McDonald, Poe granted secured bonds on EDA criminal charges

Jennifer McDonald was reported to be changing into street clothes and preparing to walk out of RSW Jail on bond at 4:25 p.m. Wednesday afternoon. Jailed since May 24, the former EDA executive director was granted a $50,000 secured bond Wednesday morning in Warren County Circuit Court. Inmate Photos RSW Jail website

All three people charged criminally related to the Front Royal-Warren County Economic Development Authority financial fraud investigation should be free on bond by the end of the day. Both former EDA Executive Director Jennifer R. McDonald and Earth Right Energy controlling partner Donald F. Poe were granted bond in hearings Wednesday morning, July 31.

Michelle Henry was granted $2500 unsecured bond on July 23 after twice having a bond hearing continued in the wake of her June 24 arrest.

McDonald, whose bond appeal case was first on the Wednesday morning docket convened at 8:35 a.m., was granted a $50,000 secured bond by Judge Bruce D. Albertson.

Poe then received a $20,000 secured bond in the final of three EDA-related hearings on the docket before the Harrisonburg-based judge.

Donald Poe was returned to RSW Jail yesterday evening for his Wednesday bond hearing. Poe was in the process of being bonded out at 4:30 p.m. Wednesday, though jail officials could not pinpoint how long from actually walking out the door on his $20,000 secured bond he might be. Poe was arrested July 23.

From discussion of the relative financial affairs of both defendants, it appeared their home properties would be used to secure the bonds. Defense counsel cited a $300,000 value with a $240,000 mortgage on McDonald’s home; and a $900,000 value on Poe’s.

Both McDonald and Poe were transported to RSW Regional Jail in the past day from the jails they had been transferred to for security and personnel concerns due to the high-profile nature of EDA-related cases in this community. In McDonald’s case that is the Fairfax Adult Detention Center and in Poe’s the Prince William-Manassas Adult Detention Center. According to the RSW Jail website Poe was re-booked into RSW at 6:34 p.m., Tuesday, July 30; McDonald at 4:15 a.m. this morning.

Asked about the bonding out process outside the courtroom Poe’s son Jason, a Frederick County Sheriff’s Office deputy and candidate for Warren County Sheriff, said he believed the defendants would be processed out at RSW rather than have to return to the jails they have been housed at. RSW Jail Superintendent Russ Gilkison later confirmed that scenario.

Among conditions of her bond McDonald was ordered to turn her passport in to be sealed and not secure another one; to maintain full-time residency at the Faith Way home she maintains with her husband in Front Royal; to be at that residence between 9 p.m. and 6 a.m. nightly; not to leave the Commonwealth of Virginia; maintain employment but not have any business dealings with anyone involved with EDA business interests; to stay off EDA property; and not have contact with other EDA civil or criminal case defendants.

Poe was also ordered to maintain residence at the Passage Manor home he shares with his wife in Strasburg; not to have contact with EDA co-defendants; and approach the commonwealth with his attorney William Ashwell if any of his business interest would require him to leave the state.

Evidence of flight risk?

In appealing his client’s bond denial by Judge Clifford L. Athey Jr., McDonald attorney Peter Greenspun told the new presiding judge his client was due a presumption of bond without the prosecution showing substantial cause that she be considered a flight risk or danger to the community if released. Danger to the community, other than financial from the alleged embezzlements executed in her former position as EDA executive director, has not been at issue.

“If there’s a million-dollar check cashed and the money’s hidden somewhere – show us the evidence,” Greenspun told the court. He noted that some of her real estate and banking assets had been frozen by Judge Athey before he withdrew from the case, and that access to others had been granted so she could pay for a defense to the charges against her.

“We’ve looked at her bank accounts – there are no substantive assets there. She’s not a jewelry type or an art type,” Greenspun said of possession of expensive items that could be sold for large amounts of cash with which to potentially flee prosecution.

“Frankly we don’t know where all the money went – but it went through this defendant’s hands … I would caution the court about taking Ms. McDonald’s word about her assets,” Layton countered of Greenspun’s claims about his client’s financial status.

And while the initial charges against McDonald related to Afton Inn embezzlements involved a cited $30,000 to $40,000 in credit card and other payments, additional indictments have involved transactions involving as much as $3.5 million, Layton told the court.

Hearing testimony in Warren County Circuit Court has indicated the first set of charges against Jennifer McDonald involved alleged personal credit card and other payments cited as ‘Afton Inn Embezzlements’ of $30,000 to $40,000. Royal Examiner File Photos/Roger Bianchini

Greenspun countered that his client remains in “essentially solitary confinement at the Fairfax Jail due to publicity surrounding the case” and that she had been hospitalized for five days in the wake of her arrival at the Fairfax Jail for “seizure-like activity”.

Greenspun said his client’s ability to participate in her own defense was extremely limited in jail; and he bemoaned the slow “drip, drip, drip” pace at which the EDA Special Grand Jury was moving on indictments.

He pointed to her community ties and revealed a surprise to much of that community, that his client has “adult children” and had missed the birth of a grandchild while in custody (maybe he meant step…).  Greenspun also pointed to Commonwealth counsel Layton’s numerous “interviews in local media” (how’d I miss all those, Bryan?) and accused the press “of doing its best to oppress her presumption of innocence” regarding his client.

Greenspun’s reference appears to be of media coverage of the Cherry Bekaert report allegations released into the public record by Judge Athey as the basis of the EDA civil litigation against McDonald and eight co-defendants. It might be noted that “local media” has also reported on defense motions and hearing arguments made in response to those allegations.

Judge Albertson adjourned court for 15 minutes before returning at 9:37 a.m. to render his decision.

In granting bond Judge Albertson cited looming speedy trial issues due to the complexity of the financial cases. He also observed that in many embezzlement cases he’d seen there was little money left at the end of the legal trail.

The judge pointed to the five year prison sentence for failure to appear for court dates when on released on bond.

Albertson noted that felony failure to appear “is much easier to prove than embezzlement” adding, “And when they are caught, and they always are,” they are facing that five years at the top of the sentencing ranges on the other charges they had been attempting to flee from.

“I don’t believe there is probable cause to deny bond,” Albertson said in granting the $50,000 secured bond for McDonald, who has been jailed since her May 24 arrest.

Motions & Hearing Dates

In addition to his bond denial appeal arguments Greenspun argued for greater access to the prosecution’s evidence against his client, including Special Grand Jury testimony.

“We agree to some, but not unfettered access,” Layton told the court.

“I guess I want unfettered access,” Greenspun countered, saying he saw no reason for limitations on defense access. Layton responded that evidence, not only for charges brought, but pending charges could be included in that grand jury material.

Albertson said he would take the evidentiary defense motions under advisement and rule by email by Friday.

Hearings dates were also set to accommodate both attorney and the Harrisonburg judge’s schedules. Those dates are October 15 at 3 p.m. for McDonald; November 7 at 9 a.m. for Henry; and August 30 at 9 a.m. for Poe.

According to RSW Jail staff McDonald was on the verge of being processed out of the facility at 4:25 p.m. Wednesday afternoon. Poe was also in line to be bonded out, though how long that might take was unknown at 4:30 p.m.

The EDA criminal case defendants are scheduled to be back in court on Aug. 30 (Poe), Oct. 15 (McDonald) and Nov. 7 (Henry).

More detail on Poe’s bond hearing will be presented in a related Royal Examiner story.

Henry motions

Between McDonald and Poe’s hearings the third EDA criminal case defendant, Michelle “Missy” Henry who as noted above was already out on bond, heard a defense Bill of Particulars Motions request argued on her behalf. Co-counsel Ryan Nuzzo and David Hensley argued that a proper defense required more detail than offered in the two vaguely-worded and vaguely-dated special grand jury indictments against their client.

Assistant Commonwealth’s Attorney Bryan Layton countered that the Bill of Particulars request was premature at this stage of the case.

“I think Discovery will eliminate the need for a Bill of Particulars. The subject matter will become clear, and if it doesn’t we’ll come back to this motion,” Layton told the court.

Nuzzo countered that added detail at this point would help Henry’s defense determine if additional motions such as suppression needed to be filed – “Where did evidence come from? Was it acquired with or without search warrants?” Nuzzo said to illustrate his point.

After asking how close Discovery responses were to being filed, Judge Albertson agreed with the Commonwealth that their response to defense Discovery could solve the problem of specificity for the defense. Layton told the court the Discovery process was in the midst of an approximate 30 day timeframe.

If the prosecution response to Discovery doesn’t clear up specificity issues, Albertson said he would reconsider the defense Bill of Particulars Motion at that time.