FORT SMITH - An associate of former Northwest Arkansas developer Brandon Barber presented no valid reason for a judge to grant his motion to withdraw his guilty plea to money laundering, the federal government argued in a brief filed this week.
The U.S. attorneys office filed the reply to New York lawyer James Van Doren’s motion last month to withdraw his guilty plea. In the motion he argued he was not actually guilty but entered the plea in August in federal court to avoid a trial that could result in a long prison term and large fines.
“Clearly, Van Doren suffers ‘belated misgivings’ as to the wisdom of entering his plea of guilty; however, these claims fail to justify withdrawal of his guilty plea,” First Assistant U.S. Attorney Wendy Johnson wrote for the government.
The charge to which VanDoren pleaded guilty accused him of accepting from Barber a check for $64,000 and depositing it into his bank account. In his motion, he denied that he accepted the money to help Barber hide it from the creditors in his failing real estate development business.
But in the government’s 15-page reply, Johnson recounted the exchange during Van Doren’s change-of-plea hearing between him and U.S. District Judge P.K. Holmes III.
In that exchange, Van Doren answered yes, under oath, when Holmes asked him if he knew when he accepted the $64,000 check from Barber and deposited it into his own bank account that it was for the purposeof concealing Barber’s assets from his creditors.
The government’s brief also included some of Van Doren’s testimony, also under oath, in the trial last year of Barber’s attorney K. VaughnKnight in which he, again, admitted helping Barber conceal his money.
“‘Did you agree with Vaughn and Brandon to conceal the money you’ve described?’” U.S. Attorney Conner Eldridge asked Van Doren.
“‘The answer to that is - did we have an express agreement? No, but the understanding was that there that this - that this stuff was being concealed from creditors. I definitely understood that that was much of the purpose of what was going on, yes,’” Van Doren replied.
Van Doren argued in his motion that the pressures of the federal criminal-justice system drive innocent people to plead guilty and that he succumbed to those pressures to avoid going to trial.
He had already lost his job, he argued in the motion, was targeted by the financial industry, had incurred huge legal expenses, suffered damage to his reputation and hadno prospects for a job until his legal troubles were resolved.
The motion stated he made the rational choice in accepting the plea deal with the government but not the right choice.
“This argument is not unique to Van Doren’s situation nor is it a valid basis for withdrawal of his plea of guilty,” Johnson responded.
She cited other court cases that said the plea-bargaining process necessarily exerts pressure on defendants to plead guilty and to abandon certain rights. But pleading guilty and surrendering those rights are offset by receiving “substantial benefits” in return.
The government also objected to the timing of the motion. Initially, Johnson wrote, Van Doren was to have been tried last November with Knight, a trial that lasted two weeks and involved 300 exhibits and testimony from25 witnesses.
If Van Doren was allowed to withdraw his guilty plea, the government would have to go to the time and expense to hold another trial on the charges to which he was originally indicted.
Van Doren was charged in the 2012 indictment with conspiracy to commit bankruptcy fraud, conspiracy to commit wire fraud, conspiracy to commit money laundering, bankruptcy fraud and three counts of money laundering.
“The prejudice to the government is a factor that weighs against granting Van Doren’s motion for withdrawal of his guilty plea,” the government concluded.
Barber pleaded guilty July 31 to money laundering and conspiracy to commit bankruptcy fraud in the case in which Van Doren and Knight also were charged. Barber is being held in the Washington County jail awaiting sentencing after his bond was revoked in June.
In the jury trial in November in federal court in Fort Smith, Knight was convicted of conspiracy to commit bankruptcy fraud, bankruptcy fraud, making false statements and five counts of money laundering. He is free on bond awaiting sentencing and while his convictions are being appealed.
Barber also pleaded guilty July 31 in a second case to a charge of conspiracy tocommit bank fraud. He was charged with Springdale builder Jeff Whorton, developer Brandon Rains and Rogers lawyer David Fisher in a three-count indictment issued last year.
Fisher, in a federal jury trial in Fort Smith in October, was acquitted of conspiracy to commit bank fraud.
Whorton pleaded guilty in August to conspiracy to commit bank fraud and money laundering. Rains pleaded guilty in October to lying to federal agents.
Northwest Arkansas, Pages 11 on 04/12/2014