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No harm, no charges?

Wake DA Colon Willoughby declined to prosecute when the state found that millions had been withdrawn from Kane Realty Corp.


What happens when state regulators tell law enforcement authorities that "a substantial embezzlement of client monies" has occurred at a major Triangle commercial real estate firm?

Not much, apparently.

When the N.C. Real Estate Commission passed to Wake County District Attorney Colon Willoughby its findings about $1.5 million withdrawn from Raleigh's Kane Realty Corporation by its chief financial officer, Willoughby said thank you for the information and took no further action.

"In view of the facts that the victim in this case is an experienced businessman, who elected not to report these irregularities, and in fact settled this matter privately three years ago, I do not believe our office should become involved at this time," Willoughby wrote to the commission's chief lawyer, Tom Miller, on June 8, 2005.

As a result, no charges were brought against Clifford A. "Mickey" Clark, who acknowledged in a settlement with Kane that while employed as Kane Realty's president and chief financial officer, he withdrew $1.5 million from company accounts. This summer, state auditors wrapping up a six-year investigation determined the money disappeared over seven years, beginning in 1995.

Kane himself never reported the alleged theft to authorities. The two men were longtime close friends and partners in many business ventures, but severed all personal and professional connections over the matter of the missing money in a lengthy legal contract dated July 2002. For his part in not protecting his company's accounts with state-mandated controls, Kane will have his real estate license suspended for six months beginning Jan. 1.

Clark left Kane Realty after the private fallout with Kane, landing a new job as chief financial officer of a large, publicly traded technology firm in Charlotte called Market Central, which does business under the name Scientigo.

Clark declined numerous opportunities to answer questions.

SEC records show that Kane owned 14,000 shares of the company as of last year. Kane says Clark gave him the shares as part of the repayment for funds taken from Kane Realty, and that he has since sold his interest.

One estimate in Real Estate Commission documents puts the total withdrawn from Kane Realty Corporation at about $2.2 million, but Clark apparently replaced some of the funds he debited, eventually leaving a balance of about $1.5 million--one of the largest cases of potential white-collar crime the commission has documented in at least 25 years.

So why were no charges brought?

"We have a sophisticated business person who found a significant loss, settled out of court, and chose not to report it as a crime," Willoughby says. "If you discover someone has stolen money from your business and you choose not to report it, I question whether we should apply our limited resources to investigating. I have plenty of victims who are anxious enough for us to help them, without butting into other people's business."

After spending six years looking into Kane Realty's finances and unraveling the alleged embezzlement, Real Estate Commission officials were unruffled by Willoughby's inaction.

"We've been doing this long enough to know that a district attorney has to make his own decisions," Miller says.

Asked whether he's surprised the matter didn't lead to criminal charges, Kane says his decision not to call law enforcement authorities speaks for itself--even though, to this day, he does not believe he's been fully reimbursed for the loss.

"I handled it the way we thought we should handle it," Kane says. "We decided to keep it a private matter."

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