United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
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.
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 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.
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.
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
the Court will first recite the applicable legal standard.
Then the Court will discuss the substance and merits of Mr.
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
(ii) an order for a new trial,
(iii) a sentence that does not include a term of
(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).
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
Eighth Circuit has further explained that the statute's
requirement that reversal or new trial be
likely 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.
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
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.
Destruction of Evidence and Dismissal of 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.
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.
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.
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,
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.
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
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
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 ...