State of Alabama’s Brief in Support of its Sentencing Recommendation for former Mayor of Lanett, Jonathan Kyle McCoy

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ELECTRONICALLY FILED
10/19/2021 1:57 PM
12-CC-2021-900001.00
CIRCUIT COURT OF
CHAMBERS COUNTY, ALABAMA
LISA BURDETTE, CLERK
DOCUMENT 22

IN THE FIFTH JUDICIAL CIRCUIT FOR THE STATE OF ALABAMA
CHAMBERS COUNTY

STATE OF ALABAMA,

v.  CASE NO. CC-2021-900001

JONATHAN KYLE MCCOY

Defendant.

State’s Brief in Support of its Sentencing Recommendation

The State of Alabama respectfully submits this brief in support of its sentencing
recommendation for Defendant Jonathon Kyle McCoy. This Court should sentence McCoy
to five years, split to serve two years in the county jail, because he abused a position of
public trust in multiple flagrant ways. Furthermore, McCoy does not deserve leniency,
either by seeking to minimize the harm he caused Lanett or by discounting the need for a
sentence that deters other would-be wrongdoers in government positions. For those
reasons, and because McCoy’s guilty pleas only came after the State informed him it
intended to indict him on additional charges related to other abuses of office, this Court
should sentence McCoy to jail time, not probation.

Case Background

A Chambers County grand jury indicted McCoy on three felony ethics charges on
February 16, 2021. Doc. 2. All three charges alleged that McCoy illegally used his official
position or office as the Mayor of Lanett for personal gain. Pursuant to a plea agreement,
McCoy pleaded guilty to counts one and two of the indictment, and the State dropped count
three. Docs. 18, 20. The felonies to which McCoy pleaded guilty are Class B felonies punishable by between two and twenty years and fines of up to $30,000 per offense. As
part of McCoy’s plea agreement, he agreed to pay $14,193.45 in restitution, which includes
the unlawful expenditures of City money discussed below in section four. The State did
not charge McCoy for this conduct; instead, the parties reached a plea deal.

Also as part of McCoy’s plea agreement, the State agreed that any custodial
sentence it recommended would be served in the county jail rather than the Alabama
Department of Corrections. The parties further agreed that the State may recommend that
McCoy serve up to two years of actual incarceration.

Factual Background

McCoy’s crimes violated a fundamental tenet of Alabama’s ethics laws: he served
himself rather than the people who elected him. For more than two years, McCoy used his
position as mayor to avoid paying $41,232.84 in utility bills to the City he ran. During that
time, employees who worked for McCoy produced a monthly cut-off list of addresses with
overdue utility payments. McCoy had six covered accounts that appeared on this list with
other individuals and families who could not pay their bills. Many, if not all, of the others
on this list owed the City much less money for a much shorter time than McCoy. No matter,
the City McCoy ran cut off their utility service, sometimes in the winter when it was cold,
sometimes in the summer when it was hot. But the City McCoy ran never once cut off his
utilities even as his bills kept increasing. For example, at his residence, McCoy went more
than thirty-three months without paying a single dime, but the mayor’s power stayed on.
In August 2019, McCoy did something other City residents could not: he directed a
City employee to remove his addresses from the City’s utility books. This meant McCoy
kept receiving services, but he no longer accrued late fees or mandatory minimums and no
longer appeared on the cut-off list. Over the next nine months, this move saved McCoy
more than $2,000. It also helped prevent questions about why the mayor was not paying
his bills. Finally, with an ethics complaint already pending against him, McCoy paid his
overdue balance in March 2020. To this day, though, McCoy has not paid the extra $2,000
he saved by removing his accounts from the City’s books.

At the same time McCoy opted not to pay utility bills, he also gave a City-owned
Chevrolet Tahoe to someone he lived with whom he later married. This man had no
governmental reason to drive a City-owned Tahoe, and he was not on the City’s insurance
plan. McCoy even arranged for the Tahoe to have an undercover tag rather than the required municipal tag for non-law-enforcement City vehicles. As a result, no one in the City would know that that the mayor’s significant other was driving a City-owned Tahoe.

This continued for seven months, until an investigator with the State Ethics Commission
questioned the man as to why he was driving a City vehicle with an undercover tag.

Argument

1. McCoy’s public-corruption crimes harmed Lanett and merit a custodial
sentence that deters other would-be wrongdoers in government positions.
McCoy pleaded guilty to intentionally and unlawfully using his position as mayor
to enrich himself. McCoy’s crimes were neither mistakes nor isolated incidents. To the
contrary, and as is often the case in white-collar crimes, McCoy “calculate[d] the financial
gain and risk of loss” inherent in both of the offenses to which he pleaded guilty.

See United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006). In other words, white-collar defendants like McCoy specifically weigh how much they stand to gain from their crimes against their likelihood of being caught and any possible punishment. This, of course, makes McCoy a more culpable defendant. And by extension, it makes this Court’s sentence all the more important as it stands to either deter or incentivize others who may weigh the potential punishment they would face for abusing a position of public trust.

Another reason that McCoy is more culpable—and thus more worthy of a
heightened punishment—is his elevated position in society. McCoy was a mayor and a
City Council member before that. That he knew how to get ahead in life and prosper makes
it that much worse that he still chose to break the law. “Criminals who have the education
and training that enables people to make a decent living without resorting to crime are
more rather than less culpable than their desperately poor and deprived brethren in crime.”
United States v. Stefonek, 179 F.3d 1030, 1038 (7th Cir. 1999) (emphasis added). Such is
the case with McCoy. He did not resort to crime due to money or drug problems; he chose
crime due to greed and hubris. He should be punished more severely for making that
voluntary choice and should be incarcerated to properly reflect on and reform his ways.

But reformation of McCoy is not the only reason to sentence him to a term of
incarceration. In Alabama, criminal punishments have a twofold purpose: “(1) reformation
of the convicted offender, and (2) a deterrent to others who might be disposed to commit
such a crime.” Rombokas v. State, 170 So. 780, 782 (Ala. App. 1936); Law v. State, 191
So. 803, 805 (Ala. 1939). The value of general deterrence is particularly salient in public corruption and other white-collar crimes. Courts have stated that it is specifically because
white-collar defendants calculate the risk versus the reward that “white collar crime
therefore can be affected and reduced with serious punishment.” Martin, 455 F.3d at 1240
(emphasis added). Put another way, “the crime of public corruption can be deterred by
significant penalties that hold all offenders properly accountable.” United States v. Spano,
411 F. Supp. 2d 923, 940 (N.D. Ill. 2006).

Equally important to this Court’s sentencing determination is the heavy cost that
public-corruption crimes like McCoy’s place on society. Unlike most property crimes,
which leave a single victim, “[p]ublic corruption . . . harms society as a whole.” United
States v. McNair, 605 F.3d 1152, 1216 (11th Cir. 2010). “A dishonest public official who
profanes his official trust may do more harm to our society than common criminals, and be
much more difficult to investigate and convict.” Baucom v. Martin, 677 F.2d 1346, 1351
(11th Cir. 1982). McCoy’s crimes harmed the City of Lanett and diminished citizens’
confidence in government. These effects will linger, even after McCoy is sentenced. But
one way to lessen their impact is to ensure that Alabamians know that the judicial system
will hold wrongdoers like McCoy accountable by imposing meaningful consequences.
When there are not “meaningful consequences for a breach of trust, [the public’s] trust is
no more than blind trust.” United States v. Morgan, 635 F. App’x 423, 450 (10th Cir. 2015).
Here, nothing short of incarceration will qualify as a meaningful consequence. Nothing
short of incarceration will ensure that Alabamians know that public corruption has real
consequences beyond the forfeiture of the very office that was abused and a restitution
payment plan to return the very money that should not have been taken.

McCoy will no doubt object, and he may claim that he has lost much as a result of
his indictment and conviction. But nothing that McCoy has suffered to this point qualifies
as a consequence of his sentence because this Court has not yet sentenced McCoy.
Likewise, that McCoy has lost his position as mayor and suffered some reputational harm
is not a basis to conclude that McCoy has suffered enough and should be given probation.
In United States v. Musgrave, the Sixth Circuit overturned as substantively unreasonable a
one-day prison sentence for a CPA convicted of fraud because the trial court improperly
focused on the collateral consequences of the defendant’s prosecution and conviction,
including the likely loss of his CPA license, his substantial legal fees, and his health issues.
The appellate court wrote: “None of these [consequences] are his sentence. Nor are they
consequences of his sentence; a diminished sentence based on these considerations does
not reflect the seriousness of his offense or effect just punishment.” 761 F.3d 602, 604 (6th
Cir. 2014). Put another way, focusing on collateral consequences improperly favors
privileged defendants like McCoy: “We do not believe criminals with privileged
backgrounds are more entitled to leniency than those who have nothing left to lose.” United
States v. Stall, 581 F.3d 276, 286 (6th Cir. 2009). McCoy’s advantages in life are not chips
to trade in exchange for leniency unavailable to other defendants.

2. McCoy did not accept any responsibility until the State told him he faced
another indictment on additional charges.

Moreover, McCoy deserves little to no credit for pleading guilty rather than going
to trial. While he saved the State the expense of a trial, McCoy did not do so for benevolent
reasons. As the State sees it, he did so because the State informed him that it would be
seeking a second indictment against him for other criminal wrongdoing that the State
uncovered after his first indictment. As with the first indictment (and discussed further
below) these charges related to ways that McCoy abused his position as mayor. Regardless,
credit for pleading guilty now is inappropriate because until McCoy learned that these
charges were coming, his own words showed him to be a man not just declaring his
innocence—a reasonable enough declaration—but a man dead set on casting himself as the
victim of a partisan witch hunt that he, the City, and its citizens would overcome together.
For example, when the State Ethics Commission found probable cause that McCoy violated
the law and sent his case to the Attorney General’s Office for further investigation, McCoy
lashed out, blaming politics and personal animus:

Today in Montgomery, the Alabama Ethics Commission determined
that probable cause exists that an ethics violation may have been committed
by me. These allegations have been made against me in an attempt to impugn
my character and to embarrass the City of Lanett. Unfortunately this is the
type scrutiny one must endure when they offer themselves to public service
especially during the political season. I look forward to the opportunity to
discuss this matter with the Attorney General’s office and present my
position as to any questions raised. I certainly do not agree even with the
inference of probable cause. We as a city will move forward from this and
not be deterred thereby. I will continue to hold myself to the highest standard
as I continue to serve the citizens of this great city.

Six months later, when a Chambers County grand jury indicted McCoy on three
felonies, he pulled from the same script: “I have proudly served as the Mayor of the City
of Lanett since October, 2015. As Mayor I have always held myself to the highest standard
to serve the citizens of Lanett. Today the Attorney General’s Office and others, have made
Alex Jones, Alabama Ethics Commission finds Lanett mayor may have committed ethics violation,

WSFA (Aug. 5, 2020), https://www.wsfa.com/2020/08/05/alabama-ethics-commission-findslanett-mayor-may-have-committed-ethics-violation. an attempt to destroy my character, embarrass the City, my family and the Citizens of Lanett, by bringing criminal charges against me. I emphatically deny any wrongdoing, and I will vigorously defend these charges. I will not be deterred by this, and I will continue to serve the citizens of this great city with integrity and let justice prevail.”

2. In the end, justice did prevail: McCoy is guilty. But let there be no confusion about what led to this result and how McCoy sought to damage the integrity of the judicial process along the way.

3. Alabama’s Sentencing Standards support a custodial sentence.
While the Alabama Sentencing Commission’s Presumptive Sentencing Standards
do not apply to McCoy’s ethics convictions, this resource is nonetheless helpful in
considering an appropriate sentence. Specifically, the sentencing standards include a list of
aggravating factors that courts may use to justify sentencing a defendant to prison instead
of jail or sentencing a defendant to a longer term of incarceration than would otherwise
apply to the conviction. Here, this Court should consider the following aggravating factors
as additional probative evidence against McCoy:

• The crimes involved multiple participants in the criminal conduct, and the defendant
played a major role in the crimes as a leader, organizer, recruiter, manager, or
supervisor;

• The defendant held public office at the time of the offenses, and the offenses were
related to the conduct of the office;

2 Carol Robinson, East Alabama mayor indicted on ethics violation charges, AL.COM (Feb. 16,
2021), https://www.al.com/news/anniston-gadsden/2021/02/east-alabama-mayor-indicted-onethics-violation-charges.html.

• The offenses involved a fiduciary relationship;

• The offenses involved the actual taking or receipt of property of great monetary
value; and

• The offense involved a high degree of sophistication or planning, occurred over a
lengthy period of time, involved multiple victims, or involved a single victim
victimized more than once.

See Ala. Sentencing Comm’n, Presumptive and Voluntary Sentencing Standards Manual
at 32 (2019). To the extent a mitigating factor might exist, it would not justify reducing
McCoy’s sentence to mere probation. For one, the aggravating factors significantly
outweigh any factors in mitigation. Two, the other probative evidence in this brief justifies
a custodial sentence. And three, the importance of general deterrence in public-corruption
cases cannot be understated.

4. This Court should consider McCoy’s other criminal acts as additional
probative evidence and order him to be incarcerated.

The above evidence alone justifies a period of incarceration for McCoy. But the
State intends to present additional probative evidence at the sentencing hearing of other
criminal acts by McCoy that show his disregard for Alabama’s ethics laws above and
beyond the charges of which he stands convicted. Alabama Rule of Criminal Procedure
26.5 provides that a sentencing court may consider any evidence it deems “probative,”
including the defendant’s character, background, and history, as well as any other facts in
aggravation of the penalty. McCoy may protest that none of this inconvenient evidence
should matter. He pleaded guilty to using his position to avoid paying tens of thousands of dollars in utility bills as well as to providing a City Tahoe to a family member in order to
benefit himself. But a sentencing hearing does not occur in a vacuum, particularly when
the defendant is a former public official who violated his oath of office. And a court is not
required to look only at the evidence the defendant handpicks.

Here, McCoy cannot disentangle the abuses to which he pleaded guilty from the
other abuses that are part and parcel of his criminal scheme and which bear on his
culpability and intent. Specifically, during the same time that McCoy decided utility bills
were beneath him and that City vehicles were his to disburse, he also used his position as
mayor to hire a young man he met online. But McCoy did not meet this man through a City
job posting; he met him through a Craigslist ad for adult services. In August 2018, McCoy
hired this man as a City intern, even though the City had no intern program, and no other
person was interviewed or considered for the position that did not previously exist.

Nonetheless, McCoy directed the young man to be paid more than $16.50 per hour, just six
cents less per hour than the highest paid City administrative employee. One year later,
McCoy promoted the man to a permanent employee for another position that did not
previously exist and which, once again, no other person interviewed for or was otherwise
considered. Nevertheless, more raises followed. Along the way, McCoy gave the man a
City vehicle and showered him in cash and gifts, paid for by the City of Lanett. McCoy
had his reasons for keeping this person employed until April 2021, but it was not to benefit
the City he was supposed to serve. In total, McCoy cost the City more than $100,000 in
order to serve his personal interests.

McCoy’s egregious outlays of City cash began with a check drawn on the City’s
account for $7,500 in May 2018—shortly after McCoy met the man online and shortly
before he hired him as an intern. McCoy authorized this check to be disbursed, claiming
the man had earned the money through a professional services contract. That was not true,
and there was no existing contract. The truth was the man needed money for a personal car, and McCoy used his position and the City’s money to help him. Later that year, McCoy
used a City credit card to purchase an Apple iPhone 10 and hundreds of dollars of clothing
from C.C. Prep and Patagonia. McCoy provided all these items as gifts to the young man
who was not aware that the City paid for everything. In 2019, the gifts continued: an Apple
watch and an iPhone 11 alone cost the City more than $2,000. While other City employees
had work phones, McCoy intentionally did not put the young man’s phones on the City
plan, which enabled McCoy to better hide his purchases from the City Council and others.
During the sentencing hearing, the State is prepared to present testimony linking
these actions to the crimes to which McCoy pleaded guilty. For example, as to count two,
when McCoy directed a City employee to remove his accounts from the utility cut-off list,
he did so less than one month before he placed the young man in a position with the City
where he could see whose names were on the cut-off list. Likewise, as to count one, when
McCoy gave a City Tahoe to a family member with no governmental purpose for having
the vehicle, he got that person an undercover tag rather than the standard—and required—
municipal tag. McCoy took the same approach with this young man, giving him a City
vehicle with an undercover tag and allowing him to travel to and from Prattville and
Auburn, where he was taking classes. No other City administrative employee received a
take-home vehicle, which helps explain the undercover tag. McCoy used undercover tags
so that the people of Lanett would not know that he was abusing City property for his own
interests.

* * *
In sum, McCoy’s actions show a man who flagrantly flaunted his position as mayor
and who saw little difference between the money and property that belonged to the City
and his own. Should McCoy claim that his actions were misunderstandings, mere mistakes,
or technical violations of the law, he will be mistaken. McCoy’s crimes go to the root of
Alabama ethics laws. Elected officials swear an oath to serve the people who elect them.
McCoy tarnished that sacred obligation to serve himself. The people of Alabama deserve
to know that his conduct comes with meaningful consequences. McCoy deserves jail time.
Conclusion

For the foregoing reasons, the State asks this Court to order Defendant Jonathon
Kyle McCoy to serve five years, split to serve two years in the Chambers County Jail. The
State further asks this Court to order McCoy to pay all required court costs and fees in
addition to the restitution order already agreed upon by the parties and ordered by the Court.

Respectfully submitted this 19th day of October, 2021.

Steve Marshall

Attorney General
s/ Kyle Beckman
Kyle Beckman
Assistant Attorney General

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