A state appeals court recently overturned a Jefferson Parish judge’s ruling that a Mississippi auctioneer should pay only $80,000 in restitution after being accused of stealing more than $511,000 from the government of Kenner following a 2008 sale of municipal property and pleading guilty to theft.
Fifth Circuit Court of Appeal Judges Robert Chaisson, Robert Murphy and Stephen Windhorst found that 24th Judicial District Court Judge Ross LaDart abused his discretion when he ordered defendant James Durham to pay “a sum considerably lower than the actual monetary loss” to Kenner.
Without specifying an exact figure, the appeals panel said in a ruling Wednesday that LaDart should set a restitution that is more reasonable for the city.
Durham’s attorney, Arthur “Buddy” Lemann, said his client would not seek a review of the panel’s findings but would appeal any new restitution amount from LaDart that he considers to be excessive.
In exchange for five years of probation, Durham, 43, pleaded guilty last summer to felony theft from Kenner stemming from a June 28, 2008, sale of municipal property handled by since-closed Durham Auction, of Brooklyn, Mississippi.
Durham Auctions, co-owned by Durham, collected $511,729 selling mobile trailers, computers, desks and other items seized during drug investigations in Kenner, but the city was never given the money.
The Jefferson Parish District Attorney’s Office charged Durham in April 2009 with felony theft. Kenner separately sued Durham Auctions in Mississippi federal court and secured an $80,000 settlement, which the city said was not enough to cover even the legal fees it incurred.
At a restitution hearing after he pleaded guilty, Durham testified that he managed to cover his monthly living expenses of about $10,000 by buying and selling surplus government property but did not draw a steady paycheck from that line of work, court records show. Durham said his expenses included financial support for five minor children, rent and $300,000 in restitution following an unrelated conviction in Mississippi.
LaDart ultimately determined that Durham owed Kenner about $432,000 in restitution after the city recouped $80,000 through its federal lawsuit in Mississippi. But LaDart concluded that making him pay the full amount would be “excessive,” given Durham’s situation, and ordered him to pay $80,000, in monthly installments of about $1,500.
State prosecutors appealed LaDart’s decision.
The appellate panel also noted that, while LaDart intended for the restitution to be a condition of Durham’s probation, nothing in the record explicitly said that would be the case. The panel instructed LaDart to spell out in writing that making restitution would be part of Durham’s probation.