United States v. Pomrenke

• Decision Date: 01 August 2016
• Docket Number: Case No. 1:15CR00033
• Citation: 198 F.Supp.3d 648
• Parties: UNITED STATES of America v. Stacey POMRENKE, Defendant.
• Court: U.S. District Court — Western District of Virginia

198 F.Supp.3d 648

UNITED STATES of America

v.Stacey POMRENKE, Defendant.

Case No. 1:15CR00033

United States District Court, W.D. Virginia, ABINGDON DIVISION .

Signed August 1, 2016

Zachary T. Lee, Assistant United States Attorney and Kevin L. Jayne, Special Assistant United States Attorney, Abingdon, Virginia, for United States; R. Wayne Austin and David L. Scyphers, Scyphers & Austin, P.C., Abingdon, Virginia, and Joel B. Miller, Joel B. Miller, PLC, Roanoke, Virginia, for Defendant.

OPINION AND ORDER

James P. Jones, United States District Judge

A jury has convicted the defendant, a top official of a public utility, of corruption and tax fraud charges. She has moved for acquittal notwithstanding the jury's verdict and alternatively for a new trial before a different jury. For the reasons hereafter explained, I will deny her motions.

In summary, I hold that the government presented sufficient evidence at trial to support the charges of which she was convicted by the jury. The Supreme Court's recent decision in McDonnell v. United States does not affect the validity of these convictions. As to the request for a new trial, I find that the defendant's motions seeking a new trial were filed late and without adequate excuse for being filed out of time. In any event, even considering the grounds asserted for a new trial, they are without merit. I believe that the defendant received a fair trial by a jury of her peers and I will not set aside its verdict.

I.

Background.

Defendant Stacey Pomrenke was the Chief Financial Officer ("CFO") and Executive Vice President of Bristol Virginia Utilities Authority ("BVU"), formerly known as Bristol Virginia Utilities Board. BVU is a political subdivision of the Commonwealth of Virginia. Va. Code Ann. § 15.2–7201. BVU provides water, sewer, and electric power services, as well as internet, cable television, and telephone services, to residential and commercial customers in the City of Bristol, Virginia, and in other localities. BVU employs approximately 260 to 280 full-time and part-time employees and generates more than $100,000,000 in annual gross revenues. Beginning in November of 2013, the FBI and the IRS began an investigation of allegations of misconduct at BVU. As a result of this investigation, nine persons to date connected with BVU have been convicted of public corruption or related charges, including the President and Chief Executive Officer, two vice-presidents, the General Counsel, and two former chairs of the Board of Directors. All except Pomrenke pleaded guilty.

Pomrenke was indicted on October 26, 2015. After an eight-day trial that began on February 16, 2016, the jury returned its verdict convicting her of all but one of the charges.¹ Those charges were as follows:

Count One: Conspiracy to (a) commit tax fraud, (b) make a materially false statement in a matter within the jurisdiction of the executive branch of the federal government, and (c) solicit or accept items of value intending to be influenced or rewarded in connection with a transaction involving $5,000 or more while being an officer of a local governmental agency that receives at least $10,000 in federal funds in a one year period, all in violation of 18 U.S.C. §§ 371, 666(a)(1)(B), and 1001(a)(1)–(2).

Count Two: Making materially false statements to the Social Security Administration by directing the filing of W-2 forms for the 2010 tax year that she knew did not accurately reflect all compensation and benefits provided to BVU employees, in violation of 18 U.S.C. §§ 2 and 1001(a)(1)–(2).

Count Three: Making materially false statements to the Social Security Administration by directing the filing of W-2 forms for the 2011 tax year that she knew did not accurately reflect all compensation and benefits provided to BVU employees, in violation of 18 U.S.C. §§ 2 and 1001(a)(1)–(2).

Count Four: Making materially false statements to the Social Security Administration by directing the filing of W-2 forms for the 2012 tax year that she knew did not accurately reflect all compensation and benefits provided to BVU employees, in violation of 18 U.S.C. §§ 2 and 1001(a)(1)–(2).

Count Five: Conspiracy to affect commerce by extortion by obtaining the property of victims through the wrongful use of fear of economic loss and under color of official right, in violation of 18 U.S.C. § 1951.

Count Seven: Between November 2012 and January 2013, affecting commerce by extortion by obtaining property from ETI by the wrongful use of fear of economic loss and under color of official right, in violation of 18 U.S.C. §§ 2 and 1951.

Count Eight: Between November 2012 and January 2013, committing program bribery, in violation of 18 U.S.C. §§ 2 and 666(a)(1)(B).

Count Nine: Conspiracy to commit honest services wire fraud by accepting bribes and kickbacks, in violation of 18 U.S.C. §§ 1343, 1346, and 1349.

Count Ten: Devising and participating in a scheme to deprive BVU customers and others of the right of honest services by accepting a $250 spa services gift card on December 13, 2010, in exchange for Pomrenke's influence over BVU's awarding of a contract, and using wire communications in interstate commerce to execute the scheme, in violation of 18 U.S.C. §§ 2, 1343, and 1346.

Count Eleven: Devising and participating in a scheme to deprive BVU customers and others of the right of honest services by accepting NASCAR tickets on August 22, 2011, in exchange for Pomrenke's influence over BVU's awarding of a contract, and using wire communications in interstate commerce to execute the scheme, in violation of 18 U.S.C. §§ 2, 1343, and 1346.

Count Twelve: Devising and participating in a scheme to deprive BVU customers and others of the right of honest services by accepting University of Kentucky basketball tickets on November 16, 2011, in exchange for Pomrenke's influence over BVU's awarding of a contract, and using wire communications in interstate commerce to execute the scheme, in violation of 18 U.S.C. §§ 2, 1343, and 1346.

Count Thirteen: Devising and participating in a scheme to deprive BVU customers and others of the right of honest services by accepting Carolina Panthers tickets on November 23, 2012, in exchange for Pomrenke's influence over BVU's awarding of a contract, and using wire communications in interstate commerce to execute the scheme, in violation of 18 U.S.C. §§ 2, 1343, and 1346.

Count Fourteen: Devising and participating in a scheme to deprive BVU customers and others of the right of honest services by accepting a $200 spa services gift card on December 10, 2012, in exchange for Pomrenke's influence over BVU's awarding of a contract, and using wire communications in interstate commerce to execute the scheme, in violation of 18 U.S.C. §§ 2, 1343, and 1346.

Count Fifteen: Devising and participating in a scheme to deprive BVU customers and others of the right of honest services by accepting Cincinnati Reds tickets on April 4, 2012, in exchange for Pomrenke's influence over BVU's awarding of a contract, and using wire communications in interstate commerce to execute the scheme, in violation of 18 U.S.C. §§ 2, 1343, and 1346.

Following the verdict of the jury on February 26, 2016, the defendant filed a motion on March 2, 2016, entitled, "Motion for Extension of Time to Renew Rule 29 Motion for Judgment of Acquittal." (ECF No. 149.) In that motion, the defendant noted that the Federal Rules of Criminal Procedure required a motion for judgment of acquittal to be filed within 14 days after verdict. See Fed. R. Crim. P. 29(c)(1). Counsel represented that they were in the process of drafting such a motion and needed additional time to have the trial transcript prepared. The motion requested an extension of time to April 29, 2016. The motion was granted by the court the same day, expressly extending the time to file a renewed motion for judgment of acquittal to April 29. (Min. Order, Mar. 3, 2016, ECF No. 150.)

On April 15, 2016, the defendant filed a motion entitled, "Second Motion for Extension of Time to Renew Rule 29 Motion for Judgment of Acquittal." (ECF No. 168.) That motion requested the court to extend the deadline for filing a Rule 29 motion for judgment of acquittal to May 20, 2016. The motion was granted in part by the court, extending the time to file a renewed motion for judgment of acquittal to May 10, 2016. (Order, Apr. 19, 2016, ECF No. 180.)

On the deadline, May 10, an attorney for the defendant file a motion entitled "Motion for Judgment of Acquittal Pursuant to Rule 29 of the Federal Rules of Criminal Procedure." (ECF No. 188.) That motion stated that it was directed at Counts Five and Seven through Fifteen, and that a different defense attorney would address Counts One through Four by separate motion.² The motion was supported by a brief in which it was argued that the defendant was entitled to acquittal on the charges relating to program fraud, honest services fraud, and extortion, because the government had failed to prove the necessary criminal intent.

On the same day, counsel filed a Motion for a New Trial, asserting errors by the court in jury selection, instructions, and exclusion of certain evidence proffered by the defendant. (ECF No. 190.) The defendant requested the court to grant a new trial on these grounds.

On May 11, separate defense counsel filed a motion entitled, "Motion for Judgment of Acquittal Pursuant to Rule 29 of the Federal Rules of Criminal Procedure —Tax Counts." (ECF No. 192.) The motion and its accompanying brief sought acquittal as to Counts One through Four on the grounds that the government had failed to prove criminal intent. In addition, the motion asserted that the court had erred in admitting two of the government's exhibits relating to the tax charges.

Also on May 11, separate counsel filed a motion entitled, "Motion for New Trial Pursuant to Rule 33 of the Federal Rules of Criminal Procedure —Tax Counts." (ECF No. 193.) In that motion, the defendant sought a new trial on the grounds that the court...