An attorney for former real-estate developer Brandon Barber filed a motion Friday in U.S. District Courtin Fayetteville saying a federal judge erred when she sent his client to jail pending his trials in September and October on 27 charges of fraud andmoney laundering.
Asa Hutchinson III of Rogers, who represents Barber, wrote that U.S. MagistrateJudge Erin Setser shouldn’t have ordered Barber to jail because home incarceration had proven sufficient.
After reviewing “check card” records and hearing testimony, Setser revoked Barber’s bond after a hearing June 14 when she determined that he had “repeatedly violated” the terms of his court-ordered home detention by going to restaurants daily without the permission of his parole officer.
But Hutchinson argued in Friday’s motion that the government showed no proof that Barber, 37, had violated the terms of his home incarceration, which he has been under since May 1.
From his March 20 arrest until May 1, Barber 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 without permission 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.
Barber’s release conditions were changed to the more restrictive home incarcerationafter he met with his fiancee, Kristen Foodim, for several hours on April 25 without getting permission from his parole officer.
Hutchinson wrote that the government failed at the June 14 hearing to prove that Barber had violated any terms of his home incarceration.
“It seems the magistrate made her ruling in order to punish the defendant for what she considered violations rather than analyzing what release terms would be effective in assuring compliance with the court requirements …” wrote Hutchinson.
At the June 14 hearing, Setser said, “I do not buy the argument that the fact that he’s been placed on home incarceration resolves everything … now there appear to be repeated violations.”
In a subsequent order filed June 19, Setser 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.”
Barber has been in the Washington County jail in Fayetteville since the June 14hearing. He was in the same jail for almost a week in May while a hearing was held on his bond revocation.
Barber’s trials are scheduled for Sept. 16 and Oct. 21 on 27 counts related to fraud and money laundering fromtwo 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 April 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.
At an April 15 arraignment, Barber pleaded innocent, and Setser released him to home incarceration, a condition that had been imposed by a federal magistrate in New York on March 20, when Barber was arrested.
On May 1, Barber was arrested a second time in New York, that time for violating terms of his release by meeting with Foodim.
On May 1, Magistrate Judge James Cott in New York ordered Barber to be under home incarceration until he could be sent to Arkansas. Setser released Barber to home incarceration on May 13.
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 06/29/2013