Sunday, December 15, 2002
Foundation's fund-raising practices are under scrutiny
No smoking gun, but tons of paper mark D-Day trial

By JAY CONLEY and LAURENCE HAMMACK
THE ROANOKE TIMES

The federal fraud case over the financing of the National D-Day Memorial in Bedford involves a popular national monument, alleged misuse of a multimillion-dollar taxpayer-funded state grant and complicated questions over how nonprofit organizations raise money.

The task of explaining the case to a jury in federal court is a daunting one.

Unlike a violent crime, there's no smoking gun, no fingerprints at the scene and no DNA evidence.

Richard Burrow, the former president of the National D-Day Memorial Foundation, went on trial last week on charges he committed wire, mail, bank and loan application fraud in raising $7.5 million to get the $25 million memorial built. Burrow has pleaded not guilty to all the charges. He testified Friday that he never deceived anyone.

Prosecutors and Burrow's team of defense attorneys are expected to present closing arguments Monday. After that, a jury will decide Burrow's guilt or innocence.

For prosecutors and defense lawyers alike, the mountain of paperwork that comes with most fraud prosecutions can pose a challenge. In this case, an estimated 400 pages of bank statements, spreadsheets, interoffice memorandums, letters and e-mails have been entered as evidence.

"Organization is the key," said Roanoke defense attorney Ray Ferris. In a drug conspiracy case, Ferris once compiled a database - available via his laptop computer at the defense table - that indexed more than 5,000 pages of documents and three years' worth of phone records.

"You need the ability to put your hands on documents that are relevant to the subject that is being discussed, and documents that may have some relevance to the witness who is being cross-examined," he said.

During Burrow's trial last week, a blizzard of financial documents was presented to jurors on a giant projection screen, at times for only a few seconds.

In white-collar cases, once the right letter or report is before the jury, it often takes the testimony of an accountant or other expert witness to explain its relevance. That's because it's not always obvious a crime has occurred.

"It's pretty easy when someone is shot between the eyes: You're not supposed to do that," Ferris said. "But they're accusing Richard Burrow of stuff that can cut both ways. There are situations when you look at a document and it's not immediately evident what that document means."

In the Burrow trial, one of those documents is the commonwealth of Virginia's regulations regarding the acceptable way a nonprofit organization can raise funds to qualify for state taxpayer-funded grants. The language of the code is vague enough that in testimony last week, former longtime state delegate Richard Cranwell and former state finance secretary Ron Tillett fell short of saying Burrow's use of a short-term loan to acquire the state funds was improper.

In addition to presenting facts and figures, prosecutors should demonstrate that real people were harmed by the defendant's actions, said Don Mason, a research attorney with NW3C, a national white-collar crime center based in West Virginia.

"We're not talking about a multiple homicide; we're talking about facts and figures that can be very bewildering," Mason said. "As the director of the play, so to speak, the prosecutor has an extra-hard job. You're going in there right off the bat with a case that is not going to be riveting."

Although white-collar crimes often lack the classic "smoking gun" that prosecutors look for in criminal cases, a paper trail can sometimes lead to equally compelling proof.

"Is there a pattern of deceit? That's where the documents are critical, because you look for inconsistencies in the documents," Ferris said.

Much of the federal government's case against Burrow hinges on the validity of a $2 million pledge by a Richmond philanthropist that Burrow used as collateral to secure state grants and a bank loan. Prosecutors say there's no paper trail to prove the pledge ever existed.

Burrow's attorneys have argued that the pledge was an oral agreement that Burrow believed would be paid.

Prosecutors have also introduced current and former D-Day Foundation board members who testified that Burrow could have done a much better job of informing them about the foundation's cash-flow problems.

But to make a charge stick, prosecutors are required to prove criminal intent by the defendant.

"The government's got a real basic problem presenting this case to a jury, in my opinion," Ferris said. "Why does someone do something criminal? To get back at someone, or to line their own pockets. And that's just not present in this case."

The hurdle for prosecutors is that Burrow is not charged with personally taking any of the money involved.

Instead, they have argued that he enriched himself through his salary and the yearly bonuses he received for getting good performance reviews while he deceived the board about the foundation's growing financial problems. They also say he enhanced his reputation through the prestige associated with presiding over the project.

White-collar prosecutions are often marked by tedious testimony, but lawyers said juries usually do a good job of staying on top of the case.

"I am always pleasantly surprised at how attentive juries can be and how smart they actually are," Ferris said. "We don't give juries enough credit. They have an uncanny way of knowing what to tune in to and what not to tune in to."

The fact that Burrow's trial falls two weeks before Christmas was not lost on defense attorneys, who say the best time to try a potentially winnable case is when juries might be in a charitable mood.

"Judges and juries are human, and by and large most of us during the Christmas season are more forgiving than we are during the rest of the year," Salem attorney Greg Phillips said. "You rarely see a defense attorney continue a sentencing during the month of December."

Jay Conley can be reached at 981-3114 or jay.conley@roanoke.com.

Laurence Hammack can be reached at 981-3239 or laurence.hammack@roanoke.com.

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