Attorney for Steve Clary Asks Federal Judge for Leniency in Sentencing

by Arkansas Business Staff  on Monday, Jul. 22, 2013 12:00 am  

Steve Clary

The federal public defender who represents Steve Clary, the Little Rock real estate developer who pleaded guilty to mail fraud in February, has asked U.S. District Judge J. Leon Holmes for a lenient sentence.

A very lenient sentence: Either a single day in prison followed by court supervision or a sentence of home detention. The federal sentencing guideline for Clary, 60, and his particular crime suggests 33 to 41 months in prison.

Assistant Federal Defender Lisa G. Peters’ “motion for variance and downward departure” from the guideline is chock full of compelling anecdotes, beginning with Clary’s childhood with Depression-era parents who “just did not have a lot” and the “unsettled” life of an Army brat and preacher’s kid.

When colorblindness kept him from pursuing his dream of becoming an Air Force pilot, Clary earned an accounting degree with honors from Harding University, where he met and married Cindy Cannon 40 years ago come December.

“He struck out to pursue his American dream,” Peters wrote. He was making “a comfortable salary” as an auditor with Ernst & Young, “but Mr. Clary had bigger dreams.”

“…There was a vision. There was a plan. Mr. Clary wanted to develop commercial real estate. And that he did,” Peters wrote.

At age 33, he founded Clary Development Corp. He also branched out into other industries — methane and natural gas, ambulatory surgery centers, software and telecommunications. And “at the end of 2007, Roger Steven [sic] Clary’s net worth was estimated to be about $92 million.”

“Professionally,” she said, “Mr. Clary was able to touch his American dream.”

Then came the financial collapse that wiped out his fortune and “made it virtually impossible to manage and move the real estate amassed by Clary Development.”

In May 2008, he borrowed $4 million from Bank of America Leasing Corp. for the purpose of buying and outfitting six buses, but he diverted $1.3 million of the loan to other businesses he needed to shore up. And that is against the law.

Nominal Amounts

Peters’ plea for leniency is not based merely on typical mitigating factors, like Clary’s being a first-time criminal offender, a “Sunday School Teacher of more than 30 years” and the subject of numerous letters and videotaped messages from supporters.

A big part of her argument is this:

The seven-figure value of Clary’s crime — which Peters variously described as a “misstep in judgment,” a “momentary lapse in judgment” and a “mishap” — wasn’t really very large when you consider just how rich he had been.

“For someone worth $92 million at the end of 2007, the requested diversionary amounts were nominal,” Peters wrote.

And elsewhere: “When one considers the fortune Mr. Clary had legally amassed; the downturn in the market that caused many to stumble, the sum of money that was converted in comparison with his former net worth a few months previously, the fact that he is now and forevermore labeled a convicted felon because of one bad judgment call; that, in and of itself, is punishment enough.”

And to sum it up: “His downward spiral was severe, due in large part to the volatile market. But should this spiral from $92 million to a diversion of less than $2 million be grounds for a prison sentence?”

Whispers, taken aback at the suggestion that the wealthy should get more lenient sentences because their crimes are smaller relative to their net worth, ran Peters’ argument by some well-known criminal defenders.

A couple of them laughed. One said, “I wouldn’t try that argument on Judge Holmes.” Another said, “If it works, I’ll keep it in mind for one of my clients.”

Peters did not return a call for comment.

 

 

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