Davidson guilty in bribe case

The biggest problem with federal prosecutors' corruption case against real estate consultant Donald Davidson turned out to be their star witness, former Clark County Commissioner Erin Kenny.

So said several of the jurors after they found Davidson guilty of only six of the 24 felony counts that federal authorities had charged him with.

After deliberating Davidson's fate for five days, jurors wound up deadlocked on all charges stemming from the allegations that he bribed Kenny, despite Kenny's testimony that he had.

Two sources close to the case said one juror held out for a not-guilty verdict on 18 counts of conspiracy, mail fraud and money laundering, charges related to Kenny's push to change zoning designations to allow for a controversial casino and a CVS Pharmacy. Most, if not all, of the jurors, however, saw Kenny as lacking credibility, several of them said.

The jury found the 73-year-old Davidson guilty of one count of conspiracy to commit wire fraud and five counts of wire fraud for attempting to bribe then-Las Vegas City Councilman Michael McDonald in 2002.

Jurors described their deliberations as "heated" and "emotional." They said their discussions were sometimes interrupted by crying and shouting.

The prosecutor who handled the case, Assistant U.S. Attorney Daniel Schiess, said he would confer with colleagues before deciding whether to seek a retrial on the counts the jury couldn't reach a verdict on.

Davidson's attorney, Dominic Gentile, said he believes there is "zero" chance of a retrial. He suggested that the government would be foolish to again try to bank on Kenny's testimony.

"I can't imagine a prosecutor wanting to retry when you have to rely on Erin Kenny's testimony," Gentile said.

"When it comes to credibility, Erin Kenny is a trollop," he said.

Gentile said he plans to appeal the conviction. Davidson is currently scheduled to be sentenced Oct. 26.

Juror Michael Kantner said he did not find Kenny believable. But even without Kenny's testimony, he would have found Davidson guilty on all 24 counts, Kantner said.

"If he's guilty in one aspect, he should be guilty in all of them," Kantner said. "It shows a set pattern of doing business in a certain manner."

JUROR: KENNY NOT CREDIBLE

Kenny did not sway jurors when she took the witness stand, explained that she suffered from memory loss and then testified in detail about some events and failed to recall others, several jurors said.

Kantner said most of the jury questioned Kenny's credibility after learning that U.S. District Judge Kent Dawson can levy a more lenient sentence if he believes she provided substantial assistance to the government. Kenny is scheduled to be sentenced this morning.

When asked whether he believed Kenny proved helpful to prosecutors, Kantner replied: "I'd have to say no. I had to take into account her motivations, why she was testifying and what have you. She had very limited credibility."

During the three-week trial, Gentile repeatedly reminded jurors that Kenny had an incentive to lie.

"I would have loved to have had the jury stick a stake in her lying heart by finding him not guilty," Gentile said after the verdict. "They certainly did not find her credible."

Kantner said Davidson's testimony was equally detrimental to the defense. His inconsistent statements on the stand troubled Kantner and his fellow jurors.

"The man's too smart to have that lapse of memory as far as his financial dealings," Kantner said.

DAVIDSON INDICTED IN 2005

A 2005 indictment charged Davidson with paying Kenny $3,000 a month after she helped guide through a vote to allow a much-opposed casino in the Spring Valley neighborhood.

In superseding indictments issued in 2006, the government accused Davidson of paying Kenny $200,000 in exchange for her assistance in approving a zone change allowing for a CVS Pharmacy at the corner of Buffalo Drive and Desert Inn Road. The government contends that Davidson arranged the payment and his son, Lawrence Davidson, established an off-shore account to conceal the ill-gotten funds.

In the same indictment, Davidson was charged with attempting to bribe McDonald in an effort to obtain zoning changes in the city.

Jurors had most difficulty determining whether Davidson and Kenny had established a corrupt relationship.

"Most of the heated discussion was about D.I. and Buffalo," juror Charles Wiltberger said, referring to the pharmacy.

"It was about whether or not Don Davidson really had a direct relationship to the whole deal with his son," added jury forewoman Cynthia Cohen.

Earlier Tuesday, the jury asked that the transcripts of Davidson's testimony on the pharmacy issue be read back to them. A court reporter spent about an hour reading more than 70 pages of Davidson's testimony. Three hours later, jurors announced they were deadlocked on the issue.

Carolyn Edwards, who lives next to the pharmacy and butted heads with Davidson during zoning debates in 2001, said she was upset to hear the defense claim victory after the jury failed to reach a unanimous decision on the CVS zoning.

"For anyone to consider having been convicted of five felony counts of something to be a victory is ridiculous," said Edwards, who was elected to the Clark County School Board in November 2006. "I'm disappointed, but on the other hand, I'm happy they found him guilty on some of it."

The guilty verdicts returned against Davidson stemmed from a 2002 lunch meeting Davidson scheduled with McDonald to talk about zoning matters in the city. Discussions about the meeting were captured on phone calls intercepted and recorded by the government.

After the lunch meeting, McDonald called former Clark County commissioner-turned-lobbyist Lance Malone to express his discomfort with his conversation with Davidson.

"The way he came across; not the way I operate," McDonald told Malone.

Malone asked Davidson about the manner in which he approached McDonald.

"I approached him the same way I approached you," Davidson said during the phone call played numerous times for jurors. "I have five dimes to spread around."

Davidson explained to the jury that he learned the term "dimes" from listening to ESPN radio analysts discussing gaming. He testified that he intended to split up his consulting fees among other professionals willing to legally get the zoning designations changed.

During cross-examination a day later, Davidson said he was referring to potential campaign contributions when he mentioned "five dimes" to McDonald. Davidson said Malone informed him that McDonald was in need of contributions and inquired about Davidson's employer, Triple Five.

The jury didn't buy it.

"I think we all knew what he meant," Cohen said.

KENNY'S TESTIMONY DUBIOUS

The jury could not reach a consensus on Davidson's actions related to the Spring Valley casino.

The prosecution and defense agreed that Kenny was paid monthly after she registered her "yes" vote, which favored land owner Triple Five Development. The question was how long those payments continued.

Davidson said that about three months after the January 2000 vote, Triple Five owner Eskander Ghermezian hired Kenny to create marketing brochures. He testified that she was paid $2,000 to $3,000 a month for her work, but she became ill after just two months.

"When she got better, she asked for work," Davidson testified. "Eskander Ghermezian said not now. I never paid her any more money."

Kenny told jurors that shortly after the casino vote, Ghermezian and Davidson paid her a visit.

"Eskander said to me ... he owed me a life debt for voting for his project," Kenny testified.

She said she received $3,000 a month from Davidson beginning in April or May of 2000. She explained that she worked about three hours a month for two months before she began suffering from vertigo.

"I became ill and didn't work, but he didn't stop paying me," Kenny said.

Although the prosecution worked to show jurors that Ghermezian funneled money through Davidson's account to pay Kenny, not all jurors were convinced.

AFTER THE JURY LEFT COURT

The U.S. Attorney's Office has seven days to decide whether to retry Davidson on the unresolved 18 counts.

U.S. District Judge Roger Hunt granted Schiess' request for a mistrial regarding those 18 counts.

However, Hunt did not concur with any of the concerns about the trial as a whole that Schiess raised immediately after the jury was dismissed.

Schiess questioned the propriety of notes passed between the jury and the judge. He also questioned whether the verdict was affected by an unusually long trial, extended deliberations, possible exhaustion on the part of jurors and the complexity of the issues involved.

Schiess also asked why jurors weren't instructed to continue deliberations after they announced they were deadlocked on some of the charges.

"This jury has been at this a long time," Hunt said in court via a conference call from a judicial meeting in Hawaii. "Had we attempted to force them to go longer, I think that they would have felt coerced to bring back a decision that was different than what they did.

"I feel that doing that would be improper."

Hunt determined that the notes submitted by jurors were proper.

Prosecutors and the defense attorneys were informed of the notes and provided input on almost all of them.

The only exception, Hunt said, was a request from jurors to have individual copies of the jury instructions provided to each of them.

The court complied with the request and then informed attorneys on both sides of the action taken.

Hunt dismissed Schiess' concerns about the possibility that the jury verdict may have been improperly influenced by the extended trial and the long deliberations.

"Their deliberations were exhaustive and thorough," Hunt said of the jurors. "They did all they were expected to do."