Published: March 13, 2008 09:51 pm      

Conviction overturned

BLUEFIELD — In an unpublished opinion released on Thursday, the Richmond, Va. based U.S. Court of Appeals for the Fourth Circuit reversed the conviction of Robert E. “Bob” Graham, the former executive director of the Wyoming County Council on Aging and the council’s All Care Home and Community Services Inc.

Graham, 60, of Stephenson, was sentenced to two years in prison on Jan. 5, 2007, following his Aug. 30, 2006 conviction on one count of a 39-count superseding indictment returned against him on July 18, 2006. Graham appeared in a bench trial tried by U.S. District Judge David A. Faber of the Southern District of West Virginia. Faber found Graham guilty of count 14, of the superseding indictment — a charge that he cashed-in $31,129 worth of his sick leave without obtaining the approval of his board.

“The [g]overnment contends that the evidence at trial demonstrates that Graham took advantage of a board that was comprised of elderly, disabled and uneducated men and women who rubber stamped all of his decisions,” according to the appellate court’s unpublished opinion.

“In order to prove Graham guilty (of the violation of the U.S. code), the district court had to find, beyond a reasonable doubt, that Graham knowingly stole funds from (the Council on Aging). On this critical matter, we believe both the district court and the [g]overnment reached the wrong conclusion,” according to the appellate court’s opinion.

Graham became the subject of media attention statewide in 2004 when reports of his $457,000 annual salary and more than $100,000 in annual benefits became widely known. Some members of Graham’s board at the Council on Aging testified during Graham’s trial in Bluefield that they did not remember approving Graham’s sick leave buy-out, but the board’s minutes recorded the votes on the requests.

The trial revealed some unsavory details about Graham’s personal life, but the appeals court noted in a footnote: “Bad conduct in an of itself, however, does not equal criminal conduct,” according to the unpublished opinion. “To convict a defendant of a crime, the [g]overnment must establish beyond a reasonable doubt by competent evidence each and every element of each and every crime charged.”

The appellate court found that “Graham did not knowingly steal any money from (the Council on Aging),” and that the board’s record support the defendant’s position. “[I]t is undisputed that the [b]oard repeatedly authorized Graham to cash out his accrued sick leave without any limitations,” according to the Fourth Circuit.

Assistant U.S. Attorney Hunter P. Smith Jr., argued the case before the Fourth Circuit on behalf of the government and Michael W. Carey of Carey, Scott & Douglas in Charleston, argued the appeal for the defense.

While neither Smith nor Carey returned telephone messages seeking comment concerning the decision, a spokesperson for the U.S. Attorney’s office in Charleston said the office has no comment and Carey was quoted by the Associated Press as stating he is “pleased” for Graham, and said that Graham would remain in a federal prison in Morgantown for 21 days while the U.S. Attorney’s office for the Southern District of West Virginia decides whether or not to appeal the opinion.

– Contact Bill Archer at barcher@bdtonline.com