Attorneys for former state Sen. Jeremy Hutchinson filed new arguments Tuesday asking U.S. District Judge Kristine Baker to dismiss wire- and tax-fraud charges against their client because of governmental misconduct during its investigation.
"The government cannot put forth a plausible, consistent story to rebut allegations of governmental misconduct," according to the defense reply memorandum filed in federal court in Little Rock.
"Its failure to do so actually reinforces Mr. Hutchinson's argument that his constitutional rights have been violated."
The defense's 21-page filing focused on two disputed issues:
• Whether the FBI's search of a laptop computer, and later destroying the only copy of the contents, violated Hutchinson's constitutional rights.
"The laptop has been material to the government's case and would have been essential to the defense," defense attorneys wrote.
• Whether a confession that the FBI says it obtained from Hutchinson was illegal because of coercion or promises of leniency.
Hutchinson's lawyers made their first request to dismiss charges on Feb. 7, saying the FBI illegally obtained evidence from the Vaio laptop computer the defense says was stolen from Hutchinson's home by a former girlfriend.
Defense attorneys say Hutchinson was the computer's owner, and the search was unconstitutional because the FBI didn't have Hutchinson's permission.
Further, the FBI later destroyed its copy of the computer's contents, which defense attorneys say would have supported Hutchinson's innocence.
The defense also says an FBI agent who interviewed Hutchinson on June 11, 2014, promised not to refer potential criminal charges to the U.S. attorney's office if Hutchinson cooperated.
Prosecutors responded to the dismissal motion a month later, denying government misconduct and saying the charges against Hutchinson should stand.
They argued that Hutchinson's former girlfriend, identified as Individual-1, took the computer and other evidence to the FBI in August 2012. She gave consent to a search of the computer and other devices, provided information about what the devices contained and knew the passwords to operate them.
Even if the defense's governmental misconduct allegations were true, prosecutors argued further, they wouldn't meet the high standard of "outrageousness" needed to dismiss charges against the former legislator.
Prosecutors also argued that Hutchinson, a lawyer, had already confessed to the FBI agent before any discussion of his cooperating with the agency came up.
The Little Rock Republican, a nephew of Gov. Asa Hutchinson and son of former U.S. Sen. Tim Hutchinson, resigned his state Senate seat after a federal grand jury indicted him Aug. 30 on 12 counts of wire and tax fraud.
In Tuesday's filing Hutchinson's attorneys argued that the government's claims that Hutchinson wasn't the owner of the Vaio laptop -- and therefore didn't have to consent to any search -- are disproved by the prosecution's own evidence.
FBI reports show a user account on the computer called "Hutchinson," defense attorneys argue. And the computer and other electronic devices searched "were connected with only Mr. Hutchinson's email accounts."
The defense filing also said FBI investigation notes show that "the government knew that the laptop belonged to Mr. Hutchinson, but that it wrongly and unreasonably believed" that the former girlfriend had legal access to the computer.
Defense lawyers also criticized prosecutors for alleging that Hutchinson's failure to recover the laptop indicated that it was not stolen: "It is inappropriate for the government to blame the victim of a theft for abandoning his property."
In addition, prosecutors have not "put forth a good faith reason for destroying the laptop" copy, the defense filing said, and violated at least two FBI policies in doing so.
Defense attorneys also disputed prosecutors' arguments that Hutchinson made voluntary statements about wrongdoing involving campaign finance spending and federal tax filings.
Hutchinson "asserts that the FBI overcame his will using coercive tactics -- namely, a false promise of leniency."
Special Agent Michael Lowe "secured Mr. Hutchinson's cooperation by promising not to refer" tax and campaign issues to the U.S. attorney's office, but "in fact, the U.S. attorney's office already was involved in the investigation."
The federal wire and tax charges against Hutchinson accuse him of illegally spending campaign donations on personal items and underreporting his income on federal tax returns.
Hutchinson also has been linked to a federal bribery investigation involving Preferred Family Healthcare Inc., a Missouri-based nonprofit health care provider, and former Arkansas lobbyist and company executive Milton "Rusty" Cranford.
Cranford has pleaded guilty to paying bribes that he said went to "Senator A," identified as Hutchinson. Hutchinson hasn't been charged in connection with Cranford's crimes.
Metro on 03/27/2019