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Toddler death defense – ‘a horrific accident’ – prosecution ‘Really?’



Chad Ritchie – Courtesy Photos RSW Jail

FRONT ROYAL – The defense scenario in the case of a 29-year-old man accused of Second Degree Murder in the death of his girlfriend’s 22-month-old toddler last year was the primary point of interest in first-day developments in the trial of Chad Andrew Ritchie.

That scenario presented by defense co-counsel Jason Ransom and Jonathan Silvester during opening statements Monday afternoon, December 10, is that Ritchie accidentally caused Malachi Zimmerman’s death in a frantic attempt to administer CPR (Cardio Pulmonary Resuscitation) after finding the child unresponsive and not breathing after leaving him for about 30 seconds while preparing him for a bath.

While acknowledging that Ritchie told authorities that he had “smacked” both Malachi and his twin brother Micah earlier in the day for misbehaving, not listening and fighting with each other – Malachi three times, his brother once – the defense contended that Malachi attempted to climb out of the tub while unattended, falling backward onto his head causing his initial traumatic symptoms.

Ransom told a 9-man, 5-woman jury including two alternates that Ritchie had administered CPR as one would to an adult, with two hands and two arms thrusting fully at the abdomen of the child. The result of the incorrectly-administered CPR was, not only stomach bruising found on the child, but a ruptured intestine that bled into the child’s stomach cavity eventually leading to cardiac arrest and death, the defense told the jury.

However, Assistant Commonwealth’s Attorney Bryan Layton opened the commonwealth’s case by presenting witnesses that brought that scenario into question.

Among those witnesses were Warren County Sheriff’s Office Dispatcher Jessica Henry and first responders at the scene on the 900 block of Blue Mountain Road on November 8, 2017, Emergency Medical Technicians (EMT’s) Terrence Banks and Austin Cucciardo, the latter with Advanced Life Support (ALS) credentials.

Both Banks and Cucciardo agreed under cross-examination that incorrectly administered CPR could do damage to a child Malachi Zimmerman’s size. They noted CPR to a child that young and small should be administered with two fingers or two thumbs and less pressure than one would apply to an adult.

Cucciardo testified that in talking to Ritchie at the scene in an attempt to pin down a cause for the child’s condition, the defendant told him he had left the child in the bedroom while going to prepare the bath and found him unresponsive when he returned there.

“Are you sure it wasn’t the bathroom?” defense counsel asked about where Ritchie said he left the child.

“No, he said he left him in the bedroom,” Cucciardo replied.

Taking a different tack, defense counsel returned to its theme that Ritchie loved his fiancé’s children, telling Lt. Henry of the sheriff’s office that their calling him “daddy” was “one of the best things in his life.”

The defense told the jury in its opening statement that their client and Tabitha Zimmerman met at their workplace, Rubbermaid, and that Chad Ritchie had assumed the role of the father the children had never had from their biological father.

“Did Mr. Ritchie seem upset,” Ransom asked Cucciardo of his conversation at the scene with the defendant.

“He had a very blank stare on his face,” the first responder replied.

Cucciardo also testified that before taking over treatment from EMT Banks at the scene he had tried to establish some cause for the child’s condition. He said he ruled out an opiate overdose but “noted bruising and burns on the patient indicating that something else was going on.”

That supposition led to an immediate defense objection, which was sustained.

“Were you able to determine what caused the cardiac arrest,” Layton then asked his witness of his work at the scene.

“No,” Cucciardo replied.

During several cross-examinations, the defense elicited testimony from first responders that a towel on the bathroom floor showed signs of having the child’s head wrapped in it. They also elicited several observations that Malachi’s hair appeared to be wet.

In his testimony, EMT Banks said that after three rounds of two-minute CRP he received three “no shock advise” reports on attempts to defibrillate the child. Cucciardo later testified that meant that there was no shockable heart rhythm to revive. Warren County Fire and Rescue transported Malachi to Warren Memorial Hospital, where the toddler was pronounced dead.

The prosecution played Dispatcher Henry’s phone conversation with Ritchie to the jury. During that conversation, Henry tries to calm Ritchie down in order to talk him through the proper way to administer CPR to a toddler.

According to case records, the child’s mother Tabitha Zimmerman called the Warren County Sheriff’s Office at 6:36 p.m. Wednesday, November 8, 2017, to report that one of her 22-month old sons was not breathing. Zimmerman was not in the house, according to the documents, but had been told by Ritchie that one of her sons was not breathing.

Tabitha Zimmerman

According to the criminal complaint, “The mother stated that Chad Ritchie, her boyfriend and the person caring for her two children, had called her and stated he was with her son at their shared residence in Warren County.”

In the prosecution’s opening statement Layton told jurors that the trial was likely to be lengthy with much evidence presented – “Take nothing for granted – from either side,” he said.

Of the prosecution perspective on the case’s bottom line, Layton told the jury, “Malachi Zimmerman and his twin Micah began the day healthy in the custody of Chad Ritchie – at the end of the day Malachi Zimmerman, 22 months old, was at Warren Memorial Hospital dead; and his brother was being moved from hospital to hospital to be treated for his injuries.”

Day two of the trial will begin at 9 a.m. Tuesday morning, December 11, with the prosecution calling its seventh witness. In discussing when certain witnesses might be subject to recall in the defense case, Ransom estimated Wednesday or Thursday for recalls as the defense begins presenting its counterpoint to the prosecution scenario.

Malachi and Micah’s mother, 29-year-old Tabitha Zimmerman has also been charged on two counts of cruelty and injuries to children revolving around what prosecutors contend was a willful neglect of signs of a pattern of abuse by her boyfriend/fiancé Ritchie. The Ritchie defense said in its opening statement that older marks on the children were the result of being active toddlers prone to falling and rough play with each other, not a sign of any pattern of abuse.

Zimmerman’s trial is slated for this April. Her attorney John Bell was an interested observer at day one of the Ritchie trial. Tabitha Zimmerman is released on bond; Ritchie remains incarcerated at RSW Regional Jail.

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Judge allows Shaw-Sayre communications Discovery, but not third-party



The Warren County Courthouse remains ground zero for EDA-related activity

FRONT ROYAL – Attorneys for Jennifer McDonald, Tom Sayre and one involved third party argued motions related to plaintiff Discovery filings and responses in Warren County Circuit Court late Wednesday morning. The motions involve McDonald’s $600,000 defamation lawsuit against Sayre filed in February.

Five months earlier in September 2018 while McDonald was still EDA executive director, Sayre filed a $25,000 defamation suit against McDonald. Both suits revolve around the name “Tom” accompanied by Sayre’s phone number found in McDonald’s yard following a reported vandalism on her property on June 15, 2017.

At issue Wednesday were responses or a perceived lack thereof to plaintiff McDonald attorney’s request for social media and other electronic communications records of Sayre and that third party, Royal Examiner Editor Norma Jean Shaw.

Sayre’s and Shaw’s first names, as well as Sayre’s phone number and other names and numbers were on a crumpled note pointed out by McDonald to Warren County Sheriff’s Office investigators responding to her report of a rock-throwing vandalism at her home at 9:02 p.m. Thursday, June 15, 2017.

The note portrays a multi-person conspiracy surrounding, not only incidents alleged to have occurred at McDonald’s Faith Way, county home in the May-June 2017 timeframe, but also an alleged May 18, 2017 break-in at the Kendrick Lane EDA office in Front Royal. The latter was a scene at which there was no forced entry apparent. The latter was a scene at which there was no forced entry apparent, and only three staff members, McDonald, Missy Henry and Marla Jones with keys.

The entry is easy if you have a key, as Interim Executive Director John Anzivino illustrates during his brief tenure.

On Halloween Day 2018, McDonald was acquitted of a misdemeanor charge of filing a false police report in the June 2017 vandalism incident in what some cynical observers have called a “Trick or Treat” – as in no available corroborating or motive evidence being presented – prosecution. The case was developed by the Front Royal Police before being turned over the Virginia State Police, based on information received in an already scheduled FRPD interview, at 10:30 a.m. Friday morning, June 16, 2017, with this reporter. That information was that McDonald told Bianchini about the vandalism during a lengthy 3 p.m. meeting in her EDA office the afternoon of June 15, about five to six hours before she reported it occurring.

Among the records McDonald attorney Lee Berlik was seeking in Discovery were three months of social media, online messaging and text communications – May 1 to July 31, 2017 – between Shaw and Sayre, Shaw and Mark Egger, Shaw and a colleague at Royal Examiner (who do you think) and Shaw and Commonwealth’s Attorney Brian Madden.

After much discussion and Shaw attorney David Downes invoking of the press privilege of source protecting, Judge Athey allowed discovery of any Shaw-Sayre communications, but not that of Shaw with a private citizen (Egger), a colleague at work (Bianchini) or the commonwealth’s attorney (Madden).

Private citizen Mark Egger, here pointing to a blow up of a check written to private investigator Ken Pullen by the EDA, or was it Jennifer McDonald? Either way, they both employed him to replace FRPD in investigating the EDA office break in.

“Communications with the plaintiff are one thing … but where you cross the Rubicon is requesting communications with other parties. I understand your point that she may have been an accessory but her communications in her professional capacity” with third parties were off limits, Athey told Berlik in prefacing his decision in apparent agreement with Downes that media has a professional right to keep some source communications private in the conduct of their profession.

As for the apparent conspiracy alluded to in the note containing Sayre’s phone number, as well as that of former Town Manager Michael Graham and the names “Tom”, “Norma Jean”, “Matt” and “the Examiner”, Berlik admitted some question exists when he told the court, “Whether it is authentic or not remains to be seen.”

What Berlik did not admit was his client’s connection to any such questions.

In fact, in prefacing his dismissal of the misdemeanor filing a false police report charge against McDonald on October 31, 2018, Judge W. Dale Houff commented, “There is something obviously wrong about the note.”

Following his Discovery Motions decision Athey questioned attorneys on the trial date for the Sayre-McDonald defamation case scheduled in General District Court downstairs. Told August and that both sides have indicated an appeal of the verdict is likely, Athey set a hearing date for the McDonald defamation case on the Motions Date of September 18, at 9 a.m. The judge indicated the likelihood of setting a trial date on the McDonald lawsuit then and observed the two cases could potentially be joined at that point.


The alleged conspirators’ “note” with its names and numbers appearing to implicate “Tom”, “Norma Jean”, “Matt”, Graham’s 202 phone number, and even “the Examiner” is likely to play a big role in both trials.

The note and vandalism it is allegedly tied to, among other incidents of trespass and vandalism at McDonald’s home and the EDA office complex came at a time Royal Examiner staff, then-Councilwoman Bébhinn Egger (Mark Egger’s daughter), and others eventually including Sayre and county board colleague Archie Fox were raising questions about the validity of multiple EDA projects being forwarded by McDonald as EDA executive director.

The FBI, along with VSP and perhaps the IRS, dropped by to say ‘hello’ at EDA offices on April 16, 2019.

Shaw, particularly, was deep into an investigation of large amounts of cash being used by McDonald in her personal real estate business transactions. Those real estate transactions, along with questioned EDA projects like ITFederal and Workforce Housing among others, lie at the heart of the EDA civil litigation now seeking recovery of $21.1 million in allegedly misrepresented, misdirected or embezzled assets.

Arrested by VSP on May 24, McDonald is now jailed without bond as a possible flight risk on four felony financial criminal charges, two of Fraud, Obtaining Money by False Pretenses in excess of $200; and two of Larceny-Embezzlement in excess of $200. Those appear related to the EDA civil suit “Afton Inn Embezzlements” allegations of falsifying work invoices to pay off credit card debts. The evidence on those charges appear fairly cut-and-dried evidentiary-wise compared to some other allegations in the EDA litigation.

The Special Grand Jury

However, as the civil defamation motions were being argued Wednesday on the second floor of the Warren County Courthouse, the Special Grand Jury convened to investigate potential criminality tied to the EDA civil litigation was meeting for what appears to be the first of several days of witness testimony this week.

Speaking of social media, the rumor of additional indictments being imminent have been floating on social media for weeks since those initial four indictments were handed down on May 24. One large question connected to any next round of sealed grand jury indictments is whether they will simply pile more on to McDonald’s legal plate, or add additional defendants into the mix.

Not directly related to the above question but more on the familiar faces sightings ledger, one encountered on the second floor of the Warren County Courthouse after the adjournment of the defamation hearing belonged to former County and EDA Attorney Blair Mitchell. Mitchell, who retired in April 2017, told media present he had testified for about an hour before the special grand jury but declined to elaborate on the nature of the questions he was asked.

But noting his retirement date and corresponding EDA business of the previous years, we can probably make an educated guess at some of those questions relating to Mitchell and McDonald’s interactions on projects cited in the Cherry Bekaert accounting investigation of EDA finances over the past decade. High on that list may well be Leach Run Parkway Easements, myriad other real estate transactions, not to mention the advent of the ITFederal and Workforce Housing Projects – (Come on, TELL US, Uncle Blair!!!)

Things seemed so much smoother – well mostly – then as Jennifer McDonald illustrates, circa 2013, with a playful pose with, from left, then Town Manager Steve Burke, Town Attorney Doug Napier and then County-EDA Attorney Blair Mitchell.

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Motions filed, August hearing date set in ‘Bawdy Place’ prosecutions



Attorney David Downes in file photo addressing the Front Royal Town Council on other issues – Royal Examiner File Photos/Roger Bianchini

A hearing date of August 13, at 2 p.m., was set Tuesday for pre-trial motions in three cases related at least indirectly to former Front Royal Mayor Hollis Tharpe’s May 2018 visit to a Biggs Drive massage parlor. The cases of Cynthia Atkinson Bailey, her daughter Brandy Nicole Atkinson and son Jesse Thomas Atkinson have been joined for trial according to defense counsel David Downes.

Downes filed motions, including discovery, during the Tuesday, June 18, Warren County General District Court morning docket. The criminal complaint against Bailey and her co-defendants alleges that massages of a sexual nature were a prominent part of the services “menu” being offered at the Biggs Drive address.

A gigolo, I mean “Giglio Motion” filed by Downes Tuesday sought information on potential prosecution witness Tiffany Amber Wymer. The motion cites a felony charge “on or about December 6, 2018” for “possession with intent to distribute marijuana” that according to the defense motion was dropped by prosecutors on May 28, 2019 in Frederick County General District Court.

Downes questions if the resolution of that case related to Wymer’s anticipated testimony in this (the Bailey et al) prosecution and “whether she has received immunity from prosecution for” a variety of other possible charges, including “her fraudulent welfare applications … operating an illegal sex chat website” and “prostitution charges”. Downes further asks how many incidents of prostitution Wymer may have received immunity for.

Bailey, 55, was arrested on May 15 by Front Royal Police along with her daughter, son and stepson Joshua Allan Stamper. Bailey’s charges include maintaining a “bawdy place” (defined as gross, indecent or overly graphic establishment), receiving money from earnings of prostitution, prostitution, and cruelty to children, the latter charge related to the presence of a juvenile in the residence who “answered phone calls, arranged appointments and walked clients to the rooms” according to warrants. Bailey’s relations’ charges relate to various jobs they performed at what was cited as an unlicensed massage parlor operating at the business address of Blue Valley Services.

Hollis Tharpe chairing a council work session prior to his misdemeanor indictment and resignation to fight the charge against him. He has a trial date looming two weeks before the November election day.

While Tharpe has admitted to visiting the business he has asserted it was for legitimate massages on his 67-year-old body. Tharpe was indicted on a misdemeanor solicitation of prostitution charge on April 15. That day he put himself on administrative leave and four days later announced he would resign as mayor, effective May 2. Tharpe explained his decision as preventing his legal situation from interfering in the conduct of Town business.

Tharpe was in court Monday, June 17, to have motions and trial dates set in Warren County Circuit Court where his misdemeanor solicitation case is being heard due to the direct indictment by a Warren County Grand Jury.

Trial date of Oct. 25 set in Tharpe solicitation case – prosecution seeks change of venue

It was a grand jury, ironically perhaps, chaired by now Interim Front Royal Mayor Matt Tederick.

Matt Tederick has taken smoothly to the mayor’s seat vacated by Hollis Tharpe’s resignation – here the interim mayor draws laughter after announcing he pulled his name out of hat as winner of a raffle drawing.

Two days after her arrest, Bailey attorney Downes issued a press release asserting that his client’s prosecution was “retaliatory” and “selective” due to her assertion to authorities that she would plead her Fifth Amendment right not to self-incriminate if asked to testify regarding clients, including Tharpe. In his release Downes noted that Bailey had initially been arrested on June 7, 2018 on a charge of prostitution. That arrest came one week after the Tharpe massage parlor incident cited in his indictment. That charge was dropped by the commonwealth on October 2, 2018.

Massage parlor defense counsel cites ‘retaliation’ over targeting of Tharpe

Downes release led to responses from both Tharpe Special Prosecutor Heather Hovermale and FRPD Chief Kahle Magalis denying any inappropriate actions related to the massage parlor warrants
and investigation.

Winchester prosecutor’s office responds to Downes press release

FRPD adds response to Downes release on Tharpe-Bailey investigations

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Trial date of Oct. 25 set in Tharpe solicitation case – prosecution seeks change of venue



Attorneys for former Front Royal Mayor Hollis Tharpe say they will vigorously fight a change of venue request made by Special Prosecutor Heather Hovermale during a Monday hearing. Tharpe was in court with attorneys David Hensley and Beau Bassler on June 17 to set a trial date on his misdemeanor solicitation of prostitution charge related to a May 31, 2018, visit to a massage parlor on Biggs Drive.

In what was likely his last hearing on the case Judge Clifford L. Athey Jr. set a trial date of October 25, at 9 a.m., for the jury trial requested by Tharpe’s attorneys and July 15, at 2:30 p.m., for arguments on the prosecution’s change of venue request.

Bassler and Hensley called the special prosecutor’s request for a change of venue on a misdemeanor case “extraordinary” in their legal experience.

“Justice is supposed to be local to where a community is affected by crime unless there are unusual circumstances that would make a fair hearing of the case questionable,” Tharpe’s legal team observed. Obviously they do not believe Tharpe’s high profile in the community as a former mayor and councilman, not to mention long-time ice cream man, fits the “unusual circumstance” criteria, particularly in a misdemeanor case of this nature.

Hollis Tharpe at Town Hall meeting room chairing a council work session – Royal Examiner File Photos/Roger Bianchini

Tharpe’s high profile in the community was illustrated in the wake of Athey’s setting of the hearing and trial dates – “Well, someone will be here to see you but it won’t be me,” Athey said to Tharpe of the July 15 hearing date.

“You have a good time in Richmond,” Tharpe replied to another former Front Royal mayor, turned state delegate, turned judge who will be leaving for a seat on the Virginia Appeals Court this September.

When Athey asked Tharpe’s legal team if they wanted speedy trial statutes in play in the setting of a trial date, Hensley replied for his client, “He would like a speedy trial.”

The judge’s setting of a date four months away that fit all involved party’s schedules means a verdict will be rendered about two weeks before the likely November date of a special election to fill the mayor’s seat for the duration of Tharpe’s term, which expires at the end of 2020. That seat is currently occupied by long-time Republican activist and former county supervisor Matt Tederick, who was appointed interim mayor on May 28 by a 4-2 vote, Tewalt and Thompson dissenting. Tederick has said he does not plan to run for the mayor’s office in the special election.

While proclaiming his innocence following his indictment on April 15, Tharpe initially placed himself on administrative leave and then announced four days later on April 19 that he would resign as mayor effective May 2. Tharpe explained his decisions as not wanting the charge against him to distract town government from the conduct of its business pending a resolution of his case. The 67-year-old Tharpe has called the misdemeanor charge against him “embarrassing” and “baseless”.

On March 25, flanked by Vice-Mayor William Sealock and Councilwoman Letasha Thompson then-Mayor Tharpe listens to former Councilwoman Bébhinn Egger address town officials on lessons to be learned from the EDA financial scandal.

A Virginia State Police press release announcing Tharpe’s pending indictment in April indicated Tharpe’s charge stemmed from an investigation launched at the direction of the Virginia Attorney General’s Office.

That there was an investigation into Tharpe went public on August 30, 2018, when Warren County Commonwealth’s Attorney Brian Madden filed notice he would recuse himself from any possible prosecution relating to an “Investigation Concerning Hollis Tharpe”. Special Prosecutor Hovermale works out of the Winchester Commonwealth’s Attorney’s office of Marc Abrams, which was handed the case following Madden’s recusal announcement.

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RSW superintendent explains McDonald transfer to Fairfax jail



Jennifer McDonald may find her experience of incarceration more normalized by her move out of RSW Regional Jail to Fairfax County where she is not so high-profiled an inmate. Courtesy Photo RSW Jail

On Friday, Rappahannock-Shenandoah-Warren County Regional Jail Superintendent Russ Gilkison confirmed the transfer of high-profile inmate Jennifer McDonald to the Fairfax County Adult Detention Center four days earlier, on Tuesday, June 11. McDonald was arrested by Virginia State Police on May 24 on four felony fraud-embezzlement charges related to the financial investigation of the Front Royal-Warren County Economic Development Authority.

The former EDA executive director has twice since been denied bond, being deemed a flight risk by Judge Clifford L. Athey Jr. After 10 years heading the EDA, McDonald resigned under increased financial scrutiny from her board of directors on December 20, 2018. According to EDA officials in her resignation email she admitted liability for the return of $2.7 million in assets to the EDA. However subsequent EDA civil litigation filed March 26 now seeking recovery of $21.1 million dollars alleges McDonald’s role in the loss of much more than her admitted liability.

Gilkison said the move was made to normalize McDonald’s jail experience.

“This will allow her to get into the general inmate population. She’s been in protective custody here due to the high-profile nature of her case,” Gilkison told Royal Examiner of the isolated nature of McDonald’s confinement so far.

RSW Jail is one inmate down – but could it soon house additional defendants related to the EDA financial investigation? Stay tuned… Royal Examiner File Photo/Roger Bianchini

The RSW superintendent said he had been in touch with McDonald’s criminal attorney Peter Greenspun for about a week prior to the move. Gilkison said the Fairfax City-based Greenspun supported the move and is now in much more convenient proximity to his client while she is incarcerated.

A hearing in which McDonald is slated to enter pleas in her criminal cases is scheduled for July 17 in Warren County Circuit Court.

Asked about costs to RSW of McDonald’s move to another facility, Gilkison said the Fairfax jail is not charging RSW for the transfer.

“It’s called a courtesy hold and we all do it for each other,” Gilkison said of the transfer of inmates for various reasons between area jails. “We would pay for any medication or medical costs but they aren’t charging us to house her.”

Asked if the move could indicate coming arrests of alleged co-conspirators in the EDA financial scandal that has shaken this community, Gilkison said only that he had heard the same rumors that many have about sealed special grand jury indictments, adding, “but not from reliable sources.”

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Front Royal Police detail another pedestrian-fatal South Street accident



Information released by the Front Royal Police Friday, June 7, indicates that the 65-year-old female Front Royal resident killed Thursday, June 6, on South Street, was legally crossing the street within one of the Town’s newer, painted pedestrian crosswalks.

The FRPD press release reads in full:

“On June 6, 2019, at 10:28 p.m., the Front Royal Police Department responded to a report of a pedestrian versus vehicle accident on South Street. A 2019 Buick 4 door, driven by Herman Melvin Vohs, Jr., 75-year-old Front Royal resident, was traveling westbound on South Street when he struck Ethel Elaine Blackwell as she was crossing the street. Blackwell, 65, a Front Royal resident, was pronounced deceased at the scene by medics. Preliminary investigation into the fatal accident indicates that Blackwell was in the crosswalk at the intersection of Acton Street at the point of impact.

“No further information will be released at this time, pending further investigation. Once all information is collected, the case will be staffed with the Warren County Commonwealth’s Attorney Office.

“If you have any information related to this incident, please contact Traffic Enforcement Officer J. Noland at 540-635-2111 or”

Town Council discussion surrounding its STOPS (Smart Towns Observe Pedestrian Safety) Program implemented in the wake of three pedestrian deaths within a one-year period a couple years ago indicates pedestrians have the right of way to moving traffic while in those painted, designated crosswalks.

The pedestrian crosswalk at Acton Street’s intersection with South Street – the centerline sign tells drivers to ‘YIELD’ to pedestrians. Royal Examiner Photo/Roger Bianchini

However, Ethel Elaine Blackwell’s death yesterday points to ongoing dangers for pedestrians on high-traffic volume streets, particularly during rush hours or after dark, with or without marked crosswalks.

South Street and North Shenandoah Avenue at town entranceways populated by commercial strips in proximity to residential neighborhoods have been the two most dangerous roads for town pedestrians.

How this most recent pedestrian fatality will impact future council decisions on crosswalk implementation with or without accompanying signage or pedestrian-activated stop lights remains to be seen.

The view south up Acton Street

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Roles of McDonald, EDA Board & Goodlatte described at EDA hearing



The EDA board and staff, seated in foreground, meet with Town and County officials, background, at Villa Ave. Community Center, circa late 2016 – Royal Examiner File Photos/Roger Bianchini

The level of authority given former Front Royal-Warren County Economic Development Authority Executive Director Jennifer McDonald to pursue client contact leads and a consequent lack of oversight from her board of directors was a primary issue in testimony and closing arguments on Friday, May 31.

In fact, some professional tension was palpable between McDonald defense counsel Jay McDannell and lead EDA attorney Cullen Seltzer as they summarized the cases they had presented over 2-1/2 days leading to closing arguments beginning at 12:45 p.m., Friday afternoon. The result of that third and final day of the EDA civil suit motions hearing was previously reported in Royal Examiner, below:

Some McDonald assets frozen, jointly-owned exempted in EDA civil case

In beginning his rebuttal to the plaintiff attorney’s closing statement McDannell referenced what he termed “vitriolic attacks on my client”. They were attacks he said he had tried not to respond in kind to – “That ends today” he told the court.

And he wasn’t kidding – McDonald’s attorney called the plaintiff case “craven and stupid” adding, “They put the cart before the horse” in an attempt to cover what he called “a failed filing” of the EDA $17.6 million civil action against nine defendants alleged to have engaged with McDonald in a wide, if compartmentalized conspiracy to embezzle or misdirect millions of dollars in EDA assets.

“The largest claim is a breach of contract claim for a contract that has never been breached – and it is against someone else,” McDannell noted of the $10 million loan the EDA secured from United Bank for ITFederal LLC and its CEO Truc “Curt” Tran.

Truc ‘Curt’ Tran on EDA-Royal Phoenix site on Dec. 20, 2018, the day Jennifer McDonald resigned as EDA executive director. Tran was checking progress on his one-story, 10,000 s.f. construction project.

In fact, a significant portion of former EDA board member Ron Llewellyn’s testimony, which was by far the lengthiest of four current or former board members called to testify Friday, addressed the process and rationale in acquiring that loan.

A nine-year board member prior to his resignation effective March 23, Llewellyn told the court that the ITFederal project “was considerably different than any other project we ever worked on … We were all excited about the first Brownfield site project,” Llewellyn noted of the first commercial client drawn to a planned 147-acre business park on the former 467-acre Avtex federal Superfund site in the Town of Front Royal.

Llewellyn testified he had concerns about the project early on due to an inability to find any substantive information about the company and its alleged $140-million or so in annual federal government contracts online. However, he noted that the EDA’s executive director always assured him she had verified the validity of the information about ITFederal and its government contracts.

“Did you ask how she verified it?” McDannell pressed Llewellyn on cross examination.

“No, not precisely,” Llewellyn admitted.

“Maybe because it was brought to us by the congressman due diligence wasn’t done. I couldn’t find anything online but Jennifer always had an explanation, I thought was through the congressman,” Llewellyn said.

“So it got credibility from Congressman Goodlatte – what would you say the impact of that was?” McDonald’s attorney asked.

“More than it should have,” Llewellyn testified about three-and-a-half to four years down the road from then U.S. Congressman Robert Goodlatte’s championing of ITFederal in 2014-2015 as a $40-million investor who would bring 600-plus high-paying tech jobs to this community.

Former Sixth District U.S. Congressman Robert Goodlatte promised ‘prosperity coming your way’ when he introduced ITFederal and its CEO to the EDA as a major Avtex site commercial redevelopment opportunity in 2015.

In fact, Llewellyn recalled a conversation with Goodlatte at the October 2015 ITFederal ribbon-cutting here launching the idea of a $10 million loan to Tran’s company. Llewellyn said he, McDonald, then-EDA Board members Patty Wines, who was board chair, and Jim Eastham who was in banking professionally, were in the group with whom Goodlatte first broached the ITFederal loan idea.

Llewellyn testified that McDonald reported back that when first offered the loan, Tran had balked. However, the EDA decided to continue pursuing the loan after Goodlatte explained he wanted to be able to promote the Avtex Brownfield site “to other prospects by saying, ‘We not only got you this nice piece of land but financing for your project too’.

“So Jennifer went back to Tran and explained that Goodlatte said it needed to be done anyway (whether he needed it or not), and he says, ‘Okay’,” Llewellyn said of the process he recalled achieving the ITFederal bank loan.

What Llewellyn didn’t explain, and wasn’t really asked to at this hearing level, was why the EDA board would agree to extend a 30-year payback on a $10-million loan to Tran that the EDA has a 7-year balloon payment due to First Bank & Trust of Abington on. For you non-bankers out there, on the surface, those conflicting schedules mean the EDA must pay the loan back to the bank in full after seven years, while Tran has another 23 years to pay the balance on the $10 million back to the EDA. Talk about economic development working for YOU!

However, EDA Attorney Dan Whitten explained to Royal Examiner that the EDA has the option of renegotiating the monthly amount of Tran’s payback; and will likely attempt to refinance its loan payment to First Bank & Trust after those seven years. So if things go well the EDA may be able to continue to have Tran’s payments cover the cost of a refinanced bank loan. Whitten said the discrepancy likely occurred because the EDA-Tran terms were signed in September 2015 when the Town bridge loan was made to the EDA, and the EDA-First Bank & Trust terms were signed three months later when the bank loan was realized in December 2015.

Maybe it’s not as bad as it seems – see above attorney’s explanation. So best case the bank agrees to stretch its payback term to match Tran’s and the EDA can continue to have the ITFed payments cover its loan costs. Worst case, the EDA defaults on the loan and the bank owns the Royal Phoenix Brownfield property put up as collateral – or is that a BEST case scenario? Hey, maybe these guys are smarter than they look …

And on the bright side, as Town Councilman Eugene Tewalt likes local media to stress, the Town of Front Royal DID get its twice-extended to three-months $10-million “bridge loan” to the EDA and Tran back in full when the loan through First Bank & Trust of Abingdon was accomplished. However as we also recall, the Town did lose out on two months of interest totaling around $8,000 because the term of the “bridge loan” was supposed to be a month and the bridge loan arrangement only included one month’s payment equal to what the Town had been collecting in monthly interest on those $10-million dollars in an investment account.

But back to the civil litigation hearing’s closing arguments of May 31, 2019: citing EDA “board failings of oversight” McDannell told the court of his clients’ culpability, “Her actions are attributable to them – not that she did everything right, but did she misunderstand the authority her board had given her?” McDannell asked rhetorically with a clear indication of his thoughts on an answer.

Testimony indicated there were minimal conditions imposed on how Tran spends that $10-million loan from the EDA. It appears he may spend about $2 million or so here if the ITFederal aspect of his project falls through, as it now seems it will. The EDA lawsuit is seeking recovery of the ITFederal loan.

However in the plaintiff’s closing statement delivered first, Seltzer pointed to the testimony of the four former and current EDA board members heard that day. They were asked in to testify about Defense Exhibit 8 offered the previous day to illustrate board approval of a McDonald purchase of up to $2.5 million for potential use as an industrial cattle farm operation by a Tran company, Front Royal Farms LLC. Testimony indicated the planned Tran operation would produce beef to be sold in the Far East, particularly to Vietnam, Tran’s native country.

Former EDA Treasurer William Biggs, current Vice-Chairman Bruce Drummond, current Front Royal Vice-Mayor William Sealock, and Llewellyn all testified that they had not previously seen the Closed Session, Confidential Resolution authorizing McDonald to spend up to $2.5 million on a property for the cattle ranch land purchase on Trans’ behalf. That was the defense exhibit EDA Attorney Dan Whitten described during his Thursday testimony as a “fabricated document” produced by McDonald.

All four past and present EDA board members said Friday that while it appeared their signatures were on the document, they had not previously seen that particular resolution. They also verified Whitten’s testimony of the previous day that such a resolution would not be signed in closed session or likely be marked “Confidential” as it was.

The quartet of EDA board members also expressed varying degrees of knowledge or a lack thereof about EDA board discussion of Tran’s prospective Front Royal Farms operation. However, all agreed whatever discussion had occurred was far from the authorization of millions of EDA dollars to be committed to the purchase of land for such an endeavor.

Previous hearing testimony indicated that those parcels referred to as “the Buck Mountain properties” were sold back to the original owner William Vaught Jr. a month or so after purchased by McDonald real estate company DaBoyz LLC at a $600,000 loss.

“Even after she left (the EDA) she continued to conceal against those board members we heard from today. She betrayed that trust in the most pernicious ways,” Seltzer told the court in summarizing his case for attachment of $3.17 million of McDonald or her real estate companies’ assets.

Of Defense Exhibit 8, the EDA attorney called it “unbelievable, bare-faced contempt”, not only of her former board members but of the court in its attempt to render a judgment on the freezing or releasing of McDonald assets related to the civil litigation.

“She has attempted to deceive the court – I’ve never seen anything like that in a courtroom,” Seltzer said of the introduction of an apparently fraudulent document in support of a defense motion not to enjoin defendant assets.

The Sands-Anderson attorney made it clear he was not implicating his legal adversary in that deception – “He has been used by his client to perpetuate shocking deceit,” Seltzer told the court.

However, McDannell disputed that assessment, noting his client’s agreement to withdraw the document and her voluntary assertion that two properties under her control were being held in a “constructive trust” for the EDA.

He also pointed out to the court that his client had not tried to convert her real estate assets into cash and flee prior to facing the civil and criminal charges now hanging over her head, those latter charges leaving her incarcerated as a flight risk.

As reported in our above-linked initial story of the court ruling, Judge Athey took a middle ground in attaching some McDonald cash and real estate assets and not others, on the latter front leaving those co-owned with other family members alone, and on the former leaving her funds to pay for her defense against the felony criminal charges she faces.

Judge Clifford Athey Jr. allowed McDonald access to some personal financial assets in order to be able to pay for her defense against criminal charges that now have her incarcerated without bond as a flight risk.

See Related Story:

EDA Attorney accuses former executive director of forging document

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