Destruction of evidence alone justifies dismissing the corruption conviction of former state Sen. Jon Woods of Springdale, his attorney says in a brief to the U.S. Court of Appeals for the 8th Circuit.
Failing that, Woods should receive a new trial in which the jury is told that FBI Special Agent Robert Cessario wiped the hard drive of a computer used to gather evidence in the case, the appeal brief says.
Woods’ attorney, Patrick Benca of Little Rock, filed the brief June 3. The brief was unsealed Wednesday after court processing. The defense asks the 8th Circuit for a hearing at its first opportunity.
Defense attorneys asked the judge last year to dismiss the case against Woods when the issues surrounding Cessario came up in pretrial hearings. U.S. District Judge Timothy L. Brooks denied those motions. Brooks also prohibited mention of the laptop wiping in the trial.
Benca’s appeal brief also argues Brooks erred on other matters and favored the prosecution in his rulings.
Under federal law, investigator misconduct is only grounds for dismissal if the defense can prove the investigator acted in bad faith with the purpose of hurting the defense case. Cessario’s conduct is “the most egregious example of bad faith” the defense could find in researching similar cases to cite to the appeals court, Monday’s brief says.
Cessario’s case was turned over to the FBI inspector general’s office after pretrial hearings last year. The inspector general’s office doesn’t comment on ongoing investigations, and no results in Cessario’s case have been announced.
Both the U.S. attorney’s office for the Western District of Arkansas and a spokesman for the clerk’s office for Brooks said they had no comment on the appeal brief.
A federal court jury in Fayetteville convicted Woods on May 3, 2018, of 15 corruption-related counts in a kickback scheme involving state grants to Ecclesia College in Spring-dale and the nonprofit company AmeriWorks in Bentonville. Woods is serving a sentence of 18 years and four months in a Fort Worth federal prison.
His co-defendant, Randall Shelton Jr. of Kemp, Texas, was convicted in the same trial of 12 counts, all related to Ecclesia College. He and Woods are appealing together.
Shelton ran a consulting company called Paradigm Strategic Consulting. Almost all of Paradigm’s income came from Ecclesia College, according to financial records presented at trial. An undetermined amount of those consulting fees were passed along to Woods and other lawmakers as kickbacks, according to court documents.
Then-college President Oren Paris III of Springdale pleaded guilty to one count of conspiracy before trial but reserved his right to an appeal over Cessario’s actions.
Shelton and Paris are also serving sentences in federal prison, six years for Shelton and three years for Paris.Co-conspirator and former state Rep. Micah Neal of Springdale cooperated early with the investigators and received one year of home confinement for his role in steering grants to both Ecclesia and AmeriWorks.
Paris’ appeal is proceeding separately from Woods’ and Shelton’s. The 8th Circuit agreed to sever Paris’ case from Woods’ and Shelton’s appeal since none of the trial issues were relevant in his case.
Neal secretly recorded conversations with Woods and others while cooperating with federal investigators but did this on his own without help or permission from the investigators, according to trial testimony and court records.
Defense attorneys requested copies of the recordings. Cessario used an FBI laptop to gather copies of those recordings from the office of Neal’s defense attorney. The other defense attorneys found records in the case that noted recordings by Neal not provided to the defense.
Cessario was told by the U.S. attorney’s office to turn over the laptop for examination. He took the device to a computer shop in Bentonville and had the hard drive professionally erased, then wiped it again before turning it over, according to court testimony.
Attempts by investigators to obtain copies of Neal’s original recordings weren’t successful. The computer at Neal’s attorney’s office where the originals were kept had been replaced.
A jury should know that the lead investigator had committed serious misconduct and then covered it up, Benca’s brief argues.
After the memory wipe, the only possible source for discovering what was on the computer was testimony from Cessario, the brief argues. The defense was denied the right to ask questions about the laptop contents or to bring the issue up while Cessario was on the stand. Cessario did testify at the trial but only about the investigation in general.