I have had little to say about the legal plight of Little Rock attorney Alvin Clay for a couple of months now.  Nonetheless, the story attracts several dozen hits on our website every day.  A lot of you want to know what happens next.

The wheels of justice grind slowly.  During the trial in early June, I provided you with a blow-by-blow account, emphasizing that the Government’s case was entirely dependent on the testimony of a single, highly compromised witness, Donny McCuien. 

Alvin Clay has filed a motion for a new trial.  To save money, he wrote the motion himself, arguing that not a single witness testified at trial that Alvin Clay had personal knowledge of the fraudulent loan documents produced by Ray Nealy.

Clay asserts that the Government had to prove three things to the jury beyond a reasonable doubt.  1. That there was an agreement between Ray Nealy, Donnie McCuien and Alvin Clay to achieve an illegal purpose; 2. that Alvin Clay had personal knowledge of such an agreement; and 3. that Alvin Clay knowingly participated in the conspiracy.  Clay summarizes his argument like this:

“Alvin Clay asserts to this court that the admissible and credible evidence at trial was insufficient to support a conviction to commit wire fraud.  And further that there was no credible evidence worthy of consideration by the jury presented by the Government to prove that he knowingly joined a conspiracy to launder money . . . Clay asserts that the verdict is contrary to the weight of evidence and that this court should outright acquit or order a new trial.”

Further, “In light of McCuien’s testimony and the absence of any other evidence, there is simply no evidence from which one could conclude that Alvin Clay participated in a conspiracy or otherwise knew that the proceeds in issue were derived from criminal activity.”

A glance at the transcript of Donny McCuien’s testimony demonstrates the force of Clay’s argument.  When first questioned, McCuien told the Government that Alvin Clay paid him for subcontracting rehab work on the five properties in question.  McCuien said he figured that Clay and Ray Nealy split up the rest of the money paid to Clay construction, but he had no first-hand knowledge that this happened.

By the time of trial, the Government’s star witness had changed his story.  In the new version, McCuien accompanied Clay and Nealy to the bank after every deal closed.  There they would split up the proceeds.  As I have reported elsewhere, McCuien testified at trial that he never intended to do any rehab work, that he owned no construction tools, that he had never done any construction work for anyone, and that Alvin Clay was aware of these facts.

In rebuttal, Alvin Clay’s defense team produced witnesses who testified that McCuien owned construction tools, that he had performed rehab work on several properties other than those in question at trial, and that significant rehab work had been performed on the five properties named in the indictment.

McCuien testified the way the Government told him to testify.  His reward: a sweetheart deal.  Clay is arguing that, even if you take McCuien’s testimony at face value, the fast food manager never suggested that Alvin Clay had personal knowledge of fraudulent loan documents–the central allegation the Government had to prove beyond a reasonable doubt.

The transcript of McCuien’s testimony runs to 106 pages, but here is the salient quote.  McCuien admitted that he told prospective home buyers that they would get a kick-back after the deal closed.  Clay’s attorney then asked, “You told them they were going to get money, but you don’t know how it worked?”

Check out McCuien’s response: “No, I don’t know how it worked because I am not a loan–I am not in the mortgage game of doing the loans or nothing like that.  All I know is I found the buyers that wanted to buy and make money, and I give them to Ray Nealy so he can do the financing.”

Did you catch that?  Donny McCuien told the jury that he had no personal access to the fraudulent loan documents that Ray Nealy prepared.  This raises an obvious question: if McCuien didn’t see the fraudulent loan documents, how could he know if Alvin Clay saw them?

There are only two witnesses who could testify intelligently on that question: Ray Nealy and Alvin Clay.  Clay testified repeatedly at trial that he had no personal knowledge of the loan documents Ray Nealy prepared.  Nealy has yet to testify.

You see the problem.  Not a single witness suggested that Alvin Clay possessed the personal knowledge on which this case hinges.  A jury can make inferences from the testimony presented at trial, but jurors are not free to speculate in the complete absence of actual testimony. 

The jury (as juries are prone to do) believed that Alvin Clay was in on Ray Nealy’s scheme because the Government of the United States seemed to believe it.  Since federal prosecutors had spent several years going over this stuff they must know what they are talking about, right?  Besides, Alvin Clay was paid what would amount to half a year’s salary for most people without lifting a finger.  That’s not right.

Although the Government repeatedly reminded the jury that Clay got something for nothing, that fact was legally irrelevant.  Bill Clinton commands hundreds of thousands of dollars for making a single speech.  Michael Phelps will get millions of dollars for signing his name to a simple contract.  This is America folks; the place where CEO’s get the big bucks for firing people and shipping jobs overseas.  There is nothing illegal (or even improper) about allowing a business associate to use your contractor’s license.

Alvin Clay didn’t see Ray Nealy’s fraudulent loan documents for the same reason he didn’t inspect the properties Nealy insisted had been rehabbed by McCuien–he didn’t have the time.  When you run a full-time law practice while supervising six real estate agents, you don’t have the luxury of perusing deals in which you are only peripherally. 

It could be argued, of course, that Alvin Clay had no business biting off more business than he could chew.  Clay wouldn’t argue; but getting in over your head isn’t illegal, it is simply unwise.

This isn’t a question of whether you believe Clay or whether you believe the Government.  The Government told Donny McCuien how to testify and then pretended to believe him, even though, like you and me, they had no way of distinguishing fact from fiction.  The Government guessed, and not intelligently.  Basing a conclusion on the word of a scamp like McCuien isn’t just arbitrary, it is dangerous.

Hence my questions about the Government’s motivation in this case.

Everything depends on how Judge Leon Holmes makes of all this.  He now sits as the 13th juror and is perfectly capable of vacating the conviction and ordering a new trial.  That is precisely what federal judge Tucker Melancon did when Ann Colomb and her sons were falsely accused of selling over $500,000 of crack cocaine every month to convicted drug dealers.  Fortunately, Friends of Justice cried foul.

As Radley Balko reported a few months ago,

The family was released from prison when it was revealed that the jailhouse witnesses in the case had participated in an information sharing network within the federal prison system. Inmates were sharing photos, case summaries, and even grand jury testimony about pending cases, memorizing the information, then offering to testify in exchange for breaks on their own prison terms.

U.S. Attorney Donald Washington’s office had been made aware of this network in a prior conspiracy case, yet his subordinates went on to ask some of the same witnesses to testify in the Colomb case. Even after the extent of the network was revealed in the Colomb trial, federal prosecutors attempted to use some of them again in yet another federal drug case.

In other words, federal prosecutors sometimes use witnesses they can’t trust.  Most US Attorneys wouldn’t have touched the Colomb case, but Mr. Washington trusted Assistant US Attorney Brett Grayson to make the right call.  Unfortunately, as Grayson admitted in open court, he had no idea if his witnesses were telling the truth; that was for the jury to determine.

The same kind of unconstitutional reasoning is at work in the Clay case.  “Maybe McCuien is lying,” the feds are saying, “and maybe he’s just telling us what we want to hear.  Who cares?  If we can get a conviction, let’s go for it.”

Why would the federal government want to play such a dangerous guessing game? 

But there’s more . . .  

A few months ago I reported that the federal government has been offering lenient treatment to the drug defendants Alvin Clay has represented over the years.  The offer should be familiar to any regular reader of this Blog: “tell us what we want to hear and we’ll be nice; tell us what we don’t want to hear and we’ll be nasty”.

When I talked to several young men who had been subjected to this harrowing ordeal I knew it was just a matter of time before some wretched soul took the bait.  A few weeks ago, the feds told Alvin Clay that if he would confess to being part of the Nealy conspiracy they were willing to offer him probation (no prison time); moreover, they wouldn’t proceed with a drug-related indictment. 

Alvin Clay, being a self-respecting American, told the feds to take a one-way trip to the fires of perdition. 

Like they say, the Devil plays hardball and wears a three-piece suit.