Friday, February 24, 2017

Ben Allen asks court to toss verdict

Ben Allen filed a motion for a j.n.o.v.* in Hinds County Circuit Court Wednesday. A jury convicted Mr. Allen of one count of embezzlement of Downtown Jackson Partner funds. He is the Executive Director of the business improvement district. The jury acquitted him on nine other counts of embezzlement. The motion states:



1. The embezzlement verdict in Count 4 was against the overwhelming weight of the evidence. Embezzlement cannot occur when the supposed victim voluntarily approves of the use of the property. In the present case, according to the Indictment, Downtown Jackson Partners (“DJP”) was the owner of the property. DJP consented to Mr. Allen having a phone line for his wife. The testimony was uncontroverted that Mr. Allen reimbursed DJP under their approved procedure. Both the investigation by Board Attorney Robert Gibbs and the Board of DJP found as a fact that Mr. Allen had fully reimbursed DJP. Therefore, there can be no embezzlement....

3. Mr. Allen was indicted for embezzlement under Miss. Code Ann., § 97-11-25. This Code Section deals with public officials, trustees, or lawyers, none of which applies to Mr. Allen. Mr. Allen specifically incorporates the Motion to Dismiss, the exhibits attached thereto, the hearing, and the motion for a directed verdict argument in support of this point. The Indictment against Mr. Allen was void, and therefore, the verdict must be overturned because Mr. Allen cannot be convicted for allegedly violating a statute that does not apply to him.

4.The Trial Court erred by allowing, over objection, the undisclosed testimony of Councilman Kenneth Stokes. This last minute production of this witness, which the prosecution was fully aware of before trial, was a violation of discovery. Mr. Allen has a constitutionally protected right to voir dire the jury to determine which members of the panel might have known Mr. Stokes and this right was denied.

5. Additionally, Mr. Stokes’ testimony was improper rebuttal testimony. Mr. Stokes gave improper opinion testimony that the assessment collected by DJP was a “tax”. Councilman Stokes was not tendered or accepted as an expert under M.R.E., Rule 702. No report was provided to Mr. Allen’s attorneys prior to trial. If Mr. Stokes is an expert, then the Rules required a report prior to his testimony. If not an expert, then his testimony was improper under Rule 701. If offered as an expert, then Mr. Allen should have been offered his expert report prior to trial. In no event was Mr. Stokes’ testimony proper rebuttal testimony. The Mississippi Supreme Court has consistently held that the prosecutor cannot withhold for rebuttal evidence that which should be brought in its case-in-chief.

6. The Trial Court erred by allowing the State to argue that DJP was dealing with “public money”or that the “assessment” collected by DJP was a “tax”. The indictment clearly alleged that the money in Count 4 was the property of DJP, a private non-profit corporation. The proof was unconverted that DJP is a private corporation. The employees were private employees, a fact admitted to by the State’s own witness, Melissa Patterson. DJP was in no way affiliated with a public agency or subdivision of the State, County or City. Further, the indictment never mentions that the money in question was a “tax”. In fact, this issue was clearly addressed in McGowan v. Capital Ctr., 19 F. Supp2d 642 (S.D. Miss. 1998) a case in which both the City of Jackson and the State of Mississippi argued that the assessment collected by Business Improvement Districts was not a tax but rather an assessment. Judge Tom S. Lee
ultimately held that the money collected was not a tax.....

Mr. Allen is scheduled to be sentenced on March 8.  District Attorney Robert Shuler Smith has not filed a response to this motion.


*judgment non obstante veredicto. A j.n.o.v. takes place when a judge believes there is no factual basis for a jury verdict and reverses the verdict.





25 comments:

Anonymous said...

I'm still in awe that this case could even happen. I did my own research on business improvement districts and everything I read was that the money is not public money but a voluntary assessment. The money is under the governance of the board of the entity administering the improvement district. The attorney representing that board states that all transactions were authorized. While the embezzling assistant is shielded from accountability for her theft as a whistleblower of absolutely nothing of consequence. The only person with standing to file charges was the board. There were denied justice for the embezzlement and subjected to witch hunt and sham prosecution. Whistleblower protections are not intended to protect a criminal. RSS must stand for ridiculous $h!+ show.

Anonymous said...

This is a no brainer, throw this thing out and be done with it. This is tantamount to employees taking pens and paper home for personal use. If you have not done this, either on purpose or accidentally, then feel free to reply. There is one caveat, you must have at least one time held a job.

Anonymous said...

SMOKESCREEN! SMOKESCREEN! and I call BS on RSS!

Smith's intent from the very beginning was and still is, trying to kick up enough dust and create enough smoke to take the spotlight off of himself. Doesn't take a rocket scientist to see that! Kick this ridiculous show out of court and let everyone get on with their lives! Focus on some real problems and there are many!!!!

Anonymous said...

As a matter of law and fact, this conviction should be tossed.

Anonymous said...

The whole system is broken from top to bottom. Here is a comment from CSPAN about the 2009 book "Three Felonies a Day"--and this concentrates on the federal side. https://www.c-span.org/video/?289272-1/three-felonies-day

It's scary, and Ben Allen, along with many others, are wrongly on the short end of this stick. The gripes about Judge Tommie Green in other posts seem legit on their face, but consider this: at a recent docket call just for criminal cases, Judge Green had 510 indictments on her docket-and the majority seemed to be 2015 and 2016 cases. What is she supposed to do? Would you rather she recognize the [supposedly] mandatory 270-day rule, and just dismiss everything that does not go to trial in 270 days when the defendant never asks for a continuance? Those guilty pleas and suspended sentences would not look so bad if judges actually applied the 270 day rule and also applied the separate constitutional right to a speedy trial and started dismissing cases.
What if Judge Green, hypothetically, had to try every case? If trials averaged 3 days, generously assuming 250 trial days per year, she could try 83 cases in one year--which in this hypothetical example leaves 427 unresolved indictments--which would not include the new indictments that would come down during this hypothetical year, and would not include the hundreds of indictments that are probably on the other circuit judges' dockets. Of course, this does not even consider the time-consuming civil cases that are in the system.
We all have our faults, including the people who operate in this system, but the system is broken, from top to bottom.

Anonymous said...

This will be reversed on appeal when the trial judge denies this motion.

The real travesty will be if the judge does not let Allen remain out on bond pending appeal.

Matt....sell the pretty house and move to another county.

"Old" Jackson business owners need to flee....new owners be wary....there is a new mafia in town....and instead of "Dons" its "Tyrones"

Just a Minor Correction.. said...

9:50 - You must know that 'whistleblower' statutes, to which you allude several times, would not apply to the entity upon which you based your diligent research. If the entity is not governmental in any way and they're not under the auspices of the Federal Trade Commission, there is no whistleblower protection.

She may have been given immunity, however. Why would you base your post on your extensive personal research and include in it twice an irrelevant statute?

Anonymous said...

Really? Po' Tommie is overworked? Let me guess, she lenient to blacks convicted in her court room of violent crimes because she's all stressed out from her docket backlog?

The gripes about Judge Tommie Green are legit on their face.

Anonymous said...

Attn 11:47 I am asking, not commenting, so take this as a question. Has Ben Allen at any time been in jail for these allegations? Thx

Anonymous said...

12:08 - you are correct, but the fact is the crazy embezzler was given 'whistleblower protection'. Read the record of the trial. Read RSS's various comments, and her arguments in Madison County about why should would not show up for a trial. Yes, the individuals involved didn't bother to worry about the law - obviously based on the fact there was a trial.

Anonymous said...

WHO WILL RSS GO AFTER NEXT?!?! Who? Who will be the next target of his corrupt office. Be careful.... if you try to be a leader in the City of Jackson it might be you.

Anonymous said...

Anybody with a lick of sense knows why the "DA DA" RSS presented Stokes as a "Hail Mary" rebuttal witness. Pure and unadulterated race card. Period. ridiculously obvious. He was getting his clock cleaned in trial and pulled that obvious stunt for obvious reasons.

Anonymous said...

2:14; Call it what you will, but 'Whistleblower' is a legal term that does not apply here or in her case.

Anonymous said...

I am quite sure DJP will be seeking a criminal indictment against the woman embezzler, as new indisputable evidence has been presented. RSS won't prosecute, but several other avenues can. The civil trial n MADCO will become irrelevant.

Anonymous said...

5:48- I know. You are legally correct. But read all the pleadings in the related case - the embezzler was granted "whistleblower". I know it can't be done, but you must remember, this is RSS and Stacey Pickering we are dealing with here. They did it. While you are correct that it does not apply here or in her case, but evidently RSS missed that class at law school, or else something had addled his brain since he finished.

Anonymous said...

This is Ben's reward from the City of Jackson for helping to improve things. Jackson deserves what it's getting, Ben does not. Hope this will get thrown out somewhere along the way.

Anonymous said...

I bet Ole Ben will get his wife her own cell-phone account after he pays all his legal bills. Well, if by then his credik checks out.

Anonymous said...

REWARD? 9:42 When you show one thing that Ben has done for Jackson, I will fill every pothole on my street....and yours. Methinks Judge ain't gone throw nothing out because he's pissed off for having so many incidents pointed out of having "erred" during this trial. Nice job Buddy. And someone please tell me about Ben's kid attacking the DA in the courthouse lobby after the verdict was read. Class act there. As for 12:08 - if DJP had an attorney worth a damn, the case in Madison might have had a little merit. It appears the woman representing herself has prevailed thus far. Maybe DJP should try to get her to come back as their legal counsel.

Anonymous said...

Tacky 1:11

Anonymous said...

How can the truth be classified as tacky? That's an odd suggestion.

Anonymous said...

1:11 - you didn't love your daddy enough to defend him when someone did him wrong? Maybe those issues help to explain the lunacy of your post.

Anonymous said...

1:11 Troll, go back to your hole in the ground.

Anonymous said...

@1:11 Hm, is this RSS, Linda Brune or Johnnie Reeves? Sounds like sour grapes to me. If you don't recognize that good work of Ben Allen over the years, then you are just close-minded and can't deal with the facts. Ben is a good man. All of this has been a bunch of BS. The fact that Brune is still walking around after stealing $40k is laughable. Yep, the system in Hinds County is just broken.

Anonymous said...

Walking around after stealing $40000. Stay tuned 2:13. The fat lady ain't even started humming yet. Nothing happens quickly in the criminal justice system. This is slow but a long way from over for the woman. Deeper shit hasn't been invented. Hide. And. Watch.

Anonymous said...

2:13 and 9:03 (Matt Allen and Ben Allen) In all due respect, DJP has tried for years to pin something on that woman and it hasn't and won't happen. Get over it and stop presenting b.s. to various agencies in an attempt to nail her. We know who the pissed off culprit is and it isn't the whistleblower.

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