Attorney wants Fairley's request for acquittal denied
An assistant U.S. attorney has filed a response in opposition to the Rev. Kenneth Fairley's request for an acquittal on two counts of theft of government funds and one count of conspiracy to defraud the government.
The response, which was filed Tuesday by Jay T. Golden on behalf of the U.S. Attorney's office, states Fairley's arguments for acquittal are the same ones tried unsuccessfully by his counsel during trial.
"(The arguments) are even less compelling now, because they would require the Court to evaluate the weight of the evidence, to draw its own inferences and to make its own witness credibility judgments, all in favor of the defendant, in order for the defendant's motion to prevail," the response states. "It is well settled, however, that courts must view the evidence in the light most favorable to the Government in post-trial review.
"Accordingly, the defendant's motion should be denied. The evidence at trial was more than sufficient to support the jury's verdict."
A jury found Fairley guilty Sept. 12 of the three counts, which involved money received from the U.S. Department of Housing and Urban Development through grants administered by Hattiesburg.
Sanford Knott, a Jackson-based attorney, and Arnold Spencer, an attorney from Fort Worth, Texas, filed the motions for acquittal Sept. 26 in the Mississippi Southern District of U.S. District Court.
Rev. Fairley seeks acquittal, new trial
Spencer wrote in the motion he objected to the introduction of conversations recorded without Fairley's knowledge by Artie Fletcher, who was indicted with Fairley in March on charges of conspiracy to defraud the government and theft of government funds, because Fletcher was not available for cross examination.
Fairley's attorneys say, according to a Supreme Court decision — Crawford v. Washington — that violates Fairley's Sixth Amendment right to confront his accuser.
But according to Golden's response, that argument is no basis for relief or acquittal.
"According to the defendant's own motion these recorded conversations took place in December 2012, well within the period of the charged conspiracy," the response states. "Again he raises the Sixth Amendment Confrontation Clause issue, as he did during trial, as a invitation for the Court to second-guess its original decisions about the admissibility of the recordings and civil complaint.
"The Confrontation Clause was not violated by the introduction of any of the government's exhibits."
In his request for acquittal, Spencer also wrote that IRS Special Agent Bradley Luker should not have been allowed to testify regarding Fletcher's taped recordings and a civil lawsuit Fletcher filed in 2013 against Fairley, as that evidence misled the jury and is tantamount to hearsay.
Golden's response, however, states that is not the case.
"The defendant maintains that the Court erred in overruling objections he made to portions of Luker's trial testimony, specifically that testimony which indicated that HUD (set-aside) funds could not be used to pay for (Pinebelt Community Services') overhead," the response states. "When Special Agent Luker's entire testimony is considered in light of additional trial testimony offered by other government witnesses from HUD ... it is clear that the jury was not misled."
Jury finds Kenneth Fairley guilty on all three counts
Fletcher, 55, of Picayune, pleaded guilty Sept. 2 in federal court to misprision of felony. He admitted he had knowledge of a felony and did not make it known to authorities. His sentencing for that crime is set for Dec. 19. The maximum penalty is three years in prison with up to one year post-release supervision and up to $250,000 in fines.
Fairley, 62, pastor of Mount Carmel Baptist Church in Hattiesburg, was taken into custody following his conviction, but was released until sentencing on an unsecured $25,000 bond, which means he will pay nothing unless he violates terms of release.
His sentencing is set for 2 p.m. Dec. 23. Fairley faces up to five years in prison and a $250,000 fine for the conspiracy charge, and up to 10 years in prison and a $250,000 fine for each of the two theft charges.
Golden and U.S. District Judge Keith Starrett, who presided over the case, were not available Wednesday for comment.
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