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Presgraves' attorneys want two counts dismissed

Memo filed with federal court states a law regarding mail fraud is vague

By Sally Voth -- svoth@nvdaily.com

HARRISONBURG -- Attorneys for former Page County Sheriff Daniel W. "Danny" Presgraves have asked a judge to dismiss two of the 22 counts against him in U.S. District Court.

Presgraves is scheduled to go on trial Sept. 16 on charges of violating federal racketeering laws, money laundering, two counts of mail fraud, two counts of conspiracy related to a cockfighting operation, two counts of making false statements to federal investigators, four counts of obstructing a federal grand jury investigation, six counts of obstructing a law enforcement investigation and four counts of violating the civil rights of female subordinates working for the Page County Sheriff's Office.

That indictment was returned last October. In June, a grand jury returned a single indictment charging Presgraves with lying to an FBI agent, specifically that he "represented that the only inmates who worked at his residence actually worked for 'RM,' when in truth and fact, as [Presgraves] well knew, this representation was false."

On Friday, a memo supporting dismissing two mail fraud counts and two racketeering acts was filed in federal court in Harrisonburg, according to online court records.

The memo says that case law regarding mail fraud is vague.

"Juries are simply left free to apply a legal standard which amounts to little more than the rhetoric of sixth grade civics classes," it says.

Mail fraud is in the honest services statute, which has seen some defendants harshly punished while others have no punishment for the same crime, the memo says.

It also says the statute is unconstitutional in Presgraves' case.

"The Government's allegations in this case essentially turn straightforward workplace violations into federal felonies," the memo says.

One reason the mail fraud case relating to Presgraves' alleged use of inmate labor should be dismissed is because he is not accused of deceiving the public or hiding his use of inmate labor, according to the memo.

The indictment alleges that Presgraves asked the Virginia Department of Corrections to allow inmates to serve out their sentences in the Page County Jail and take part in the trusty program.

The other honest services' charge, relating to Presgraves' not depositing money with the Page County treasurer, is based on a state law that doesn't carry civil or criminal punishment, the memo says.

Presgraves is accused in the indictment of diverting $39,409 from the U.S. Customs Service and at least $47,000 from PayTel -- which installed pay phones at the county jail and paid the Sheriff's Office a commission -- into bank and escrow accounts.

In February 2004, Presgraves wrote PayTel, asking that it withhold $1,000 in commission each month, and instead put it into an escrow account, the indictment says.

In both counts, the alleged offenses did not affect Presgraves in his role as sheriff, the memo says. Nor is he accused of using the money for himself.

"The Government's use of the mail fraud statute as a catch-all prohibition of political disingenuousness expands [the statute] beyond any colorable claim of Congressional intent," the memo says.

The statute is so vague, it's "impossible for government officials like Presgraves to know how to conform their conduct to federal law," it says.

"Even if objectionable, Presgraves' conduct did not clearly violate [the statute], and thus cannot be the basis for a conviction under that statute," the memo says.

Also in Presgraves' case, Judge Glen E. Conrad granted two government motions on Wednesday for two inmates to be brought by the U.S. Marshals Service to testify during his trial, according to online court records.

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