Brief: Barber should stay in jail

Saturday, July 6, 2013

Former real estate developer Brandon Barber should remain in jail until his September and October trials on fraud and money laundering charges, according to a brief filed Friday in U.S. District Court in Fayetteville.

U.S.

Magistrate Judge Erin Setser got it right June 14 when she ordered Barber detained because he went to several restaurants in New York Citywhile he was under court-ordered home detention between March 20 and May 1, First Assistant U.S. Attorney Wendy Johnson wrote in the brief.

Barber’s attorney, Asa Hutchinson III of Rogers, filed a motion June 28 saying Setser erred when she sent his client to jail because there was no proof that Barber had violated terms of his home incarceration, which began May 1.

From his March 20 arrest until May 1, Barber, 37, of New York City, was under the less restrictive home detention, which allowed him to travel to and from his office in Manhattan but not to socialize or dine at restaurants withoutpermission from his parole officer.

Under home incarceration, Barber could leave his apartment only for medical reasons and court appearances.

In both cases, Barber was required to wear an ankle bracelet that allowed authorities to monitor his movements.

After a review of Barber’s “check card” records and hearing testimony, Setser ordered Barber detained June 14.

In a June 19 order, she wrote: “The flagrant and repeated nature of defendant’s violations, as well as his continued lack of candor to the court, convinces the court that even home incarceration… cannot assure that the defendant will not flee or pose a financial danger to any other person or the community …”

Hutchinson wrote in his motion that there’s nothing in the record that would indicate Barber is a flight risk or that there’s a risk of “financial danger.”

In Friday’s brief, Johnson wrote that Hutchinson “incorrectly argues” that the repeated violations are inconsequential because Barber was under home detention at that point.

“The defendant provides no new evidence to suggest that the magistrate judge erred in revoking defendant’spretrial release to home incarceration,” she wrote. “Therefore, the defendant’s motion should be denied.”

Barber’s release conditions were changed to home incarceration after he met with his fiancee, Kristen Foodim, for several hours April 25 without getting permission from his parole officer.

Barber has been in the Washington County jail in Fayetteville since the June 14 hearing. He was in the same jail for almost a week in May while a hearing was held onhis bond revocation. Barber’s trials are scheduled for Sept. 16 and Oct. 21 on 27 counts related to fraud and money laundering from two separate indictments.

Barber’s charges involve about $30 million in bank loans and his $53 million Chapter 7 personal bankruptcy in 2009, debt that Barber sought to have discharged because he said he has no assets.

There are five co-defendants in the cases, some of whom are accused of helping Barber conceal his assets.

Barber was a prominent real-estate developer in Northwest Arkansas before the recession that began in 2007.His Fayetteville developments include the seven-story, $17 million Legacy Building near Dickson Street.

After the June 14 hearing, Hutchinson expressed concern about his client being incarcerated until the trials.

“The concern is that if you’re incarcerated going up to trial, the public’s view, it’s difficult to have a presumption of innocence,” Hutchinson said.

Barber has pleaded innocent to all charges.

The trials are to be held in Fort Smith before Chief U.S. District Judge P.K. Holmes III. Setser has been handling the pretrial hearings in Fayetteville.

Northwest Arkansas, Pages 9 on 07/06/2013