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United States v. Sutton

United States District Court, N.D. Georgia, Atlanta Division

September 12, 2019

UNITED STATES OF AMERICA
v.
SHARON BARNES SUTTON

          FINAL REPORT AND RECOMMENDATION

          JOHN K. LARKINS III UNITED STATES MAGISTRATE JUDGE

         This case is presently before the Court on Defendant Sharon Barnes Sutton's “Motion to Dismiss Indictment Based Upon Government's Violation of Defendant's Sixth Amendment Right to Counsel.” [Doc. 19.] The government has responded to the motion [Doc. 22], and Defendant has filed a reply in support [Doc. 24]. For the following reasons, it is RECOMMENDED that the motion be DENIED.

         I. BACKGROUND

         On May 15, 2019, a grand jury seated in the Northern District of Georgia returned an indictment charging Defendant, a former member of the DeKalb County Board of Commissioners (the “Board”), with two counts of extortion in violation of 18 U.S.C. § 1951, and one count of bribery in violation of 18 U.S.C. § 666(a)(1)(B). [Doc. 1-1.] The indictment alleges that between May and July 2014, Defendant solicited and received bribes from a subcontractor to ensure that the subcontractor was awarded work on public projects over which she had approval authority. [Id. ¶¶ 3-5, 7, 24-25, 28, 31-33]. Defendant allegedly used an individual identified as “Public Official 1” in the indictment-who was the Board's chief of staff and later Deputy COO of the Public Works department-as a middle man for arranging the payments. [Id. ¶¶ 26, 29-30.]

         As relevant to the pending motion, the indictment alleges that on June 2, 2014 and July 10, 2014, Public Official 1 recorded conversations between the Official and Defendant in which Defendant allegedly discussed her demands for payments from the subcontractor. [Doc. 1-1 ¶¶ 26-31.] According to the government in its response to the present motion, Public Official 1 was, at that time, a confidential informant for the FBI and made the recordings at the direction of the FBI. [Doc. 22 at 2; see also Doc. 1-1 ¶¶ 29-30 (identifying conversations recorded in July 2014).] The government represents that the FBI terminated its relationship with Public Official 1 on January 19, 2016. [Id.]

         On August 5, 2019, Defendant moved to dismiss the indictment, or, alternatively, bar the government from using Public Official 1[1] as a witness or evidence derived from the witness at trial, on the grounds that the government has interfered with her counsel's ability to make independent decisions about how to conduct the defense, thus depriving her of her Sixth Amendment right to effective assistance of counsel. [Doc. 19.] In support, Defendant identified three instances where the government purportedly made “direct, post-Indictment contact with her and infect[ed] the defense with misleading information, ” [see Id. at 3]:

1. During a telephone conversation between Defendant and “Individual #1, ”[2] in late May 2019, “Individual #1 relayed to [Defendant] that the confidential informant had stated that he/she was ‘torn up' about the charges against [Defendant] and that he/she had been pressured (presumably by the government) to make a recording of [Defendant] to save himself/herself and protect his/her pensions.” [Doc. 19 at 4.] Individual #1 further told Defendant that the confidential informant had requested Individual #1 to tell Defendant “to fight for her freedom and mental and physical health” and to not speak to the media. [Id. at 5.]
2. On June 10, 2019, when Defendant spoke by telephone with an attorney who had represented her on other matters (the “Attorney”). [Doc. 19 at 5.] Unbeknownst to Defendant during the conversation, the Attorney also represented the confidential informant at that time. At the beginning of the conversation, Defendant told the Attorney that she believed she could not discuss this case with the Attorney because he did not represent her in his case. [Id.] The Attorney responded that he remained her attorney and could “give her counsel, ” and went on to “discuss the instant action” with her. [Id. at 5-6.] According to Defendant, the Attorney then told her that a member of the press had contacted him, but he had declined to give a comment; that the press would attempt to try the case in the court of public opinion; that Defendant's arrest on the charges was “disrespectful”; and that this case was “a bunch of bull, ” amounted to entrapment, and no crime had been committed, since bribery or extortion were not possible under the DeKalb County's “voting procedures and processes.” [Id. at 6.] Lastly, the Attorney asked Defendant to provide his phone number to Defendant's present counsel and stated that he wanted to help. [Id.]
3. On July 28, 2019, Defendant met Individual #1 for lunch. [Doc. 19 at 6.] During lunch, Individual #1 told Defendant that the confidential informant had told him that the FBI “possessed a recording which discussed entrapment and the fact that there was no crime committed.” [Id.] Individual #1 asked Defendant if the information would be helpful, and Defendant responded affirmatively. [Id. at 6-7.] Defendant asked who was on the recordings, and Individual #1 responded that he/she did not know, but suggested that Defendant “ask for any and all recordings related to the instant case.” [Id.][3]

         For the first time on reply, Defendant identified the following additional contacts and other information that she contends is relevant to her motion:

1. On April 3, 2019, the government interviewed the confidential informant at a proffer session. [Doc. 24 at 2.] According to an FBI summary of the proffer session, the confidential informant “described the contents and alleged meaning of recordings between the [confidential informant] and [Defendant].” [Id.]
2. On June 10, 2019, Defendant and the unnamed Attorney spoke on the phone without defense counsel's knowledge, and during that conversation, the Attorney and Defendant “discussed the instant matter in detail, suggesting a defense strategy that did not focus on [the Attorney's] client (the [confidential informant]).” [Doc. 24 at 2.] During the call, the Attorney instructed Defendant to have defense counsel contact him. [Id.] Defense counsel called the Attorney later that day, and they spoke for approximately 22 minutes. [Id.] The attorney did not reveal “initially” that he represented the confidential informant; however, at some point during the call he disclosed that he represented the confidential informant. [Id.] At some other point during the call, the Attorney “began to advise [defense counsel] regarding trial strategy and [the attorney's] opinion that [Defendant] could not be convicted.” [Id. at 2-3.] The Attorney went on to advise that defense counsel should focus his investigation on the government agents involved in the case, rather than the confidential informant. [Id. at 3.] The Attorney additionally told defense counsel that the confidential informant “would testify that the alleged payment discussed on the telephone call[4] was unrelated to the charges in the current Indictment.” [Id.]
3. On August 6, 2019, the Court held a pretrial conference at which defense counsel discussed and elaborated on his client's contact with the Attorney discussed above. After the pretrial conference, defense counsel received two phone calls from the Attorney, who was using vulgar language and expressed that he was “upset regarding the discussion at the Pretrial Conference.” [Doc. 24 at 4.]
4. Also on August 6, 2019, the Attorney was quoted in a newspaper article saying that, “It's a ridiculous notion that I would be used by the FBI to try to set up a client at the detriment of another client . . . . ...

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