United States v. Burnette
| Decision Date | 18 December 2021 |
| Docket Number | 4:18cr76-RH-CAS |
| Parties | UNITED STATES OF AMERICA v. JOHN THOMAS BURNETTE. Defendant. |
| Court | U.S. District Court — Northern District of Florida |
ORDER DENYING RELEASE PENDING APPEAL
After a full and fair trial, the jury convicted the defendant John Thomas Burnette on five counts and acquitted him on four. The convictions resulted from bribes to a city commissioner and lying to FBI agents. The verdict, with both convictions and acquittals, showed the jury's understanding and conscientious application of the requirement for proof beyond a reasonable doubt. The evidence of guilt on the five counts of conviction was overwhelming.
Mr Burnette received a below-guideline sentence of 36 months in the Bureau of Prisons. He has appealed and has moved for release pending appeal. The motion is fully briefed and ripe for a decision.
The Bail Reform Act sets out the standards governing release pending appeal. Release should be granted only if the court finds:
18 U.S.C. § 3143(b)(1).
The government acknowledges that Mr. Burnette does not pose a danger to any other person or the community as those terms are used in the Bail Reform Act. The government asserts, though, that Mr. Burnette has the financial resources to flee. Indeed he does. But fleeing from this 36-month sentence under these circumstances would require a level of irrationality nobody has attributed to Mr. Burnette.
Like every criminal defendant, Mr. Burnette has a right to appeal. There is no reason to believe he has invoked that right for the purpose of delay.
I find by clear and convincing evidence that Mr. Burnette is not likely to flee or to pose a danger to any other person or the community. I find that the appeal has not been taken for the purpose of delay.
The Eleventh Circuit has said United States v. Fernandez, 905 F.2d 350, 354 (11th Cir. 1990) (quoting United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985)).
With unlimited time to scour the record of the 15-day trial, Mr. Burnette has identified only three issues he will raise on appeal. Two involve the jury instructions, which were correct and to which Mr. Burnette understandably did not object at the time. The third involves a witness's insignificant, volunteered testimony-testimony to which Mr. Burnette did not object on the grounds he now asserts. None of this had any effect on the outcome. That Mr. Burnette has found so little to complain about in a trial of this length and complexity is itself some indication that this was a full and fair trial.
This order provides an abbreviated factual background before turning to Mr. Burnette's assertions of error.
Eight of the nine charges against Mr. Burnette involved bribery of a city commissioner, Scott Charles Maddox. The first bribe was for $100, 000 and involved a proposed Hampton Inn. The second was for $40, 000, paid in four $10, 000 installments, and involved a residential real estate development known as Fallschase.
The first bribe was Mr. Burnette's payment of $100, 000 to Mr. Maddox in exchange for Mr. Maddox's role in killing a Hampton Inn project that required City Commission approval. Mr. Burnette was negotiating to buy a nearby DoubleTree Hotel. As Mr. Burnette explained it, if the Hampton was built, the DoubleTree's value would go down by $5 million or more. This was so because, as Hilton brands, Hampton and DoubleTree both draw customers through the Hilton reservation system. A customer who contacted the system looking for a downtown hotel would find only the DoubleTree-unless there was also a new Hampton.
Mr. Burnette was able to negotiate a favorable price for the DoubleTree in part by touting the risk from the proposed Hampton. And he was able to ensure that the Hampton would not get the required City Commission approval by paying Mr. Maddox.
To be sure, the $100, 000 check was drawn on a company ostensibly controlled by Mr. Burnette's cousin. But the evidence established without dispute that Mr. Burnette controlled the company in relevant respects, caused the payment to be made, and reduced his personal draw from the company dollar for dollar to offset the payment. The check was payable to a lobbying firm that Mr. Maddox claimed to have sold to his business partner-also his romantic partner and now codefendant-Paige Carter-Smith. But the evidence established, again without dispute, that Mr. Maddox still controlled and drew funds from the firm and received the benefit of the $100, 000 payment.
According to Mr. Burnette's own testimony, Mr. Maddox demanded the $100, 000 payment the day before the vote on whether to extend a deadline for the Hampton developer to meet certain requirements. The other commissioners were split 2 to 2 on the extension. Mr. Burnette testified that he agreed to pay the $100, 000, thus ensuring the extension would fail. Mr. Maddox abstained from the next day's vote, exactly as Mr. Burnette wanted. The resulting 2 to 2 tie killed the Hampton project, exactly as Mr. Burnette wanted. Mr. Burnette waited to pay the agreed $100, 000 until he was sure he would succeed in buying the DoubleTree-a hotel now without nearby competition from another Hilton hotel.
Both in his testimony and in closing argument, Mr. Burnette asserted Mr. Maddox strong-armed him into paying the $100, 000-that on this transaction, Mr. Burnette was a victim. But the person who pays a bribe is not a victim; he is a felon. Mr. Burnette did not assert the bribe was paid only under duress, and any such claim would have been frivolous.
The government did not charge the $100, 000 bribe as a stand-alone count because the statute of limitations expired before the government learned of the bribe. Instead, the $100, 000 bribe was part of a count charging conspiracy to engage in racketeering activity. The evidence conclusively established the bribe, but the evidence was much weaker on other elements of the racketeering charge. The jury understandably acquitted Mr. Burnette of this charge.
The jury instructions, which of course predated the verdict, still had to address the $100, 000 bribe.
The record does not show what brought the Federal Bureau of Investigation to Tallahassee. Perhaps the agency got wind of Mr. Maddox's penchant for taking bribes; he had taken bribes not just from Mr. Burnette but also from various others. Whatever the impetus, the FBI came to town with undercover agents and a fictitious company it called “Southern Pines.” The cover story was that Southern Pines was in the business of developing real estate.
The agents, using the names Mike Miller and Mike Sweet, soon met and developed a relationship with Mr. Burnette. The agents were using as bait properties ostensibly available for purchase from a single owner, Joan Fregly. Mr. Burnette told the agents the property was worthless-that he wouldn't accept the property if it was free and he was given $5 million to take it.
Mr. Burnette steered the agents to three other local possibilities. The first was a parcel Mr. Burnette recommended but then bought and developed himself for a local craft beer establishment, Proof Brewing Company. The project was off the table long before the bribes now at issue. The second was a major, long-stalled residential development known as Fallschase. The development was privately owned but was believed to be available for purchase. The third was a parcel owned by the City of Tallahassee adjoining Cascades Park.
Mr. Burnette said the agents should move forward promptly on Fallschase but should do nothing on Cascades Park until after another nearby development was completed. The delay was necessary, Mr. Burnette said, to determine what use of the property would be viable alongside the other development.
The record includes many hours of surreptitiously recorded discussions between the agents and Mr. Burnette. Mr. Burnette was adamant throughout that he had no interest in Fregly, that Fallschase was a winner, and that Cascades Park should be deferred. There were numerous discussions of Mr. Maddox's pivotal role on the City Commission and his willingness to accept bribes. As Mr. Burnette explained it, Mr. Maddox was the guy in Tallahassee with his hand out, ready to be paid off.
Long before November 2016, Mr. Burnette had himself bought the Proof Brewing property; it was off the table. The only local projects that had been discussed and were still available to Southern Pines were Fallschase, Cascades Park, and Fregly. The only one Mr. Burnette was interested in moving on was Fallschase.
As the Fallschase discussions went forward, Southern Pines agreed to pay Mr. Maddox $10, 000 per month, through his lobbying firm. With Mr. Maddox's approval, Ms. Carter-Smith sent Southern Pines a contract tying the $10, 000 payments directly to the Fallschase development-the only project under...
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