Judges say computer wipe an extreme case

A federal investigator destroying evidence and then lying about it on the stand is such an extreme case of bad faith the U.S. 8th Circuit Court of Appeals has few precedents to refer to, all three judges said during arguments Friday in the appeal of Oren Paris III of Springdale.

Paris resigned as president of Ecclesia College and pleaded guilty just before trial April 4, 2018, for paying kickbacks in return for state grants. He agreed to plead guilty on the condition he be allowed to appeal solely on the basis of the actions of FBI Special Agent Robert Cessario. He’s serving a three-year prison sentence.

Cessario admitted in pretrial hearings to getting the hard drive of his computer professionally wiped after being ordered to turn it over for inspection. He then testified he did this to keep private downloaded medical records of his, reasoning the trial judge ruled to not be credible.

U.S. District Judge Timothy Brooks ruled Paris trial would go ahead but without Cessario testifying for the government. Paris then decided to plead guilty.

The remedy of allowing a trial while barring Cessario testimony for the prosecution is unjust, defense attorney Travis Story of Fayetteville argued, according to a recording of Friday’s proceeding provided through the appeal court’s website. The threejudge panel took the request for dismissal of the single charge of conspiracy Paris pleaded to under consideration.

“In very few cases did they ever find bad faith, that there is a deliberate, intentional destruction of evidence by the government and then the agent lying,” panel member Michael J. Melloy said. “You can probably count those with one hand.”

Judge David R. Stras wondered aloud whether dismissal of the charges, as insisted upon by Story, or excluding all mention of the agent’s misconduct, as decided by Brooks at trial, were each too extreme. He queried both Story and assistant U.S. Attorney Kenneth Elser for alternatives somewhere in the middle.

“It does seem that the remedy here was largely symbolic in the sense that I don’t know that it really handicapped the case all that much,” Stras said. On the other hand, the judge continued, the appeals court may have no other choice than to sustain the conviction or grant dismissal because of the conditions of the guilty plea.

Surveillance, interviews and confessions matter in many cases — but not this one, Elser said. Cessario’s conduct would matter if the case relied on non-documentary evidence, he said. This case was built on bank records, text messages between the conspirators, email and other such records, Elser said.

“This case is not agent-driven,” Elser argued.

Paris, of Springdale, paid kickbacks to then-state Sen. Jon Woods and then-state Rep. Micah Neal, both of Springdale, in return for $550,000 in state grants to Ecclesia from 2013 to 2015. The kickbacks were routed through the consulting business of Randell Shelton Jr., formerly of Springdale.

Neal pleaded guilty to one count of conspiracy and cooperated with investigators. Woods and Shelton were convicted of multiple corruption charges May 3, 2018. They are also appealing to the 8th Circuit. Their appeal is separate from Paris’ case.

Paris