When asked to explain what happened to millions of dollars lent to him by an elderly Little Rock man, Kristian D. Nelson of England repeatedly cited his Fifth Amendment right against self-incrimination, a move that could hurt the ex-con at trial.
Nelson sat for a deposition on Sept. 23 in the civil lawsuit brought by Richard F. Toll, 90, who sued Nelson in July. Toll accused Nelson of defrauding him of $4.5 million in less than three years.
Meanwhile, on Jan. 29, Pulaski County Circuit Court Judge Wendell Griffen denied a request from Toll’s attorney, David D. Wilson of Friday Eldredge & Clark of Little Rock, for a partial summary judgment on a $1.8 million loan that Nelson allegedly defaulted on.
Wilson argued during the virtual hearing that “it’s undisputed that Mr. Nelson did not make payments under the note.”
Nelson’s attorney, Robin Vail of the Law Offices of Miller Vail of Heber Springs, argued against awarding the judgment, saying Nelson disputed how much was owed on the loan. Griffen agreed, but he also denied requests from Vail, which included sending the case to arbitration.
Vail also represents Nelson’s used car outlet, I Sell 4 U Auto Sales LLC of North Little Rock, which is also a defendant in Toll’s lawsuit.
The alleged fraud started in September 2017, when Toll first lent Nelson $10,000 for the restaurant Hawgz Blues Café LLC of Little Rock, the suit said. Nelson told Toll he owned the restaurant, but he didn’t, according to the lawsuit.
Nelson then kept returning to Toll’s house on an almost weekly basis “with manipulative lies and fabrications to entice more and more money from Toll,” according to the suit.
Nelson told Arkansas Business in August that he needed money for the Little Rock restaurant, a second Hawgz site in North Little Rock and I Sell 4 U Auto Sales, which Nelson formed in 2018.
Hawgz Blues Café also is being sued. The restaurant is represented by attorney Kathryn Hudson of Little Rock, who told Arkansas Business in an email in August that “Kristian Nelson is not the owner but the manager, and Hawgz Blues Cafe denies the complaint.”
‘I Don’t Remember’
Nelson repeatedly cited his Fifth Amendment right against self-incrimination during the deposition, which lasted seven and a half hours. Invoking the Fifth Amendment could hurt a witness in a civil trial, said Joshua Silverstein, a professor at the Bowen School of Law at the University of Arkansas at Little Rock.
Generally when a witness invokes the Fifth Amendment, “the jury can draw the inference that they’re asserting it for a bad reason, or they’re asserting it because what they’re being accused of is true,” he said.
During Nelson’s deposition, Wilson asked Nelson if he believes he will be criminally prosecuted for his dealings with Toll.
“I don’t believe so,” said Nelson, who in 2009 was sentenced to 71 months in federal prison for wire fraud after taking about 20 investors for more than $1 million.
Nelson added that his dealings with Toll were a “complicated issue. There’s not just a simple yes or no. If I say yes to something and admit it, then it makes it look like that I am criminally doing something. … But if I’m not able to tell what happened, then it could be construed as something wrong. So I really want to get this out. I really want to get this thing to where it’s right.”
Wilson accused Nelson of dodging questions during the deposition, as Nelson frequently answered with “I don’t know” or “I don’t remember.” Wilson asked Nelson if he had memory problems. “I don’t know,” Nelson said. “I don’t think so.”
If Nelson has a different answer at the trial, that also might hurt his credibility.
Silverstein said if witnesses give different answers during their trial than at their deposition, the cross-examining attorney can quote from the deposition to challenge the statement.
“If there are real differences, then you can use the deposition … to suggest that the witness is perhaps not being entirely forthright would be one way to say it,” he said.
Wilson has requested that the case be scheduled for three days in October.
He said during the hearing last month that the longer the case is delayed, the better it is for Nelson, “because he just spends the money, and there’s none left for my client.”