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Ruling backs FBI’s sham candidate

FBI entered fake candidate into W. Va. race in effort to root out rampant political corruption.
/ Source: a href="" linktype="External" resizable="true" status="true" scrollbars="true">The Washington Post</a

The three men were sitting in a car outside a rural elementary school in West Virginia when the candidate handed over $2,000 in cash and said, "Buy all the votes you can."

In the hamlets and hollows of Logan County, where political shenanigans are legendary and it's said that a vote can be bought for a pint of whiskey or a $10 bill, some say there was nothing extraordinary about the transaction.

Here's what made it unusual: Although Thomas E. Esposito was on the ballot as a candidate for the state House of Delegates, he wasn't really running for office.

The small-town lawyer and former mayor was just bait. And when the FBI lowered him into the murky waters of southern West Virginia politics last year, it dangled him like a shiny lure.

The whole affair landed yesterday in a Charleston courtroom, where a defense attorney cried foul, accusing the government of "outrageous" conduct and of violating the sanctity of the election process. He said the charade robbed 2,175 citizens who voted for Esposito — unaware he wasn't for real — of a constitutional right.

But a federal judge sided with the government, ruling after a 30-minute hearing that corruption in Logan County had been endemic "for longer than living memory" and that the bogus election campaign might have been the only way to root it out.

Political corruption goes back generations
In Logan County, which is about an hour south and a world removed from Charleston, there are people who agree. "This stuff has been going on since I was a kid," Kenneth McCoy, 54, a disabled miner, said this week. "They had to come up with some way to stop it. Personally, I have no problem with it."

Political corruption in southern West Virginia goes back generations, residents and observers say.

"Federal authorities have been intervening in southern West Virginia for 80 years, at least," said Topper Sherwood, co-author of a 1994 book on longtime Logan County political chieftain Raymond Chafin. "More often than not, their role is to come in and remove power from those who have acquired it illegally."

Moss Burgess, 62, a retired Logan County high school chemistry teacher who has run unsuccessfully for local office, said: "I'm glad that somebody's trying to clean up the system in this county. Most people, they've more or less accepted it as common."

U.S. District Judge David A. Faber, chief judge for the Southern District of West Virginia, asserted in yesterday's ruling: "It has been nearly impossible to prosecute corruption in Logan County because persons with knowledge of it are reluctant to testify against others in their community."

Campaign sting
The current case began in 2003, when Esposito, a lawyer who had been mayor of the City of Logan for 16 years, entered a plea agreement with the government in a corruption case, according to court papers. He had been accused of paying the $6,500 bar tab of a local magistrate for reasons not specified and then paying the magistrate to keep quiet about the arrangement. The magistrate was later indicted on an extortion charge.

Under the plea agreement, Esposito began helping the Justice Department in its investigation of county political corruption, which the department described as "commonplace and widespread."

Assistant U.S. Attorney R. Booth Goodwin II, in a court filing last month, said that as Esposito met under cover with people about vote buying in the run-up to the 2004 primaries, investigators concluded that a campaign sting could provide a "virtual treasure trove of evidence."

"Without that step, it was feared, the undercover operation would dissolve, and a valuable opportunity to catch a number of persons in the act . . . would be lost," Goodwin wrote. So the government had Esposito run. He entered the race Jan. 30, 2004, filing the appropriate papers with the West Virginia secretary of state. He was one of 10 Democratic candidates for four seats in House District 19, which includes Logan County.

"He had signs; he had stickers; he showed up at campaign events," said Chris Stratton, a reporter for the Logan Banner newspaper. "All that stuff was for show. It was there to make him look like a legitimate candidate."

Gregory J. Campbell, the attorney for Perry French Harvey Jr., 56, the defendant in the case, said: "The government knew that all this was false. [Esposito] was bait. Nothing more, nothing less. They tossed him out there, and they were seeing who'd come packing. And he was live bait. He was out there, and he was active."

'Buy all the votes you can'
According to court papers, on April 12, 2004, Esposito met with Harvey, a retired coal miner, and another man, Ernie Ray Mangus, at a political rally at the elementary school. They sat in Esposito's car, and Esposito gave Mangus the $2,000. Mangus, who Campbell said has been granted government immunity, gave half the money to Harvey.

"The other guy gives my guy 1,000 bucks, and that was as far as it goes," Campbell said in a telephone interview Tuesday. "The other guy has been given immunity and will testify that my client knew that the money was to buy votes. . . . [Harvey] was told by the guy that had the money, 'Esposito gave me this and said buy all the votes you can.' My guy said, 'I ain't buying any votes,' and didn't."

Harvey, who voted for Esposito, was indicted Aug. 17 on one count of conspiracy to buy votes. He is scheduled to go on trial Dec. 14. Yesterday's ruling was on his attorney's October motion to have the charges dismissed. Esposito, reached at his law office in Logan County, declined to comment yesterday.

2,000 vote for fake candidate
The FBI withdrew Esposito from the race two days after the meeting with Harvey and Mangus, and the Justice Department has said it took great pains to alert the public by way of the media. But his name remained on the ballot, and on primary day — May 11, 2004 — he got more than 2,000 votes, placing last in the field.

"By placing a false candidate in the election, a sham candidate, one [the government] knew could not take office, every vote that was cast for Esposito was a vote that an honest voter could have cast for an honest candidate," Campbell wrote in his motion to have the charges dismissed.

But Goodwin, the government attorney, countered in a filing that the decision to have Esposito run was approved by his office, the local FBI special agent in charge and the agency's Criminal Undercover Operations Review Committee in Washington, whose approval is required for all sensitive FBI undercover operations.

"Esposito did not engage in any unlawful conduct by becoming a candidate for the House of Delegates," Goodwin wrote. "Rather, his candidacy merely provided the stage on which defendant acted."

"The conduct of the United States in carrying out the undercover investigation was necessary and proper to root out systemic corruption," he wrote.

Judge Faber noted yesterday that previous rulings have held that for a government investigative action to be improper it "must be so outrageous as to shock the conscience of the court."

"Here, in looking at the totality of the circumstances," he wrote, "the court's conscience is not shocked in the slightest."

During the hearing, Campbell said, the judge asked him: What else could the Justice Department have done?

"Not violate the Constitutional rights of the voters of Logan County," he said he replied.