By Richard Kerns
rkerns@newstribune.info
tribune staff writer
KEYSER — The attorney for Marques Rice filed a motion Wednesday to dismiss embezzlement and false pretense charges filed against the former Keyser City Councilman, saying the alleged offenses detailed by the prosecution go beyond the charges outlined in the grand jury indictment.
In addition, Rice’s attorney argued that he was selectively prosecuted, further undermining the case against her client.
Judge Andrew Frye said he needed time to review the motion and would issue a written ruling in the near future.
Charleston Attorney Kitty Dooley sparred with Mineral County Prosecutor Lynn Nelson in the 20-minute hearing at the Mineral County Courthouse, challenging the substance of the embezzlement charges filed against Rice in relation to a three-year, million-dollar tree removal contract, as well as an insurance claim that is the basis for the false pretenses charge.
Dooley argued that the indictment upon which Rice was charged is relatively limited in scope, while statements made by the prosecutor and a State Police investigator, in defending the charges, go beyond the formal charging document.
“Mr. Nelson set out facts that are not included in the indictment,” Dooley said outside the courthouse following the proceeding.
Nelson defended the indictment. “It’s apparent from their arguments that they don’t get this,” the prosecutor told Judge Frye.
The embezzlement charge involves a tree removal contract. According to the prosecution, the city had contracted with the company to cut trees in 8 to 10-foot lengths and haul them to the city’s rubble fill, where city residents would be able to cut them into fireplace length for their own use.
Nelson said Wednesday that Rice directed the tree service to cut the wood into fireplace length and haul it to his own property. Had the former councilman gone to the rubble fill, cut the wood himself and hauled it all away, Nelson said, “we wouldn’t be here today.” However, in changing the scope of the work, the prosecutor said, Rice caused the cost of the contract to increase, with taxpayers picking up the tab.
“The thing is not that he possessed the wood...” Nelson said. “It cost the citizens of Keyser between $1,800 and $3,000 so he could have the wood” cut and delivered to his house.
Nelson further indicated that Rice had threatened the contractor with a cut-off in future city business if he did not comply.
Dooley countered that Nelson’s statement provided information not included in the indictment against Rice. “It doesn’t say anything about directing someone to cut the wood and bring it to his house...” she told Judge Frye. “We’re going by what was said in the indictment ... what this indictment says is not what’s been represented here.”
Furthermore, Dooley described the case as one of “selective prosecution,” saying 12-15 others had received wood from the tree removal project. “There were several other people who were involved and could have been charged...,” she said. “If this is indeed an indictable offense, there are people who are missing.”
Outside the courthouse, Dooley said that selective prosecution is a legitimate legal defense. “The long arm of the law came down and tapped him for some reason...” she said. “There’s case law supporting the concept of selective prosecution.”
The false pretenses charge involve Rice’s effort to ensure that the city would receive an insurance payment for a high-pressure sewer-line cleaner that was destroyed in an auto accident while being used by a city employee for his personal use. According to the prosecution, Rice had directed city staff to alter the insurance report to conceal the fact that the equipment was not being used for city work at the time of the accident.
Dooley said Rice did not gain personally in any way from the transaction, and that the settlement would likely have been paid even if the report had not been altered. “Mr. Rice received nothing as a result of the claim that was filed,” she said.
Nelson acknowledged that Dooley had a stronger argument on the insurance-related charge, but reiterated the prosecution’s case nonetheless, saying the councilman played a central role as “an agent” of the city in filing an insurance claim that contained false information. “He knowingly directed her (the former city administrator) to provide a false claim,” Nelson said.
After the proceeding, Dooley said she was not surprised that the judge did not immediately accept the motion to dismiss. “We expected that,” she said. “He didn’t deny the motion, so we’re guardedly optimistic.”
More than a dozen friends and relatives were in attendance at the courthouse to support Rice. The former councilman said the turnout represented only a fraction of the public support he’s received. “If everybody would show up that has called, they’d have to move it to an auditorium,” he said.
Among those wearing “We Support Marq Rice” badges were several aunts, and his cousin, Stacey Miller of Keyser. “We love him and we know he’s not guilty,” Miller said. “I wish the people of Keyser would recognize how much he has done for the community, and quit all this foolishness.”
Keyser, W.Va. —
