was only found guilty of one. His conviction related to his cashing out sick leave without the approval of his board of directors. The non-profit received both state and federal funding.
But the Fourth Circuit Court of Appeals overturned Graham's conviction after he'd already served 13 months of a 24-month sentence in a federal prison. The appeals court found that the evidence did not prove beyond a reasonable doubt that Graham committed the crime.
Graham, 62, was released on March 21, 2008.
He sought the certificate of innocence in order to proceed with a claim for compensation against the federal government for unjust conviction and imprisonment.
The certificate is a prerequisite to move forward with that action, which would have entitled Graham to $50,000 for every 12 months spent in prison.
Graham initially asked the appeals court for the certificate, but the request was dismissed and sent to the U.S. District Court for Southern West Virginia, the appropriate venue.
Faber, in his opinion, said Congress did not intend to compensate everyone that spent time in a federal prison only to be later acquitted.
"It does something quite different -– it orders compensation to the truly innocent who have been prosecuted through no fault of their own," Faber wrote. "What is contemplated is the compensation of victims of prosecutorial overreach.
"The fundamental proposition underlying the statute is this –- there is a difference between someone who is legitimately prosecuted and ultimately found not guilty and one who is wrongfully prosecuted when truly innocent. The statute is designed to compensate the latter; it has nothing to say about the former."
Faber went on to recount some of the facts of misconduct uncovered during Graham's trial –- like stacking the board of directors with elderly people he could control; his "excessive" $185,000 salary; using the non-profit's employees on company time to perform personal tasks for Graham and his family; buying a $6,000 television through the non-profit to get a better price and avoid sales taxes; and lavishing an exotic dancer with money and gifts and bragging to her "that he owned Council on Aging and he had built this company up and that's where the money was coming from ..."
"Although (the non-profits were) funded by tax dollars, Graham operated them for years as his own personal domain and for the financial benefit of himself and his family," Faber wrote.
Faber said while the evidence against Graham was insufficient to convict him, it was enough to warrant prosecution.
As far as the one count on which Graham was convicted, Faber said Graham was at least negligent.
"It would have been a simple matter for Graham to seek board approval for cash out of sick leave relevant to this count," Faber wrote. "He either simply neglected to do so or he purposely failed to do so for some specific reason such as the belief his request would not be approved. In either event his own conduct brought about his prosecution on the count of conviction."
U.S. Federal Court case number: 5:06-00025