Cay Clubs Resorts and Marinas founder Dave Clark remains in federal prison pending a Nov. 9 retrial but wife Cristal Coleman's cell phone won its release from custody.
Fred D. "Dave" Clark Jr., 57, faces a second trial, scheduled for the Key West federal courthouse, on multiple bank-fraud and mail-fraud counts, U.S. District Judge Jose E. Martinez ordered Friday. A jury deadlocked on a decision in his first trial in August.
Cristal Clark, 41, was acquitted on all fraud counts Aug. 14 after the former Key Largo couple's five-week trial in Miami. On Monday, Martinez ordered her cell phone, held as potential evidence since her June 2014 arrest, returned.
Cristal Clark was released, having spent more than a year in federal custody. Both the Clarks, who moved to the Caribbean after the 2008 failure of Cay Clubs in what prosecutors call a $300 million Ponzi scheme, had been declared flight risks.
Dave Clark's defense attorneys filed a 19-page motion Aug. 26 seeking his release on bond from the Miami Federal Detention Center.
"Clark attended his first trial, fought it hard, and the result was a hung jury," attorney Valentin Rodriguez wrote. "The case was not easy for jurors to grasp, which was clearly indicated by one of the jurors giving up on the third day after a nervous breakdown.... The government could not prove its case, despite four weeks of agonizing testimony."
With $2 million frozen in a Honduran bank, "Clark has all sorts of incentives to fight this case," Rodriguez said.
"Clark has extensive ties to the Keys," his attorney wrote, noting a sister who has been taking care of the Clarks' children since the parents' arrest.
Assistant U.S. Attorneys protested any bond, saying that after Cay Clubs' failure, Clark moved to Central Florida "then decamped to the Caribbean, island hopping over a five-year period to the perceived sanctuary of Roatan, each move precipitated by concerns over lawsuits and government investigations."
He should remain in custody "given the obscure nature of his finances, his lengthy period of foreign residence and contacts, the substantial penalties facing him, and his history of evading legal obligations," prosecutors wrote.
On Sept. 11, Clark lost a bid seeking two separate trials: One on allegations stemming from the Cay Clubs collapse, and a second over charges that he illegally siphoned money from CMZ, a Caribbean pawn-shop chain he sold to investors, when payments from a precious-metals smelter passed through two Tavernier bank accounts previously linked to Cay Clubs.
Martinez denied the request to sever the cases, saying both share evidence and witnesses.
Prosecutors said in a motion that they expect "a shortened, streamlined re-trial in comparison to the first trial."
Following her release, Cristal Clark petitioned for the return of her cell phone, which had been seized and held for a year.
No information from the phone was used in the first trial, her attorneys argued. "Ms. Clark is a person aggrieved by an unlawful deprivation of property," federal public defender Michael Caruso said in a motion. "There is no legitimate reason for the government to retain possession of Ms. Clark's phone."
Federal prosecutors acknowledged that information from the phoned was copied and retained.
Cay Clubs, founded in 2004 and based in the Upper Keys, claimed it would convert existing resorts in the Keys, Clearwater and Las Vegas into luxury condo-hotels. By 2008, the firm failed under pressure to meet financial commitments to unit buyers and the inability to perform promised renovations. Banks and about 1,400 investors lost a total of $300 million, prosecutors estimate.
It became a Ponzi scheme when Cay Clubs executives realized by mid-2005 that Cay Clubs "was not the successful business [the Clarks and salesmen] claimed it was," prosecutors said.
Undisclosed insider sales between company executives created a bogus record of skyrocketing property value, prosecutors argued. Two former sales managers have admitted filing falsified mortgage applications and agreed to five-year prison sentences.