Jackson Jambalaya

Ben Allen will have to take his fight against Hinds County District Attorney Robert Shuler Smith to another court.  Circuit Judge Winston Kidd denied his motion for a j.n.o.v. and a new trial yesterday.*  Mr. Allen was convicted of one count of embezzlement in February.  A grand jury indicted him for ten counts of embezzling funds from his employer, Downtown Jackson Partners.  However, the non-profit organization defended him and said he did not embezzle funds.  Judge Winston Kidd gave him a suspended prison sentence of five years and a probation term of two years. 


The indictment stated in Count IV:

Benjamin Wade Allen III being a person undertaking to act for others and entrusted by them with business of any kind or money did willfully, unlawfully and feloniously convert to his own use any money or other valuable thing to wit a$1,738.37 for payment of Benjamin Wade Allen III and Susan Allen's personal cell phone bill said $1,738.37 being the lawful property of Downtown Jackson Partners, a nonprofit corporation, which lawful currency came into his possession by virtue of his employment at Downtown Jackson Partners, a nonprofit corporation, and which monies he did not return to Downtown Jackson Partners in violation of Miss. Code Ann. 97-11-25;

However,  Mr. Allen argued in his motion:

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.....

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. .....

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.

 DJP attorney Robert Gibbs stated in a resolution authorized by the Board of Directors:

The Board states that the payments Mr. Allen reimbursed DJP for the monthly charges each and every month.  The report states that the expenditures were "completely authorized" and that "the accountants for DJP received full reimbursement on a periodic basis from Mr. Allen during his employment."

  DJP approved the line for Susie Allen with the understanding that Mr. Allen reimburse DJP.  This was always done and none of othe money alleged in the indictment was converted by Mr. Allen.   Earlier post.

Mr. Allen filed a notice of appeal earlier this week.



Earlier posts
Suspended sentence for Ben Allen
Civic leaders stand up for Ben Allen
Ben Allen asks court to toss verdict.
DA posts Ben Allen's SSN online.
Guilty of one count.
The jury steps up to the plate.
D.A. tries to subpoena Jerry Mitchell.
Ben Allen trial update: "You are confused."
Ben Allen trial update.
Ben Allen trial update.
Ben Allen trial update.
Ben Allen to D.A.: Do your own homework.
DJP & Board defend Ben Allen.
Ben Allen files motion to dismiss.
Ben Allen indicted.


**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.