Federal prosecutors last week argued that Calvert White, the former Sports, Parks and Recreation commissioner, and Benjamin Hendricks don’t deserve a new trial after being convicted of wire fraud and bribery earlier this summer. A sentencing hearing is slated for Jan. 22 on St. Thomas.
A jury found White and Hendricks guilty after a weeklong trial in July in the U.S. District Court on St. Thomas. White’s attorney, Clive Rivers, quickly followed up by asking for a new trial and argued that Judge Mark Kearney “failed to adhere to the rules of evidence that questions of fact should always be determined by the jury.” Jurors asked Kearney several questions over the course of their deliberations. At one point, they asked whether it’s “common knowledge” that text messages, WhatsApp messages or phone calls between people in the U.S. Virgin Islands use networks, systems or servers outside of the territory and constitute a wire transaction under the law.
Kearney told jurors in July that he could answer the legal side of the question but that he couldn’t get involved with questions of fact — like whether something is “common knowledge.”
“That’s entirely in your province. You decide as to questions of fact,” he said at the time. “However, there is a question of law built into this as well, and I want to read to you what the question of law, I believe, is. Use of the telephone, internet, text messages, email, or other similar means of communication qualifies as interstate wire communications under the act. That addresses — that’s the legal question posed at least by this statement. I cannot answer the fact question that’s raised here. That’s something you have to decide, not us.”
In August, Rivers said the court “invaded the province of the jury when it answered a question of fact, although there was sufficient evidence to establish an inquiry that was for the jury to decide.”
“The existence and effect of certain communications presented a factual question that was decided by the trial court instead of the jury,” he argued. “This is grounds for a new trial.”
Lawyers with the U.S. Attorney’s Office said in a filing last week that Rivers’s claims are without merit and that Kearney, “after discussion with all parties, identified a potential point of confusion within the question and attempted to provide a legal standard to answer that question and clear up any uncertainty.” Prosecutors also responded to Rivers’s claim that jurors didn’t receive any testimony about off-island servers. In fact, they argued, a representative from FirstBank testified that any wire transfer initiated in the U.S. Virgin Islands would have had to go through servers located in Puerto Rico.
White and Hendricks were first charged in January and accused of selling a $2.1 million security camera contract to a convicted felon and cooperating witness — David Whitaker — in exchange for a $16,000 kickback. At the same time, former Police Commissioner Ray Martinez and former Management and Budget Director Jenifer O’Neal were charged with wire fraud and money laundering for their own dealings with Whitaker.
Martinez and O’Neal are set to appear before Judge Alan Teague for a status conference Tuesday at the federal courthouse on St. Thomas.
