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United States v. Woods

United States District Court, W.D. Arkansas, Fayetteville Division

September 24, 2018




         Currently before the Court are Defendant Jonathan E. Woods's Motion for Release Pending Appeal (Doc. 483) and Brief in Support (Doc. 484). For the reasons given below, Mr. Woods's Motion is DENIED.

         I. BACKGROUND

         On May 3, 2018, Mr. Woods, a former senator in the Arkansas General Assembly, was convicted at trial on fifteen felony counts of honest services fraud and money laundering. See Doc. 378. Among other things, the jury found that the Government had proved beyond a reasonable doubt that Mr. Woods accepted multiple cash bribes in exchange for using his authority as a senator to direct public grant money to an entity called AmeriWorks and to another entity called Ecclesia College. See generally Doc. 422. At Mr. Woods's sentencing hearing on September 5, this Court varied downward from the advisory Sentencing Guidelines range[1] and sentenced Mr. Woods to serve two hundred and twenty months in the custody of the Federal Bureau of Prisons, to be followed by three years of supervised release. See Doc. 471. The Court also imposed monetary penalties of $1, 621, 500.00 in restitution and a $1, 500.00 special assessment. See Id. Judgment was entered on the docket two days later, see id., along with a separate Money Judgment of $1, 097, 005.00, see Doc. 466.

         Mr. Woods has been released on bond throughout these proceedings. See Docs. 17, 385. When the Court imposed sentence, it ordered Mr. Woods to report by no later than 1:00 p.m. on Wednesday, September 26, 2018 to the institution designated by the Bureau of Prisons where he would begin his term of imprisonment. See Doc. 471, p. 2. The Court permitted Mr. Woods to remain out on bond until that date.

         On September 20, Mr. Woods filed a Notice of Appeal to the United States Court of Appeals for the Eighth Circuit, see Doc. 485, along with a Motion for Release Pending Appeal, see Doc. 483. As the Motion's title indicates, Mr. Woods asks this Court to allow him to remain out on bond until his appeal is resolved. The Government has not yet had the opportunity to respond to Mr. Woods's Motion, as it was filed only four days ago. But the Court is already well apprised of the pertinent facts and law, and Mr. Woods's report date is only two days from now. Therefore, the Court believes it best to go ahead and rule now on Mr. Woods's Motion, so that he may have as much advance notice as reasonably possible of what his obligations are with respect to incarceration during his appeal.

         Below, the Court will first recite the applicable legal standard. Then the Court will discuss the substance and merits of Mr. Woods's Motion.


         A person who has been found guilty of an offense and sentenced to a term of imprisonment must be detained during the pendency of any appeal he has filed, unless the Court finds:

(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released ....; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in-
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

18 U.S.C. § 3143(b)(1).

         The Eighth Circuit has explained that this statute's requirement of a "substantial question" refers to "a close question or one that could go either way." See United States v. Powell, 761 F.2d 1227, 1233-34 (8th Cir. 1985). Elaborating on this, the Eighth Circuit observes that "[i]t is not sufficient to show simply that reasonable judges could differ (presumably every judge who writes a dissenting opinion is still 'reasonable') or that the issue is fairly debatable or not frivolous." Id. at 1234. However, "the defendant does not have to show that it is likely or probable that he or she will prevail on the issue on appeal." Id.

         The Eighth Circuit has further explained that the statute's requirement that reversal or new trial be likely[2] means that the defendant must "show that the substantial question he or she seeks to present is so integral to the merits of the conviction that it is more probable than not that reversal or a new trial will occur if the question is decided in the defendant's favor." Id. In deciding this question, the Court "must assume that the substantial question presented will go the other way on appeal and then assess the impact of such assumed error on the conviction." Id.

         Here, as a threshold matter, the Court finds by clear and convincing evidence that Mr. Woods is not likely to flee or pose a danger to the safety of any other person or the community if released. The Court also finds that Mr. Woods's appeal is not for the purpose of delay. Accordingly, the legal standard applicable to Mr. Woods's Motion collapses to a two-prong analysis. To remain out on bond pending appeal, Mr. Woods must show: (1) that his appeal will present a close question that could go either way; and (2) that if this close question is decided in his favor, it is more likely than not that reversal or a new trial will result.


         In his Motion, Mr. Woods raises four issues that he contends will present substantial questions of law or fact on appeal and that are likely to result in reversal or a new trial. The first issue is whether this Court should have dismissed the indictment after finding that FBI Special Agent Robert Cessario destroyed evidence. The second and third issues concern whether Mr. Woods performed an "official act" in exchange for bribes. And the fourth issue concerns whether this Court conducted improper ex parte communications with the jury during the jury's deliberations. The Court examines each of these issues below, in the sequence just listed.

         A. Destruction of Evidence and Dismissal of the Indictment

         For the benefit of any readers who are not already familiar with the extensive docket in this case, a good bit of background is necessary before discussing the merits of Mr. Woods's first issue. The Court provides a summary here of the relevant facts and case history, but readers seeking more detail should turn to this Court's forty-six-page Opinion filed at Doc. 297 on March 2, 2018.

         Micah Neal is a former representative in the Arkansas General Assembly, and was a coconspirator in both of the bribery schemes for which Mr. Woods was convicted at trial. Mr. Neal was also a cooperating witness for the Government in this case. Back in April 2017, as part of the discovery process in this case, "the Government's lawyers turned over to the Defendants copies of secret recordings that Mr. Neal had made of conversations he had with Mr. Woods and others." See Doc. 297, p. 30. Mr. Woods and his codefendants expressed concern to the Government and to the Court that additional undisclosed recordings might exist; and in November 2017, counsel for both sides learned that additional recordings indeed existed, and were in the possession of Mr. Neal's attorney, Shane Wilkinson. See Id. As this Court has previously explained:

The Defendants were concerned that these recordings might contain exculpatory evidence, and argued that the Government intentionally withheld the fact of these recordings' existence from the Defendants until very late in the process so as to prejudice their ability to prepare for trial. The trial was reset for April 9, 2018, in order to allow time for an evidentiary hearing on these matters.
The parties learned that a paralegal in Mr. Wilkinson's office named Karri Layton had uploaded the Neal recordings to a Dropbox account and had given Agent Cessario access to that account in early November 2016. The Government further learned that Agent Cessario had used a Government-issued laptop to access that Dropbox account. So in early December 2017, one of the Government's attorneys in this case, Aaron Jennen, instructed Agent Cessario to have another agent deliver that laptop to an FBI forensic examiner in Little Rock named Timothy Whitlock, so that Agent Whitlock could search it for information relevant to this Dropbox activity in advance of the evidentiary hearing. But on December 12, Agent Cessario informed Mr. Jennen that instead of complying with these instructions, he had wiped the laptop and then delivered it to Agent Whitlock himself. And with that fateful act, there was suddenly a lot more on the agenda for the pending evidentiary hearing than this Court and the parties had originally anticipated.
The evidentiary hearing, which had initially been set for December 14, 2017, see Doc. 232, was reset for January 25, 2018, see Doc. 243. It ended up running not only into a second day, on January 26, see Doc. 281, but also a third, on February 15, see Doc. 291. Over the course of this three-day hearing, the Court received testimony not only from Agent Cessario, but from many other witnesses as well. The Court had two primary fact-finding objectives for this hearing. One objective was to determine when the Government first became aware of the Neal recordings that surfaced in November 2017, and what prejudice, if any, the Defendants had suffered from the timing of their disclosure. The other objective was to determine why Agent Cessario had wiped his laptop, what relevant information, if any, had been destroyed by that act, and what prejudice, if any, the Defendants had suffered from that act.

See Doc. 297, pp. 30-31.

         With respect to the hearing's first objective, the Court ultimately found, on the basis of the evidence received at the hearing, that Mr. Neal made all of his secret recordings of his own initiative and not at the direction or under the oversight of the Government, that "the Government did not become aware of the additional Neal recordings until November 2017, when it likewise made the Defendants aware of their existence," and that the Defendants did not suffer any prejudice "from the timing of the Government's disclosure" because "soon after the recordings were discovered, the trial date was continued for four months, giving the Defendants ample time to review those recordings and to adjust their trial strategies accordingly if they wished." See Id. at 33-34. The evidentiary basis for these findings is discussed in much greater detail at Doc. 297, pp. 34-36.

         With respect to the hearing's second objective, the Court found, on the basis of the evidence received at the hearing, that "Agent Cessario lied to the Government's attorneys and to Agent Whitlock" about when and why he wiped the laptop, see Id. at 37, that "Agent Cessario lied on the stand" about why he lied to the Government's attorneys and about why he wiped the laptop, [3] see Id. at 37-38, and that "we will probably never know" what Agent Cessario was trying to conceal when he wiped the laptop, see Id. at 39. The Court further found that "Agent Cessario committed intentional misconduct when he wiped the laptop," but that "there is no evidence in the record to show, and no good reason to believe, that he destroyed any information that is material to the charges and defenses in this case but not already in the Defendants' possession." See Id. at 43. Noting that the laptop's original relevance to this case was that it should be examined for information that might be introduced about this same hearing about the Neal recordings, the Court pointed out that "notwithstanding the wiping of the laptop, the Court has been able to get to the bottom of the matter for which that evidentiary hearing was originally set." See Id. at 43-44. Therefore, since "the Defendants [had] not shown that they [had] suffered any prejudice or substantial risk of prejudice from the wiping of the laptop," and had not shown that they had suffered any cumulative prejudice from any other Governmental misconduct, the Court ruled that "'dismissal of the indictment is plainly inappropriate' here." See Id. at 44 (quoting United States v. Manthei, 979 F.2d 124, 127 (8th Cir. 1992)). The evidentiary basis for these findings is discussed in much greater detail at Doc. 297, pp. 36-44.

         However, the Court also found that however minimal or nonexistent the ultimate prejudice to the Defendants from Agent Cessario's actions, the information on Agent Cessario's laptop about the Dropbox account nevertheless constituted "potentially useful evidence" since it related to the Neal recordings, which were the originally-intended subject of the evidentiary hearing. See Id. at 45. The Court further found that "[s]ince Agent Cessario destroyed it in bad faith, that constitutes a Fifth Amendment violation." See Id. Accordingly, as a sanction for the Fifth Amendment violation, the Court ordered that "the Government may not introduce in its case-in-chief at trial any covert recordings that were made by Micah Neal," and that "the Government may not call FBI Agent Robert Cessario as a witness in its case-in-chief at trial." See id.

         In support of his Motion for Release Pending Appeal, Mr. Woods argues that "once it was established the lead F.B.I, agent acted in bad faith in either the destruction of exculpatory evidence or potentially useful evidence, the only available remedy to Mr. Woods, due to the evisceration of his right to due process and fundamental fairness, was dismissal." See Doc. 484, p. 8. His brief states that "Mr. Woods bases his argument primarily on Arizona v. Youngblood, 488 U.S. 51, 58 (1988[)] and Illinois v. Fisher, 540 U.S. 544, 547-49 (2004)." See Id. But Youngblood and Fisher say nothing of the sort. Rather, Youngblood and Fisher were only concerned with determining when destruction of evidence rises to the level of a due-process violation; they say absolutely nothing at all about what remedies are appropriate for due-process violations.

         Under Brady v. Maryland,373 U.S. 83 (1963), suppression by the prosecution of material exculpatory evidence constitutes a due-process violation regardless of whether the suppression was done in good or bad faith. See Youngblood, 488 U.S. at 55; Fisher, 540 U.S. at 547. But Youngblood drew a distinction between the sort of "material exculpatory evidence" contemplated by Brady on the one hand, and evidence that was merely "potentially useful" on the other, and held "that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law," 488 U.S. at 58 (emphasis added). Fisher simply reaffirmed Youngbloods holding that "failure to preserve . . . 'potentially useful evidence' does not violate due process 'unless a criminal defendant can show bad faith on the part of the police, '" see 540 U.S. at 547-48 (emphasis in original), and further emphasized that "the applicability of the bad-faith requirement in Youngblood depended not on ...

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