FORT SMITH - A U.S. District Court jury deliberated for an hour and 25 minutes Wednesday morning before acquitting Rogers attorney David Fisher of conspiracy to commit bank fraud in a case in which his three co-defendants pleaded guilty.
Fisher was accused of drawing up contracts in 2008 that misrepresented to First Federal Bank the value of land for the sale of which a $2.16 million loan was sought in a deal that kicked back $550,000 from the seller of the land to Fisher’s client.
An attorney for Fisher, Timothy Dudley of Little Rock, said after court that he was not surprised the jury of seven women and five men took so little time before returning with a verdict.
“I think the jury was very attentive to the evidence and reached a conclusion that the evidence dictated,” he said.
Dudley said Fisher and his family are elated and relieved by the verdict. In closing arguments, he told jurors that the label of criminal and the indictment were a living nightmare for the family.
“End the nightmare,” he asked jurors. “Tell the government they never should have filed this case.”
He also said he thought Fisher’s taking the stand in his own defense was crucial in winning his acquittal. Fisher was the only one who could explain what happened between himself and his developer client, the late Gary Combs, in the creation of the documents that were the basis for the conspiracy charge, he said.
The co-defendants in the case who pleaded guilty included former Northwest Arkansas developer Brandon Barber, who pleaded guilty in July to conspiracy to commit bank fraud. He also pleaded guilty to bankruptcy fraud and money laundering in a separate indictment.
Springdale builder Jeff Whorton pleaded guilty in August to conspiracy to commit bank fraud and money laundering. Developer Brandon Rains pleaded guilty last week to lying to agents of the FBI and Internal Revenue Service.
All three are awaiting sentencing.
U.S. Attorney Conner Eldridge said after the trial that he respected and accepted the jury’s verdict.
“Our job is to look at the facts, the evidence and the law and make a decision to present that to the grand jury and the jury,” he said. “And the jurors made their decision.”
Fisher testified Tuesday that he knew nothing of the conspiracy to defraud First Federal. No one told him that the value of the Executive Plaza property in Springdale was other than the $2.16 million he listed in the purchase agreement he drew up at Combs’ direction for the loan from the bank.
And he said he believed the contract he drew up at Combs’ request for a $550,000 payment from Whorton to Combs was separate from the Executive Plaza purchase agreement and not the kickback from the loan proceeds it turned out to be.
He said he first learned the payment was a kickback earlier this year when federal agents told him during questioning about the transaction.
None of the documents from the Executive Plaza deal that the government produced as evidence showed that Fisher knew about or willingly and voluntarily joined the conspiracy, Dudley said.
“Where is the evidence he knew it?” he posed to jurors during closing arguments. “Zero.”
Government attorneys told jurors in closing arguments that Fisher had to know about the conspiracy to commit bank fraud, and his claim that he didn’t know was a convenient excuse that lacked corroboration.
The loan grew out of a deal hatched by Barber to get rid of his mansion, of which he was in default on two mortgages totaling $1.6 million, according to the government. He asked Whorton to buy the mansion, but Whorton agreed only if Barber could find a buyer for his Executive Plaza property and find someone to finance the purchase.
Rains agreed to buy one lot and Combs agreed to buy the other five lots, one of which contained a partially constructed building. First Federal, which held the notes on Barber’s mansion, agreed to make the loan to finance the deal.
According to the government, Barber got rid of his mansion and got $314,000 from the loan. Whorton sold the Executive Plaza property, the bank bought his house and he got Barber’s mansion. Rains got $100,000 from the loan and Combs got the $550,000 in loan proceeds from Whorton.
Fisher testified that he got nothing from the transaction.
First Assistant U.S. Attorney Wendy Johnson told jurors in her closing argument that it was common sense that Fisher was in on the conspiracy. He met with Barber several times to work out details of the deal, he was Combs’ attorney, he drew up the documents for the deal and he attended the transaction closing with the bank, title company and the other parties.
“And he says he doesn’t know about this” plan to defraud the bank? she said.
She also pointed to an email that Barber had sent to Fisher after the Executive Plaza loan was completed asking him to send a copy of the “cash out” agreement that was used in the Executive Plaza deal.
She said it took Fisher 17 minutes to find the agreement and send it to Barber.
‘“Here you go,’” Johnson reminded jurors of Fisher’s response.
Eldridge, who gave the final closing argument for the government, told jurors that Fisher had included in the contract involving the $550,000 payment the clause that the payment would be made at the loan closing from proceeds of the loan.
He posed to jurors why Fisher would include that clause if the contract was separate from the purchase agreement? And if it was part of the loan deal, why did he not include it in the documents he sent to the bank?
Testimony during the trial indicated that the purchase agreement for the $2.16 million loan was forwarded to First Federal officials, but they never saw the contract for the $550,000 payment.
During the trial, Dudley questioned the accuracy of the incriminating reports FBI and IRS agents drew up from their interviews with Fisher earlier this year. Their reports could have been more accurate, he said, if they had recorded the interviews.
Fisher had testified that the reports left out some information he had given the agents and distorted other facts. He said he thought the agents approached him “with an agenda,” and heard what they wanted to hear.
Eldridge said he took such allegations as an insult to the government agents and federal attorneys who were doing their jobs to bring out the facts in the case. He said the officials didn’t take pleasure in prosecuting cases.
“It’s not a happy thing but it is what it is,” he said.
Arkansas, Pages 11 on 10/24/2013