United States District Court, W.D. Arkansas, Fayetteville Division
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
a criminal case in which the Defendants, Jonathan Woods, Oren
Paris, and Randell Shelton, have been charged in a
seventeen-count indictment with conspiring to bribe Mr. Woods
while he was a state senator in the Arkansas General
Assembly. See Doc. 74. All three Defendants
vehemently deny these charges, and have indicated that they
will exercise their right to a speedy and public trial.
the last seven months of these proceedings have had very
little to do with the substance of the Government's
charges against the Defendants. Instead, this case has become
consumed with numerous heated accusations of Governmental
misconduct that the Defendants allege occurred during both
the pre-indictment investigative process and the
post-indictment discovery process. The Defendants have filed
numerous motions on this topic, some of which the Court has
already ruled on, and others of which are still awaiting
decision. Over the last couple of months, the Court has
conducted four days of evidentiary hearings on these issues,
at which a great deal of exhibits and testimony have been
received. Now that the Court has considered all of the
arguments and evidence that have been received on these
matters, it is prepared to rule on all of the motions that
are still pending in this case, which will be done in this
Opinion and its accompanying Order. Along the way, the Court
will either reject or remedy, as appropriate, every instance
of alleged Governmental misconduct that has not already been
addressed by any prior rulings in this case.
this case returns to being about the seventeen charges that
the Government has brought against these Defendants. The
Defendants have pleaded not guilty and are presumed innocent.
They will have the opportunity to hold the Government to its
burden of proof at a public trial before a jury of their
peers. That trial will begin a little over a month from now,
on April 9, 2018.
charges in this case arise from a multi-year federal
investigation into accusations of public corruption against
certain Arkansas legislators. The General Improvement Fund
("GIF") was established by the Arkansas General
Assembly, for the purpose of using leftover taxpayer dollars
to fund projects at the community level. Lawmakers throughout
the state had some amount of individual discretion to steer
GIF funds to projects of their own choosing. For example, a
legislator might direct a GIF grant to a rural volunteer fire
department for the purchase of new equipment. But however
noble that might sound in theory, the Arkansas Constitution
prohibits the disbursement of public funds for purposes that
are not distinctly stated in an appropriations bill. See,
e.g., Wilson v. Walther, 2017 Ark. 270, at *1-*5,
*9-*11. And according to the Government's theory in this
case, the GIF grant process was, in practice, ripe for abuse
and a conduit for corruption.
Government's investigation into these and related matters
is still ongoing, and it extends beyond the individuals and
acts that have been charged in this particular case. Among
other things, the investigation involved the tracing of
legislative acts, the making and approval of GIF grants on a
regional level, and the ensuing paper trail of disbursements,
receipts, and proof that all of the proceeds were used as
authorized. This dragnet involved the collection of an
enormous number of documents-a number that has been
represented to the Court as extending into the millions. Of
course, only some fraction of GIF grant transactions are
suspected of involving corruption. And whatever that fraction
may be, the transactions that underlie the charges in
this case are a still smaller fraction of it.
previously mentioned, Mr. Woods is a former state senator.
Mr. Paris is the president of a bible college, and Mr.
Shelton is a businessman. Essentially, the Government alleges
that these three Defendants entered into a conspiracy under
which Mr. Woods would cause GIF funds to be disbursed to Mr.
Paris's college, but with a portion of those funds being
funneled back through Mr. Shelton's business to Mr. Woods
for his own personal use. The Government also alleges that
there was a fourth member of this conspiracy-former state
representative Micah Neal-who also received kickbacks from
Mr. Paris through Mr. Shelton. Unlike the three Defendants in
this case, Mr. Neal admits to the existence of this scheme
and to his receipt of kickbacks under it. More than a year
ago, in a separate criminal case before this Court, Mr. Neal
entered a guilty plea to one count of Conspiracy to Commit
Honest Services Mail and Wire Fraud, see Case No.
5:17-cr-50001, Doc. 5, and he is expected to testify as a
cooperating witness for the Government against these three
Defendants at their trial in April.
Neal began cooperating with the Government in January of
2016, roughly a year before he was formally charged, and
almost immediately after he first learned that he was facing
potential criminal charges. Throughout the period of his
cooperation, Mr. Neal has been represented by an attorney
named Shane Wilkinson. At some point in March 2016, Mr. Neal
decided to begin secretly recording his conversations with
Mr. Woods and others. He made the Government aware of this
decision, but he and the Government both maintain that it was
his decision alone and that the Government never asked or
directed him to make these recordings.
in November 2015, Mr. Woods also cooperated for some time
with the Government's investigation, while he was
represented by an attorney named W.H. Taylor. However, in
March 2016, Mr. Woods fired Mr. Taylor, hired his current
counsel, Patrick Benca, and stopped cooperating with the
Government. Mr. Woods and his two codefendants were indicted
on March 1, 2017, roughly two months after Mr. Neal entered
his guilty plea. Their trial was originally set to begin on
May 3, 2017. But on Mr. Woods's motion, the trial date
was continued to December 4, 2017. See Docs. 57-58.
31, 2017, Mr. Woods filed a Motion and Request for Hearing
(Doc. 63), arguing that the Government violated his Sixth
Amendment right to counsel by having Mr. Neal make secret
recordings of conversations with Mr. Woods while it knew Mr.
Woods was represented by counsel. The Government, as noted a
couple of paragraphs above, denied having played any role in
the making of those recordings. See Doc. 67, pp.
9-10. But the Court saw no need to resolve this factual
dispute, because even if Mr. Woods's view of the facts
were correct, the Sixth Amendment right to counsel does not
attach until adversarial judicial criminal proceedings have
been initiated, which had not yet occurred when these
recordings were made. See Doc. 72, pp. 2-3. So the
Court denied Mr. Woods's Motion and Request for Hearing,
id. at 4, and it likewise denied Mr. Woods's
later Motion and Request for Reconsideration (Doc. 83) of
that earlier ruling, see Doc. 128.
on September 8, 2017, Mr. Paris filed a Motion to Suppress
(Doc. 73), arguing, among other things, that this Court
should suppress confessional statements that Mr. Woods
proffered to the Government while he was still represented by
Mr. Taylor. Mr. Paris argued that these statements of Mr.
Woods were the product of coercion by his attorney, Mr.
Taylor, who Mr. Paris insinuated was colluding with FBI
Special Agent Robert Cessario to pressure Mr. Woods into
giving false confessions. See Id. at 7-13. The Court
eventually denied Mr. Paris's Motion, see Doc.
128, but not before that Motion had prompted the Government
to gather up every record of communication it had with Mr.
Taylor during the relevant time period, present it all to the
Court ex parte under Fed. R. Crim. P. 16(d)(1),
request a ruling that none of it was discoverable by the
Defendants in this case, see Docs. 120, 124.
ex parte hearing on these materials, the Court ruled
in the Government's favor with respect to the vast
majority of the Government's proffered documents, finding
that they were wholly irrelevant to the claims and defenses
in this case, and therefore not discoverable. However, there
were three documents with respect to which the Court ruled
against the Government.
such document was a written statement that had been provided
to the Government while Mr. Taylor was still representing Mr.
Woods. See Doc. 124, pp. 28-30. The Court ordered
the Government to produce this statement to all of the
Defendants, because although the Government had initially
been under the impression it was a communication by Mr.
Taylor, it appeared more likely to the Court that it was
actually a statement by Mr. Woods himself that had been
conveyed to the Government by Mr. Taylor while Mr. Woods was
still cooperating. See Doc. 251, pp. 59-64; Fed. R.
Crim. P. 16(a)(1)(B)(i).
document that the Court ordered the Government to produce was
an email exchange between Mr. Taylor and the Government,
after Mr. Taylor's representation of Mr. Woods had ended,
about the source of Mr. Woods's payment of attorney fees
to Mr. Taylor. See Doc. 124, p. 33. It appears that
potential forfeiture implications were what motivated this
exchange. See Doc. 284, pp. 66-68. The Court ordered
the Government to produce this document to Mr. Woods only,
and to inquire of him whether he objected to it being shared
with his codefendants. See Doc. 251, pp. 65-68.
third document that the Court ordered the Government to
produce consisted of three pages of notes that were
handwritten by Mr. Taylor, about Mr. Woods, while Mr. Woods
was still cooperating with the Government. See Doc.
124, pp. 25-27. Mr. Taylor had originally shown at least some
of these notes in February 2016 to counsel for the
Government, Kenny Elser, in the course of representing Mr.
Woods. At that time, Mr. Taylor had also offered to give Mr.
Elser a physical copy of those notes; Mr. Elser responded
that he did not need a physical copy then, but that he would
follow up with Mr. Taylor if his needs changed. That
follow-up eventually occurred-but not until around October
2017, when the Government was gathering materials for the
aforementioned ex parte motion, and long after Mr.
Taylor's representation of Mr. Woods had ended. True to
his word, Mr. Taylor then provided those notes to Mr. Elser.
As with the forfeiture-related communications, the Court
ordered the Government to produce these notes to Mr. Woods
only, and to ask him whether he would object to them being
shared with his codefendants. See Doc. 251, p. 57.
Government complied with these orders, and upon receipt of
the Government's discovery and inquiry, Mr. Woods
responded that he would indeed object to any disclosure to
his codefendants of Mr. Taylor's handwritten notes and
communications with the Government about the source of Mr.
Woods's attorney-fee payments. Shortly thereafter, Mr.
Paris filed a Motion to Compel (Doc. 209) disclosure of these
materials to him over Mr. Woods's objection, and Mr.
Woods filed a Motion to Dismiss due to Prosecutorial
Misconduct (Doc. 211).
this case had also become embroiled in acrimonious disputes
over whether the Government was fulfilling its discovery
obligations. Many of those disputes are not worth recounting
here, but certain disputes relating to Mr. Neal's secret
recordings are relevant to the case's present posture. On
November 2, 2016, the Government was given access to these
recordings by Mr. Wilkinson's office, and in April 2017,
the Government turned copies of them over to the Defendants.
On October 12, 2017, the Government provided the Defendants
with redacted copies of text messages between Mr. Wilkinson
and Agent Cessario. The Defendants' review of those text
messages convinced them that there must exist some additional
secret recordings by Mr. Neal that had not yet been turned
over to them. In particular, the Defendants found specific
references in those text messages to recordings of
conversations that were not contained in any of the
recordings they already possessed.
the Defendants brought these discrepancies to the
Government's attention, a Government lawyer relayed these
concerns to Mr. Wilkinson, which set in motion a chain of
events that eventually led to the discovery that Mr.
Wilkinson's office indeed possessed additional recordings
that had never come into the possession of any lawyers for
any of the parties in this case, including the Government.
This revelation occurred in November 2017, only a couple of
weeks before trial, after Mr. Paris and Mr. Shelton had filed
Motions to Dismiss of their own (Docs. 168 and 170,
respectively), but before the Court had an opportunity to
rule on those motions. The Defendants asked the Court to take
the events surrounding the discovery of these additional
recordings into account when ruling on their pending Motions
to Dismiss, and eventually the Court and all parties agreed
that it would be necessary to continue the trial date to
April 9, 2018, in order to allow time for evidentiary
hearings to be held on these matters. Now, roughly three
months and several more dramatic developments later, the
Court is satisfied that we have finally gotten, if not to the
very bottom of these issues, then as close to their bottom as
we can ever reasonably expect to get. Accordingly, the Court
is now prepared to rule on all of the aforementioned motions:
Mr. Paris's Motion to Compel, and all three previously
mentioned Motions to Dismiss filed by each of the Defendants.
The Court is also prepared to rule on a related,
supplementary Motion to Dismiss (Doc. 293) that was filed on
February 20, 2018 by Mr. Woods.
first subsection below, the Court will simultaneously
consider Mr. Paris's Motion to Compel (Doc. 209) and Mr.
Woods's first Motion to Dismiss (Doc. 211), as these two
motions implicate overlapping issues. Then in the second
subsection, the Court will deal with Mr. Woods's second
Motion to Dismiss (Doc. 293), along with the Motions to
Dismiss filed by Mr. Paris (Doc. 168) and Mr. Shelton (Doc.
Mr. Paris's Motion to Compel and Mr. Woods's First
Motion to Dismiss
Woods's first Motion to Dismiss, he argues that the
Government violated his Sixth Amendment right to
counsel by obtaining the information from his
former counsel, Mr. Taylor, that this Court subsequently
reviewed ex parte and ordered the Government to
disclose to Mr. Woods. As a reminder to the reader, these
materials are: (1) a statement by Mr. Woods that Mr. Taylor
emailed to the Government in February 2016, while Mr. Woods
was still cooperating with the Government and still being
represented by Mr. Taylor; (2) information about the source
of Mr. Woods's attorney-fee payments that Mr. Taylor
provided to the Government in April 2017, after he was no
longer representing Mr. Woods; and (3) Mr. Taylor's
handwritten notes about Mr. Woods that he first showed Mr.
Elser in February 2016, while he was still representing Mr.
Woods and while Mr. Woods was still cooperating with the
Government, but that Mr. Taylor subsequently provided to Mr.
Elser in October 2017, after he was no longer representing
Mr. Woods and Mr. Woods was no longer cooperating with the
Government. Mr. Woods asks the Court to remedy the alleged
Sixth Amendment violation by either dismissing the indictment
in this case, or by disqualifying the United States Attorney
for the Western District of Arkansas from prosecuting it.
establish a sixth amendment violation, a criminal defendant
must show two things: first, that the government knowingly
intruded into the attorney-client relationship; and second,
that the intrusion demonstrably prejudiced the defendant, or
created a substantial threat of prejudice." United
States v. Singer, 785 F.2d 228, 234 (8th Cir. 1986)
(internal citations omitted). However, "a sixth
amendment violation alone . . . does not require dismissal of
the indictment. The interests supporting the sixth amendment
right, meant to assure fairness in the adversary criminal
process, must be reconciled with society's competing
interest in prosecuting criminal conduct." Id.
(internal citation omitted). Accordingly, "the
appropriate course when faced with a sixth amendment
violation is to tailor a remedy to the injury suffered, to
assure the defendant effective assistance of counsel in a
subsequent proceeding." Id. Thus, the question
of prejudice and the question of remedy are
separate questions, though the type of remedy that is
appropriate will by necessity depend on the type of prejudice
that was suffered.
Woods argues that a "per se Sixth Amendment violation,
with presumed prejudice, occurs when the government
purposefully intrudes into the defendant's
'attorney-client relationship and lacks a legitimate
justification for doing so.'" See Doc. 211,
¶ 9 (quoting Shillingery v. Haworth, 70 F.3d
1132, 1142 (10th Cir. 1995)). He argues further that if he
can establish a prima facie case of such purposeful
intrusion without legitimate justification, then "the
government has the burden to rebut the defendant's prima
facie case." See Id. at ¶10 (citing
Kastigar v. United States, 406 U.S. 441 (1972)). And
he contends that in doing so, the Government must rebut his
prima facie case by "clear and convincing
evidence." See Id. at ¶12-13 (citing
Addington v. Texas, 441 U.S. 418, 423 (1979)). The
Court does not think that Mr. Woods is correct about any of
this, at least so far as the Eighth Circuit and United States
Supreme Court are concerned. For one thing, Kastigar
simply does not say what Mr. Woods says it says, and
Addington has nothing to do with the Sixth
Amendment. For another, although this Court believes that Mr.
Woods has accurately characterized Shillinger, that
is a Tenth Circuit case; and Eighth Circuit
precedent, which is binding on this Court, would seem to
contradict it on this issue of presumed prejudice and per
se Sixth Amendment violations. See, e.g., United
States v. Kriens, 270 F.3d 597, 603 (8th Cir. 2001)
("The burden ... is on the defendant to show
that the representation or the proceedings leading to his
conviction were adversely affected by virtue of a Sixth
Amendment violation in order to obtain a dismissal of the
indictment." (emphasis added)).
the picture in the Eighth Circuit is admittedly muddy. For
example, Singer acknowledges in dicta that
in the Eighth Circuit "[i]t is certainly true that where
there is gross misconduct on the part of the
government no prejudice need be shown." See 785
F.2d at 234 n.6 (emphasis added) (quoting United States
v. Davis, 646 F.2d 1298, 1303 n.8 (8th Cir. 1981)). And
Singer seems to indicate that whether "gross
misconduct" occurred depends on whether the Government
acted in "good faith." See id.
though, it makes no difference whether Mr. Woods is correct
about the legal standard here, because assuming for the sake
of argument that he is, this Court nevertheless finds by
clear and convincing evidence that: (1) the Government, and
more specifically, Mr. Elser, acted in good faith when
obtaining the aforementioned information from Mr. Taylor; and
(2) Mr. Woods has suffered no prejudice and no substantial
threat of prejudice from the Government's acquisition of
this information from Mr. Taylor. The basis for these
findings is as follows.
January 10, 2018, the Court held an in camera
evidentiary hearing at which only Mr. Woods, his counsel, and
the Government were present. At that hearing, Mr. Woods
called his former attorney, Mr. Taylor, and lead counsel for
the Government, Mr. Elser, to testify under
Taylor testified that he began representing Mr. Woods around
October 28, 2015, and that Mr. Woods signed an agreement to
proffer information to the Government a couple of weeks
later, on November 11. See Doc. 284, p. 22. He testified
that Mr. Woods proffered additional information to the
Government the following month in December. See Id.
at 23. Then, on February 10, 2016, Mr. Taylor met alone with
Mr. Elser at the United States Attorney's office in
Fayetteville, to discuss some additional matters that had
come up at the end of a previous proffer by Mr. Woods.
See Id. at 28-29. Mr. Taylor recalled having told
Mr. Elser at some point that with respect to those additional
matters, Mr. Woods had not done anything wrong; and he also
recalled Mr. Elser asking him to get more information from
Mr. Woods to support this contention. See Id. at
33-34. He could not remember whether that previous
conversation with Mr. Elser occurred on January 29, 2016, but
he conceded it might have. See Id. at 35-37. But at
any rate, Mr. Taylor remembered the February 10 meeting as
being the occasion on which he followed up with Mr. Elser in
person about these matters after having discussed them with
Mr. Woods. See Id. at 34.
to Mr. Taylor, his handwritten notes which are presently at
issue generally reflected the contents of these discussions
with Mr. Elser and Mr. Woods. Specifically, they contained a
list of loans that Mr. Woods received dating back to 2012.
See Id. at 12, 34-35. Mr. Taylor testified that some
of the information or questions in the notes came from Mr.
Elser, and some of the information in the notes came from Mr.
Woods in response to the questions that Mr. Elser had posed
to Mr. Taylor about these loans. See Id. at 16-17,
38-40, 44-45, 53-54, 56-58. Mr. Taylor recalled showing these
notes to Mr. Elser during the February 10 meeting in an
effort to persuade Mr. Elser not to indict Mr. Woods for this
additional conduct-an effort Mr. Taylor considers to have
been successful, given that Mr. Woods was never charged for
the conduct described in the handwritten notes. See
Id. at 34-35, 40-41. Mr. Taylor also testified that Mr.
Woods had authorized him to share those notes with Mr. Elser
at the February 10 meeting for the purpose of explaining to
Mr. Elser why Mr. Woods should not be indicted for the
conduct described therein, see Id. at 41, and that
after the meeting with Mr. Elser he reported to Mr. Woods
what had happened and that he believed it had gone well,
see Id. at 43. Mr. Taylor also recalled asking Mr.
Elser during the February 10 meeting whether Mr. Elser wanted
to keep a copy of the notes, and Mr. Elser responding,
"No. If I need them, I'll get those from you later,
" though Mr. Taylor expressed uncertainty about the
accuracy of his memory on this point. See Id. at
Mr. Taylor testified that he was contacted by Mr. Elser at
some point after his representation of Mr. Woods had ended;
he could not remember the date, but he conceded that it could
have been in September or October of 2017. See Id.
at 9. During this communication, Mr. Elser asked Mr. Taylor
if he would provide him a copy of these notes, and Mr. Taylor
agreed to do so. See Id. at 10-12. Mr. Taylor
testified that he turned over a copy of the notes to Mr.
Elser at that time, because he felt he had already been
authorized to do so by Mr. Woods, and because there was no
harm in giving it to the Government since he believed the
notes had helped to persuade them that Mr. Woods had done
nothing wrong with respect to their contents. See
Id. at 43-44, 51.
Mr. Taylor, Mr. Elser testified that Mr. Taylor first reached
out to him on behalf of Mr. Woods in October 2015,
see Doc. 285, pp. 5-6, that Mr. Woods signed a
proffer agreement on November 11, 2015, see Id. at
6-7, and that Mr. Woods then proffered information to the
Government once that same month and once more in the
following month of December, see Id. at 7. Mr. Elser
also testified that Mr. Taylor informed him in March 2016
that Mr. Woods had terminated Mr. Taylor's representation
of him and would likely no longer cooperate with the
Government. See Id. at 15-16, 50.
Elser recalled Mr. Taylor showing him the handwritten notes
before then, at their February 10, 2016 meeting, and he
recalled Mr. Taylor offering to let him copy them at that
time, but he could not recall whether he had actually made a
copy. See Id. at 9. Mr. Elser also recalled asking
Mr. Taylor in October 2017 for a copy of the notes. See
Id. at 8-9. Mr. Elser testified that "the whole
point" of the February 10 meeting was to discuss
"what an additional proffer would look like and what Mr.
Woods would say in that proffer." See Id. at
11. He also testified that when he asked in October 2017 for
a copy of the notes, he recalled that they generally
reflected the contents of the February 10 discussion, and
that Mr. Taylor had conveyed to him on February 10 that the
subject activities did not involve any criminal wrongdoing;
but beyond those generalities, Mr. Elser testified that he
had not been able to recall very much at all about the
notes' specific contents when he asked Mr. Taylor for a
copy of them in October 2017, see Id. at 11-14. Mr.
Elser further testified that the reason he reached out to Mr.
Taylor to obtain a copy of the notes was because he wanted to
review them and provide them to the Court in anticipation of
the possibility that Mr. Taylor might "have to testify
regarding the entire course of conduct in dealing with Mr.
Woods and the proffer, " given that a Motion to Suppress
was then pending that implied that Mr. Taylor had conspired
with the Government to procure false confessions from Mr.
Woods. See Id. at 8, 14-17.
Mr. Elser testified that from his review of the notes, he
believes they contain a combination, on the one hand, of
information and questions that were given by him to Mr.
Taylor during a meeting on January 29, 2016, and on the other
hand, responsive information that was subsequently given to
Mr. Taylor by Mr. Woods, prior to the February 10 follow-up
meeting. See Id. at 22-24, 29-31, 36-38. According
to Mr. Elser, the notes describe a list of loans that, prior
to the February 10 meeting, Mr. Elser believed Mr. Woods had
taken out and not repaid, and that Mr. Elser had believed
might have been bribes. See Id. at 24-25. But after
Mr. Taylor showed him the notes and explained that Mr. Woods
would proffer that the loans described therein had been fully
paid off and were not a quid pro quo, Mr. Elser did
some more searching and obtained additional bank records
indicating that the loans had indeed been fully repaid.
See Id. at 25. Mr. ...