CHARLESTON – Former state Supreme Court Justice Allen Loughry has filed a second motion seeking a new federal trial.
Loughry was convicted Oct. 12 on 11 federal counts of mail fraud, wire fraud, witness tampering and lying to federal agents. His Nov. 6 motion seeks acquittal or a new trial on nine of those counts, including seven for wire fraud, one for mail fraud and one for witness tampering.
The latest filing doesn’t replace the motion his attorney filed last month. The earlier one was sealed, but the new filing says it adds to issues mentioned in the earlier one.
“Because the evidence introduced in this case is insufficient even in the light most favorable to the United States to sustain a conviction of the specified counts, the defendant respectfully requests that this court enter a judgement of acquittal on these counts, and order a new trial on any remaining counts,” the motion, filed by attorney John Carr, states.
Regarding the one count of mail fraud, Loughry says prosecutors didn’t prove beyond a reasonable doubt that he “used or caused the use of the U.S. Mail.”
“Instead, the testimony only indicated that it was the normal practice of the Pound Institute to use the U.S. Mail to deliver reimbursement checks, but there was not testimony or evidence that was, in fact, what happened,” the motion states.
As for the seven counts of wire fraud, the motion says testimony and evidence failed to establish false or fraudulent pretenses, representations or promises related to the charges that Loughry used state purchasing cards to buy gasoline.
“Instead, the consistent testimony at trial established that the West Virginia Supreme Court of Appeals did not have any travel policy concerning the use of state vehicles by the justices, that the justices were no required to ask for permission to use a state vehicle and that the justices were no required to provide a purpose for using the vehicle to any member of the Supreme Court staff,” the motion states.
On a side note, the motion mentions former Justice Menis Ketchum’s plea this summer to wire fraud for using a state vehicle to travel to a golf outing in Virginia.
“The Stipulation of Fact used to support the plea of Justice Menis Ketchum to a count of wire fraud based upon the personal use of a state vehicle does not allege any violation of an underlying rule or regulation,” Carr writes. “Instead, the stipulation merely states that Justice Ketchum knew that ‘substantial use of state property for purely personal reasons could violate provisions of the state’s ethical statutes and rules.”
As for the charge of witness tampering, the motion says the evidence was insufficient. It says 16 seconds of a 22-minute audio recording made by court director of administrative services Kim Ellis during a meeting with Loughry and at least four others was all that was used to form the witness tampering claim.
“This brief exchange is the sole basis for the government’s tampering charge and it is woefully inadequate,” the motion states.
In its response to Loughry’s Oct. 26 sealed motion for a new trial, federal prosecutors said Carr requested an expedited version of a portion of the trial proceedings and that he asked the court for the ability to file more briefing after he has that transcript.
Last month, the state Judicial Hearing Board scheduled a hearing for Loughry for Jan. 14 after lifting a stay. The board had issued the stay pending Loughry’s federal trial. On the same day, the state Judicial Investigation Commission amended its formal charges against Loughry to include the federal convictions.
The JIC filed its statement of charges against Loughry in early June. That statement of charges led to Loughry being suspended by the state Supreme Court based on those 32 charges. He also was impeached – along with Chief Justice Margaret Workman, Justice Robin Jean Davis and Justice Beth Walker.
Walker already had her trial in the state Senate and was acquitted. Workman filed a motion to have her impeachment trial halted. An acting state Supreme Court ruled in favor of Workman, basing the decision on constitutional and procedural grounds such as the House of Delegates not following proper procedures during the impeachment proceedings. The same acting Supreme Court later issued an order saying that ruling extended to Davis and Loughry as well.
But on Nov. 9, Loughry submitted his resignation letter to Gov. Jim Justice, effective the end of business on Nov. 12. A second special session had been called for Nov. 13 to deal with Loughry's possible impeachment, focusing on the federal charges. But it was cancelled upon Loughry's resignation.
If Loughry’s motions seeking a new trial are unsuccessful, his sentencing is scheduled for Jan. 16, just two days after his hearing before the state Judicial Hearing Board.
