Published: September 24, 2008 10:41 pm      

Sentencing in Greenbrier cattle scandal delayed

Federal sentencing hearings for three defendants embroiled in the multi-million dollar Greenbrier County banking and cattle scandal have been continued for a third time fueling speculation that the U.S Attorney’s office is investigating other individuals for wrongdoing.

Kevin Scott O’Brien, of Ronceverte, Charles A. Henthorn, of Lewisburg, and G. Thomas Garten, of Covington, Va., were scheduled to be sentenced individually today in Beckley’s federal court, however, U.S. District Court Judge Thomas E. Johnston has rescheduled the sentencings for Oct. 17 at 10:30 a.m.

There were no motions filed by defense lawyers, nor the U.S. Attorney’s office asking for this recent delay, or the two previous delays.

Prosecutor’s say O’Brien, 28, used sophisticated Ponzi schemes to defraud investors and businesses out of $5 million beginning in early 2005 while brokering cattle deals in West Virginia, Illinois, Texas, Virginia and Nebraska.

Henthorn, a former First National Bank of Ronceverte president and CEO, pleaded guilty to accepting four bribes from O’Brien totaling $9,700 and Garten, a former FNB board director, pleaded guilty to aiding and abetting those bribes.

However, court documents recently filed indicate that more individuals are being targeted for criminal conduct and at least two of the defendants — Henthorn and O’Brien — are providing information to prosecutors.

This new twist in the case was revealed in presentencing memorandums filed by federal prosecutors and at least one defense lawyer.

O’Brien’s presentencing memorandum filed by U.S Attorney L. Anna Forbes, recommended a prison sentence up to 10 years, but indicated the defendant has provided more information about possible criminal conduct of others who may have filed claims in his multi-million bankruptcy case.

“... the United States wishes to advise the court that it is considering, but has not yet committed to, filing a substantial assistance motion at some future date based on the defendant’s cooperation in the investigation of other individuals,” Forbes wrote. “If such a motion is made, any recommendation of a reduction in sentence will, of course, be commensurate with the value of the defendant’s assistance.”

“There remain issues concerning inclusion of certain losses for restitution purposes because the individuals who sustained losses may have assisted the defendant in the continuation of his fraud scheme and offered materially false and misleading information to the bankruptcy court in pursuing their bankruptcy claims and may otherwise have unclean hands in this matter,” Forbes wrote.

“As a criminal investigation of these matters is on-going, the U.S., with the court’s leave, will file a memorandum under seal prior to sentencing addressing this issue.”

“A sentence within the advisory guideline range of 97 to 121 months of imprisonment is appropriate ...”

Forbes detailed to the court that O’Brien’s crimes “caused more than $5 million in losses in less than a year’s time to a dozen victims.”

“One of the victims is a single-mom with a couple children in college, another is a Virginia cattle farmer with a small farm who lost so much money and was so ashamed by his financial predicament that he could not, for a long time, bring himself to tell his wife about what the defendant had done,” Forbes wrote. “Many of the victims attempted to pursue claims in bankruptcy, a process that left some with unsatisfactory settlements, large legal fees and a sense, because of the perceived misconduct by other creditors, that they had not been treated fairly by the bankruptcy system.”

Other court documents prepared by O’Brien’s lawyer, Rodney Smith, indicated his client is offering more evidence as well.

“Mr. O’Brien is also providing assistance in the investigation of other individuals who were involved in illegal conduct with Mr. O’Brien,” Smith wrote. “Certain individuals as victims for purposes of restitution ... played an active role in Mr. O’Brien’s criminal conduct.”

Smith argued that a prison sentence of “less than 97 months” was appropriate under federal guidelines.

- - -

Henthorn’s Sept. 8 presentencing memorandum filed by Forbes clearly states criminal investigations in the matter are ongoing. Forbes also suggests to the court that a “six to 12 months” prison sentence is appropriate based on federal sentencing guidelines, but that could possibly be decreased because Henthorn has also provided more information to authorities.

“... the United States wishes to advise the court that it is considering, but has not yet committed to, filing a substantial assistance motion at some future date based on the defendant’s cooperation in the investigation of other individuals,” Forbes wrote. “If such a motion is made, any recommendation of a reduction in sentence will, of course, be commensurate with the value of the defendant’s assistance.”

Forbes also recommended a “substantial fine” for Henthorn.

Henthorn’s lawyer, James Cagle, asked the court to consider a mixed sentence which included home confinement.

In Garten’s case, both the United States and lawyer Michael Carey suggested federal guidelines suggested a six to 12 months sentence was appropriate.

Although probation can not be granted in any of these criminal cases, Carey argued that Garten should receive “community confinement” or “intermittent confinement” should be considered.

— E-mail:

cgiggenbach@register-herald.com