A federal judge confirmed a Feb. 7 trial date for Sheriff Robert Arnold and two co-conspirators and denied a request to drop seven counts of criminal charges filed against them.
U.S. District Judge Kevin Sharp rejected efforts by Arnold, former Chief Administrative Deputy Joe Russell and Arnold's uncle, John Vanderveer of Marietta, Ga., to dismiss wire fraud and honest services fraud charges brought against them, saying it should be up to the jury to decide whether they committed the offenses.
All three face a 14-count indictment stemming from an unauthorized scheme to sell e-cigarettes to Rutherford County jail inmates through a company co-owned by Russell and Vanderveer in which Arnold invested. From December 2013 to April 2015, when the media began reporting on the scheme, Arnold received $66,790, Russell $52,234 and Vanderveer $49,545, according to the indictment.
Charges include conspiracy, obstruction of justice, extortion, bribery, wire fraud, mail fraud and honest services fraud. Prosecutors say they all profited from the formation, marketing and operation of JailCigs, LLC and tried to conceal and misrepresent the involvement of Arnold and Russell with the business.
The defense argued that emails identified by the prosecution to show how the three men intended to commit fraud and deprive Rutherford County residents of honest services did nothing to further their alleged scheme.
But in Sharp's order, filed Wednesday, he states the three elements required to support a wire fraud claim are clearly alleged in the indictment.
"Although Defendant Arnold has not identified one, there may be cases in which a court has dismissed a mail or wire fraud count pre-trial because the particular mailing or wiring alleged to have been made in furtherance of the scheme did not, in fact, further the scheme. But whether a mailing or wiring advanced a scheme seems quintessentially to be a matter of proof, at least in the first instance," the judge wrote.
The first filing points toward four emails, including one in which Russell sought JailCigs business from an Alabama jail, sending an email stating the program had been "quite successful" in Rutherford County" and noting "we have a good relationship with the vendor which is why I am doing this favor for him."
The other communications deal with emails sent to an e-cigarettes supplier in China to negotiate wholesale purchase prices and one Arnold forwarded to Russell and Vanderveer from a journalist with The Murfreesboro Post asking several questions such as whether "the sheriff's office or jail ha(s) a contract with JailCigs" and how much money has been paid to Rutherford County, in light of Arnold's statement to "TV reporters (that) some of the revenue from Jail Cigs goes into the county's general fund." County officials have said no money from JailCigs made its way to the general fund.
Other emails between Russell and Assistant County Attorney Evan Cope conceal the fact Russell and Arnold are involved with JailCigs.
"Depending on the evidence presented at trial, the jury might be able to find that the wirings in question served the purpose of executing or further accomplishing the alleged scheme."
Sharp points out the core of the alleged scheme is selling e-cigarettes to jail inmates and defrauding Rutherford County residents of money, property and the right to honest services.
On their face, emails ordering e-cigarettes, attempting to disguise one or more defendants' role in the business and misrepresenting benefits to the county, encouraging voters to re-elect Arnold so the e-cigarette program could continue and forwarding a reporter's inquiring to alleged co-conspirators - "perhaps to make them aware of the investigation and to keep their stories straight so that the scheme would not unravel may be 'closely related' and/or 'incident to an essential part of the scheme,'" based on case law, the judges wrote.
"Whether that is so is a question for the jury to decide after the proof has been presented at trial," Sharp stated.
Sam Stockard may be reached at email@example.com.