The attorney for former Vann’s CEO George Manlove filed a new brief earlier this week in the federal appeal of his client’s 170 convictions for defrauding the company, reasserting that Manlove’s conviction should be overturned because prosecutors used leading questions with their primary witness at trial.
With Manlove’s reply brief filed, the next likely step is for the 9th U.S. Circuit Court of Appeals to take up the case at a hearing, although the case hasn’t been set for one yet.
Manlove has been at a federal prison in Sheridan, Oregon, since June, when he began serving the prison sentence of five years and three months handed down after he was found guilty after a three-week trial in February 2017.
At trial, he was found guilty of creating holding companies that bought buildings and leased them back to Vann’s without approval from his board of directors. He was also found to have used more than $67,000 in company funds for personal expenses, including jewelry and a shopping trip to New York City for his wife and daughter, and having the company pay for an executive MBA degree, again all without board approval.
On top of his prison sentence, Manlove was ordered to forfeit $2.4 million in property determined to be ill-gotten gains from his fraud.
At the end of January, Manlove appealed his conviction, citing a single issue: that prosecutors used what he believed were inappropriate and leading questions while former Vann’s chief financial officer Paul Nisbet was on the stand.
Nisbet was previously charged with nearly all of the same criminal counts as Manlove, but pleaded guilty to a single count of conspiracy in a pact with prosecutors where he agreed to assist in the Manlove case. He was originally sentenced to 14 months in federal prison, but was released from custody at prosecutor's request shortly after Manlove’s trial ended.
Federal prosecutors countered Manlove’s appeal claims by saying all of the information Nisbet said in testimony was backed up by dozens of other witnesses and thousands of pages of documents.
Assistant U.S. Attorney Adam Duerk also wrote in a brief that Manlove’s defense attorney never objected to prosecutors treating Nisbet as an adverse witness when the matter was raised before trial, and that during the trial when an objection was overruled, Manlove’s attorney at the time conceded the point by telling the judge, “All right.”
In his latest brief, Manlove’s appeal attorney Daniel Donovan wrote that the trial attorney’s comment meant only that he understood the judge’s ruling, not that he agreed with it, and that it shouldn’t be taken as a concession of the objection.
Donovan reiterated a belief that without the use of leading questions with Nisbet, Manlove would never have been convicted.
“(T)he thousands of ‘pieces of paper’ do not make any sense, do not tie the Government’s case together, and do not ‘tell the prosecutor’s story’ without the leading questions,” Donovan wrote.
The prosecution also conducted a pretrial interview with Nisbet, ostensibly to ensure that the testimony would be clear once trial came around. But Donovan said that interview used the same type of leading questions and was the prosecution’s way of putting its own story into Nisbet’s mouth.
“The prosecutor wrote the script and the star witness read from the script,” Donovan wrote. “Facing the words of the prosecutor rather than the words of the star witness, Mr. Manlove was unable to defend himself on a level playing field.”