Vote-buying defendant's appeal denied

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CINCINNATI – A three-judge panel denied the appeal of Tami Jo Risner, one of the defendants convicted in last year’s federal vote-buying trial. 

Risner, along with Gary “Rooster” Risner and Larry Shepherd, was found guilty last August by a federal jury on charges relating to conspiracy to commit vote-buying in the 2014 elections. She was sentenced to 12 months and one day in prison, three years supervised release, and a special assessment fee of $300.  Risner has been serving her time at the FPC Alderson in West Virginia and is scheduled to be released on August 9. 

Risner’s attorney, Jarrod Beck, argued that the district court limited the direct examination of a witness, referring to the witness who told the court that Risner had offered to pay him to vote, but said Garliena Lovely actually paid him. According to the defense, the witness told Clay Mason, a private investigator, that Lovely handled the entire transaction, though Mason was unable to testify as to what the witness told him since that would be considered hearsay. Inevitably, Risner was acquitted on the charges related to buying votes from that witness and his deceased girlfriend, though they said his inconsistent statements should have had him impeached as a witness. Since his statements made on the stand tied her to multiple instances of vote-buying, not just the two counts she was found guilty of, she was also convicted of conspiracy to commit vote-buying. 

The Sixth Circuit U.S. Court of Appeals three-judge panel, made up of Chief Judge R. Guy Cole Jr., Senior Judge Ralph B. Guy Jr., and Senior Judge Ronald Lee Gilman ruled that the witness’ statements were not inconsistent and that even if the court had limited counsel’s direct examination of the private investigator, such error was harmless. 

Beck had also argued that the jury instructions specifying “overt acts” encouraged the jury to focus on acts alleged in the indictment to substantiate the conspiracy charge, though if they could have impeached the witness referred to above and further questioned the private investigator, they believed the conspiracy charge wouldn’t have stood.

“The jury was legally required to consider this evidence, and we cannot say that the district court’s pointing them to the place to look in the indictment constituted an abuse of discretion,” the Court of Appeals order stated.

Risner’s attorney also argued that the prosecutor committed misconduct by making two remarks during his closing argument. Though there was a limiting jury instruction concerning alleged election fraud, vote-buying and conspiracy, stating that evidence was offered during the trial regarding Gary Risner and Larry Shepherd, the prosecutor included Tami Jo Risner in with the list of co-defendants as being in the group that had “picked the winners in Magoffin County for years.” 

The appeals judges ruled that though the prosecutor should not have made the remark since she was not accused of rigging past elections, the comment was not considered flagrant since it was just an isolated statement in the middle of a lengthy closing argument. 

Beck also contested the prosecutor made statements in his closing argument to “inflame the passion of the jury by conjuring up a sense of lawlessness in Magoffin County if the jury were to acquit her,” according to the order. The appellant judges found no error in the statements, noting that the remarks reminded the jury of its role to convict guilty people. 

While Risner’s attorney argued that the cumulative affect of the alleged errors was so prejudicial as to warrant a new trial, the three-judge panel noted that only one set of prosecutor’s remarks can be labeled as improper and that even then, the statements did not render her trial fundamentally unfair, and, therefore, upheld the district court’s judgment.

The appeals of Risner’s co-defendants, Gary Risner and Shepherd, have not been ruled on by the appellant court at this time. Currently, Risner is serving his 33-month sentence at Morgantown FCI (scheduled for release September 21, 2018) and Shepherd is serving 30 months at the Ashland FCI (to be released April 2, 2019).