SalemNews.com, Salem, MA

April 12, 2014

Man who stole from arts group says he shouldn't have to repay money

BY JULIE MANGANIS
STAFF WRITER

---- — NEWBURY — A group of area residents once involved in the Yellow School Center for the Arts in the Byfield section of Newbury are trying to revive their dream of a community arts program.

They’re hoping a Salem Superior Court judge will allow them to continue collecting restitution payments owed by the group’s former treasurer, whose thefts of more than $100,000, a prosecutor said, led to the organization’s demise.

But the former treasurer, David Takesian, is challenging that restitution order, contending that because the organization is defunct, he shouldn’t have to give back the money he stole.

The argument outraged First Assistant District Attorney Jack Dawley, who said if a judge allows Takesian, of Amesbury, to stop repaying the $82,000 in restitution he owes, it will amount to a case of “unjust enrichment.”

Takesian, now 47, used the money to pay his mortgage, credit card bills and other expenses, prosecutors said.

Not only did Takesian essentially drive the nonprofit out of business with his thefts over a three-year period in the mid-2000s, said the prosecutor, but he then used a promise of making full restitution to reduce his time behind bars.

Dawley said prosecutors initially weren’t seeking restitution from Takesian, an accountant, but rather a state prison term.

“We believe his offer was intended to offset the Commonwealth’s recommendation of state prison, and it worked,” said Dawley.

Takesian, who pleaded guilty in 2008, received two years in the house of correction, a county jail, instead of the three- to five-year state prison term sought by prosecutors.

That county jail term entitled him to parole after a year. He was supposed to begin paying $400 a month after his release from jail. He’s paid about $14,000 since his release, including a $1,000 payment toward his arrears last month.

Earlier this year, a probation officer issued a notice warning Takesian that he was in violation of his restitution order after he failed to make any payments for several months.

That’s when he and his attorney, Gordon Feener, showed up at court last month asking Judge John Lu to end his restitution based on the fact that at the time the Yellow School was no longer an active organization.

“Restitution is personal to the victim, and not an asset to be freely traded in the marketplace,” Feener argued, suggesting that it would “go against public policy” to allow a new entity to begin receiving the payments.

Feener also disputed the contention that Takesian is responsible for the group’s demise, blaming others in the organization for failing to file required financial reports with the Internal Revenue Service and the state of Massachusetts.

Lora McSherry, a lawyer working with Paula Wright on reviving the organization, said the group would partner with an existing community organization to provide an arts program in the area. She declined to identify the organization, citing the fact that while the Secretary of State’s office has allowed the Yellow School nonprofit to be legally reinstated as a corporation, she will still need both Lu’s order and an order from the Supreme Judicial Court to allow the assets of the old organization to be transferred to the new entity.

If allowed by the judge, those assets would include the restitution payments Takesian is supposed to be making.

Feener said even if ordered by the judge to continue making the payments, Takesian, who now works at the deli counter at a Stop & Shop, can afford no more than $100 a month.

Takesian is a graduate of Merrimack College who had worked as an accountant for years. As a result of his conviction on felony larceny and making false entries into corporate books, accounting is a field that “is no longer available” to Takesian, his lawyer said.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.