A Mississippi man who was convicted of stealing $511,000 in auction proceeds from the City of Kenner must repay the city $261,729 in restitution, a state district judge ruled on Wednesday (April 6), increasing the $80,000 amount previously set by a now-retired judge.
James Durham, 44, of Hattiesburg, who with his father owned the now-defunct Durham Auctions, pleaded guilty to theft in August 2014, in connection with the work the company did for Kenner in 2008. Durham Auctions oversaw the sale of $511,729 in surplus municipal property but never gave the proceeds to the city.
Durham and his father, Donald Durham, were charged with theft by the Jefferson Parish District Attorney’s Office. Then-Judge Ross LaDart of the 24th Judicial District Court, who has since retired, dismissed the charge against the father during the February 2014 trial.
Judge LaDart then granted the defense request to recess the son’s case before the trial ended. At the time, Durham was serving parole for a worthless checks conviction in an unrelated conviction in Mississippi.
Six months later, Durham was back in Jefferson Parish, where he pleaded guilty to the theft charge. Judge LaDart suspended a two-year prison sentence and ordered Durham to serve five years of probation.
On the question of restitution, LaDart ordered Durham to repay the city only $80,000, calling the full restitution amount the state sought to be “excessive.”
The Jefferson Parish District Attorney’s Office objected to the amount and succeeded in persuading the state 5th Circuit Court of Appeal to reverse LaDart’s decision.
Judge LaDart set the amount after hearing testimony and argument tied to Durham’s financial woes, which included $300,000 in restitution in Mississippi. “Mississippi just got to his wallet before this court will,” Judge LaDart ruled.
The 5th Circuit dismissed LaDart’s reasoning on Oct. 14, 2015, finding that while the Mississippi restitution “may be a valid consideration in determining the manner in which defendant should repay the restitution owed in this case, it should be of no consequence to the amount of restitution ordered” in the Kenner case.
“Given all these circumstances, we find that under the facts of this case, $80,000 is not a reasonable amount of restitution, and the trial court abused its discretion in setting restitution in that amount,” 5th Circuit Judge Robert Chaisson wrote for the panel that included Judges Robert Murphy and Stephen Windhorst.
The appellate court sent the case back to the district court for reconsideration. By then, Judge LaDart had retired, meaning his elected successor, Judge Danyelle Taylor, had to handle the matter. She heard argument and accepted evidence during a Jan. 13 hearing and took the matter under advisement until Wednesday.
Judge Taylor said she arrived at the $261,729.29 amount in considering that the Durhams’ Mississippi bank “wrongfully seized” $250,000 of Kenner’s $511,729 that was held in escrow. The bank’s action was unrelated to the Kenner matter. The judge ordered Durham to pay $1,800 in monthly installments.
Assistant District Attorney Seth Shute, who prosecuted the case, objected to the amount Taylor set.
The city of Kenner also sued the Durhams civilly in a Mississippi court in an attempt to recoup its monetary losses. The Durhams, however, had declared bankruptcy. Kenner recouped only $80,000, “which did not even cover the total amount of legal fees incurred,” the 5th Circuit noted.