7th Circuit reverses conspiracy convictions for trustee’s administrative assistant in official misconduct case

The administrative assistant to the former Calumet Township Trustee who pled guilty to federal charges has had her own convictions related to wire fraud reversed after the 7^th Circuit Court of Appeals found she should have been granted a mistrial on Fourth Amendment grounds.

When Stafford Garbutt was demoted from his government job and took $15,000 pay cut, he tipped off a local newspaper and the United States Attorney’s office that his former boss, Calumet Township Trustee Mary Elgin, was performing criminal conduct in while in office. Specifically, he accused her and his co-workers of political campaigning while on the clock, which he had also engaged in for the past 10 years.

Garbutt then formed a partnership with an FBI agent, who directed him to conduct warrantless searches of his coworkers’ offices. His actions ultimately ensnared both Elgin and her administrative assistant, Ethel Shelton.

Following Elgin’s agreement to a plea deal, a jury convicted Shelton of conspiracy to commit wire fraud and conspiracy to commit honest services wire fraud related to her actions as an employee of the Calumet Township Trustee’s Office.

When Shelton learned mid‐trial that the FBI agent had directed Garbutt to conduct warrantless searches of her office, the district court tried to mitigate any damage by allowing Shelton to move post‐trial for relief. But at the end of the day, the court ultimately denied Shelton’s motion.

In reversing that decision, the unanimous 7^th Circuit Court of Appeals on Friday concluded that the district court erred when it found that Shelton lacked any reasonable expectation of privacy in her office, among other things.

It began by addressing the seven factors on which the district court relied in determining Shelton had no reasonable expectation of privacy in her office or desk against intrusions by Garbutt. Among them, the 7^th Circuit found the district court erred in concluding that the Employee Handbook was a source of any authority for Garbutt to enter Shelton’s office. It also found that neither the security cameras nor those workplace policies gave Garbutt any right of access to Shelton’s office, which had a door.

“There is no doubt that Shelton had as much right to exclude the police, the public, and co-workers as did the union official in the shared office or the state doctor in a private office. She had a reasonable expectation that co‐workers (including Garbutt) and other visitors would not access her office or desk outside of regular office hours at times when she was not present, except for brief and very limited purposes. Like any office worker with a private office, she had a reasonable expectation that, although her employer or supervisor might intrude into her space and peruse her desk for work‐related purposes, her co‐workers had no license to do so,” Judge Ilana Rover wrote for the 7^th Circuit.

“Behavior such as Garbutt’s, where he entered Shelton’s private office outside of normal business hours and lingered beyond any legitimate, anticipated or permissible purpose in order to review and copy the papers on top of her desk would be unacceptable in any workplace. Because he was acting as an agent of the government at the time, and because he possessed no warrant to conduct this search, his actions violated the Fourth Amendment,” Rovner concluded.

Moving to the issue of whether a search warrant would still have been issued if the unlawfully obtained materials were excised from the warrant application, the 7^th Circuit again veered away from the district court’s conclusion.

“We agree with (FBI Agent Nathan Holbrook), who candidly conceded that he would not have been in a position to seek a warrant without the information that Garbutt provided in his capacity as an agent of the government. The evidence gained from the warrant and presented at trial was therefore the fruit of the initial, multi‐month unlawful search, and should have been suppressed,” Rovner wrote, concluding that Shelton’s motion to suppress and motion for a mistrial should have been granted.

As such, the 7^th Circuit vacated Shelton’s conviction and remanded for proceedings consistent with its opinion in USA v. Ethel Shelton, 19-3388.