Judge: Burrow's charges should be separate

jen.mccaffery@roanoke.com 981-3336

The federal judge presiding over the second trial of former National D-Day Memorial Foundation president Richard Burrow said in a court hearing Friday that he didn't think it was fair for Burrow to defend himself against perjury charges at the same trial where he faces fraud charges.

Senior U.S. District Judge James Turk said he would give federal prosecutors Patrick Hogeboom and Tom Bondurant the chance to research the issue and argue why Burrow should be tried on all charges together.

But "it just seems to me that it wouldn't be fair to Mr. Burrow to accuse him at the second trial of lying at his first trial," Turk said. Turk stopped short of ruling on the issue, but he said he might require that the perjury charges be considered separately from the fraud charges Burrow faces at his second trial. Burrow's second trial is scheduled to begin Sept. 17 in Charlottesville.

Burrow's defense attorneys had asked Turk to sever the perjury charges. Burrow's first trial on four federal fraud charges ended in a hung jury in December 2002. He now faces 10 fraud and two perjury charges at his second trial.

The issue of whether and how much evidence federal prosecutors can present to the Charlottesville jury about Burrow's first trial came up several times at Friday's hearing on assorted evidentiary issues.

Bondurant said that Burrow's first trial would definitely be part of the prosecution's case at the second trial, saying he planned to mention it in his opening statement.

Prosecutors say Burrow defrauded donors, banks and the state of Virginia in his fund raising for the $25 million monument in Bedford. He is charged with bank fraud, wire fraud, loan application fraud and perjury.

Turk also said that he thought it was not fair for federal prosecutors to introduce evidence of alleged prior acts that Burrow is not charged with in the current indictment as evidence of intent and motive.

The allegations that prosecutors want to present to the jury were filed under seal with the court. But Turk said from the bench that the allegations concerned Burrow's tenure at Explore Park and that they were more than 10 years old.

(Burrow, 57, was one of the chief planners of the park in Roanoke County and worked there until he was dismissed for budgetary concerns in 1994.)

Again, Turk said he would give prosecutors the chance to file arguments with the court on the issue of the extra evidence before ruling.

But Turk said from the bench that he thought it would be prejudicial to Burrow to allow those allegations at his trial. Turk also pointed out that prosecutors could introduce that evidence at trial if they were skillful at cross-examination.

Turk did rule that he would strike language in the most recent indictment against Burrow that deals with the issue of sentencing, should Burrow be convicted of any charges.

Prosecutors returned to the grand jury earlier this month and sought a new indictment in light of a recent U.S. Supreme Court decision. The high court's ruling raised the question of whether any factors that could potentially make a defendant's sentence longer should be decided beyond a reasonable doubt by a jury, rather than by a judge at sentencing on a lower standard of proof.

As the new indictment stood, the Charlottesville jurors would consider not only Burrow's innocence or guilt, but if they decided to convict, they would also decide such issues as how much fraud Burrow should be held responsible for.

But Burrow's attorneys, John Lichtenstein, John Fishwick and Greg Johnson, have argued that the law is in flux, because it is still unclear whether the Supreme Court decision applies to the federal system.

They also argued that the Department of Justice has acknowledged that it is "constitutionally unworkable" to try sentencing issues before a jury. And they argued that jury consideration of the sentencing issues would be like a trial within a trial, and they would need more time to prepare.

Turk ruled that the sentencing language should be struck from the new indictment, but did not grant the defense attorneys' request that it be dismissed altogether.

"It seems to me like it ought to be tried like we've always tried a case," Turk said.

Attorneys in the case also haggled over more evidentiary issues, such as whether prosecutors were turning over all evidence that might help exonerate Burrow, as they are required to do. Hogeboom maintained that the prosecution is turning over all the information it is required to provide.

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