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Judge rejects Carmack bid to have Duggan, Leland testify

Jennifer Chambers
The Detroit News
Robert Carmack listens to witness testimony at 36 District Court on Wednesday, March 13, 2019.

Detroit — Detroit Mayor Mike Duggan and Councilman Gabe Leland will not have to testify in the criminal case against businessman Robert Carmack after a judge quashed subpoenas for both officials Wednesday.

In quashing the subpoena for Duggan, Judge Cylenthia LaToye Miller of 36th District Court called the motion from an attorney for Carmack to have the mayor testify “rife with speculation."

"It amounts to nothing more than a conspiracy theory,” Miller said.

Carmack, 59, of Woodhaven is accused of stealing a million-dollar parcel of property from the city of Detroit. 

In her decision, Miller cited the apex doctrine, which says high ranking officials won't be called for court testimony unless they have specific first-hand knowledge of the facts or claims involved in a case. 

"If everyone wanted to sue Duggan ... at the end of the day ... we would be running the court every other second," Miller said.

Carmack's attorney alleges Duggan had charges "filed against" Carmack after the businessman drove downtown in November with a billboard truck airing footage from a private investigator that showed Duggan visiting a condominium in Novi. That, Carmack said, indicated the mayor didn't live in Detroit.

Duggan, who alleges Carmack's actions were in retaliation for the city's refusal to drop property lawsuits against him, asked the Michigan State Police to investigate Carmack for extortion.

Miller said she acknowledges that Duggan carries "a great amount of of authority, but his power didn’t convince MSP to charge Carmack with extortion."

Carmack was charged Dec. 20 by the Wayne County Prosecutor's Office with false pretenses with intent to defraud $100,000 or more, and three counts of uttering and publishing a document affecting real property tied to a decade-old land deal with the city of Detroit.

 If convicted, he faces up to 20 years in prison. 

Wayne County prosecutors asked the state Attorney General to appoint another agency to handle the case, citing a conflict of interest. The case was referred to the Genesee County Prosecutor's Office.

Carmack's attorney Steve Haney said on Wednesday that Carmack clearly "touched a nerve" after Duggan went to the MSP to ask for an investigation.

"The real trigger event wasn’t a press conference but Carmack's mobile billboard tour of Duggan's movements away from the office to a suburban condo ...," Haney told the judge. "That's when Duggan held a presser 12 days later dripping with contrition."

Attorney Gerald Evelyn, who represented Duggan on Wednesday, told the judge that Duggan was not mayor in 2007 and 2012, when Carmack is accused of orchestrating a fraudulent real estate deals.

"It was impossible for him to have knowledge. This is a smokescreen,” Evelyn said.

Miller's ruling came during the continuation of a preliminary hearing for Carmack, an auto shop owner who is embroiled in a legal battle with the city.

Carmack is also the central figure in a federal bribery indictment against Leland. Carmack said he wore a recording device in talks with the councilman. Leland is accused of agreeing to accept $15,000 and free car repairs from Carmack.

Carmack's preliminary examination began in February in 36th District Court before  Miller but was cut short because there weren't enough security guards in the building to cover the courtroom during lunch break.

Carmack's attorneys filed an emergency motion to have Genesee County prosecutors removed from the case, claiming there was no valid reason for Wayne County Prosecutor Kym Worthy to recuse herself. Miller denied the motion.

Chidi Nyeche points towards Robert Carmack as Judge Cylenthia Miller looks on as he testifies on the witness stand during a hearing on Carmack's controversial sale of $1 million worth of land in the city of Detroit.

The charges against Carmack focus on the March 2, 2016, sale of property that is also the subject of a civil lawsuit filed by Detroit alleging the land was "fraudulently sold" by the auto shop owner.

In the lawsuit, filed in June, the city accused Carmack of filing a property transfer affidavit with the Detroit assessor's office listing his company, B & C Land Development Corp. as the property's taxpayer prior to a sale to another firm, Moby Dick Ventures LLC.

The city alleges Carmack sold the 10-acre property on Melville for $1 million. City attorneys said the city uncovered the sale while researching Moby Dick Ventures, an out-of-state investor that wanted to purchase other land in Detroit.

The Detroit City Council on April 27, 2007, approved selling the site to Carmack for $250,000, but Carmack failed to complete the transaction by filing the proper paperwork and making payments, which is why the land remains under the city's ownership, Detroit officials have said.

Robert Carmack of Woodhaven enters court for a hearing on his controversial sale of $1 million worth of land in the city of Detroit. Carmack is suspected to have made some illegal land deals in the city of Detroit.

City officials claim Carmack in 2016 used the old draft documents from 2007 to falsely represent that he owned the property before selling it to the investor.

On Wednesday, Chidi B. Nyeche, a former employee in the city’s planning and development department and current executive manager in the city’s Neighborhood Development Services division, took the stand for more than an hour, answering questions about alleged sales of city property to Carmack, including the property in question.

Nyeche testified Wednesday that the city intended to give Carmack a quit claim deed on the Melville property sometime in 2007.

“If he stole the property, why is there an email telling him to pick up quit claim deed?” Carmack’s defense lawyer asked.

Patrick McCombs, assistant prosecuting attorney for Genesee County, told the judge: “We know there almost was a deal.”

In February, Bruce Goldman, an attorney for the city of Detroit who handles real estate law, took the stand. 

Goldman said he was invited to a meeting with Carmack in 2017. "The meeting was to discuss a possible resolution of various disputes," he said. The meeting was about the possible sale of property at 7751 Mellville in southwest Detroit.

Attorney Steve Haney represents Robert Carmack during a hearing on Carmack's controversial sale of $1 million worth of land in the city of Detroit.

Goldman said he reviewed records prior to the meeting with Carmack that raised red flags. He said he found a quit claim deed for some property from the city of Detroit to B & C Land Development Corp. — Carmack’s company — for $250,000.  It was signed by the city's finance director and corporation counsel "indicating approval"

"I know that closing never occurred; that sale never happened," Goldman said.

Carmack's preliminary exam resumes on March 27.