CONWAY — Attorneys for Faulkner County Administrator Jeff Johnston on Friday filed court documents showing the U.S. attorney’s office had granted Johnston limited immunity from prosecution in exchange for information.
Johnston, 37, is charged with two counts of felony theft of property over a 2008 asphalting project on his private driveway.
In the documents filed in Faulkner County Circuit Court, Johnston’s attorneys ask for a hearing to require the prosecuting attorney to disclose the source of the evidence he intends to present at Johnston’s trial. They also want the prosecutor to prove he obtained that information without violating Johnston’s agreement with federal authorities.
Told of the defense filing, Prosecuting Attorney Cody Hiland said that, as with all other cases, he would reserve comment for the written response that his office will file.
Johnston’s name figured prominently in the now closed federal and state investigation of the purchase of a Barrett M107 .50-caliber BMG rifle. No one was charged in that probe.
The federal government also has been investigating the purchase of various weapons for the county’s former road police officer, Jason Bell.
In the document filed Friday, defense attorneys Joe Don Winningham and Jeff Rosenzweig wrote, “It is well known that federal law enforcement officials have conducted an investigation of various matters in Faulkner County government. As county administrator, Johnston was a person encompassed by the investigation.”
The filing says Johnston cooperated with the federal investigation and executed a “Proffer Agreement,” which provided him with limited immunity, on May 26, 2010.
During Johnston’s statements to federal officials, Arkansas State Police investigators also were present, the filing says.
In talking with them, the defense says, Johnston disclosed that he had paid cash for the delivery and installation of the asphalt and that he was unaware the contractors had also billed the county for it.
“Johnston was informed that he would not be charged with any offense involving the asphalt, but the federal operatives told him that it would be proper for him to reimburse Faulkner County in the sum of approximately $3,900” because of the contractors’ actions, his defense attorneys wrote.
An affidavit accompanying the state charges filed in August against Johnston said Faulkner County Treasurer Regina Oakley told the sheriff that a federal agent had told her that either Johnston or the county’s former civil attorney, Stephan Hawks, would be giving her a check for $3,859.54.
She told the sheriff that on June 23, 2010, Hawks gave hera check and asked her to show it as a donation to the county, the affidavit added.
Johnston’s attorneys noted that on Oct. 3, Johnston filed a motion seeking, among other things, documents from the U.S. attorney’s office or the FBI relating to this case.
The prosecutor responded that he did not have any FBI documents, the defense attorneys wrote.
“Interestingly, the prosecutor was silent on the issue of documents from the United States Attorney and did not disclose whether he had any documents obtained from state investigators who got their material while participating in or attending the proffers under the auspices” of federal authorities, the defense added.
The defense asked that the prosecution be required to prove that any evidence being used against Johnston “was not a direct use of statements and information provided by him or otherwise a violation of the proffer agreement.”
According to the defense filing, Johnston’s agreement with the federal officials “provided immunity for direct use of all ‘statements or information contained in the proffer.’”
But the defense said the agreement allowed the government to make “derivative use of the information.”
In other words, the government could not use statements made during the federal authorities’ session with Johnston but could use that information to follow up on leads or to do additional investigating.
Johnston’s trial is set for Dec. 6-7.
Northwest Arkansas, Pages 7 on 10/27/2012