Did former city and state prosecutor Mark Avery commit a $52 million criminal fraud in 2005 when he used an elderly widow's trust money to back a loan spent in part on RVs, vintage planes and personal debt, a loan that he never repaid?
Was he cheating from the start, as the prosecution contends? Or was he a good man with good intentions, only to be misled by his outsized top lieutenant, as the defense maintains?
Both sides on Wednesday summed up their views of the federal case against Avery, charged with five counts of wire fraud, 10 counts of money laundering, and two counts related to a bank line of credit.
After 12 days of trial, 20 prosecution witnesses and five for the defense (including Avery himself), the question of whether Avery swindled the May Smith Trust is in the hands of a U.S. District Court jury in Anchorage.
Assistant U.S. Attorney Steve Skrocki titled his closing argument, complete with a PowerPoint, "Betrayal of Trust," which he said was both a metaphor and a factual description.
Avery's defense lawyer, Mike Dieni, said what happened "was basically a contract dispute," a civil matter but not a crime even if Avery was negligent in his duties.
"He was lousy at business. That is clear," Dieni told jurors.
Also on Wednesday, the prosecution closed out its case with a rebuttal witness, FBI agent Matthew Campe, who led an initial investigation a decade ago into Avery, his Anchorage-based Security Aviation business, and the trust money. Campe testified that over the course of 12 interviews in 2006 and 2007, Avery acknowledged that putting trust money to his own use was "improper." But Dieni told jurors Campe was biased and he questioned the accuracy of agents' written summaries of the interviews, which weren't recorded.
Security Aviation, which Avery lost in a bankruptcy, and Avery's former right-hand man Rob Kane were tried and found not guilty in 2006 on charges of illegally possessing rocket launchers.
For Avery, 56, this trial was a chance to fight back. In an earlier version of the current case, Avery pleaded guilty to wire fraud and money laundering. But that conviction was reversed in 2013 in the aftermath of a U.S. Supreme Court decision in the case of former Enron Corp. chief executive Jeffrey Skilling that said the kind of wire fraud involved had to involve bribery or kickbacks. The current case, brought later in 2013, involves a different kind of wire fraud.
Avery was one of three trustees over two trusts, the $100 million May Smith Trust set up to provide for the care of May Wong Smith, and the $350 million charitable trust in the name of May and her late husband, Stanley Smith.
Skrocki urged jurors to consider a May 9, 2005, email from Avery to fellow trustees John Collins Jr. and Dale Matheny. In it, he presented his proposal to use the May Smith Trust as collateral for a line of credit in the range of $45 million to $47 million to buy executive airplanes for money-making charters.
"That is enough backing for the acquisition of two to three of the type of long range aircraft we a talking about to do the flights to Nassau or wherever," Avery wrote in the email, complete with typos. May Smith was living in the Bahamas with caregivers arranged by Avery. The trustees would get "deeply discounted" trips, he wrote. He said he had lined up an experienced operator, Doug Gilliland, to run the trust's aviation services.
Two days later, at a trustee meeting in San Francisco where there was little discussion about the $50 million commitment, the other trustees agreed to the deal. But no contract, promissory note or written agreement was ever signed, Avery earlier acknowledged to jurors.
Then in early June 2005, all three trustees signed a document – and had their signatures notarized – to set up an escrow account for airplane purchases with Washington, D.C., lawyer J. Michael Farrell, a former White House lawyer whom Avery's top man, Rob Kane, had brought into the mix.
As Skrocki underscored to jurors, Farrell's account was never used and Avery and Kane soon shoved Gilliland aside to control their own aviation operation.
Avery fooled the other trustees with "a bait-and-switch," promising one thing but doing something else entirely, Skrocki said. Instead of Gilliland's air charter business, it was Avery's newly bought Security Aviation. Instead of two new-model corporate jets, Avery bought two older ones – and 35 other planes.
By June 20, 2005, he had already drawn down $35 million from the loan through email requests, Skrocki said. It wasn't until July 27, 2005, that Avery informed the other trustees Gilliland was out and he had used the trust-backed loan to buy his own aviation business, Skrocki said.
By then, Avery had collected more $43 million and had already spent much of it, the prosecutor said. He called it a crime of deception and omission.
The day after Avery received the first $15 million, he transferred $638,000 into another account and used it to pay off vehicle loans, credit card debt, a business loan and more, Skrocki said.
A week later, he paid off the second mortgage on his home and bought two $100,000 RVs. He paid off his duplex, bought a yacht and put the down payment on a patrol boat all before buying Security Aviation, Skrocki said. He bought a company house in Eagle River, where Kane and his family lived for free. He bought the World War II vintage P-51 Mustang and then received an additional $2.4 million on top of the $50 million already loaned in order to buy the F4U Corsair.
He didn't have workable business plans for any of it, Skrocki said.
All of that and more translates to individual counts of money laundering, Skrocki said.
Dieni told the jurors that none of the spending matters if Avery got the trust-backed loan legally to begin with.
Avery only lied once, in bankruptcy court over a backdated promissory note to Kane, Dieni said. Avery told jurors he felt sick over it. The day after he lied, he told the bankruptcy trustee the truth about the document.
Avery, said Dieni, has never been a man motivated by money. He grew up in a well-off San Francisco family but became a prosecutor, in California and then Anchorage. He worked as a paramedic on the rough streets of Oakland, California.
"That's the real Mark Avery," Dieni said, a man who put away bad guys and cared for hurt people.
As a trustee for the Smith entities, Avery made $600,000 a year and some of what he spent was purchased with that money, Dieni said. When he started spending from the loan, much of the money went for aviation operations that had potential, Dieni said. That's no bait and switch, he said. One project involved securing government approval to fly over the North Pole.
"I fail to see the evil here," Dieni said.
Avery ensured May Smith had excellent care but wasn't doing his job to guard the trust, the defense lawyer said. That doesn't make him a criminal, he said.
The most important development was Avery's relationship with Kane, Dieni said.
Avery could be seen as milquetoast while Kane was a tough guy, a braggart and a con man who made Avery his victim, Dieni said.
It was Kane who convinced Avery that Gilliland couldn't do the job, he said.
But Skrocki said Avery took advantage of his position. May Smith was suffering from dementia and unable to speak by the time Avery spent from the trust-backed loan, the prosecutor said.
"He figured out a way to cheat her and he did," Skrocki said.