Prosecutors seek more time for Loughry’s new trial motion

CHARLESTON — The U.S. Attorney’s Office for the Southern District of West Virginia is asking for an extension of time to file a response to a second motion from state supreme court Justice Allen Loughry.

U.S. Attorneys Philip Wright and Gregory McVey filed their motion Wednesday in U.S. District Court. The prosecutors are requesting a date of Nov. 16 to file their response.

Wright and McVey are still awaiting trial transcripts of testimony from Loughry; Kim Ellis, the supreme court’s director of administrative services; and Sue Racer-Troy, the court’s chief financial officer.

“The testimony of Kim Ellis, Sue Racer-Troy, and (Loughry) is relevant to the sufficiency-of-the-evidence arguments raised in defendant Loughry’s second new trial motion,” the attorneys wrote.

On Tuesday, Loughry attorney John Carr filed a second motion for a new trial. Carr filed the first motion for a new trial Oct. 26, though that motion is sealed. In the second motion, Carr is asking U.S. District Judge John Copenhaver to acquit Loughry or vacate Loughry’s conviction and grant a new trial.

Loughry, a justice of the West Virginia Supreme Court of Appeals since 2013, was convicted Oct. 12 in an eight-day jury trial of 11 felony counts, including mail fraud, wire fraud, witness tampering, and making false statement to investigators.

During the trial, Loughry was accused of receiving a $488.60 check from the Pound Civil Justice Institute, which included $402.60 for what attorneys called fraudulent mileage expenses. Evidence revealed that Loughry took a state car to a Pound forum in Baltimore using a state fuel card for gasoline purchases, incurring no personal costs.

In the motion filed Tuesday, Carr argued that the government did not prove his client engaged in mail fraud.

“The testimony at trial did not support any such conclusion,” Carr wrote. “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 jury of 10 men and two women convicted Loughry on seven counts of wire fraud tied to Loughry’s use of the court’s fleet of Buicks and the fuel cards tied to each car. During the trial, investigators were able to use Loughry’s cell phone data, fuel card purchases, the court’s car reservation system, and Loughry’s own calendars to show Loughry using the vehicles and fuel cards for personal trips, weekends, and holidays.

Carr argues that the government could not establish fraudulent use of the cars and fuel cards because the court had no policies for travel or vehicle use prior to 2016.

“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 not required to ask for permission to use a state vehicle, and that the Justices were not required to provide a purpose for using the vehicle to any member of the Supreme Court staff,” Carr wrote. “In the absence of any such underlying rule or regulation — or material statement to another — it is simply not possible as a legal or factual matter for any use of the vehicle or purchase of gasoline to constitute this offense.”

Carr goes on to argue that there is no evidence to sustain Loughry’s conviction for witness tampering. During the October trial, the jury heard an audio recording by Ellis of a meeting Oct. 19, 2017, one day after the court received a media inquiry regarding the costs to Loughry’s office renovations.

During that meeting, Loughry asked Ellis about a previous conversation between the two when Ellis was working for the architectural firm that worked with Loughry on the design of his office. Renovations and furnishing to Loughry’s office cost taxpayers $360,000, including $34,000 for a blue suede couch and thousands for a wooden medallion of West Virginia’s counties on Loughry’s office floor.

“You tell me if you remember this or not, but I was very specific over and over and over that whatever we spend on anything I don’t want mine to be more than Menis or Margaret’s. Do you recall those conversations,” Loughry asked Ellis on the recording, referring to the office renovation costs of Chief Justice Margaret Workman and former justice Menis Ketchum.

“I don’t,” Ellis responded.

Carr said that there was no way that Loughry could know whether a federal grand jury would be called. Loughry contacted the U.S. Attorney’s office one day after the Oct. 19, 2017, meeting regarding the court’s spending, which resulted in a meeting with Loughry and Workman and federal investigators. He had previously contacted the U.S. Attorney’s Office the summer of 2016 after former justice Robin Davis started questioning Loughry’s vehicle use.

“Had he wanted to tamper with Ellis’s testimony in this yet unknown investigation, (Loughry) would have likely met with her privately in her office, his office, or at another location and expressed his directions,” Carr said. “(Loughry) did not follow up with additional questions or comments. He did not ask: ‘Are you sure?’ He did not say ‘I disagree with you.'”

Carr did not address Loughry’s convictions for making false statements to investigators regarding his taking of an antique Cass Gilbert desk to his home and his use of state vehicles for personal use.

Loughry was charged in June with 22 federal counts. He is scheduled for sentencing Jan. 18, 2019, and could face up to 190 years in federal prison and up to $2.75 million in fines. He also is scheduled to appear before the Judicial Hearing Board regarding a 33-count complaint from the Judicial Investigation Commission for violations of the Judicial Code of Conduct.

Loughry was impeached by the House of Delegates Aug. 13 and was slated to be tried on seven articles of impeachment Nov. 12 in the state Senate, but his impeachment trial was halted by an order from the supreme court after an appointed panel of circuit judges ruled in favor of a petition by Workman.