ST. CROIX — A federal judge heard arguments during a virtual hearing today on former Sports, Parks and Recreation Commissioner Calvert White’s motion for a renewed judgment of acquittal or a new trial after being convicted of bribery and wire fraud on July 25 along with co-defendant Benjamin Hendricks, a government contractor.
Attorney Clive Rivers, who represents White, filed a motion August 7 seeking an acquittal on the wire fraud conviction or a new trial. Attorney Darren John-Baptiste, who represents Hendricks, joined in the motion but offered no additional argument during the hearing.
Rivers argued in his motion that White’s right to a fair and impartial trial was compromised when the court provided an answer to a jury question that relieved jurors of their duty to find that the government met its burden of proof with respect to a crucial element of the charge of honest services wire fraud.
The court failed to adhere to the basic rule of criminal procedure that states a jury must evaluate the evidence to determine issues of fact relating to each and every element of an offense, Rivers argued in his motion. He argued that a finding of acquittal must be entered on the count of wire fraud, or in the alternative that White be granted a new trial. If the court were to grant Rivers’ motion and enter an acquittal on the count of wire fraud, the conviction for bribery would stand.
At today’s hearing, Rivers argued that the jury’s verdict was compromised by the court’s response to a question the jury had during deliberations regarding whether it was “common knowledge” that text messages, WhatsApp or phone calls use servers outside the Virgin Islands and constitute a wire transaction in interstate commerce.
“We’re saying that the jury was prevented from addressing an important jury duty, finding beyond a reasonable doubt as to a particular element,” Rivers said.
By asking if it was “common knowledge,” Rivers argued that the jury was really asking if it was a fact. In providing his response, Rivers argued that Judge Mark Kearney deprived jurors of the chance to decide the fact themselves.
“The court can’t answer that question, and the reason being is because that is exclusively left for the jury,” Rivers said.
When Kearney asked Rivers if he answered the “fact” question, Rivers admitted that the judge had not completely provided an answer. Kearney said he only gave the jury a statement of “law” in telling the jurors that use of the telephone and internet qualifies as interstate wire communications, and that he did not answer the fact question regarding whether it was “common knowledge.”
Alexandre Dempsey, one of the prosecutors who tried the case, defended the court’s instruction to the jury, describing it as a proper response to a mixed question of law and fact. He argued the instruction was legally sound and that any error would be harmless given the evidence presented, noting testimony explaining that FirstBank’s servers are located in Puerto Rico, so any transaction initiated in the Virgin Islands traveled through an interstate wire.
The judge denied White’s motion for extended holiday travel for three weeks in December, noting that he allowed White to remain at home pending sentencing if he reports weekly to his probation officer. Kearney said, however, he would approve a shorter trip that would ensure White would check in weekly.
White and Hendricks were found guilty of accepting bribes from David Whitaker, founder and former owner of Mon Ethos Pro Support. Whitaker, who operated a subsidiary of MEPS called Office of Data Discovery Forensic Analysis, accepted a plea agreement and testified as a cooperating government witness in their trial.
While White’s attorney placed his arguments on the record in support of his motion for acquittal or a new trial during today’s hearing, former Police Commissioner Ray Martinez filed a motion today requesting appointment of a private investigator to assist counsel in investigating his case so he can become fully prepared for trial.
Martinez and former Management and Budget Director Jenifer O’Neal were indicted on federal bribery and wire fraud charges in a separate case tied to Whitaker, who is also slated to testify for the prosecution in their upcoming trial.
In a motion submitted by his court-appointed attorney, Miguel Oppenheimer, Martinez requested that Kearney appoints Roy Moorehead as his private investigator at $85 per hour for an initial 35 hours under the Criminal Justice Act. Moorehead, who was unanimously approved by the Legislature to serve on the Virgin Islands Board of Parole during legislative session on September 17, would investigate all information alleged in the indictment along with the information related to activities of cooperating witnesses from 2022 to 2024, as well as serve and collect defense subpoenas, locate potential defense witnesses, interview potential defense witnesses and neighbors on St. Thomas and St. Croix, and interview prosecution witnesses. Moorehead would also collect rebuttal evidence, documental evidence pertaining to past history of the prosecution’s witnesses and any other admissible evidence related to their motives and inclination to produce perjured testimony.
White’s motion for acquittal/new trial and Martinez’s motion remain pending before Kearney.
