Friday, December 02, 2005

Public Corruption—FBI Sting

On January 30, 2004, Thomas Esposito entered the West Virginia election race for that state’s House of Delegates.[1] His candidacy, however, was just a ruse. In 2003, Mr. Esposito—who had been mayor of the City of Logan for 16 years—pleaded guilty in a corruption case for paying a $6,500 bar tab for a local magistrate.[2] Under that plea agreement, Mr. Esposito began his tenure with the Department of Justice in its investigation of Logan County’s political corruption.[3]

During the run-up to the 2004 primaries, Mr. Esposito met undercover with people about buying votes, and it was at that time that “investigators concluded that a campaign sting could provide a ‘virtual treasure trove of evidence’” and made the decision to have Mr. Esposito enter the election as a fake candidate.[4] Signs, bumper stickers, campaign events, all were created to make him appear to be a real candidate.[5] His candidacy was withdrawn two days after he met with Perry French Harvey Jr. and Ernie Ray Mangus on April 12, 2004, where he allegedly gave Mr. Mangus $2,000, who gave half to Mr. Harvey, to buy all the votes they could get.[6]

The sting operation has landed in Federal court in West Virginia as Mr. Harvey was indicted on August 17 on one count of conspiracy to buy votes; his trial is scheduled to begin on December 14. At a hearing yesterday, Mr. Harvey attempted to have the charge against him dismissed, based on outrageous government conduct and of violating the sanctity of the election process that saw more than 2,000 people vote for a candidate who wasn’t even real.[7]

Federal District Judge David A. Faber, however, ruled against Mr. Harvey, stating that “[i]t has been nearly impossible to prosecute corruption in Logan County because persons with knowledge of it are reluctant to testify against others in their community.”[8] Therefore, he reasoned, a sting may have been the only way to root it out: “[t]he conduct of the United States in carrying out the undercover investigation was necessary and proper to root out systemic corruption.”[9] Furthermore, he noted, that for a government investigation to be improper, it must be so outrageous as to shock the conscience of the court, which Judge Faber assured “[was] not shocked in the slightest.”[10]

to is covered by and (c). There are two ways to charge a person with conspiracy to buy votes. One way, which is seen in cases like Mr. Harvey’s and ,[11] is to charge the defendant under both 18 U.S.C. § 371 and 42 U.S.C. § 1973i.[12] The other way is to simply charge the defendant under 42 U.S.C. § 1973i, because there is a conspiracy provision in that statute.

18 U.S.C. § 371, which is the conspiracy statute, states that it is a crime for a person to conspire with at least one other person to commit an offense the United States, and then do an overt act in furtherance of the conspiracy. The punishment for a violation of section 371 is a fine, imprisonment for up to 5 years, or both.

Under 42 U.S.C. § 1973i(c), it is a crime for a person to knowingly conspire with another individual for the purpose of encouraging illegal voting, or to pay or accept payment for voting. The punishment for a violation of this section is a fine of not more than $10,000, imprisonment for up to 5 years, or both.


[1] Michael E. Ruane, , Wash. Post, Dec. 2, 2005.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] 169 F.3d 723 (11th Cir. 1999).
[12] Id. at 724.

posted by McNabb Associates, P.C. @ 9:57 AM