Federal prosecutors in the public corruption trial of John "J.T." Burnette say he should go to prison pending his appeal because he poses a flight risk - with reasons and resources to flee - and hasn't raised a "substantial question" that could lead to a reversal or new trial.
The government, in a motion filed Tuesday in federal court in Tallahassee, also noted how rare it is for defendants to be granted release during their appeal, something that happens "only in truly exceptional cases." U.S. District Judge Robert Hinkle is expected to rule on the issue soon.
Burnette, a wealthy businessman and developer, was found guilty in August for his role in a bribery scheme that also brought down former Tallahassee City Commissioner Scott Maddox and his longtime partner Paige Carter-Smith. Hinkle sentenced him last month to three years in federal prison.
However, his appellate lawyers, all from high-powered Washington, D.C., law firm Williams & Connolly, argued that Burnette should remain free pending appeal, saying Hinkle made errors involving jury instructions and testimony from an FBI agent serious enough to warrant reversal or a new trial.
Analyzing the J.T. Burnette sentencing: What does it tell us about the appeals battle ahead?
The sentence: J.T. Burnette gets 3 years in federal prison, $1.25M fine in City Hall public corruption case
The prosecution argued otherwise, saying that jury instructions and testimony from the agent were "appropriate and consistent" with higher court precedent. Government lawyers also said Hinkle made no error in the trial.
"In this case, even if the jury had been instructed exactly as the defendant now suggests it should have been, the verdict would have been the same," government lawyers wrote. "The defendant's own recorded words detailing how to bribe Maddox and why provided the jury more than it needed to convict him."
Even if an error is found that could result in a new trial, prosecutors said Burnette should still go to prison. They argued that his conviction for lying to the government would stand regardless of the outcome of the appeal and that, at best, he could receive a reduced sentence.
Prosecutors acknowledged the once-prominent Burnette poses no danger to the community, but they said he could flee and has the means and possible motivation to do so. They noted that he is an experienced pilot, though he gave up his license, and has access to an airplane and a boat.
"The defendant is in his mid-40s, has health issues that he argued would be exacerbated by a sentence of incarceration and is facing 36 months of imprisonment," the government wrote. "Most importantly, he has access to substantial financial resources, with assets of more than half a billion dollars when combined with those of his wife."
It was revealed at sentencing that Burnette has a net worth of $112 million. His spouse, Kim Rivers, serves as CEO of medical marijuana giant Trulieve.
Burnette back story:
In sentencing, prosecutors claimed Burnette, Beshears manipulated Florida medical marijuana law
Bank buys back DoubleTree Hotel after Burnette defaults on mortgage; could a sale be on horizon?
Inside the J.T. Burnette jury deliberations: Juror points to smoking gun, case shortcomings
Government: 'The defense invited the supposed errors it now complains of'
Hinkle opted to change a pattern jury instruction that says for bribery to occur, a public official must promise to take official action on a matter that is "specific and focused." Instead, he instructed jurors that the matter "need not be identified at the time of payment" and that the bribe could be for a vote on some unknown future item.
The government noted that Burnette's trial lawyers, Tim Jansen and Greg Kehoe, "explicitly approved" Hinkle's jury instructions, at one point telling the judge that he correctly "captured it."
"Under these circumstances, any challenge to the contents of that instruction are barred because the defense invited the supposed errors it now complains of," the government wrote.
More: J.T. Burnette brings on former clerk to SCOTUS justice, appeals expert ahead of sentencing
The government also refuted the defense assertion that Hinkle improperly allowed certain testimony from "Mike Sweet," an undercover FBI agent who posed as a crooked medical marijuana tycoon. Sweet testified that Burnette made "false exculpatory statements" to him that were designed to cover his tracks.
The statements came in December 2016, after Burnette and Maddox few to Las Vegas for a meeting with the undercover agents and started to worry they might be FBI. At one point, Burnette told the agents that "Tallahassee is just about doing the right thing."
Prosecutors said the testimony was necessary for the jury to understand the agents' motives and tactics, which the defense attacked from the outset of the trial. Hinkle at one point admonished the defense from trying to assert a "lawless" entrapment defense.
"This court's admission of (Sweet's) limited opinion testimony was proper given the defendant's strategy and questions," the government said.
Contact Jeff Burlew at email@example.com or follow @JeffBurlew on Twitter.
Never miss a story: Subscribe to the Tallahassee Democrat using the link at the top of the page.
This article originally appeared on Tallahassee Democrat: J.T. Burnette: Prosecutors say he's a 'flight risk,' call for imprisonment