4:18-cr-00003
N.D. Ga.Dec 31, 2020Background
- In Aug. 2018 a federal grand jury indicted 23 defendants, including Jeffrey Bourassa, Cheri Rau, and Joseph Propps; counts included RICO conspiracy, drug conspiracy, kidnapping, and maiming.
- Defendants moved (Summer 2019) to dismiss the indictment or disqualify the prosecution, alleging Cobb County District Attorney Victor Reynolds previously represented them and then "switched sides," violating ethical rules and constitutional rights.
- The Magistrate Judge held an evidentiary hearing (testimony from Reynolds, an associate Jimmy Berry, and two defendants), then recommended denying the motions and denying a request to reopen the record.
- Key factual findings: Reynolds had defended some related matters years earlier; his office provided historical files to federal agents in 2015 and Reynolds signed a 2016 wiretap application that did not target these defendants; Reynolds testified he did not join or direct the federal prosecution and had no supervisory relationship with federal prosecutors.
- The district court reviewed objections de novo where raised, agreed with the Magistrate Judge that Reynolds (and his office) were not part of the federal prosecution team, found no disclosure of privileged client confidences, and denied dismissal/disqualification and the request to reopen the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Reynolds (or his office) was part of the federal prosecution team (ethics Rules 1.7/1.9) | Reynolds previously represented defendants; his involvement or his office's cooperation taints prosecution and creates imputed conflict | Reynolds never joined the federal team, was not supervised by or subordinate to federal prosecutors, and cooperation was limited (a 2015 file share, isolated wiretap application) | Court: not part of the federal team; no disqualifying Rule 1.7/1.9 violation; indictment stands |
| Whether Reynolds disclosed confidential client communications (Rule 1.6) | Defendants assert privileged information appears in the indictment and presume disclosure | Reynolds denies any disclosure; defendants point to no specific confidences or evidence of disclosure | Court: no proof Reynolds disclosed confidences; Rule 1.6 claim fails |
| Due process / "outrageous government conduct" based on alleged switching sides or disclosure | Prior representation plus later participation by Reynolds/office creates unfair prosecutorial advantage; cite cases that presume prejudice in identical matters | Defendants cannot show agency-like role by Reynolds or outrageous conduct; any cooperation was minimal and remote in time | Court: no due process violation; facts not sufficiently outrageous and no presumption applies because Reynolds did not represent the government in this case |
| Sixth Amendment conflict of interest / ineffective assistance | Prior representation by Reynolds created conflicting loyalties impairing counsel | Argument largely undeveloped; even if a conflict existed it was not during representation and no prejudice shown | Court: claim waived for lack of development; fails on merits because no actual conflict during representation and no adverse effect shown |
| Motion to reopen the evidentiary record | Need to add proof of prior representation and submit wiretap application and other materials | Court previously considered relevant items; additional proof immaterial to central issue (Reynolds' role in federal prosecution) | Court: deny reopening; further evidence unlikely to change outcome; COVID-related counsel access concerns insufficient to warrant reopening |
Key Cases Cited
- Sargent v. Sec'y, Fla. Dep't of Corr., [citation="480 F. App'x 523"] (11th Cir. 2012) (defines prosecution team as prosecutor or anyone under their authority; team membership requires supervisory/agency-like relationship)
- United States v. Antone, 603 F.2d 566 (5th Cir. 1979) (state agents were part of federal prosecutorial team where there was intimate cooperation, shared files, joint task force and pooled investigative efforts)
- Moon v. Head, 285 F.3d 1301 (11th Cir. 2002) (no team membership where out-of-state official acted as witness and was not under direction or required to share resources with prosecutors)
- United States v. Schell, 775 F.2d 559 (4th Cir. 1985) (reversal where attorney literally became federal prosecutor and personally assisted prosecution of former clients on the same matter)
- Cuyler v. Sullivan, 446 U.S. 335 (U.S. 1980) (to prevail on conflict-of-interest Sixth Amendment claim, defendant must show an actual conflict that adversely affected counsel's performance)
- United States v. LaVallee, 439 F.3d 670 (10th Cir. 2006) (due process concerns where prior professional relationship gives prosecution unfair advantage)
- United States v. Ofshe, 817 F.2d 1508 (11th Cir. 1987) (outrageous-conduct due process claim requires conduct that is shocking to universal sense of justice)