An Eastern Kentucky politician who admitted taking kickbacks hopes to get his conviction overturned under a U.S. Supreme Court decision in the case of a disgraced former governor of Virginia.
An attorney for former Morgan County Judge-Executive Tim Conley filed a request last week to vacate Conley’s conviction, or at least shorten his sentence.
Conley, 51, is serving a sentence of seven years and three months.
Conley pleaded guilty in August 2014 to taking more than $100,000 from a contractor who had bid on jobs such as building bridges for the county.
The motion doesn’t deny he changed bids. Rather, it argues that judge-executives have no authority to alter bids, which means that what Conley was accused of doing can’t be done in an official capacity.
Conley later tried to get his plea set aside, arguing that he hadn’t fully understood the elements of the fraud crime on which he admitted guilt.
The U.S. 6th Circuit Court of Appeals rejected Conley’s request in June. The court ruled that a prosecutor read the charge in words that were readily understandable and that Conley acknowledged the facts against him.
Soon after that ruling, however, the landscape in federal corruption cases changed because of a case involving former Virginia Gov. Robert McDonnell.
McDonnell was convicted in 2014 of taking $175,000 in loans and gifts for himself and his family — including a Rolex watch and money for catering at his daughter’s wedding — from businessman Jonnie Williams Sr., who was marketing a dietary supplement.
Prosecutors said McDonnell did favors for Williams including setting up meetings, allowing him to invite people to functions at the governor’s mansion and recommending that other state officials meet with representatives of Williams’ company.
The Supreme Court threw out McDonnell’s conviction in late June in an opinion that reduced the scope of acts that can serve as grounds for a federal corruption prosecution.
The court said routine political courtesies such as setting up meetings, by themselves, are not enough. The ruling said only formal, concrete government actions count, such as filing a lawsuit or making an administrative decision, according to a New York Times story.
Conley signed a plea deal that said he solicited money from contractor Kenneth Gambill in return for rigging construction bids to make it appear that Gambill’s were the lowest, then got approval for them from the fiscal court.
Conley allegedly opened bids from Gambill and others in private and changed them before submitting them to magistrates for a vote.
Conley’s new motion doesn’t deny he took money from Gambill or changed bids. Rather, it argues that the acts he was accused of committing don’t fit the narrower definition of “official acts” in federal honest-services fraud cases under the McDonnell decision.
Judge-executives have no authority to alter bids, which means that what Conley was accused of doing can’t be done in an official capacity, according to the motion.
“It follows, therefore, that fraudulently altering a contractor’s bid may never be an ‘official act,’” said Conley’s motion, prepared for him by Louisville attorney Kent Wicker.
The motion also argues that only the fiscal court, not Conley, had authority to award contracts.
The Supreme Court ruling included decision-making authority in its narrower definition of fraud, but there was no issue pending before Conley where he could exercise such authority, his motion said.
Conley also argues that because the Supreme Court had not yet clarified the elements needed to prove fraud at the time he pleaded guilty, he could not have correctly understood the elements of the crime he was admitting.
That means the plea was not knowing and voluntary, and it should be set aside, Conley’s motion said.
At the very least, Conley should get a reduced sentence because the sentence calculation included acts that should no longer be counted against him under the McDonnell decision, his motion said.
Federal prosecutors have until mid-October to respond to Conley’s arguments.
Conley is serving his sentence at a federal prison on West Virginia. He is scheduled for release in July 2021.