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Judge rules Neill has failed to make restitution as sentence required

Sam Neill scans a document as his attorney, Brooks Kamszik, asks a question during a trial last week.

By Bill Moss, Published: February 28, 2022

It’s the rare probation violation that results in a full-blown trial with sworn witnesses, exhibits, testimony, cross examination, redirect and closing arguments. But when $3,705,057 in restitution is at stake, probation gains gravity.

Last week in Courtroom 2 at the Grove Street Courthouse, Superior Court Judge Bradley Letts ruled that Sam Neill, the disbarred lawyer convicted in 2013 of stealing millions from five estates, had violated terms of his probation. Neill pleaded guilty to the felonies in federal and state courts in April of 2013 and served six years in federal and state prisons before his release, from Craggy Correctional Institute in Asheville, on June 28, 2019.

Judge Letts found him guilty of failing to make restitution and extended his probation, which was scheduled to end this coming June, by two years. Neill avoided spending more time in jail — for now. Letts ordered him to serve 90 days in jail, but stayed the sentence pending Neill’s expected appeal of the probation violation conviction.

The trial, which lasted about four hours, focused mainly on the large discrepancy in Neill’s accounting of restitution he has made and the official number kept by the Clerk of Superior Court. Neill testified repeatedly that land transfers he made to the victim estates before he went to prison have produced $1.1 million for two of the estates while a pending land sale would pay $475,000 to a third estate.

Tracy Howell, Neill’s probation officer, charged him with the probation violation last September for failing to make restitution payments.

Based on clerk of court records, “As of today he’s paid $780,” Howell said.

“He had made no payments to the clerk’s office for the first six months of his probation,” she said. “He agreed that whatever was happening outside of the clerk’s office he would pay something so we could show that restitution was being made.” She said she told him, “You need to pay as much as you can as often as you can because he was so far behind on his schedule.” He began paying $20 a month in January of 2020. The court ordered amount is $89,730 a month, a number arrived at by a formula the state uses — the total restitution divided by total months of probation minus four months.

Ameshia Cooper-Chester, a deputy state attorney general, talks about the Neill case during a break as Community Foundation Chair Bill McKibbin, foundation President McCray Benson and Four Seasons Development Director Stephanie Wilson listen.“He has not been in trouble at all,” she said, and has been cooperative and respectful.

She said when they first met, Neill advised her that he was retired.

Now 72, Neill testified in his own defense about his life since he was released from prison, why he is not working and how he had made every effort to repay the victims of his crime. The day he got out of prison, he signed an agreement to make the almost $90,000-a-month restitution payment. He explained why.

“She said if I didn’t sign it I would be in violation immediately so I signed it,” he said.

“I surrendered my law license,” he said. “I explained to her that my sole income was Social Security. My mother was very ill” and caring for her was “basically like a job. I had a lot of guilt that I hadn’t been there and my brother had to do everything while I was incarcerated and I took it upon myself” to care for his mother until her death in March 2020.

His monthly income of around $3,100, he said, is from a Social Security check alone. The IRS subtracts $475 before the check reaches Neill. The garnishment goes to pay down a $900,000 judgment resulting from tax evasion charges related to the estate thefts.

Neill said he had to buy clothes after he was released from prison because he lost 100 pounds while incarcerated. He said he shops in thrift stores, adding that “Blue Ridge Humane is my favorite.”

He testified that he’s immunocompromised and has been cautious about Covid-19. “I was hospitalized for pneumonia not once but twice and almost died,” he said.

For now, he lives in his late mother’s house on Lyndale Avenue off Greenville Highway but expects to be evicted when the estate closes soon.

“My expenses will dramatically increase once I vacate my mother’s house,” he said.

Responding to questions from his attorney and from Ameshia Cooper-Chester, a special deputy attorney general, Neill insisted over and over that the irrevocable real estate trusts he had given to the victims' estates had covered a large amount of the debt he owes.

“When I set all this up, I was doing it in a way that the victims would get the money as quickly as possible,” he said. “If I hadn’t done it this way the property would have just wasted. I have no land of any type or any assets that are not secured for victims. My intent was for victims to be paid and paid promptly.”

He and his attorney, Brooks Kamszik, argued against extending his probation or adding a civil judgment against him for the restitution.

“Every asset I have has already been secured” for the victims’ estates, Neill said. “I have nothing else. If I win the lottery tomorrow I’d write everybody a check …  I’ve given everything I had and I’ve done it in a way that I can’t go back on. A civil judgment will do no good because there’s an IRS judgment ahead of them for $900,000. I don’t think it would help them but it would harm me. It would wipe out my effort to get credit.”

Neill testified that last real estate that he owned — 100 acres off Locust Grove— is under contract to sell for $900,000. When that closes, he said, victims will have received $1,542,500.

Stephanie Wilson, director of development for Four Seasons hospice and palliative care, and McCray Benson, president of the Community Foundation of Henderson County, both read victim impact letters at the close of the testimony. Four Seasons and the Community Foundation were to split the $1.1 million from the Barry Clemo estate.

Neill "spent years portaying an image of being a community champion and building trust among individuals who had a charitable nature," Benson said. Neill had handled the estate of Barry Clemo, who had left $1,151,000 to the Community Foundation and Four Seasons. "Upon Mr. Clemo's death, we made regular contact with Mr. Neill who fabricated extenuating circumstances, complications and avoided our contacts causing great strain on charitable organizations, all the while knowing full well he had stolen these resources."

The foundation asked the judge not to release Neill from his obligation to pay the victims of his thefts.

"He has shown he had a great ability to mislead others, an inability to indepently resist his underlying motives of self-interest and lacks the ability to honor his word to lifelong friends much less a community," Benson said. Throughout the trial, his prison time and since his release "at no time has he expressed compassion for those from whom he stole. To date he has made no attempt to send a note of apology for his actions."

Both Cooper-Chester and Judge Letts noted in response to Neill’s version of how he repaid the estates that the payments have never been properly credited through the courts. It was Neill’s responsibility, they said, to make sure that was done.

“While Mr. Neill was disbarred, he nevertheless did not lose his training, education or talent, which he used for many years,” Letts said as he summarized the facts late Wednesday afternoon. “There would have been time to file a motion seeking some kind of reconciliation and accounting to get credit for the money he claims he paid to the victims’ estates.”

Although Neill provided information to then-District Attorney Greg Newman, “the local district attorney did not prosecute the case,” Letts said. “The case was prosecuted by the attorney general’s office. At no time did Mr. Neill provide accountings or any other documents … to the attorney general’s office to properly capture those monies which Mr. Neill claims to have paid.”

The transfers were made “outside the normal, lawful process of probation, which applies in all 100 of our counties." Though the transfers were voluntary, “they were done under his terms and under his control, prepared at his office, where attorneys were required to try to find some sort of resolution or settlement.”

Explaining his decision to find Neill guilty of violating his probation and extending the probation by two years, Letts recalled the disbarred lawyer’s original sentencing in the same courthouse almost nine years ago.

“Once the two of you were finished, that left many many lives irreparably affected, not just your own,” he said. “Sadly, your actions still reverberate today on the byways and in the hamlets of Henderson County.”