By JAY CONLEY
THE ROANOKE TIMES

Archives Reprint

   A federal judge said he will rule by Thursday whether to dismiss four fraud charges against Richard Burrow or grant federal prosecutors more time to decide whether to retry him.

    If the case against the former president of the National D-Day Memorial Foundation remains active, Senior U.S. District Judge James Turk indicated Monday he could order a retrial to begin within 10 days of his ruling.

    But neither John Lichtenstein, Burrow's defense attorney, nor Assistant U.S. Attorney Patrick Hogeboom say they could properly prepare for a retrial that quickly.

    Monday's hearing took place in a federal courtroom before about 75 Burrow supporters. It was the result of weeks of legal wrangling by both sides over whether or not prosecutors are moving quickly enough to decide if they will retry Burrow.

    Burrow stood trial in December on charges of mail, wire, bank and loan application fraud in connection with raising $6 million for the $25 million memorial in Bedford. On Dec. 16, at the end of his trial, Turk ruled there was no evidence Burrow had defrauded the foundation itself. The jury hung 7-5 in favor of acquittal on whether Burrow defrauded banks and the state of Virginia.

    Turk declared a mistrial and prosecutors said they would review the case and decide whether to retry it in front of a different jury.

    Lichtenstein argued in court Monday that the case should be dismissed because Hogeboom hadn't set a trial date within 70 days of the mistrial, a requirement under the federal Speedy Trial Act.

    Hogeboom said Burrow waived his right to a speedy trial last summer when he asked for more time to prepare his defense case for his trial. That waiver covers the retrial as well, the prosecutor argued.

    Hogeboom filed for a 90-day continuance of the case Feb. 14, but in court Monday he asked Turk to set a trial date within the next 180 days. He said that would give prosecutors time for a more extensive review of the case. He said the outcome of the review could be a decision not to go forward with a retrial.

    Hogeboom told Turk that U.S. Attorney John Brownlee needs more time to make a decision.

    Brownlee, a major in the U.S. Army Reserve , was called to active duty Jan. 21 and is stationed at Fort Eustis in Newport News. Brownlee said last week he has copies of some of the trial's transcripts with him and is reading them when he can.

    One thing that worked in Burrow's favor during the December trial was that he didn't personally profit from any of his fund-raising activity. Some jurors said they voted to acquit for that reason.

    Hogeboom told the judge Monday that part of their review concerns devising a way to present the case so that jurors understand that fraud could have occurred even though Burrow didn't gain any money from it.

    It is unclear how Turk will rule, but he has a range of options to consider. They include dismissing the case completely, allowing Brownlee more time to decide, or ruling for an immediate retrial.

    At one point, noting that Hogeboom's request for a continuance came 10 days before the speedy trial deadline, he asked Lichtenstein: "Are you going to be ready to go to trial in 10 days?"

    "I don't think that would be fair," Lichtenstein said. "But we'll do whatever this court tells us to do."

    Hogeboom isn't in favor of that either, but said he would go to trial if that was the judge's ruling.

    Turk also asked questions about dismissing the case without prejudice.

    While that sounds like a victory for Burrow, who has staunchly declared he is innocent of the charges, such a ruling could give Hogeboom exactly the extra time he has requested to review the merits of a retrial.

    A dismissal of the charge without prejudice would give prosecutors until 2006 to re-indict Burrow on the same charges.

    Dismissing the case with prejudice would mean prosecutors could not retry Burrow on the fraud charges.

    JAY CONLEY can be reached

   at 981-3114 or jay.conley@roanoke.com.

   Edited by You -- nancy chiffed

   WHAT'S NEXT

   By Thursday, Senior U.S. Judge James Turk will decide the fate of Richard Burrow's legal battle on criminal charges. This is what the judge could do:

    Turk

    Dismiss all of the charges, without prejudice. Prosecutors could re-indict Burrow on the same charges through 2006.

    Dismiss all of the charges, with prejudice. Prosecutors would not be able to re-indict Burrow on the same charges.

    Allow prosecutors more time to review trial documents. Prosecutors could decide there is enough evidence to retry Burrow. Or they could decide there is insufficient evidence to go forward with another trial.

    Set a trial date within 10 days in order to conform with the Speedy Trial Act. Prosecutors would have to set a date in federal court in Lynchburg or Roanoke using a jury pool of residents from Lynchburg.

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