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Court of Appeals affirms ruling in vote-buying case


CINCINNATI – A three-judge panel with the Sixth Circuit of the United States Court of Appeals ruled in the case of two Magoffin men this week, affirming the lower court’s ruling that found them both guilty in a vote-buying conspiracy case. 

U.S. Court of Appeals Circuit Judges Eric L. Clay, Deborah L. Cook and Helene N. White, the latter of which wrote the ruling, released an opinion on Monday, June 18, affirming the 2016 convictions of Magoffin Magistrate Gary “Rooster” Risner and Deputy County Clerk Larry Shepherd. 

Risner and Shepherd were found guilty in August 2016 by a federal jury on charges relating to conspiracy to commit vote-buying in the 2014 elections. Oral arguments for their appeal were heard last October.

Despite arguing that the jury received leading jury instructions, Randy Salyers’ conviction should have excluded, and they did not agree with allowing Scotty McCarty’s testimony, the panel of judges ruled they found no fault in the lower court’s ruling. 

The only error from the original trial they noted in the 33-page ruling was that the jury received instruction that failed to accurately reflect the law regarding the first four days of early voting. While the jury instructions noted that a county clerk or deputy clerks were allowed to supervise in-person absentee voting, the instructions left out the part of the law that states, “If members of the county board of elections or their designees do not serve as precinct officers for in-person absentee voting, the county clerk or deputy county clerks shall supervise the in-person voting,” which would apply to the first four days of the absentee voting that year.

Judge White noted, “However, ‘no single provision of the jury charge may be viewed in isolation, rather, the charge must be considered as a whole,’” citing United States v. Lee. 

She said they could only reverse a judgment if the jury instructions as a whole were confusing, misleading or prejudicial.

White noted in the ruling, “Although Shepherd was required to ‘supervise absentee voting’ for the first four days, Shepherd was not allowed to assist voters even during that period, and there was testimony from seven witnesses that Shepherd assisted a number of voters. Further, he continued to assist voters after there was equal representation. Although the first portion of Instruction No. 21 was misleading, we conclude that it was not prejudicial, viewing the jury instructions as a whole.”

Both Risner and Shepherd had argued that “even if none of the individual errors warrant a new trial, the cumulative effect is so prejudicial as to warrant reversal.”

The Court of Appeals ruled,” Here, the district court did not err in any of the evidentiary holdings challenged on appeal, and the district court did not plainly err in failing to intervene during the government’s opening statement and closing argument. The only error we find is in the first section of Jury Instruction No. 21, which was misleading but does not warrant reversal. Because the single error did not render Defendants’ trial fundamentally unfair, cumulative error analysis is not applicable.”

The three unanimously agreed to affirm both convictions.

In December 2016, Gary “Rooster” Risner, who is also currently a Magoffin County magistrate on the fiscal court, was sentenced to 33 months in prison, three years supervised release, a special assessment fee of $800, and 550 hours of community service. He is currently being held at the Cincinnati Residential Reentry Management Center, with a scheduled release date of September 22, 2018. 

Larry Shepherd, who was convicted at the same time as Risner, is currently being held at the federal correctional institution in Ashland, with a scheduled release date set for April 2, 2019. He was sentenced to 30 months in prison, three years of supervised release, an assessment fee of $100 and a $20,000 fine.





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