Miscarriage of Justice: The trial ends with a 'Hallelujah' shout from the federal judge
VIRGINIA BEACH (August 8, 2007) - - Mike and Barbara Agnew were naive enough to think that because they believed they were innocent, they'd have no problem getting a fair trial. But when the federal judge shouted, "Hallelujah" when told the defense was complying with his request to shorten the trial, they should have know they were in trouble.
Not the Supreme Court yet - the Capitol Mike, Barbara, and daughter Katelin taken in front of the Capitol back in the days when the Agnews had faith in the fairness of government |
Little did they know that the judicial system was being stacked against them from the time FBI Special Agent Nicole Hendericks voluntarily waltzed into Resource Bank saying she'd read a newspaper story about the bank shutting down the Agnews' AGM concrete contracting company 10-days earlier.
Little did they know that the judge, they'd allow to hear the case, had been in a multi-million dollar development deal with Dan Hoffler and A. Russel Kirk, president of Hoffler's company, 3rd largest stockholder in the bank and member of its board. Both were among alleged victims of the collapse of AGM.
Little did Mike and Barbara know that they should never have let the bank seize their records (and everything else personal, private, and corporate - down to the paper clips) that fateful Aug. 7 Saturday morning, 1999.
Those records, which had documents added to them, removed from then, and some of which just disappeared, became the tainted chain of evidence the FBI took custody of the records 3 months after numerous people had ransacked them in the unsecured hall and offices of Resource Bank.
The FBI even took AGM's computers, including the children's school computers, removed the hard drives, couldn't open them, and gave the Agnews a dud-mirror copy which even they couldn't open to access files needed for their defense.
Naive couple falsely believed in justice
But the naive couple believed in the justice system and they thought: Get a lawyer, go to court, be found innocent and resume normal life.
They were totally unaware that someone, somewhere in the background, who still hasn't surfaced publicly yet, was responsible for a prosecution, turned persecution. There are plenty of guesses to go around. All indications are the bank had planned to handle the Agnew case as a civil matter until the 'volunteer' FBI agent Hendericks showed up. |
Hendericks quit the FBI after the Agnews were indicted, married, and Barbara Agnew overheard bank senior vice president Mary Smith wanting to know where her wedding registry was filed so the bank 'could get her some nice gifts.' A quid pro quo?
[For details on the entire sordid FBI involvement and other irregularities, See: Miscarriage of Justice: Death throes begin for AGM as Resource Bank reneges on deal and pulls financial plug which contains links to numerous documents involved in the case.]
The Agnews' legal troubles that sent both Mike and wife, Barbara, to prison for 2 years was because the bank was operating a loan program it shouldn't have been.
"When the bank regulators found out about it," Agnew said, "it (Resource Bank) got in trouble. They needed a fall guy and that was us."
The Agnews were operating their company on a Cash Flow Maximizer (CFM) plan where Resource Bank would loan money totaling the entire contract to AGM - a concrete contracting company - as soon as it got new contracts.
AGM had gotten 'stiffed' for more than $2 million on 4 contacts. A money crunch came. The bank needed a scapegoat and chose AGM - closing it down on Saturday, Aug 7, 1999. Had Resource told AGM on Monday, Aug. 2 it was going to close them down that Saturday, AGM had other financing available, but Resource needed to make somebody a victim to satisfy the bank regulators, Agnew said.
"Four witnesses - 2 from the bank and 2 from our own company - caused us to be convicted," Agnew said. |
Jeff Chaney, AGM's CFO, who left in 1996, told the court that while he was there, he thought AGM was being paid by the bank for work already completed. Judge Jerome Friedman ignored the fact that documents were introduced showing where Chaney had signed off on them on September 30, 1996 for work that wouldn't be completed until the middle or end of October - directly contradicting his testimony. (See: Excepts from Chaney's testimony)
Asked to explain, Chaney said he didn't have an answer for how that happened. In his verdict, Friedman interpreted that to fit his argument to convict to mean, "Chaney never knowingly borrowed from uncompleted work," Agnew said. Friedman said he believed the Agnews changed the way they did business after Chaney left.
Robin Lupton, an AGM employee who handled accounts receivable and dealt day to day with the bank, was called to the stand by the government to show that she was unable to complete 'reconciliation' sheets.
She also testified that she thought the billings were for completed work AGM had done. The defense, however, had 15 reconciliation sheets completed with Lupton's handwriting on them. They had Barbara Agnew's name on the bottom. "That was because," said Mike, "that Barbara prepared the master sheet that was used for reconciliation of contracts versus outstanding money. (See: Excerpts from Lupton's testimony)
Bank senior vice president Mary Smith, who'd been caught lying under oath about who was allowed to rummage through AGM's records while in the bank's custody, was used to testify that AGM did not inform the bank it was late in paying IRS taxes as required by the agreement.
"We weren't even charged or convicted of this," Mike said. "And we never hid anything from the bank. Our documents and court records show the bank was copied by the IRS on exchanges relating to the fact we'd owed back taxes." Friedman, in his verdict, used that to 'prove' the Agnews were lying to the bank. (See: Excerpts from Smith testimony)
The trial's capper - Nelda Old
The trial's capper came during the cross-examination of Nelda Old, a Resource employee who had testified how the CFM worked. She told the court that monies from one contract could not be applied to others.
Defense lawyers introduced documents showing where money from one check was applied by Old to 6 different contractors and 12 different draws, in one case. "That was blatant perjury," Mike said, "and the judge just let it go." (See: Excerpts from Old's testimony and banking law about misapplication of funds)
When the defense pointed out that she'd just lied, she was asked: "How does that contrast with the answer you gave me just before I asked you that question that you never took moneys from one company and applied it to payments for others?"
Her admission after that question? "I never did that on my own. We were told to do this by AGM." Trying to weasel out, Old said that they only did what AGM told them rather than following bank policy.
Then she was shown documents where AGM's Lupton asked her 'how' to apply funds and to which accounts. Showing Resource applied excess funds as it saw fit from monies provided by AGM.
Friedman calls recess; wants to speed up trial
Here's where it all came unglued as the cross examination bore down showing Old more and more confused and responsible for applying checks from one accounts to multiple others, not related:
Judge Friedman stepped in and called a recess and decided to speed up the trial: (See: Friedman's comments at the end of Old's testimony)
Friedman: "How are we doing, Mr. Babineau (one of Agnews' defense lawyers)? How much longer do you think you're going to have with this witnesses?
Babineau: "I don't know. I would say probably another 45 minutes."
Friedman: "You all have mistimed this case considerably, knowing the amount of cross - examination I would think that you thought that you would be doing in this case, not just look at your side but, you know,the estimate given to the court that we would finish...maybe halfway through today....
Friedman: "I can tell you that the court has other cases coming up that I have to hear. So something is going to have to be done to either speed this thing up, or something, but we're just going too slow at this point. So see what you can do.
Friedman: "Obviously, I'm not trying to keep you from defending your clients,...but it's very detrimental to the court...as to how long (counsel) think a case is going to take.... So see what you all can do to maybe help the court a little bit and speed things up somewhat, without jeopardizing the rights of your clients."
Babineau: "Yes sir."
"That's code in judicial speak that the judge is unhappy with the way it's going and we were to get things cracking," Agnew said. |
Misinterpreting the judge's comments to mean that he didn't consider Old a credible witness, the defense told him they were shortening the trial by one witness.
"Hallelujah," Friedman shouted. See: Summary of Friedman's comments regarding the length of the trial and exchange of comments.
Following a 7-day bench trial, Barbara and Mike were each convicted of 17 felonies on July 11, 2003. No one could have been more surprised than they were.
With prison around the corner, the high-powered DC law firm of former Secretary of State and White House Chief of Staff, James Baker came in to rescue them?
See previous stories:
- A Tale of Miscarriage of Justice: Conspiracy or Coincidence?
- The view of the miscarriage of justice through eyes of an innocent teen: Miscarriage of Justice: Conspiracy or Coincidence - Part 2
- Miscarriage of Justice: Beach couple's American Dream becomes their worst nightmare
- Family helps daddy have a merry Christmas - even in prison
- Miscarriage of Justice: Death throes begin for AGM as Resource Bank reneges on deal and pulls financial plug
- When the FBI goes bad: SOMETHING STINKS ABOUT THE AGNEW CASE: FBI refuses to answer legitimate questions
Conspiracy? Coincidence?
What a web the story weaves.The appeal and evidence found since the trial will begin Friday - The cast of characters who could touch this case