5 years sought for Barber term

Attorney pushes for lenient sentence

Former Fayetteville real estate developer Brandon Barber should be sentenced to no more than five years in prison on federal fraud and money laundering charges, according to a court filing from his attorney, Asa Hutchinson III.

Prosecutors for the U.S. government have suggested a sentence of about 20 years in prison. But Hutchinson said he expects them to file a request for a lower sentence based on the plea agreement with Barber and his cooperation.

The maximum Barber could face is 40 years, according to the sentencing memorandum Hutchinson filed Friday in federal court in Fayetteville. Hutchinson is also asking that Barber, 38, receive credit for the time he has spent in the Washington County jail, where Barber has been incarcerated since June 14, 2013.

A sentencing hearing for Barber is scheduled to begin Oct. 28 before U.S. District Judge P.K. Holmes III in federal court in Fort Smith.

FBI agents arrested Barber in New York City on March 20, 2013, and he was charged initially on 27 counts, most involving bank and bankruptcy fraud in Arkansas.

On July 31, 2013, Barber pleaded guilty to three federal charges — conspiracy to commit bank fraud, money laundering and conspiracy to commit bankruptcy fraud. As part of the agreement, the 24 other charges against Barber were dismissed.

Barber admitted he defrauded banks by lying about the value of real estate to get inflated loans. Barber also admitted that he directed a Fayetteville attorney to use a trust fund account to help him hide money.

Federal prosecutors say Barber defrauded Arkansas banks of $32.3 million and the bankruptcy court of $1.4 million, according to Friday’s court filing. Hutchinson argues that an accurate valuation of bank fraud can’t be obtained, but the total amount of bank and bankruptcy fraud would be less than $20 million. The dollar amount of loss factors into the prison sentence.

Barber believes the government’s calculation is too high because it doesn’t properly account for offsets such as sale of any collateral or the fair market value of collateral being held by the victim banks, according to the sentencing memorandum filed by Hutchinson.

Barber has cooperated with the federal government, spending more than 45 hours meeting with federal prosecutors to assist with the prosecution of five co-defendants, wrote Hutchinson. That’s in addition to “dozens of hours” reviewing material to prepare for meetings and trial testimony.

Part of the federal government’s argument for a 20-year sentence involved the complexity of the financial transactions that Barber was involved in. But Hutchinson argued that they weren’t that complex.

“The fraud in these cases is simply false statements on bank loan documents and on bankruptcy court filings,” according to the filing.

Hutchinson said that Barber had been an upstanding member of the community. Barber and his ex-wife, Keri Barber, have given more than $1 million to area charities, according to Friday’s court document.

According to the filing, more than 40 letters will be submitted to the court from people who attest to Barber’s good character and past behavior.

First Assistant U.S. Attorney Wendy Johnson filed a memorandum in federal court July 23 saying the probation office’s final calculations recommend a prison sentence of 235 to 293 months, or equates to 19 years, seven months, to 24 years, five months. That was the sentence she recommended in the court filing.

The presentencing investigation reports are under seal with the court.

Johnson also asked the court for a preliminary order of forfeiture for any property involved in the crimes for which Barber was convicted.

“At sentencing, the United States will request a money judgment against the defendant for the proceeds of the bank fraud conspiracy, the conspiracy to defraud the bankruptcy court and the $20,000 involved in the money laundering offense and other additional evidence in support of the amount,” wrote Johnson.

Since his criminal case began, Barber has been represented in court by Asa Hutchinson Sr., the candidate for governor, and his son, Asa Hutchinson III.

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

In Friday’s court filing, Asa Hutchinson III asked that Barber be sentenced to serve his time at the federal prison camp in Lewisburg, Pa., which is closer to New York City, where Barber’s two children live with their mother.

Hutchinson also asked that Barber be allowed to participate in the federal prison’s residential drug treatment program. Evidence that treatment is needed will be presented at the Oct. 28 hearing, Hutchinson wrote.

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