FAYETTEVILLE -- Defendants in the corruption case involving former state Sen. Jon Woods filed notice Thursday that they will appeal U.S. District Judge Timothy Brooks' refusal to dismiss the charges.
Woods, Oren Paris III, and Randell G. Shelton sought to have charges against them dismissed because FBI Special Agent Robert Cessario had a hard drive of a laptop computer used in the investigation erased after being ordered to turn it over for inspection in a evidence-related dispute.
Brooks' released his ruling to allow the charges to stand in a court order last week.
The appeal will be lodged with the 8th U.S. Circuit Court of Appeals. Appeals taken while a case is pending typically result in the case being delayed. The trial is scheduled to begin April 9.
The three defendants have pleaded innocent. They face up to 20 years in prison on the fraud and conspiracy charges, if convicted. Woods faces an additional 10 years on the money-laundering charge, if convicted.
The notice of appeal claims Brooks' ruling violates due process "due to the bad faith destruction of evidence potentially useful to the defendants by the government."
Brooks' order said that while Cessario's actions were wrong, a grand jury issued an indictment against the three defendants and the public has an interest in seeing it prosecuted, just as the defendants have an interest in holding the government to its burden of proof at trial.
"There may be readers of this opinion who feel that this court, by declining to dismiss the indictment, is somehow allowing Agent Cessario -- and by extension, the government -- to 'get away with' bad conduct," Brooks wrote in his order. "The court would emphasize here that it does not condone Agent Cessario's actions; it finds them reprehensible. But the public does not forfeit its interest in seeing crime prosecuted simply because one government agent happened to engage in bad conduct along the way."
Also last week, Brooks refused a defense motion asking that he step aside from the case.
Brooks noted in the order that Cessario's actions are being investigated by the FBI's Office of the Inspector General and, depending on the results of that investigation, Cessario could face criminal charges.
Woods, a Springdale Republican; Paris, president of Ecclesia College in Springdale; and Shelton, a consultant formerly of Alma, are accused of participating in a kickback scheme involving state grants. The Justice Department alleges Paris paid Woods and then-state Rep. Micah Neal of Springdale kickbacks in return for $550,000 in grants from them to his college from 2013 through 2014. Shelton is accused of using his consulting firm to funnel the money to Neal and Woods.
Neal pleaded guilty to a conspiracy count on Jan. 4, 2017, but has not been sentenced.
Neal made secret audio recordings from March to October 2016, hoping to find more evidence and mitigate the sentence he expects to receive, according to his testimony in an earlier hearing. Neal did this without the government's encouragement or participation, according to prosecutors, but he did inform investigators he was doing it.
Defense attorneys asked Brooks to dismiss the case last year, arguing they never received a complete copy of Neal's recordings. They received 39 files originally and discovered gaps in the dates between recordings. They also found text messages between Neal, his attorney and Cessario referring to recordings not among the ones the defense team received.
The discovery of the gap resulted in the U.S. attorney's office ordering Cessario to turn in the laptop for inspection. That inspection found Cessario had the hard drive erased. Cessario's role as lead investigator taints the whole case, defense attorneys argued in a hearing Jan. 25.
Further investigation found 79 more recordings on a computer at the office of Neal's attorney, Shane Wilkerson of Bentonville, that were then given to the defense. Still further investigation after the wiped-disks incident came to light found another audio file.
Woods faces 15 counts of fraud, all relating to either wire or mail transfers of money. Paris and Shelton are named in 14 of the fraud charges. Each is charged with one count of conspiracy to commit fraud. Woods is also charged with one count of money laundering in connection with the purchase of a cashier's check.
The case involves grants from the state General Improvement Fund, which was controlled by legislators. The state Supreme Court declared the method of distribution unconstitutional last year.
Metro on 03/09/2018