Case 7:19-cr-00312-LCB-HNJ Document 1 Filed 05/29/19 Page 1 of 18 FILED

2019 May-31 PM 01:36

U.S. DISTRICT COURT
N.D. OF ALABAMA

JET / JBW: June 2019

Grand Jury # 27

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

UNITED STATES OF AMERICA )

)
v. )
)
DAVID EUGENE ABSTON )

INDICTMENT

The Grand Jury charges:

Introduction

At all times material to this indictment:

The Pickens County Sheriff and the Pickens County Jail

1. Pickens County was a county located within the Northern District of

Alabama.

2. Defendant DAVID EUGENE ABSTON served as the sheriff of

Pickens County.

3. As sheriff of Pickens County, defendant DAVID EUGENE ABSTON

operated the Pickens County Jail, located in Carrollton, Alabama, within the

Northern District of Alabama.

4. As sheriff of Pickens County, defendant DAVID EUGENE ABSTON

was responsible for the care and custody of prisoners housed in the Pickens County

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Jail. That responsibility included the responsibility to feed the prisoners in the

Pickens County Jail. Alabama law provided that “[t]he sheriff of the county, except

as otherwise provided by existing laws, in person or by his deputy or jailer, shall

feed the prisoners in the jail under his jurisdiction in accordance with the terms of

this article.” Alabama Code § 14-6-40.

5. As a county sheriff responsible for overseeing a jail and feeding the

prisoners it housed, defendant DAVID EUGENE ABSTON was entitled by law to

a food allowance from the state of Alabama in a specified amount per prisoner per

day. See Alabama Code § 14-6-42.

6. Pickens County, through the Pickens County Commission, and

defendant DAVID EUGENE ABSTON entered into agreements with certain other

state and local governmental entities, pursuant to which Pickens County and

defendant DAVID EUGENE ABSTON agreed that the Pickens County Jail would

temporarily house prisoners in the custody of those entities, and those entities agreed

to pay Pickens County a specified amount per prisoner per day. Pickens County

entered into a similar agreement with the United States Marshals Service to

temporarily house individuals in pre-trial federal custody facing criminal charges in

federal court.

7. Pickens County entered into an agreement with defendant DAVID

EUGENE ABSTON authorizing defendant DAVID EUGENE ABSTON to

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receive a specified amount per prisoner per day as reimbursement and payment for

food and food preparation expenses for inmates housed pursuant to the agreements

described in paragraph 6.

8. Alabama law provided that a county sheriff was “entitled to keep and

retain . . . allowances and amounts received for feeding prisoners, . . . except in those

instances where the county commission directs such allowances and amounts to be

paid into the general fund of the county by proper resolution passed by said county

commission of said county . . . .” Alabama Code § 36-22-17. As a result of this

statute, some sheriffs in Alabama had a practice of retaining, as personal income,

any surplus from the allowances and amounts those sheriffs received for feeding

prisoners.

9. Defendant DAVID EUGENE ABSTON maintained and had signing

authority for certain bank accounts associated with the Pickens County Sheriff and

held at the West Alabama Bank and Trust. These accounts included an account in

the name of “Pickens County Sheriff General Fund,” with an account number ending

in 1308 (Sheriff General Fund account). These accounts also included an account

in the name of “Pickens County Sheriff, David Abston,” with an account number

ending in 9656 (Abston account).

10. During the period between 2014 and 2018, the Sheriff General Fund

account received deposits of hundreds of thousands of dollars from the state of

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Alabama as a food allowance for inmates housed in the Pickens County Jail. During

that period, the Sheriff General Fund account also received deposits of hundreds of

thousands of dollars from the Pickens County Commission, which the Pickens

County Commission had received from governmental entities pursuant to contracts

described in paragraph 6 and had paid to defendant DAVID EUGENE ABSTON

pursuant to the agreement described in paragraph 7.

11. Between 2014 and 2018, more than $400,000 from the Sheriff General

Fund account was deposited in the Abston account. The Sheriff General Fund

account was the primary source of funds deposited into the Abston account during

this period.

The West Alabama Food Bank

12. The West Alabama Food Bank (WAFB) was a non-profit corporation

based in Tuscaloosa, Alabama, with tax-exempt status under section 501(c)(3) of the

Internal Revenue Code. WAFB was a partner distribution organization of Feeding

America, a non-profit organization with the stated mission of feeding America’s

hungry through a nationwide network of member food banks and engaging America

in the fight to end hunger. WAFB’s stated mission was to help alleviate hunger and

food insecurity in nine West Alabama counties. WAFB collected donations of food,

which it then distributed to partner agencies such as churches, soup kitchens, and

food pantries.

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13. WAFB received donations from various sources, including the United

States Department of Agriculture (USDA).

14. To become a WAFB partner agency, an organization was required to

submit an application stating that it was a nonprofit 501(c)(3) organization (or the

equivalent), and to maintain records of who received food from the organization.

These records were subject to inspection by WAFB. A representative of the

organization was required to sign a contract with WAFB stating that the food would

be distributed only in accordance with WAFB policy. The criteria for an

organization’s participation in WAFB included a requirement that the organization

use food from WAFB solely for the feeding of the ill, the needy, or infants.

15. WAFB provided food to its partner agencies for free, except for a

nominal maintenance fee of $.18 per pound of food collected.

The Highland Baptist Church Food Pantry

16. Highland Baptist Church was a church located in Gordo, Alabama.

17. Defendant DAVID EUGENE ABSTON lived in Gordo, Alabama, and

was a member of Highland Baptist Church.

18. In or about April 2014, defendant DAVID EUGENE ABSTON

submitted an application to WAFB requesting that Highland Baptist Church serve

as a partner agency of WAFB.

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19. In or about May 2014, Highland Baptist Church held a business

meeting. Church members attended the meeting. At the meeting, defendant DAVID

EUGENE ABSTON requested authorization to establish, on behalf of Highland

Baptist Church, a bank account to be used for a church food pantry with WAFB.

That proposal was approved.

20. In or about July 2014, defendant DAVID EUGENE ABSTON caused

a bank account to be opened at First National Bank of Central Alabama (FNB) in

the name of Highland Baptist Church Food Pantry, with an account number ending

in 3930 (Church Food Pantry account). Defendant DAVID EUGENE ABSTON

had signing authority for the Church Food Pantry account at FNB.

21. Between 2014 and 2018, defendant DAVID EUGENE ABSTON

wrote or caused to be written checks drawn on the Abston account and made payable

to the Church Food Pantry account totaling more than $50,000. Defendant DAVID

EUGENE ABSTON caused those checks to be deposited in the Church Food Pantry

account. The Abston account was the primary source of funds deposited into the

Church Food Pantry account during this period.

22. Between 2014 and 2018, defendant DAVID EUGENE ABSTON

caused to be written checks drawn on the Church Food Pantry account and made

payable to WAFB totaling more than $50,000, pursuant to the agency agreement

between WAFB and the Highland Baptist Church Food Pantry, in exchange for food.

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23. Defendant DAVID EUGENE ABSTON used a significant portion of

that food to feed inmates at the Pickens County Jail—not to feed infants or the ill or

needy in the counties WAFB served.

24. Defendant DAVID EUGENE ABSTON concealed from WAFB the

fact that he was distributing food to inmates at the Pickens County Jail that had been

purchased, through the Church Food Pantry account, from WAFB.

COUNTS ONE through SEVEN

Wire Fraud
Title 18, United States Code, Section 1343

25. The factual allegations of paragraphs 1 through 24 of this indictment

are re-alleged as though fully set forth herein.

26. From in or about 2014 and continuing to in or about 2018, more exact

dates being unknown, in Pickens County within the Northern District of Alabama

and elsewhere, defendant

DAVID EUGENE ABSTON

knowingly devised and intended to devise a scheme and artifice to defraud WAFB

and others, and to obtain money and property by means of materially false and

fraudulent pretenses, representations, and promises.

Purpose of the Scheme and Artifice

27. It was a part of the scheme and artifice that defendant DAVID

EUGENE ABSTON intended to and did purchase food from WAFB for the purpose

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of feeding inmates in the Pickens County Jail.

28. It was a further part of the scheme and artifice that defendant DAVID

EUGENE ABSTON concealed from WAFB that he intended to and did use food

purchased from WAFB to feed inmates in the Pickens County Jail.

29. It was a further part of the scheme and artifice that, because WAFB

would sell food only to churches or charitable organizations that WAFB had

accepted as partner agencies, defendant DAVID EUGENE ABSTON intended to

and did use a church food pantry to purchase food from WAFB for the purpose of

feeding inmates in the Pickens County Jail.

30. It was a further part of the scheme and artifice that, at a Highland

Baptist Church business meeting in or about May 2014, defendant DAVID

EUGENE ABSTON requested authorization to establish, on behalf of Highland

Baptist Church, a bank account to be used to purchase food for a church food pantry.

31. It was a further part of the scheme and artifice that, at a Highland

Baptist Church business meeting in or about May 2014, defendant DAVID

EUGENE ABSTON requested the authority to write checks on the account

described in paragraph 30.

32. It was a further part of the scheme and artifice that defendant DAVID

EUGENE ABSTON concealed from Highland Baptist Church members that he

intended to and would use the Highland Baptist Church food pantry to obtain food

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from WAFB for a purpose not permitted by WAFB policies. Specifically, defendant

DAVID EUGENE ABSTON concealed from Highland Baptist Church members

that WAFB required partner agencies to use the food they obtained from WAFB

solely to feed the ill, the needy, or infants.

33. It was a further part of the scheme and artifice that, in or about July

2014, defendant DAVID EUGENE ABSTON caused a bank account to be opened

at FNB in the name of Highland Baptist Church Food Pantry.

34. It was a further part of the scheme and artifice that defendant DAVID

EUGENE ABSTON would have the authority to write checks on the Church Food

Pantry account at FNB.

35. It was a further part of the scheme and artifice that, in or about April

2014, defendant DAVID EUGENE ABSTON submitted to WAFB an Agency

Agreement Form on behalf of Highland Baptist Church that contained material

misrepresentations and omissions.

36. The Agency Agreement Form included the question “Please describe

your general program in the space below.” The form that defendant DAVID

EUGENE ABSTON submitted to WAFB contained the following response: “Food

Pantry Help feed poor. Feed children from disadvantage [sic] and poor

neighborhoods.”

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37. The Agency Agreement Form included the question “What are your

eligibility guidelines?” The form that defendant DAVID EUGENE ABSTON

submitted to WAFB contained the response “unemployed, sickness, poverty.”

38. The Agency Agreement Form included the question, “What proof of

need do you ask for?” The form that defendant DAVID EUGENE ABSTON

submitted to WAFB contained the response, “Knoledge [sic] of neighborhood and

intense investigation through police and sheriff.”

39. The Agency Agreement Form that defendant DAVID EUGENE

ABSTON submitted to WAFB did not disclose that defendant DAVID EUGENE

ABSTON intended to use food obtained from WAFB through the Highland Baptist

Church Food Pantry to feed inmates in the Pickens County Jail.

40. The Agency Agreement Form included the question, “What are your

funding sources?” The form that defendant DAVID EUGENE ABSTON submitted

to WAFB contained the response “Donations.”

41. The Agency Agreement Form that defendant DAVID EUGENE

ABSTON submitted to WAFB did not disclose that the primary source of funds for

the Church Food Pantry account was money defendant DAVID EUGENE

ABSTON had received from the state of Alabama and other governmental entities

for feeding inmates in the Pickens County Jail.

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42. It was a further part of the scheme and artifice that, in or about April

2014, defendant DAVID EUGENE ABSTON signed a WAFB Release form in

which he warranted, represented, and guaranteed that the Highland Baptist Church

Food Pantry would “use the items [of food] only in a use related to its exempted

purposes and solely for the feeding of the ill, the needy or infants.”

43. It was a further part of the scheme and artifice that defendant DAVID

EUGENE ABSTON signed other WAFB Release forms on later dates containing

warrants, representations, and guarantees materially identical to those described in

paragraph 42.

44. It was a further part of the scheme and artifice, that, in or about April

2014, defendant DAVID EUGENE ABSTON signed a USDA Commodity

Agreement with WAFB in which he agreed that his “recipient agency” would

“[d]istribute commodities only to households whose eligibility is determined in

accordance with the USDA eligibility criteria scale provided to the recipient agency

by the WAFB.”

45. It was a further part of the scheme and artifice that defendant DAVID

EUGENE ABSTON concealed from WAFB that he intended to, and did, use food

obtained from WAFB through the Highland Baptist Church Food Pantry for uses

other than the feeding of the ill, the needy or infants—namely, to feed inmates in the

Pickens County Jail.

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46. It was a further part of the scheme and artifice that defendant DAVID

EUGENE ABSTON wrote or caused to be written checks totaling more than

$50,000 that were drawn on the Abston account and made payable to the Church

Food Pantry account.

47. It was a further part of the scheme and artifice that defendant DAVID

EUGENE ABSTON caused the checks described in paragraph 46 to be deposited

in the Church Food Pantry account.

48. It was a further part of the scheme and artifice that defendant DAVID

EUGENE ABSTON obtained food from WAFB through the Highland Baptist

Church Food Pantry.

49. It was a further part of the scheme and artifice that defendant DAVID

EUGENE ABSTON used funds from the Church Food Pantry account to pay the

nominal fee of $.18 per pound of food obtained from WAFB.

50. It was a further part of the scheme that, between 2014 and 2018,

defendant DAVID EUGENE ABSTON paid WAFB more than $50,000, using

checks drawn on the Church Food Pantry account, to obtain food from WAFB

pursuant to the agency agreement between WAFB and the Highland Baptist Church

Food Pantry.

51. It was a further part of the scheme that defendant DAVID EUGENE

ABSTON used food obtained pursuant to the agency agreement between WAFB

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and the Highland Baptist Church Food Pantry to feed inmates in the Pickens County

Jail.

The Wire Communications

52. On or about the date listed below for each count, in Pickens County in

the Northern District of Alabama, and elsewhere, defendant

DAVID EUGENE ABSTON,

for the purpose of executing the above-described scheme and artifice and attempting

to do so, did cause to be transmitted in interstate commerce, by means of a wire

communication, certain signs and signals, that is, defendant DAVID EUGENE

ABSTON caused an interstate communication between Alabama and another state

to be made by depositing checks drawn on the Abston account, in the amounts

described below, on or about the dates described below, into the Church Food Pantry

account at FNB.

Count Date Check Number Amount

(on or about)

1 1/14/2015 9195 $2,000

2 3/26/2015 9287 $3,000

3 7/15/2015 9440 $3,500

4 2/10/2016 9666 $1,500

5 5/3/2016 9741 $2,000

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Count Date Check Number Amount

(on or about)

6 8/22/2017 10148 $2,000

7 10/4/2017 10195 $3,000

All in violation of Title 18, United States Code, Section 1343.

COUNT EIGHT
Making and Subscribing False Tax Return
Title 26, United States Code, Section 7206(1)

53. The factual allegations of paragraphs 1 through 52 of this indictment

are re-alleged as though fully set forth herein.

54. During the 2015 calendar year, defendant DAVID EUGENE

ABSTON received more money to feed inmates in the Pickens County Jail than

defendant DAVID EUGENE ABSTON spent to feed inmates in the Pickens County

Jail.

55. Defendant DAVID EUGENE ABSTON used some of the surplus food

allowance money he received during the 2015 calendar year to pay personal

expenses.

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56. On or about April 5, 2016, in Pickens County within the Northern

District of Alabama and elsewhere, defendant

DAVID EUGENE ABSTON

did willfully make and subscribe an Internal Revenue Service (IRS) tax return for

calendar year 2015, which was verified by a written declaration that it was made

under the penalties of perjury and which he did not believe to be true and correct as

to every material matter. That Individual Income Tax return, Form 1040, which was

prepared and signed in the Northern District of Alabama and was filed with the IRS,

stated that defendant DAVID EUGENE ABSTON received $67,242 in joint taxable

income for 2015, for which the tax liability was $9,161, when in truth, as the

defendant well knew, his joint taxable income for 2015 was substantially greater

than that amount.

All in violation of Title 26, United States Code, Section 7206(1).

COUNT NINE
Making and Subscribing False Tax Return
Title 26, United States Code, Section 7206(1)

57. The factual allegations of paragraphs 1 through 52 of this indictment

are re-alleged as though fully set forth herein.

58. During the 2016 calendar year, defendant DAVID EUGENE

ABSTON received more money to feed inmates in the Pickens County Jail than

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defendant DAVID EUGENE ABSTON spent to feed inmates in the Pickens County

Jail.

59. Defendant DAVID EUGENE ABSTON used some of the surplus food

allowance money he received during the 2016 calendar year to pay personal

expenses.

60. On or about March 21, 2017, in Pickens County within the Northern

District of Alabama and elsewhere, defendant

DAVID EUGENE ABSTON

did willfully make and subscribe an Internal Revenue Service (IRS) tax return for

calendar year 2016, which was verified by a written declaration that it was made

under the penalties of perjury and which he did not believe to be true and correct as

to every material matter. That Individual Income Tax return, Form 1040, which was

prepared and signed in the Northern District of Alabama and was filed with the IRS,

stated that defendant DAVID EUGENE ABSTON received $62,565 in joint taxable

income for 2016, for which the tax liability was $8,459, when in truth, as the

defendant well knew, his joint taxable income for 2016 was substantially greater

than that amount.

All in violation of Title 26, United States Code, Section 7206(1).

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NOTICE OF FORFEITURE
Title 18, United States Code, Section 981(a)(1)(C) and Title 28, United States
Code, Section 2461(c)

1. The allegations contained in counts 1 through 7 of this indictment are

hereby re-alleged and incorporated by reference for the purpose of alleging

forfeitures pursuant to Title 18, United States Code, Section 981(a)(1)(C), and Title

28, United States Code, Section 2461(c).

2. Upon conviction of the offenses in violation of Title 18, United States

Code, Section 1343, set forth in counts 1 through 7 of this indictment, defendant

DAVID EUGENE ABSTON

shall forfeit to the United States of America, pursuant to Title 18, United States

Code, Section 981(a)(1)(C), and Title 28, United States Code, Section 2461(c), any

property, real or personal, which constitutes or is derived from proceeds traceable to

the offenses.

3. If any of the property described above, as a result of any act or omission

of the defendant:

a. cannot be located upon the exercise of due diligence;

b. has been transferred or sold to, or deposited with, a third party;

c. has been placed beyond the jurisdiction of the court;

d. has been substantially diminished in value; or

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e. has been commingled with other property which cannot be

divided without difficulty,

the United States of America shall be entitled to forfeiture of substitute property

pursuant to Title 21, United States Code, Section 853(p), as incorporated by Title

18, United States Code, Section 982(b)(1), and Title 28, United States Code, Section

2461(c).

A TRUE BILL

/s/Electronic Signature

FOREPERSON OF THE GRAND JURY

JAY E. TOWN
United States Attorney

/s/Electronic Signature

JOHN B. WARD
Assistant United States Attorney

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