Ted Suhl's argument that federal charges against him should be dropped because they weren't filed until after the death of a witness who would have exculpated him are "pure speculation" and should be discounted, government attorneys say.
The attorneys for the U.S. Department of Justice also said in a filing that Suhl cannot show that the delay in indicting him prejudiced him or that the government deliberately delayed the indictment as part of a tactical maneuver.
Suhl, 50, a Warm Springs businessman who is accused of paying up to $20,000 in bribes to a state official to protect and promote his multimillion dollar juvenile mental health services companies, last week urged U.S. District Judge Billy Roy Wilson to dismiss the conspiracy, bribery and fraud charges he faces in a trial beginning July 12.
The state official, former state Department of Human Services Deputy Director Steven B. Jones of Marion, is serving a 21/2-year prison sentence after pleading guilty to accepting bribes from Suhl through the deceased witness and a former West Memphis city official, Phillip Carter. Carter also pleaded guilty and is serving a 2-year sentence.
Suhl's attorneys argued that by the time federal prosecutors indicted Suhl last year, a West Memphis pastor who was considered a participant in the bribery scheme, and who had been critically ill, was dead. Pastor John Bennett of the 15th Street Church of God in Christ has been identified by federal prosecutors only as "Person A," a co-conspirator who wasn't charged, but Suhl's written arguments last week publicly identified him.
Suhl's attorneys argued, "Had the indictment been timely brought, Pastor Bennett would have testified at trial that the few thousand dollars in alleged bribes were not bribes at all, but were charitable donations to his church that were a drop in the bucket ... of regular donations by Suhl and his family that exceeded $240,000 over nearly ten years."
They said Bennett was recorded making those statements to a cooperating government witness.
The Fifth Amendment requires the dismissal of an indictment if "pre-indictment delay ... caused substantial prejudice" to the defendant's right to a fair trial and the delay was intentional, designed to gain tactical advantage, Justice Department attorneys acknowledged.
But they noted that the 8th U.S. Circuit Court of Appeals, which has jurisdiction over Arkansas federal cases, has also said that "Investigative delay, unlike delay undertaken by the government to gain tactical advantage over the defendant, has consistently been held reasonable and in accordance with due process."
The attorneys also argued that Bennett, who they continue to refer to as "Person A," wouldn't have been in a position to offer any exculpatory evidence he might have had because, as a co-conspirator and potential defendant, he couldn't have been compelled to testify in violation of his right against self-incrimination.
"In addition, there is no reason to believe that Person A's testimony would have actually strengthened Suhl's defense," the prosecutors said.
They noted that the evidence against Suhl includes audio recordings of him requesting official action from Jones through Carter and setting up meetings with Jones to make requests and pay bribes; video recordings of Suhl meeting with Jones and Carter and delivering a bribe check to Carter for Jones; Carter's anticipated testimony that Suhl paid bribes to Jones through the church; and Jones' anticipated testimony.
They added that "if Person A were available and willing to testify as a defense witness at trial, his testimony would be undermined by his own statements." They noted that the statements Suhl's attorneys cited "were made to Carter after Carter had been approached by, and began cooperating with, the FBI."
The filing reveals that on Nov. 27, 2011, Carter made a $1,000 payment to Jones, and Jones agreed to continue to help Suhl, while Carter and Jones were under surveillance and Carter was secretly cooperating with the FBI. It says that at a Jan. 29, 2012, meeting Carter arranged with Jones, "purportedly so they could discuss additional matters" related to Suhl's companies, "Jones was instead confronted by the FBI and was shown evidence of his receiving bribes from [Suhl]. Jones admitted accepting bribes from [Suhl] through Carter."
Two days later, the prosecutors wrote, Jones approached the pastor at night, "dressed like a ninja" and told him the FBI had surprised him at a meeting with Carter; and that Carter had "thrown [Jones] under the bus." They said Jones told the pastor that the pastor was under investigation for money laundering. Given that, they argued, "Person A's self-serving, false exculpatory statements to Carter are unsurprising."
The Justice Department attorneys also filed a response to a backup motion Suhl filed seeking dismissal of his secondary counts -- those other than the main charge of conspiracy. The department said Suhl's motion misstates the law, mischaracterizes the facts and invites the court "to usurp the jury's role and look behind the indictment to the proof that will be offered at trial."
Metro on 04/23/2016