Filing: Put off Arkansas businessman's prison term till appeal

Keep date, reply Suhl prosecutors

7/13/16
Arkansas Democrat-Gazette/STEPHEN B. THORNTON
Warm Springs businessman Ted Suhlexits the Federal Courthouse in downtown Little Rock surrounded by family on the first day of his federal bribery trial Wednesday.
7/13/16 Arkansas Democrat-Gazette/STEPHEN B. THORNTON Warm Springs businessman Ted Suhlexits the Federal Courthouse in downtown Little Rock surrounded by family on the first day of his federal bribery trial Wednesday.

Northeast Arkansas businessman Ted Suhl, who is to report to prison by Jan. 2, continues to argue that he should remain free while appealing his seven-year prison sentence, imposed Oct. 27, for bribing a state official.

Immediately after U.S. District Judge Billy Roy Wilson imposed the prison time and a $200,000 fine for Suhl, whom a federal jury convicted in July of bribery and wire fraud charges, Suhl's attorney vowed to appeal and asked that Suhl be allowed to avoid incarceration until the 8th U.S. Circuit Court of Appeals in St. Louis decides the appeal.

Wilson ordered federal prosecutors to respond to the motion within 10 days, and last week the government filed a 19-page response opposing Suhl's release pending appeal.

In it, John D. Keller, an attorney with the U.S. Department of Justice's Public Integrity Section, said the "assortment of legal errors" cited by Suhl in support of his motion isn't likely to result in a reversal of his conviction, so he should begin serving his sentence the day after New Year's Day, as ordered.

Under federal law, bail pending appeal for a convicted defendant who has been sentenced to prison "is the exception, not the rule," Keller wrote.

He said release is appropriate only when the defendant has shown that he isn't likely to flee or endanger the community and that the appeal isn't for the purpose of delay but "raises a substantial question of law or fact likely to result in reversal or an order for a new trial," particularly if a new sentence isn't likely to include prison time.

Suhl, 51, of Warm Springs was convicted of paying $10,000 to $20,000 in cash over four years to Steven Jones, then the deputy director of the state Department of Human Services, to keep Jones "on retainer" to benefit Suhl's juvenile behavioral health businesses, which the department oversaw.

Suhl's businesses received $125 million in Medicaid funds through the state in that period -- April 2007 through September 2011.

Jones of Marion is serving a 2½-year prison sentence, imposed in February for his guilty plea to a charge of accepting a bribe from Suhl. He testified at Suhl's trial that he never actually performed any substantive favors for Suhl but he wanted Suhl to believe he was looking out for him so Jones would keep receiving the bribe payments, which were passed through a former West Memphis city official after being disguised as donations to a local church.

Keller said none of the four main appeal issues Suhl cited are likely to result in reversal of his conviction or a new trial.

The issues concern the propriety of jury instructions on the "quid pro quo" requirement of bribery; whether Suhl actually sought or received "official acts" in return for the money; evidentiary rulings concerning the cross-examination of the government's key witness, Phillip Carter; and Wilson's refusal to allow the defense to introduce evidence of Suhl's charitable donations to the church over several years.

Robert Cary, Suhl's Washington, D.C.-based attorney, said in a reply filed Thursday that Keller doesn't contest that a new trial is likely if the 8th Circuit agrees with the defense concerning the bribery or wire fraud instructions. He also argued that "the government's vigorous disagreement on the merits only highlights how close these questions are."

"To avoid the potential and irremediable injustice of imprisoning Suhl for convictions that may be reversed on substantial appellate grounds, this court should grant Suhl release pending appeal," Cary wrote.

Cary focused his arguments on a U.S. Supreme Court decision issued shortly before Suhl's trial began. The high court threw out 2014 bribery convictions against former Virginia Gov. Bob McDonnell, clarifying that any "official acts" taken in exchange for bribes cannot consist of merely routine political favors.

In July, Wilson denied a last-minute effort to throw out Suhl's indictment based on the June 27 ruling in McDonnell v. United States. Wilson said that ruling merely confirmed that Suhl's charges "should be left to a properly instructed jury."

Cary wrote that success on Suhl's McDonnell arguments would require a reversal or a new trial on all four charges on which Suhl was convicted.

He also argued that questions of how the McDonnell ruling applies in the Suhl case "is a close question, and the Eighth Circuit in this case is likely to be among the first appeals courts to consider its impact."

Metro on 11/14/2016

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