The U.S. Court of Appeals for the 8th Circuit Thursday heard arguments in the appeal of former Sen. Jon Woods and his friend Randell Shelton, who were convicted in May of participating in a kickback scheme to funnel state money to Ecclesia College (Woods was also convicted of participating in a separate kickback scheme involving a nonprofit associated with Preferred Family Healthcare, then a major provider of Medicaid-funded services in the state).
Woods and Shelton, represented by different attorneys, both contend that the money Woods gave to Shelton was a loan. Both are centering their appeal on destruction of evidence by an FBI agent working the case, who then lied under oath about what he had done.
FBI Special Agent Robert Cessario, before turning over his FBI laptop to the U.S. attorney’s office, improperly wiped his hard drive — first at a computer shop and then a second time himself. The laptop contained recordings made by former state Rep. Micah Neal. Neal, who had pleaded guilty to being a co-conspirator in the scheme and began cooperating with federal investigators, had secretly recorded conversations with Woods and others. The government provided 65 hours of those recordings to defense attorneys, but Woods and Shelton contend that there may have been additional recordings on Cessario’s laptop — or that other potentially useful information may have been on the laptop, such as details about Cessario’s handling of Neal that might have undermined Neal’s credibility. The government counters that there is no evidence of this and that comparable evidence to what was on the laptop was available to the defense. The laptop’s contents proved irrecoverable.
At the original trial, Judge Timothy Brooks declined to dismiss the case due to Cessario’s actions but barred him from testifying and precluded the government from introducing any of the secret recordings made by Neal. However, Brooks granted a motion by the government barring the defense from mentioning Cessario’s misconduct at trial.
Woods argues that Brooks erred on both counts.
“You have a lying FBI agent who lied to his superiors, lied to his bosses, lied to the U.S. attorney’s office, lied to the judge in the case — and you have this agent working specifically with Micah Neal,” Woods’ attorney Patrick Benca argued to the three-judge Court of Appeals panel today.
Benca also argued that Brooks should have been disqualified from the case because he was not acting impartially and was treating the defense unfairly. “It was a theme from the very beginning that we were not being treated fairly,” Benca said. “It doesn’t take me arguing what it is he said, or why he said it, or what it is. You can feel it.”
“There was something different about how we were treated in the courtroom,” he said.
Benca also argued that a continuance should have been granted after co-conspirator Oren Paris pleaded guilty less than a week before the trial began and flipped to cooperate with the government (though he didn’t end up testifying at the trial).
Shelton’s attorney, Shelly Koehler, argued that Cessario’s behavior suggested that the wiped laptop contained exculpatory material. She argued that court precedent suggested that “you can tell if there was potentially useful information based on the actions of a case agent…The fact that something was destroyed in bad faith gives the inference that it was done to prejudice the defense. Otherwise, why destroy it?”
Arguing for the government, Sean Mulryne told the three-judge panel, “The wiping of the laptop by an FBI agent is an issue that was addressed exhaustively and comprehensively by the District Court. After a three-day evidentiary hearing…the court found that the laptop wipe here did not destroy any evidence material to the charges or the defenses in this case, and that was not already in the possession of the defendants.”
Mulryne did not dispute that Cessario had acted improperly. But “even when there’s a bad faith destruction of evidence,” he argued, “it cannot be the rule that there is a bright line categorial rule that the case is wiped out, because that is at the expense of the public’s interest in seeing criminal activity prosecuted.”
He argued that Brooks ruled correctly in precluding mention of Cessario’s malfeasance because it would have prejudiced the jury. “It would invite a jury to find the defendant innocent simply as a punishment or as a rejoinder” to the misconduct of a lone government agent, he said.
“There is no evidence suggesting … that there is more incriminating or exculpatory evidence out there that somehow wasn’t obtained,” Mulryne argued. “There is nothing more than speculation. Unfortunately, we’re in a position, because we have a laptop that was wiped, it invites us to project onto it everything and anything that could be on that laptop. But there is no basis in the record or otherwise that there was anything on that laptop relevant to this case other than the records that were turned over.”
Mulryne was asked what has happened to Cessario. He said that Cessario is currently “suspended without pay, pending final resolution.”
The three-judge panel will now consider the arguments; no date is set for a decision.