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The alleged conduct of an undercover FBI agent in the public corruption investigation of John "J.T." Burnette and his co-defendants - and a decision by a judge to keep some details out of evidence - became a key point of contention during oral arguments in the wealthy businessman's appeal.
The fight over the evidence has been under seal for years, though it burst into public view Wednesday when a three-judge panel with the 11th Circuit Court of Appeal convened to hear arguments in the high-profile case.
Amy Mason Saharia, a prominent Washington lawyer representing Burnette, asked the judges to vacate Burnette's conviction, which came last summer after a lengthy trial. Connor Winn, a criminal appeals lawyer for the Department of Justice, asked that the judgment be affirmed.
Saharia argued that U.S. District Judge Robert Hinkle mistakenly instructed the jury on what constitutes bribery and improperly allowed one of the undercover FBI agents, "Mike Sweet," to testify about Burnette's lack of truthfulness during secretly recorded conversations.
Burnette case appealed: Federal appeals court will hear oral arguments in J.T. Burnette bribery case
She also complained that jurors were not allowed to hear testimony about the conduct of Sweet himself during a December 2016 trip to Las Vegas, where Burnette and a co-defendant, former City Commissioner and Mayor Scott Maddox, were wined and dined by agents.
The trip included an outing to the Hustler Club, where Sweet paid for a lap dance for Maddox with an adult entertainer. And while jurors learned about the lap dance at trial, they were not told about the defense's assertion that Sweet committed a crime when he "paid for prostitution" and failed to disclose it, at least initially, to the government.
"The district court abused its discretion in permitting ... the government's star witness to speculate that my client's exculpatory statement's critical to his defense are false," Saharia told the judges. "And ... the court abused its discretion in excluding evidence that agents paid for prostitution as part of the investigation and then lied to cover it up."
Winn said there was no reversible error in excluding the evidence, arguing that it would have been "an entire prejudicial sideshow" with "salacious testimony that was disputed." He referenced comments on audio from the outing that "maybe meant one thing and maybe meant another."
"I think the court could have allowed the evidence," Winn said. "I think that would have been fine. But I don't think there was anything wrong with keeping it out."
The appeal was heard by 11th Circuit Judges Adalberto Jordan, Robin S. Rosenbaum and Kevin C. Newsom. It could take weeks or longer before they issue an opinion.
What happened in Vegas? Photo emerges of Scott Maddox with undercover FBI agents
The proceeding was initially scheduled to be held in person at the federal courthouse in Jacksonville but conducted via Zoom because of Hurricane Ian, which was nearing landfall in southwest Florida. Jordan noted the disaster, saying everyone in Ian's path were "in our hearts and in our prayers."
Appeals judge tells Burnette lawyer she has tough burden to meet
Rosenbaum told Saharia she had a "very hard burden" to show that Judge Hinkle abused his discretion in keeping some of the evidence out about Agent Sweet, who since retired.
"I think that the court could have allowed it in," Rosenbaum said. "But how do you get to the point where it was an abuse of discretion?"
"I do think when you look at the level of scrutiny that the court gave this issue, it does arise to an abuse of discretion," Saharia said, adding that "the government shouldn't be engaging in this kind of conduct."
J.T. Burnette Trial Day 7: FBI agent 'Sweets' reveals what happened in Las Vegas with Scott Maddox
Burnette, a once-prominent developer, hotelier and political donor, was convicted last year for his role in a pay-to-play scheme involving Maddox and his longtime aide Paige Carter-Smith. He's serving a three-year sentence at a federal prison camp in Montgomery, Alabama.
In January, his legal team, including lawyers from the powerhouse Williams & Connolly firm and Tim Jansen of Tallahassee, filed their brief with the 11th Circuit asking to vacate his conviction and remand the case back to district court for a new trial or judgment of acquittal. Government lawyers in March asked the appeals court to affirm the judgment.
Burnette, whose many local projects included the downtown Gateway Building, the Hotel Duval and the DoubleTree Hotel, was found guilty of bribes he arranged for Maddox and Carter-Smith through their lobbying firm, Governance.
He also arranged a circuitous $100,000 payment to Maddox for his help in killing a rival hotel project, according to prosecutors, and asked undercover FBI agents posing as developers to send $10,000 checks to Governance for Maddox's help with approvals and other action on projects involving Fallschase and Myer's Park.
Maddox is serving a five-year sentence at a federal prison camp in Pensacola. Carter-Smith, who was sentenced to two years, is on home confinement after serving time at a federal prison camp in Marianna. The appeals court earlier ruled against letting Burnette out of prison pending his appeal.
Burnette, government lawyers argue over what was and wasn't said in recorded conversations
Saharia argued that there were several errors involving jury instructions, including that they failed to say that Maddox needed to take action on a specific "identified matter."
"Our position is that there's either no evidence or at a minimum the evidence was in conflict as to whether Maddox agreed to take action on those matters," she said. "There is substantial evidence that what the agents thought they were paying Maddox for was for general goodwill to do something for them at some point in the future."
'Seriously flawed': Lawyers for J.T. Burnette ask 11th Circuit to overturn conviction on corruption charges
Winn said Maddox didn't make explicit statements that "yes, I will do these things," in part because he was suspicious of the undercover FBI agents. He said it would be "frankly somewhat silly" to expect such statements from Maddox.
"Public officials don't tend to explicitly state that they will engage in acts of corruption," Winn said. "They often act in innuendo."
Winn noted that Maddox pleaded guilty to bribery charges in the case, a fact understood by jurors. He also said the evidence of bribery was "quite strong," including statements by Burnette to the agents to keep paying Maddox after they started cutting him checks.
The Burnette case grew out of the FBI's "Operation Capital Currency," investigation, which began in 2015 with the arrival of an undercover agent known as "Mike Miller," who posed as an investor with Southern Pines Development, a bureau front.
The same corruption probe led to federal charges in June against another former Tallahassee mayor, Andrew Gillum, and his longtime advisor Sharon Lettman-Hicks. Gillum, the 2018 Democratic nominee for Florida governor, and Lettman-Hicks pleaded not guilty to charges they illegally funneled campaign proceeds to themselves.
Contact Jeff Burlew at firstname.lastname@example.org or follow @JeffBurlew on Twitter.
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This article originally appeared on Tallahassee Democrat: J.T. Burnette lawyer makes case in federal appeals court in Jacksonville