Government opposes Graham's appeal for 'innocence'

By Justin Anderson | Mar 26, 2009

Graham, right

CHARLESTON – Federal prosecutors are opposing Bob Graham's quest for a "certificate of innocence," which he needs to move forward on filing a claim for at least $50,000 in compensation from the federal government for wrongful imprisonment.

The U.S. Attorney for Southern West Virginia did not oppose Graham's motion for the certificate when he unsuccessfully sought the certificate in the federal district court.

Federal Judge David Faber denied that motion in December, saying Graham attracted prosecution with his conduct while running the Wyoming County Council on Aging and All Care.

Faber added that Graham was neglectful in not getting his board of directors' approval before cashing out more than $31,000 in unused sick leave.

In 2006, Graham was convicted for cashing out the sick leave, but the Fourth Circuit Court of Appeals overturned the conviction and released Graham from federal prison.

Graham originally had sought the certificate of innocence from the appeals court. While saying a certificate would be appropriate, the appeals court remanded the matter to district court.

After Faber's denial, Graham appealed to Fourth Circuit Court of Appeals.

In its reply brief to Graham's appeal, U.S. Attorney Chuck Miller and Assistant U.S. Attorney Hunter P. Smith Jr. say the ultimate outcome of Graham's appeal may have been "presaged" by the appeals court's finding that a certificate of innocence would be appropriate.

"Nonetheless, nothing before this Court prior to this appeal has provided any basis for the court to consider whether Graham has carried his burden of proof on the second essential prong of (of the federal law), namely, the issue of Graham's own misconduct and neglect," the brief says.

Miller and Smith point to Faber's recounting of Graham's running the non-profits "as his own personal domain and for the financial benefit of himself and his family;" Graham's control of the hand-picked elderly board of directors; Graham's exorbitant salary; and Graham's usage of the non-profits to obtain personal services for himself and his family, going as far as to tell a stripper that he owned the non-profits.

Faber called the evidence a "sordid tale of abuse of a position of public trust."

"The United States submits that the district court did not abuse its discretion in denying" Graham's motion for the certificate, the prosecutors say.

Graham in his appeal of Faber's decision, faults the district court for making too broad a reading of what misconduct and neglect mean according to the federal law.

Graham argues that a person must take affirmative action or omit information to lead prosecutors to believe they committed a crime.
The U.S. Attorney disagrees and believes the appeals court should respect and affirm Faber's decision.

"Even if the statute is read to contain some requirement that the defendant's own actions misled the authorities as to his culpability, the district court clearly found that this was so," the government's brief says. "The district court judge made findings of misconduct closely related to and intertwined with the count on which Graham was convicted. These were not merely subjective judgments of Graham's moral character.

"Rather, these were the trial judge's conclusion that Graham's longstanding abuses of public trust, manipulation of non-profit organizations, and reckless extravagance brought about his own prosecution."

Federal court case number: 09-6013

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