United States v. Ethel Shelton ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 19‐3388
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ETHEL SHELTON,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:14‐cr‐00129‐JVB‐JEM‐2 — Joseph S. Van Bokkelen, Judge.
ARGUED NOVEMBER 13, 2020 — DECIDED MAY 14, 2021
Before FLAUM, ROVNER, and BRENNAN, Circuit Judges.
ROVNER, Circuit Judge. Demoted, disparaged, and deprived
of a free government car, Stafford Garbutt decided that he
could no longer tolerate what he believed to be criminal
conduct by his boss and co‐workers, conduct that he himself
had been engaging in for more than ten years. After his
anonymous letters to a local newspaper and to the United
2 No. 19‐3388
States Attorney’s office accusing his former friend and boss of
official misconduct failed to garner any response, he ap‐
proached the United States Attorney’s office in person with his
story. That office directed him to the FBI, where he began a
partnership with an agent who eventually directed him to
conduct warrantless searches of his co‐workers’ offices.
Garbutt’s actions ultimately ensnared not only his intended
target, Calumet Township Trustee Mary Elgin, but also Elgin’s
administrative assistant, Ethel Shelton, the defendant here.
After Elgin took a plea deal, a jury convicted Ethel Shelton of
conspiracy to commit wire fraud and conspiracy to commit
honest services wire fraud related to her actions as an em‐
ployee of the Calumet Township Trustee’s Office. Shelton
learned mid‐trial that the FBI agent had directed Garbutt to
conduct warrantless searches of her office. Although the
district court tried to mitigate any damage by allowing Shelton
to move post‐trial for relief, the court ultimately denied her
motion. We reverse and remand.
I.
Mary Elgin first ran for the post of Trustee of Calumet
Township in 2002. The Trustee’s Office was charged with
helping people in the community in need of assistance in areas
such as jobs, food, housing, and the like. Elgin had previously
been a union official in the United Steelworkers of America,
and she met Stafford Garbutt at an international convention for
the union in 1980. Garbutt, who holds dual citizenship in
Belize and the United States, was impressed with Elgin and
began to help her with campaigns for union leadership posts.
When Elgin decided to run for the position of Trustee of
Calumet Township in 2002, she contacted Garbutt and asked
No. 19‐3388 3
him to help. Garbutt, who was living in Belize at the time and
working as an assistant to the Deputy Prime Minister of that
country, agreed to help and immediately drafted a program for
her election. He moved from Belize (where he had a wife and
daughter) into Elgin’s home in Gary, Indiana, where he
remained for several months. He created a political action
committee for her, developed newsletters and flyers, and
worked on all aspects of her campaign. That campaign marked
the first of Elgin’s three successful bids for the position of
Trustee, a post she held for twelve years. Garbutt conceded at
trial that he had an intimate relationship with Elgin (although
he denied it was sexual in nature), and admitted that they
traveled and socialized together. After Elgin’s first successful
campaign for Trustee, she hired Garbutt to work at the
Trustee’s Office and allowed him to write his own job descrip‐
tion and essentially name his own salary.
The Trustee’s Office was organized with Elgin at the top,
and several deputies reporting to her, including a chief deputy
who acted as the principal administrator for the Office. The
deputies supervised the various departments that made up the
Trustee’s Office. Elgin hired Garbutt to work as her “executive
aide” (a position that did not previously exist in that Office) at
a salary of $60,000 per year. Only Elgin herself and the chief
deputy earned higher salaries. Garbutt had insisted that he
would not be responsible to anyone but the Trustee and that
the chief deputy could not direct him “in any manner, shape,
or form.” R. 257, at 283. Garbutt’s official responsibilities
included public relations, speech writing, newsletter editing,
and interacting with local and state officials on issues pertinent
to the Trustee’s Office. Although he was not a deputy, Elgin
4 No. 19‐3388
granted him all of the perks and privileges of being a deputy,
including a government car for his exclusive use, and partici‐
pating in meetings that Elgin held with the deputies. Unlike
the deputies, he had no supervisory responsibilities.
From the very beginning of his job, Garbutt’s unofficial
duties included Elgin’s political campaign work. Because he
understood that he should not perform political work at the
Township Office, he initially completed these tasks at his
home. But he soon began to also engage in political tasks at the
office, where blurring the line between political work and
office duties was the norm under Elgin’s leadership. Ironically,
Garbutt had drafted in 2005 the official Trustee’s Office policy
prohibiting political activities during Township hours and on
Township property. Each employee, including Garbutt, was
required to read and sign that policy. The policy warned that
violations would lead to disciplinary action up to and includ‐
ing termination.
In addition to Garbutt, Elgin also hired her friend Ethel
Shelton as a financial clerk, and in 2006, elevated her to the
post of administrative assistant. Shelton’s job responsibilities
included the usual secretarial tasks such as answering phones,
filing, handling mail, and assisting clients at Elgin’s direction,
especially when Elgin was unavailable to do so herself.
Although Elgin directed Shelton to perform secretarial tasks
for Garbutt whenever he asked for assistance, Garbutt did not
supervise Shelton and he rarely made use of her services.
Like Garbutt, Shelton had unofficial responsibilities related
to Elgin’s campaign work. Elgin held three fundraisers a year:
the Extravaganza event, with ticket prices of $100 each; the
No. 19‐3388 5
Prayer Breakfast, run by Women for Elgin, with more modestly
priced $30 tickets; and a Mardi Gras event held by a men’s
group known as Elgin’s Eagles, with $15 tickets. Tickets for
these events were sold to the public at large, to Township
vendors, and to employees of the Trustees’ Office. Elgin
determined how many tickets each employee would be
expected to purchase based on each employee’s salary, and
Shelton packaged the tickets (sometimes with Garbutt’s help)
into envelopes labeled with each employee’s name. Elgin
directed the deputies to distribute the tickets to the employees
who reported to them. The prior Trustee had expected employ‐
ees to provide a 2% kickback of their salaries in support of his
campaigns; Elgin abolished that program and instead sought
“voluntary” ticket purchases from employees. Many employ‐
ees bought the tickets or sold them to others, and some also
volunteered to work at Elgin’s campaign events. Payments for
the tickets were sometimes returned to the deputies, and
sometimes given directly to Shelton or left on her office chair.
At Elgin’s direction, Shelton kept track of ticket purchases,
noting names and amounts for campaign reporting purposes,
and for Elgin’s use otherwise. During Elgin’s terms in office, a
property tax cap resulted in severe budget cuts to the Office,
and consequently, the number of employees working in the
Trustee’s Office was significantly reduced. Some employees
testified that they purchased the tickets in the belief that
support of Elgin’s campaigns would spare them from the
layoffs occasioned by budgetary constraints.
As Elgin completed her third and final term as Trustee,
Shelton and her co‐defendant Alex Wheeler, who was a
deputy, both decided to run for positions on the Township
6 No. 19‐3388
Board, which would have provided them with oversight
responsibilities over the Trustee’s Office. As she had done with
Elgin’s campaigns, Shelton performed some of her campaign
work at the Trustee’s Office. Although she testified that she
limited campaign work for Elgin and for herself to her lunch
hour, approved break periods, and the hours before and after
the official workday, there was evidence that she performed
campaign work during times that she was on the clock for the
Trustee’s Office, sometimes using the resources of that Office,
including computers and printers.
At or near the time that Garbutt decided to become a
government informant, he had a falling out with Elgin. At a
meeting with Elgin’s inner circle, Elgin and Garbutt had a “tiff”
in which Elgin “might have” called him a “dumb
motherf****r,” and he “might have” called her vulgar names as
well. R. 257, at 265. Elgin demoted Garbutt, docked his salary
$15,000, barred him from attending meetings with the depu‐
ties, and took away his government car, which was the only car
he had at the time. Garbutt decided to send an anonymous
letter to a local newspaper accusing Elgin of unlawful conduct.
The newspaper apparently ignored this letter, so Garbutt next
tried the United States Attorney’s office, again with an anony‐
mous letter.1 When that letter also produced no results, he
went in person to the United States Attorney’s office to
complain about Elgin. That office referred him to the FBI.
1
At trial, Garbutt first denied sending an anonymous letter to the United
States Attorney’s office, R. 257, at 207, and then admitted doing so when
shown the letter. R. 257, at 271–72.
No. 19‐3388 7
Garbutt wasted no time with the referral, calling FBI Agent
Nathan Holbrook from the parking lot of the United States
Attorney’s office. He met with Holbrook a few days later.
Garbutt brought with him an envelope full of campaign
documents, programs and brochures that he told Holbrook
were created with Township resources on Township time.
Garbutt knew that this was so because he was the person who
had created the campaign materials on Township time, using
Township resources.
Garbutt told Agent Holbrook that he came forward with
these accusations against Elgin and his co‐workers in part
because he had learned of charges against another local official,
George Van Til, for similar conduct. Van Til, an elected County
Surveyor, faced federal charges for using his office and his
employees to run his re‐election campaign. The meeting
convinced Holbrook to open an investigation. Holbrook asked
Garbutt if he would be willing to provide additional evidence
and potentially record his co‐workers. Garbutt agreed to do so.
Holbrook ran a criminal background check on Garbutt, and
began directing him to collect documents from the offices of
his co‐workers. Ultimately, Agent Holbrook provided Garbutt
with a sophisticated, concealed recording device. At Agent
Holbrook’s direction, Garbutt eventually provided to the FBI
more than one hundred recordings and a large number of
documents that he gathered from the offices of his co‐workers.
We will detail the facts surrounding Garbutt’s collection of that
evidence in our discussion below assessing the propriety of his
actions and those of Agent Holbrook. The information and
evidence that Garbutt collected was then used to obtain a
warrant to search the offices of the Trustee. And the evidence
8 No. 19‐3388
obtained from that search warrant in turn provided the basis
for federal charges against Elgin, her son Steven Hunter (who
was also her employee), Shelton, and Wheeler. Elgin and her
son pled guilty. Shelton and Wheeler went to trial, where
information obtained as a result of the search warrant was
entered into evidence. Shelton faced two counts at trial:
conspiracy to commit wire fraud, in violation of 18 U.S.C.
§§ 1343 and 1349; and conspiracy to commit honest services
wire fraud, in violation of 18 U.S.C. §§ 1343, 1346 and 1349.
After initially deadlocking, the jury acquitted Wheeler but
convicted Shelton on both counts.
During the trial, it became apparent to Shelton’s lawyer that
Garbutt, acting as a government agent, had searched Shelton’s
office without a warrant and provided copies of documents
that he found there to Holbrook. Shelton immediately moved
for a mistrial, asserting violations of the Fourth Amendment as
well as violations of the government’s obligations under Brady
v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405
U.S. 150 (1972). The court took the motion under advisement.
At the conclusion of the government’s case‐in‐chief, Shelton
moved for a directed verdict on the grounds of insufficiency of
the evidence. The court denied that motion. After trial, the
court directed the parties to brief the issues raised in the
motion for a mistrial. Shelton asserted that the government
engaged in prosecutorial misconduct when it instructed its
informant to engage in a warrantless search for documents in
areas over which the informant lacked any authority or consent
to search. She also asserted that she could not have raised her
objections earlier because the government failed to reveal the
relevant facts until the trial itself. The government opposed
No. 19‐3388 9
Shelton’s motion on the grounds that: (1) the objection to the
search was raised too late; (2) Garbutt’s collection of docu‐
ments was not improper; and (3) the warrant that produced the
evidence admitted at trial would have been granted even if
references to the challenged documents had been excluded
from it. The court rejected the government’s assertion that
Shelton was late in raising her objection, but ultimately denied
Shelton’s motion, concluding that she lacked a reasonable
expectation of privacy in the areas searched by Garbutt. The
court also concluded that the warrant would have been issued
even with the offending materials excised from the warrant
application. Shelton appeals.
II.
In addition to challenging the district court’s denial of her
motion for a mistrial on Fourth Amendment grounds, Shelton
also challenges the sufficiency of the evidence on both the
conspiracy to commit honest services wire fraud count and the
conspiracy to commit wire fraud count. We review the denial
of the motion for a mistrial for an abuse of discretion. United
States v. Hilliard, 851 F.3d 768, 778 (7th Cir. 2017). A decision
that rests on an error of law is always an abuse of discretion.
Brock‐Miller v. United States, 887 F.3d 298, 304 (7th Cir. 2018);
United States v. Simon, 727 F.3d 682, 696 (7th Cir. 2013). Incor‐
porated in Shelton’s motion for a mistrial is a motion to
suppress the items that Garbutt seized from Shelton’s work
area and to suppress the evidence that was collected pursuant
to a warrant that was based on the items that Garbutt collected.
In reviewing the denial of a motion to suppress, we review
findings of fact for clear error and questions of law de novo.
United States v. Wanjiku, 919 F.3d 472, 479 (7th Cir. 2019); United
10 No. 19‐3388
States v. Velazquez, 906 F.3d 554, 557 (7th Cir. 2018). We review
de novo a challenge to the sufficiency of the evidence, determin‐
ing only whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt
when viewing the evidence in the light most favorable to the
government. United States v. Cherry, 920 F.3d 1126, 1133 (7th
Cir. 2019); United States v. Stewart, 902 F.3d 664, 679 (7th Cir.
2018); United States v. Webster, 775 F.3d 897, 904–05 (7th Cir.
2015).
A.
Shelton argues the district court abused its discretion when
it denied her motion for a mistrial, which was based on a
violation of her Fourth Amendment right to be free from
unreasonable searches and seizures, and on the government’s
violation of its obligations under Brady and Giglio. The court
erred, Shelton argues, when it concluded that she lacked any
reasonable expectation of privacy in her office. The information
that Garbutt collected from her office was then used to support
an application for a warrant that authorized a search of the
entire Trustee’s office, resulting in the collection of evidence
that was admitted at trial. Shelton contends that the evidence
introduced at trial was the fruit of the poisonous tree (the
initial warrantless search by Garbutt), and should have been
suppressed. Moreover, Shelton contends, the government was
obligated under Brady and Giglio to reveal to Shelton prior to
trial that Agent Holbrook had directed Garbutt, acting as an
agent of the government, to engage in a warrantless and
unlawful search of her office. The government counters that
Shelton failed to demonstrate that she had a reasonable
expectation of privacy in her office and desk from an intrusion
No. 19‐3388 11
by Garbutt or by anyone else. The government also contends
that the warrant that led to the discovery of the evidence
admitted at trial would have been issued even in the absence
of the information gleaned from Garbutt’s collection of
documents from Shelton’s desk. The evidence admitted at trial
was therefore not the fruit of the poisonous tree, the govern‐
ment maintains.
During Garbutt’s testimony, Shelton’s counsel learned for
the first time that Garbutt had searched2 Shelton’s office (as
well as Elgin’s office and a storage room where Shelton kept
some files) at the direction of Agent Holbrook. That revelation
was followed by an admission by Agent Holbrook that Garbutt
was acting as a government agent when he conducted those
searches, that Holbrook himself had directed the searches, and
that Holbrook had not secured a warrant prior to directing
Garbutt to conduct the searches. In the district court, the
government conceded that, if the court concluded that Shelton
had a reasonable expectation of privacy in her office, no
exception to the warrant requirement existed that would have
permitted Garbutt to enter her office. R. 234, at 11–12, n.6. This
2
The word “search” is a term of art in Fourth Amendment analysis.
Generally, if the person objecting to a government intrusion lacks a
reasonable expectation of privacy in the area examined, we conclude that
no “search” has occurred for Fourth Amendment purposes. We use the
word here as shorthand for Garbutt’s actions because, as we conclude
below, Shelton did in fact have a reasonable expectation of privacy in her
office against intrusions by Garbutt and others. See United States v. Correa,
908 F.3d 208, 217 (7th Cir. 2018) (a court determines whether a search has
occurred for Fourth Amendment purposes based on the existence of a
reasonable expectation of privacy).
12 No. 19‐3388
concession continues on appeal, and so the determinative
question is whether Shelton had a reasonable expectation of
privacy in her office.
1.
We turn to the facts related to Garbutt’s retrieval of
documents from Shelton’s desk and other areas of the office.
After Garbutt testified at trial that he entered the offices of his
co‐workers and collected documents at Agent Holbrook’s
direction, both the government and Shelton’s counsel explored
the circumstances of the document collection during Agent
Holbrook’s testimony. In direct examination, Agent Holbrook
acknowledged that when Garbutt was acting on behalf of the
FBI in recording conversations, the rules regarding the collec‐
tion of evidence that applied to Agent Holbrook also applied
to Garbutt. R. 258, at 10–11. Defense counsel later questioned
Agent Holbrook regarding the circumstances under which
Garbutt collected documents from his co‐workers’ offices:
Q. And did he [Garbutt] bring you documents that
he took out of other people’s offices?
A. Yes.
Q. And did you accept those documents?
A. Yes.
Q. Did you ask Mr. Garbutt to do that?
A. Yes.
Q. So he was acting as a law enforcement agent
when he searched the offices of the Calumet
Township?
No. 19‐3388 13
A. Yes.
Q. Now, you’re aware of the requirements for a
warrant?
A. Yes.
Q. And did you seek a warrant before you allowed
Mr. Garbutt to go search the offices of the Calu‐
met Township?
A. No.
R. 258, at 70.
Agent Holbrook explained that he took this course of action
based on his belief that Garbutt had a right of access to these
offices, and that he could therefore gather anything that was in
plain view in these spaces. As we will discuss below, Agent
Holbrook defined “right of access” as the “right to be there and
the knowledge that he routinely goes there without the
individuals being there. That was the big factor.” R. 258, at 181.
The primary basis for Agent Holbrook’s belief that Garbutt had
the right to access his co‐workers’ offices when they were not
present came from Garbutt himself. Garbutt apparently told
Agent Holbrook that he signed the time‐keeping sheet in
Shelton’s office, sometimes before she arrived at the office.
Agent Holbrook also testified that Garbutt told him that he
“had permission to go in those offices and that he routinely
went in those offices,” and that “the individuals knew that he
did so.” R. 258, at 181–82. Rather than seeking the assessment
of a neutral magistrate as to the appropriateness of sending
Garbutt in to search those offices, Agent Holbrook took
Garbutt at his word, and decided that he could direct Garbutt
14 No. 19‐3388
to enter Shelton’s office when she was not present and copy
any documents in plain view. The government asserts that
Holbrook’s assessment was lawful because Shelton lacked any
reasonable expectation of privacy in her office.
Testimony at trial established that the Trustee’s Office
occupied four buildings, including a three‐story office building
that served as the main office of the Calumet Township
Trustee; a north annex; a multipurpose center; and a service
office. The north annex was used for commercial purposes and
Township business. The multipurpose center housed a
women’s shelter and was also used for residents in need
during times of extreme heat or cold. It also contained adminis‐
trative offices, a large meeting room and space that was rented
out for community functions. The main office building housed
most of the high‐level administrators of the Trustee’s Office.
Mary Elgin’s office was on the third floor of the main office
building. Elgin’s square‐shaped office suite could be entered
through double doors near the elevator. Those doors led to a
large open area. Within this open space was a seating area for
Elgin’s visitors. Beyond the visitor’s area (to the right of the
double doors) was a door to Shelton’s office. Straight across
from the double doors was a conference room. To the right of
the conference room, in the back right corner, was Elgin’s
office. Elgin’s office had three entrances: one directly from the
large open area; one from the conference room; and one from
Shelton’s office. On the other side of the double doors, past the
elevator and across a wide corridor from the offices of Shelton
and Elgin was Garbutt’s office. R. 257, at 56–58. Only one other
employee, switchboard operator Laura McFarland, worked on
No. 19‐3388 15
the third floor. McFarland sat at a desk in the open area in
Elgin’s suite, outside of Shelton’s office.
Garbutt had a key to the building that allowed him to enter
before the usual 8 a.m. start of the business day at the Trustee’s
Office.3 He did not have keys to the individual offices within
the building, but offices on the third floor were not typically
locked in the evening. When the doors to Elgin’s suite opened,
a chime would sound to alert the occupants that someone was
coming in. R. 257, at 107. All employees were required to mark
a time‐keeping sheet indicating their arrival and departure
from the office. The time‐keeping sheet for Garbutt was kept
in Shelton’s office, and on days when he arrived in the office
before Shelton, he would enter Shelton’s empty office to sign
the sheet.4 Garbutt also visited Shelton in her office on a
regular basis, sometimes two or three times a day. Garbutt
sometimes passed Shelton’s office on his way to visit Elgin.
Other employees of the Trustee’s Office sometimes entered
Shelton’s office when she was not present in order to drop off
3
The regular hours for employees of the Trustee’s Office were 8 a.m. to
4 p.m., although Elgin allowed variations of this schedule. Garbutt opted to
sometimes begin his workday early.
4
The record does not indicate where in Shelton’s office the time‐keeping
sheet (which the parties also refer to as a “sign‐in sheet”) was kept. Among
the materials that Garbutt supplied to Agent Holbrook were photographs
of Shelton’s desktop. No sign‐in sheet is visible in any photograph of
Shelton’s desk. However, in other photographs of a table immediately
inside of Shelton’s office door, a clipboard with paper and a pen is visible,
the only object resembling a sign‐in sheet anywhere in the record on appeal.
The record does not definitively resolve the location of the sign‐in sheet
within Shelton’s office.
16 No. 19‐3388
items for her on her chair. For example, testimony indicated
that employees who purchased fundraising tickets for Elgin’s
events sometimes handed the payments directly to Shelton or
left the payments on her office chair if she happened to be
absent at the moment.
That said, Shelton’s office was her own private, fully‐
enclosed work space: although business invitees visited it for
limited purposes (including in her absence), she did not share
her office or her desk with anyone else. She had a door, and
she used it to exercise her right to exclude co‐workers and
visitors from her office. Indeed, one of the documents that
Garbutt delivered to Agent Holbrook during his evidence
collection efforts was an email from Shelton “to all staff of the
Calumet Township on December 10, 2013 advising that her
door will be closed during work hours for more privacy.”
R. 234‐5, at 10. Shelton was the sole occupant of her office for
more than seven years, and as is apparent from the documents
that Garbutt collected and the photographs that he took, she
kept personal, non‐work‐related items in her office. On at least
one occasion when Garbutt was visiting Shelton in her office,
another employee came to visit, and Shelton turned papers
face‐down on her desk so that the visitor could not see them.
When Garbutt visited Shelton in her office, he normally
knocked before entering. Tr. Ex. 13T (described and quoted at
R. 234, at 16–17).
2.
Shelton, as the defendant objecting to the search, bears the
burden of proving a legitimate expectation of privacy in the
area searched. United States v. Pitts, 322 F.3d 449, 456 (7th Cir.
No. 19‐3388 17
2003). “[A] Fourth Amendment search occurs when the
government violates a subjective expectation of privacy that
society recognizes as reasonable.” Kyllo v. United States, 533
U.S. 27, 33 (2001). See also Pitts, 322 F.3d at 456 (same). The
Supreme Court has recognized repeatedly that employees may
have a reasonable expectation of privacy in the workplace:
Within the workplace context, this Court has recog‐
nized that employees may have a reasonable expec‐
tation of privacy against intrusions by police. … As
with the expectation of privacy in one’s home, such
an expectation in one’s place of work is “based upon
societal expectations that have deep roots in the
history of the Amendment.”
O’Connor v. Ortega, 480 U.S. 709, 716–18 (1987) (quoting Oliver
v. United States, 466 U.S. 170, 178, n.8 (1984)). For example, the
Court held that a union employee who shared an office with
other union employees had a privacy interest in the office
sufficient to challenge the warrantless search of that office:
It has long been settled that one has standing to
object to a search of his office, as well as of his home.
… [I]t seems clear that if DeForte had occupied a
‘private’ office in the union headquarters, and union
records had been seized from a desk or a filing
cabinet in that office, he would have had standing.
… In such a ‘private’ office, DeForte would have
been entitled to expect that he would not be dis‐
turbed except by personal or business invitees, and
that records would not be taken except with his
permission or that of his union superiors.
18 No. 19‐3388
Mancusi v. DeForte, 392 U.S. 364, 369 (1968).
Like private employees, government employees may also
have a reasonable expectation of privacy in their offices,
depending on the surrounding circumstances:
Given the societal expectations of privacy in one’s
place of work expressed in both Oliver and Mancusi,
we reject the contention … that public employees
can never have a reasonable expectation of privacy
in their place of work. Individuals do not lose
Fourth Amendment rights merely because they
work for the government instead of a private em‐
ployer. The operational realities of the workplace,
however, may make some employees’ expectations
of privacy unreasonable when an intrusion is by a
supervisor rather than a law enforcement official.
Public employees’ expectations of privacy in their
offices, desks, and file cabinets, like similar expecta‐
tions of employees in the private sector, may be
reduced by virtue of actual office practices and
procedures, or by legitimate regulation. Indeed, in
Mancusi itself, the Court suggested that the union
employee did not have a reasonable expectation of
privacy against his union supervisors. … The em‐
ployee’s expectation of privacy must be assessed in
the context of the employment relation. An office is
seldom a private enclave free from entry by supervi‐
sors, other employees, and business and personal
invitees. Instead, in many cases offices are continu‐
ally entered by fellow employees and other visitors
during the workday for conferences, consultations,
No. 19‐3388 19
and other work‐related visits. Simply put, it is the
nature of government offices that others—such as
fellow employees, supervisors, consensual visitors,
and the general public—may have frequent access to
an individualʹs office. We agree … that “[c]onstitu‐
tional protection against unreasonable searches by
the government does not disappear merely because
the government has the right to make reasonable
intrusions in its capacity as employer,” … but some
government offices may be so open to fellow em‐
ployees or the public that no expectation of privacy
is reasonable. … Given the great variety of work
environments in the public sector, the question
whether an employee has a reasonable expectation
of privacy must be addressed on a case‐by‐case
basis.
O’Connor, 480 U.S. at 716–18 (plurality opinion).
In O’Connor, the Court ultimately concluded that a govern‐
ment doctor had a reasonable expectation of privacy in his
hospital office, desk and filing cabinets because he did not
share his desk or filing cabinets with any other employees; he
had occupied his office for seventeen years; he kept materials
in his office unrelated to his work such as personal correspon‐
dence, personal financial records and personal gifts and
mementos; and the hospital had no policy discouraging
employees from storing personal papers and effects in their
20 No. 19‐3388
desks or file cabinets. O’Connor, 480 U.S. at 718–19.5 Similarly,
in Mancusi, the Court found that DeForte had Fourth Amend‐
ment standing to object to the government seizure of records
from his union office even though his office consisted of a large
room that he shared with several other union officials, and
even though the records were taken from a part of the office
that was not reserved for DeForte’s exclusive use, because
DeForte spent a considerable amount of time in the office, and
he had custody of the papers at the moment of their seizure.
Mancusi, 392 U.S. at 368–69.
3.
The district court acknowledged that a person’s office and
the papers contained in it could be protected by the Fourth
Amendment. But the court concluded that several factors
“extinguish[ed] [Shelton’s] reasonable expectation of privacy”
in her office and desk: (1) Garbutt had to enter Shelton’s office
to sign his time‐keeping sheets; (2) Garbutt “passed by”
Shelton’s office to visit Elgin, which he did regularly;
(3) Garbutt would often visit Shelton’s office to speak with her;
(4) Garbutt was often the first to arrive for work, and Shelton
knew that workers could arrive early; (5) Elgin had security
5
The Court went on to set a balancing test in the case of searches con‐
ducted by a public employer, weighing the invasion of the employee’s
legitimate expectation of privacy against the government employer’s need
for supervision, control, and the efficient operation of the workplace. The
instant case does not involve a search of the workplace by the government
as an employer but rather a search by law enforcement seeking evidence of
a crime. O’Connor, 480 U.S. at 719–20.
No. 19‐3388 21
cameras throughout the premises;6 (6) the Trustee’s Office had
a policy allowing workplace searches of employees, their
possessions, and items issued by the Office at all times while
on the premises, a policy documented in an employee hand‐
book that Shelton received and signed; and (7) Shelton left the
documents on her desk. R. 280, at 4. Citing these factors, the
court concluded, “Thus, even if Defendant had a reasonable
expectation of privacy in her desk, no reasonable person would
expect privacy as to documents laying on a desk in what
amounts to a monitored, high‐traffic area subject to random
searches.” R. 280, at 5.
The question for the district court was whether Shelton had
a reasonable expectation of privacy in her office against
intrusions by law enforcement in general and by her co‐
worker, Garbutt, as its agent, in particular. See Katz v. United
States, 389 U.S. 347, 351 (1967) (“What a person knowingly
exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection”). Under Katz,
whatever Shelton knowingly exposed to Garbutt was not
protected by the Fourth Amendment. The court relied on those
seven factors to conclude that Shelton lacked any reasonable
6
According to Shelton, Elgin’s security cameras allowed Elgin to see
“everything that was going on. So when you came to work, when you left,
whether or not you went across the hall, went downstairs, anything that
happened in that office, she could see.” R. 329, at 167–68. Although it is
apparent from Shelton’s testimony that cameras were used to monitor
hallways, entrances and exits, there is no evidence in the record that the
cameras were present inside of private offices much less trained on
workers’ desks. In any case, as we discuss below, Garbutt did not have
access to the video feed.
22 No. 19‐3388
expectation of privacy in her office and desk, characterizing it
as “a monitored, high‐traffic area subject to random searches.”
The district court essentially found that Shelton’s office was
“so open to fellow employees or the public that no expectation
of privacy [was] reasonable.” O’Connor, 480 U.S. at 718. This
conclusion rested on factual and legal errors.
We begin with the seven factors on which the district court
relied in determining that Shelton had no reasonable expecta‐
tion of privacy in her office or desk against intrusions by
Garbutt. Two of the seven factors were wholly unrelated to
Garbutt’s right to access Shelton’s office: the presence of
security cameras in the main office building, and the Trustee’s
Office policy allowing workplace searches of employees and
their possessions. The security cameras, which appear to have
shown nothing more than the comings and goings of individu‐
als in the building, were not monitored by Garbutt, and he had
no access to the video feed. The only evidence regarding the
security cameras came from Shelton. She testified that only
Elgin, Elgin’s son (who led the information technology
department), and one other employee in the information
technology department could view the areas monitored by the
cameras. Again, there was no evidence that the cameras
provided views of the inside of any private office, much less
Shelton’s desktop in particular.
Similarly, the only persons authorized by the Employee
Handbook to conduct searches of the workplace for safety,
security, cleanliness and neatness were the Security Deputy,
and the Deputy or supervisor of the affected employee.
R. 331‐1, at 39–43. Garbutt was not the Security Deputy (R. 257,
at 28); he was not a Deputy (R. 257, at 155); he twice denied
No. 19‐3388 23
that he was Shelton’s supervisor (R. 257, at 155–56); and he
even denied that he had any authority over Shelton at all
(R. 257, at 156). Nor does he meet the definition of “supervisor”
in the Employee Handbook, the very document on which the
government relied in propounding this theory. R. 331‐1, at 8–9.
The court thus erred in concluding that the Employee Hand‐
book was a source of any authority for Garbutt to enter
Shelton’s office. Neither the security cameras nor these
workplace policies gave Garbutt any right of access to
Shelton’s office. Moreover, the district court conflated the
standards for access by the government as employer and
access by others (including co‐workers and law enforcement).
The court thus erred in relying on those two factors in conclud‐
ing that Shelton lacked a reasonable expectation of privacy
against intrusions by Garbutt.
4.
The court also relied on four other factors, specific to
Garbutt, in finding that Shelton’s expectation of privacy in her
office was extinguished: Garbutt entered Shelton’s office daily
to sign his time‐sheet; Garbutt “passed by” Shelton’s office to
visit Elgin;7 Garbutt regularly visited Shelton in her office; and
7
The government asserts in its appellate brief that Garbutt and other
visitors had to pass through Shelton’s office in order to visit Elgin. The
record cites on which the government relies do not support that contention,
and the map that Garbutt supplied of the office configuration showed that
two of the three paths into Elgin’s office did not involve passing through
Shelton’s office. Indeed, the most direct path to Elgin’s office did not
involve Shelton’s office. The district court found only that Garbutt “passed
by” Shelton’s office when visiting Elgin, not that he walked through it.
(continued...)
24 No. 19‐3388
Garbutt often arrived early at work. The court combined these
factors with a fifth factor, namely, that the documents at issue
were on top of Shelton’s desk, to conclude that Shelton had no
privacy interest against Garbutt in materials atop the desk. To
be sure, anything that Shelton knowingly exposed to Garbutt
when he was present as a business invitee to her office would
not be subject to Fourth Amendment protection. Katz, 389 U.S.
at 351. The court essentially found that the documents at issue
were in plain view of Garbutt when he went into Shelton’s
office. But as we discuss below, Garbutt far exceeded the limits
of his access as a business invitee when he gathered the
documents and photographs at issue here.
When comparing the factors on which the district court
relied to the Court’s reasoning in Mancusi and O’Connor, it is
difficult to square the evidence presented about Shelton’s office
with a finding that she had no expectation of privacy against
intrusions by Garbutt or others. On the contrary, for seven
years, she was the sole occupant of the office connected to the
inner sanctum of the Trustee herself, on the top floor of a
secure building8 that largely contained administrative offices.
Only four employees worked on that floor. Although she could
not exclude Trustee Elgin from her office, Shelton had a door
that she could and did close to other employees, including
7
(...continued)
Based on the map, Garbutt would have had to go out of his way to pass
through Shelton’s office on his way to visit Elgin.
8
The primary entrance on the first floor of the main office building was
staffed by security guards and monitored with metal detectors. R. 234‐7, at
12.
No. 19‐3388 25
Garbutt. She kept personal items in her office, and turned
down papers on her desk when she wished to keep them
private from visitors entering the space. Garbutt himself
knocked before entering when visiting Shelton in her office.
Her office was certainly no less private than that of the union
employee in a shared office, and was arguably as private as the
office of Ortega, the state physician who ran a residency
program for training young physicians at a public hospital.
That Garbutt “passed by” Shelton’s office on his way to
visit Elgin does not weigh in favor of the court’s finding that
her office was so open to visitors that she lacked any reason‐
able expectation of privacy in it. Even if some visitors passed
through Shelton’s office in order to visit Elgin, there was no
evidence that Shelton’s office was so open that members of the
public could wander in. In fact, there was a separate waiting
area outside of Shelton’s office for outside visitors, and the
most direct paths for employees and other visitors to meet with
Elgin bypassed Shelton’s office. There was both a direct
entrance into Elgin’s office from the open area, and an entrance
through the conference room. There was also no evidence that
other employees, including Garbutt, entered for anything other
than limited purposes as business invitees.
Importantly, there was no evidence that Garbutt collected
this evidence when he was in Shelton’s office as a business
invitee, dropping items off on Shelton’s chair, signing the time‐
keeping sheet, passing by to see Elgin, or stopping in to visit
Shelton herself, the factors on which the district court relied.
On the contrary, Garbutt searched his co‐workers’ offices
“more often than not, very early in the morning” before they
arrived at the office. R. 257, at 211. See also R. 257, at 296
26 No. 19‐3388
(Garbutt confirming that he could and did go through his co‐
workers’ offices outside of business hours without anyone
knowing that he had been there). Undoubtedly, he could not
have accomplished his task of perusing their offices for
incriminating material, removing and photocopying docu‐
ments, and then returning the originals during the normal
workday when the occupants of those offices were present.
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. Nothing in
the Employee Handbook or any office practice would have led
her to believe that her private office was not in fact private. As
we noted, no one other than the Trustee herself or the Security
Deputy had the right to search her desk or office under any
workplace policies. Although Agent Holbrook relied on
Garbutt’s self‐proclaimed “permission” to enter Shelton’s
office, the district court did not rely on this rationale, instead
concluding erroneously that Shelton’s office was a “monitored,
high‐traffic area subject to random searches,” and thus so open
that she lacked any expectation of privacy in it. But as we
noted, it was not monitored or subject to random searches by
No. 19‐3388 27
Garbutt. Moreover, the court’s characterization of Shelton’s
office as a “high‐traffic area” is not supported by the record.
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. Gouled v. United States, 255 U.S. 298,
305–06 (1921), overruled on other grounds by Warden, Maryland
Penitentiary v. Haydon, 387 U.S. 294 (1967); United States v.
Ressler, 536 F.2d 208, 211–12 (7th Cir. 1976). In Gouled, the
Supreme Court considered whether “the secret taking, without
force, from the house or office of one suspected of crime, of a
paper belonging to him, of evidential value only, by a repre‐
sentative of any branch or subdivision of the government of
the United States, [is] a violation of the Fourth Amendment[.]”
Gouled, 255 U.S. at 263. Gouled was under investigation for
fraud in a government contract. An Army private who was
attached to the Intelligence Department was a business
acquaintance of Gouled. Under the direction of his superior
officers, the private pretended to make a friendly call on
Gouled and gained admission to his office in his absence.
Without a warrant, the private seized several documents from
Gouled’s office and provided them to the prosecutor. One of
the documents was then introduced in evidence over Gouled’s
objection at his criminal trial.
The Court noted that the Fourth Amendment prohibits
unreasonable searches and seizures. It would be unreasonable
28 No. 19‐3388
under the Fourth Amendment for a government officer to
obtain entrance to a person’s house or office by force or by an
illegal threat or show of force, amounting to coercion, in order
to search for and seize his private papers, the Court reasoned:
[I]t is impossible to successfully contend that a like
search and seizure would be a reasonable one if only
admission were obtained by stealth instead of by
force or coercion. The security and privacy of the
home or office and of the papers of the owner would
be as much invaded and the search and seizure
would be as much against his will in the one case as
in the other, and it must therefore be regarded as
equally in violation of his constitutional rights.
Gouled, 255 U.S. at 305–06. The Court concluded by answering
the question posed:
[W]hether entrance to the home or office of a person
suspected of crime be obtained by a representative
of any branch or subdivision of the government of
the United States by stealth, or through social
acquaintance, or in the guise of a business call, and
whether the owner be present or not when he enters,
any search and seizure subsequently and secretly
made in his absence, falls within the scope of the
prohibition of the Fourth Amendment, and therefore
the answer to the first question must be in the
affirmative.
Gouled, 255 U.S. at 306.
No. 19‐3388 29
We reaffirmed this principle in Ressler, explaining that “an
entry by an undercover agent is not illegal if he entered for the
‘very purposes contemplated by the occupant.’” Ressler, 536
F.2d at 211 (quoting Lewis v. United States, 385 U.S. 206, 211
(1966)). But reading Gouled and Lewis together, we remarked:
When an agent assumes a particular pose in order to
gain entry into certain premises and then obtains
information by engaging in activity not generally
expected of one assuming that pose, that informa‐
tion is illegally obtained. Thus, an agent may not
enter a premises as an acquaintance of the owner
and conduct an unauthorized general search of the
premises. Nor may an agent compel his entry into a
suspect’s premises to conduct a search by claiming
to be a police officer investigating a non‐existent
burglary; a Western Union agent; or a member of a
private lodge.
Ressler, 536 F.2d at 211 (internal citations omitted). In each of
those cases, the government agents were not present for the
“very purposes contemplated by the occupant.” The occupant
in those situations “did not voluntarily consent to the exposure
of the information, but exposed it in response to an affirmative
misrepresentation.” Ressler, 536 F.2d at 211. Information
obtained in these intrusions was not “knowingly exposed to
the public” under Katz, and the occupant did not “knowingly
assume the risk that the exposed information might be re‐
ported to government authorities.” Ressler, 536 F.2d at 212.
There is no evidence that Garbutt collected the information
that he provided to Agent Holbrook as a business invitee or in
30 No. 19‐3388
any capacity that Shelton knowingly anticipated. He was not
present in her office for the “very purposes contemplated by
the occupant” but rather for the purpose of gathering evidence
as an agent of the government. He used his building key to
enter the Trustee’s suite before normal business hours, gaining
access to Shelton’s office by stealth, in a manner similar to the
government agent in Gouled. Although he normally entered
Shelton’s office to sign the time‐keeping sheet and sometimes
arrived early at the office, there was no evidence that signing
the time‐keeping sheet afforded Garbutt access to the top of
Shelton’s desk. Indeed, the only evidence in the record on the
location of the time‐keeping sheet indicates that, wherever it
was in her office, it was not visible on her desk. Nor was there
evidence that Garbutt gathered this evidence when he was
visiting Shelton, or passing by her office to visit Elgin. Instead,
he entered her office not as a business invitee for an expected
or authorized purpose but at times that he knew she would not
be present for the express purpose of searching for documents
at the direction of Agent Holbrook. See e.g. R. 257, at 296
(Garbutt confirming that he could and did go through other
workers’ offices outside of business hours without anyone
knowing he had done so). In doing so, he far exceeded the
scope of the invitation. Cf. United States v. Scherer, 673 F.2d 176,
182 (7th Cir. 1982) (distinguishing cases where law enforce‐
ment agent exceeded scope of warrant or scope of consent in
collecting evidence); United States v. Dichiarinte, 445 F.2d 126,
129–30 (7th Cir. 1971) (noting that a consent search is reason‐
able only if kept within the bounds of the actual consent, and
suppressing incriminating documents found by agents
searching for narcotics who overstepped the scope of consent
No. 19‐3388 31
by reading documents they discovered during that search
because “the officers’ use of defendant’s limited consent as a
ticket to get inside his home and conduct a general search
cannot be allowed”).
The district court also relied on the plain view doctrine,
finding in its seventh factor that Shelton had no expectation of
privacy in items placed on top of her desk. “The ‘plain‐view’
doctrine is often considered an exception to the general rule
that warrantless searches are presumptively unreasonable, but
this characterization overlooks the important difference
between searches and seizures. If an article is already in plain
view, neither its observation nor its seizure would involve any
invasion of privacy.” Horton v. California, 496 U.S. 128, 133
(1990). “Under this plain view doctrine, a warrantless seizure
is justified if first, the law enforcement officer did not violate
the Fourth Amendment in arriving at the place from which the
evidence could be plainly viewed; second, the item was in
plain view; and third, its incriminating character was immedi‐
ately apparent.” United States v. Cherry, 920 F.3d 1126, 1137–38
(7th Cir. 2019). If a law enforcement officer is already lawfully
present in an area, then merely inspecting objects that are
already in view does not constitute an independent search
because there is no additional invasion of a privacy interest.
Arizona v. Hicks, 480 U.S. 321, 325 (1987). However, “taking
action, unrelated to the objectives of the authorized intrusion,
which exposed to view concealed portions of the [space] or its
contents, did produce a new invasion of respondent’s privacy
unjustified by the … circumstance that validated the entry.”
Hicks, 480 U.S. at 325. Under this reasoning, uncovering
incriminating information by moving an object unrelated to the
32 No. 19‐3388
objectives of the authorized intrusion constitutes a search for
Fourth Amendment purposes. Id.
At trial, the government attempted to establish that the
documents that Garbutt produced from Shelton’s office (and
other offices) came within the purview of the plain view
doctrine. To that end, the government asked Agent Holbrook
about the instructions he gave to Garbutt when sending him
into his co‐workers’ offices in search of evidence:
Q. Can you tell the jury what the plain view doc‐
trine is?
A. In, basically—if illegal—if evidence of illegal
activity is in plain view and you have regular
access to that area, then you can seize the piece
of evidence.
Q. So basically if it’s out in plain sight, then there is
no concern that it’s being taken illegally. Is that
a fair representation of it?
A. Yes.
R. 258, at 157–58. Following an objection from the defense
regarding the inaccuracy of that description, the government
followed up to clarify:
Q. But you can’t take just anything; there has to be
probable cause for you to take it. Is that also fair
to say?
A. Yes.
R. 258, at 158. This led to a second objection that the explana‐
tion was still a misrepresentation of the doctrine. After a failed
No. 19‐3388 33
attempt to remedy the answer and after withdrawing a
question, the government shifted to Agent Holbrook’s instruc‐
tions to Garbutt on where he could search:
Q. Did you give Mr. Garbutt instructions on where
he was permitted to search?
A. Yes.
Q. What did you tell him?
A. He is permitted to search—I should say, to
obtain items that were located in areas that he
had known access to and that were in plain view.
He was told that he could not go looking in
drawers and cabinets. If it was in plain view,
then he could copy that item or retrieve that
item.
R. 258, at 157–59.
During cross‐examination of Agent Holbrook, defense
counsel explored further the instructions given to Garbutt as
he retrieved documents. Agent Holbrook agreed that the plain‐
view doctrine presumes that a person is legally present in a
place. Agent Holbrook also confirmed that he told Garbutt that
“he could have or take documents from places he had access
to.” R. 258, at 180. Holbrook explained, “By access, I mean a
right to be there and the knowledge that he routinely goes
there without the individuals being there. That was the big
factor.” R. 258, at 181. Holbrook also asserted that Garbutt
routinely went into the office in order to sign his time‐keeping
sheet, but as we noted there was no testimony regarding the
location of the time‐keeping sheet within Shelton’s office, and
34 No. 19‐3388
no evidence that Garbutt saw or collected any of the docu‐
ments when he was in the office for that purpose. When asked
how he knew that Garbutt had the permission of his office
mates to be in their offices when they were not present,
Holbrook denied that he relied solely on Garbutt’s word and
asserted, “I think [Garbutt] made comments on the recordings
that they understood he was going in their offices without
them being there, so their acknowledgment that he was going
in their offices to us was approval to do so.” R. 258, at 183. But
he could not cite any particular recording and the government
has not cited or supplied any such recording in the record on
appeal. Moreover, Garbutt began collecting documents before
he made any recordings, and during that time, Holbrook could
only have relied on Garbutt’s own assertions about his right to
be in other people’s offices.
As is evident from comparing Holbrook’s testimony to case
law on the plain view doctrine, the Agent’s directions to
Garbutt were inadequate at best and misleading at worst.
Shelton had a private office and Garbutt was a business invitee
who accessed it for limited purposes, such as signing the time‐
keeping sheet, dropping off an item on her chair, or visiting
her. He far exceeded the lawful scope of his access when he
entered Shelton’s office outside of business hours, without a
legitimate justification, and conducted a general search of
everything visible within the space.9
9
Moreover, it appears from the documents that he brought to Agent
Holbrook that he did not confine himself to the papers that could be viewed
on the top of the desk or papers that were of an immediately apparent
(continued...)
No. 19‐3388 35
Agent Holbrook forwent a warrant largely in reliance of
Garbutt’s representations about his permission to be in
Shelton’s office when she was not present. Rather than bring‐
ing the claim of this obviously interested party to a neutral
magistrate for testing, the Agent in essence took a chance that
a court would later agree with his assessment of Garbutt’s
credibility and his conclusion that Shelton lacked a reasonable
expectation of privacy in her office. He compounded this error
by giving the informant incomplete and misleading instruc‐
tions on the scope of the plain view doctrine. In so doing, he
essentially delegated to an informant—a man who was himself
knee‐deep in unlawful activity and seeking to ingratiate
himself to the FBI Agent in order to avoid personal liability for
his actions—the sensitive task of deciding whether and when
he had authority to enter the offices of others in their absence
and collect evidence. This was patently unreasonable:
The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies
law enforcement the support of the usual inferences
which reasonable men draw from evidence. Its
protection consists in requiring that those inferences
be drawn by a neutral and detached magistrate
9
(...continued)
incriminating nature. Dichiarinte, 445 F.2d at 131 (documents are not in the
purview of the plain view doctrine unless their criminal character is
“apparent on a mere surface inspection”). On some days of his document
collection, it appears that it would have been physically impossible for the
number of documents and pages provided to all be in full view on the top
of Shelton’s desk. See R. 234‐5 (listing materials that Garbutt retrieved from
the offices of Shelton and Elgin).
36 No. 19‐3388
instead of being judged by the officer engaged in the
often competitive enterprise of ferreting out crime.
Johnson v. United States, 333 U.S. 10, 13–14 (1948). See also
Williams v. Dart, 967 F.3d 625, 633 (7th Cir. 2020) (“[A] core
function of the Fourth Amendment is to put neutral deci‐
sion‐makers between unchecked official discretion and
invasions of private liberty by search or seizure.”). Yet even on
appeal, the government relies on Holbrook’s assessment of
Garbutt’s credibility to establish that Garbutt had broad
permission to enter Shelton’s office.
The government did not disclose this novel evidence
collection method until mid‐trial when Agent Holbrook, to his
credit, answered honestly under oath how Garbutt came into
possession of those documents.10 The learned district judge,
who described himself as “shocked” when he heard the
Agent’s testimony, was left with the unenviable task of
deciding what to do mid‐trial, with a jury seated. R. 258, at 77.
He reasonably elected to continue the trial to verdict before
10
At trial and even on appeal, the government insists that Shelton’s counsel
should have known prior to trial that Garbutt collected the evidence
without a warrant because each document was labeled by Garbutt with the
date and place of collection. Although Shelton’s counsel might have been
able to discern that Garbutt collected the evidence without a warrant,
counsel had no way of knowing that Garbutt did so at the direction of the FBI
and acting as their agent. The government fails to draw the distinction
between the government accepting evidence that a source obtained
unlawfully and the government directing the source unlawfully to obtain
that evidence. There was no reason for Shelton to question whether the
government acquired the evidence unlawfully until the testimony of
Garbutt and Holbrook.
No. 19‐3388 37
entertaining Shelton’s motion for a mistrial and to suppress the
evidence. When the jury convicted Shelton, the court was
under the further pressure of considering that motion under
the cloud of that verdict. This dilemna did not escape the
court’s notice, and in the opening paragraph of his opinion, the
judge stated:
While this Court denies Defendant’s motion, it
cannot help but note the open‐ended scope of the
informant’s evidence hunt on Defendant’s work
desk. Although the government stayed within the
bounds of the legal limits, this may have been more
by luck than design.
R. 280, at 1. In other words, the court found the actions of the
Agent and informant problematic but concluded that these
actions were ultimately lawful because Shelton had no reason‐
able expectation of privacy in her office. As we have discussed
above, we disagree that the government stayed within the
bounds of the legal limits. For all of the reasons we have stated,
the court erred when it concluded that Shelton lacked any
reasonable expectation of privacy in her office and desk against
intrusions by Garbutt as either a co‐worker or an agent of the
government.
B.
After concluding that Shelton lacked a reasonable expecta‐
tion of privacy against intrusions by Garbutt, the district court
found in the alternative that the search warrant would still
have been issued if the unlawfully obtained materials were
excised from the warrant application. Shelton challenges this
finding, contending that the unlawful searches of her office
38 No. 19‐3388
infected the entire relationship between Garbutt and Agent
Holbrook, and therefore also tainted the entire warrant
application. According to Shelton, Garbutt established his
credibility with Holbrook by complying with the Agent’s
directives to obtain documents from the Trustee’s Office,
including Shelton’s office. She contends that Holbrook would
not have pursued the investigation, supplied sophisticated
recording equipment to Garbutt, or sought the warrant
without this unlawfully obtained corroboration of Garbutt’s
claims. Shelton also contends that the government’s failure to
disclose how these documents were obtained prior to trial
violated the government’s obligations under Brady and Giglio,
and put her at a severe disadvantage going into the trial.
The government counters that, even if Shelton had a
reasonable expectation of privacy in her office and desk against
intrusions by Garbutt, the search warrant would still have been
issued even if the documents obtained by Garbutt were excised
from the warrant application. In any case, the government
continues, any error in admitting the evidence was harmless
because the remaining evidence against Shelton was over‐
whelming. The government denies any error under Brady or
Giglio, and maintains that the source of the documents should
have been obvious to Shelton prior to the trial.
The parties agree that evidence discovered pursuant to a
warrant will be inadmissible if the warrant was secured from
a judicial officer through the use of illegally acquired informa‐
tion. United States v. Scott, 731 F.3d 659, 664 (7th Cir. 2013);
United States v. Oakley, 944 F.2d 384, 386 (7th Cir. 1991).
Nevertheless, a search warrant that has been obtained, in part,
with evidence which is tainted can still support a search if the
No. 19‐3388 39
untainted information, considered by itself, establishes
probable cause for the warrant to issue. Scott, 731 F.3d at 664;
United States v. Gray, 410 F.3d 338, 344 (7th Cir. 2005); Oakley,
944 F.2d at 386. See also United States v. Karo, 468 U.S. 705, 719
(1984) (unlawfully obtained information included in a warrant
affidavit would invalidate the warrant if it was critical to
establishing probable cause for the issuance of the warrant, but
if sufficient untainted evidence was presented in the warrant
affidavit to establish probable cause, the warrant was neverthe‐
less valid). “In assessing whether the results of the subsequent
search must be suppressed, we consider two questions:
(1) whether the illegally obtained evidence affected the judge’s
decision to issue the warrant; and (2) whether the decision to
seek the warrant was prompted by information unlawfully ob‐
tained.” Scott, 731 F.3d at 664; United States v. Markling, 7 F.3d
1309, 1315–16 (7th Cir. 1993).
The first question we must address is how much “un‐
tainted” information remains after we excise from the warrant
application any information obtained unlawfully. On this
record, that turns out to be a tricky question, but in the end the
answer is that very little remains if we exclude evidence
gathered as a result of Garbutt’s unlawful searches, and it is
not enough to support the warrant. The government supplied
a proposed redacted warrant application that blacked out most
of the references to the documents that Garbutt retrieved from
Shelton’s office.11 The remaining material on which the
11
The government appears to have missed a relevant redaction in
paragraph 30 of the warrant affidavit. R. 234‐6, at 19. That paragraph refers
(continued...)
40 No. 19‐3388
government relies to establish probable cause consists of
(1) statements from Garbutt about his observations and
conversations at the Trustee’s Office, (2) quotations from
undercover recordings made by Garbutt, and (3) the observa‐
tions of FBI agents who confirmed that Shelton was present at
a print shop and at a venue for a fundraiser during the work
day on days when Garbutt said she would be there. In re‐
sponse to Shelton’s argument that Garbutt’s document
collection provided the corroboration that established trust
between the informant and the Agent, the government asserts
that some of the recordings were made before Garbutt began
to collect physical documents from the office. But the govern‐
ment does not cite or provide any specific recordings that
corroborated Garbutt’s accusations prior to the document
collection.12
11
(...continued)
to a list kept by Shelton at her work desk and provided to Agent Holbrook
of employees in the Trustee’s Office who contributed to fundraisers for
Elgin. That list is referenced again in paragraph 59, which the government
removes in its entirety in the redacted version of the warrant affidavit.
12
The record on appeal does not include any of the recordings that Garbutt
made, which apparently are on physical discs that were not uploaded to the
electronic docket and not physically delivered to the court of appeals. The
record contains a selected list of source reporting documents summarizing
contacts between Garbutt and Agent Holbrook. That list begins on August
14, 2013, several months after the investigation began. R. 234‐4. Again, the
government did not cite or supply the recordings that it asserts preceded
the collection of evidence. The first recording cited in the warrant applica‐
tion was made in September 2013, months after Garbutt began collecting
documents.
No. 19‐3388 41
Shelton counters that Agent Holbrook did not provide the
recording equipment until Garbutt produced documents from
the office, citing Garbutt’s own testimony to that effect. See
R. 257, at 210 (where Garbutt testified that, after becoming an
informant and before recording, he gathered documents from
and took photographs of his co‐workers’ offices at Holbrook’s
request); R. 257, at 214 (where Garbutt affirmed that he
collected documents and information for Holbrook and then
began recording his co‐workers in the latter part of 2013).
According to Shelton, this demonstrates that the recordings
were tainted by the unlawful document collection. Because the
government can cite no evidence contrary to the statements of
its own star witness, we must agree.
We thus conclude that wrongfully collected evidence
influenced every aspect of the investigation that Agent
Holbrook subsequently conducted. Recall that when Garbutt
first approached the FBI, Agent Holbrook knew nothing about
him and was unaware of any problems at the Trustee’s Office.
Although he conducted a criminal background check on
Garbutt, Agent Holbrook had little basis to assess Garbutt’s
credibility regarding his claims of unlawful activity at the
Trustee’s Office. At first Garbutt supplied documentary
evidence only from his own computer, implicating only
himself in criminal activity. As Shelton argued, Garbutt
established his credibility with Agent Holbrook by complying
with the Agent’s directive to conduct searches of his co‐
workers’ offices and providing to the Agent documents that
corroborated the accusations that he was making against his
co‐workers. The warrant application itself is replete with
examples of Holbrook noting how Garbutt corroborated his
42 No. 19‐3388
claims against his co‐workers by supplying documents that
Garbutt collected from the office. But probable cause must
come before a search, and cannot be established retroactively
by the results of the search. Moreover, this is not a situation
where there is any attenuation between the unlawful search
and the obtaining of the warrant, or any independent source of
the information. This was a continuous course of conduct that
stretched over a multi‐month period, culminating in the
warrant application; Garbutt was the only source. The unlaw‐
fully obtained evidence thus affected the judge’s decision to
issue the warrant. Scott, 731 F.3d at 664.
We turn to the second question which we may answer in
short order. Agent Holbrook’s testimony at trial made clear
that he would not have sought the warrant without the
materials he obtained from Garbutt. After establishing that
Agent Holbrook sent Garbutt into Shelton’s office without a
warrant to collect documents, defense counsel questioned
Agent Holbrook at trial about the process of obtaining the
warrant that led to the discovery of evidence admitted at trial:
Q. Now, did you seek any kind of judicial permis‐
sion before you sent Mr. Garbutt in to look in
other people’s offices?
A. No.
Q. Subsequently, you – presumably, based on what
you gathered from Mr. Garbutt, you did seek
judicial permission to go into the offices; is that
right?
A. Yes.
No. 19‐3388 43
Q. And that was done in March of 2013?
A. Yes.
Q. And without Mr. Garbutt and the information
that he collected for you, you would not have
been in a position to do that; is that correct?
A. Correct.
R. 258, at 81.13
Without the documents and recordings that Garbutt
obtained as an agent of law enforcement, Agent Holbrook had
little basis to seek a warrant. Absent corroboration of Garbutt’s
claims about his co‐workers, Holbrook had little more than the
say‐so of an informant of questionable credibility, who was
admittedly deep into criminal activity and had a strong
incentive to provide (or even manufacture) information
implicating others in order to receive lenient treatment for
himself.14 The FBI’s observations of Shelton at certain locations
where Garbutt predicted she would be present added little to
the mix. We agree with Agent Holbrook, who candidly
13
The search warrant was obtained and executed in March 2014, not March
2013. Presumably defense counsel misspoke when she cited 2013 as the year
that the warrant was obtained, and Agent Holbrook did not notice the
mistake. The error is not relevant to the outcome here. There was only one
warrant at issue, the March 2014 warrant.
14
Recall that Garbutt was aware that George Van Til, another local official,
was charged with federal crimes for similar conduct, and had cited Van Til
as one of his reasons for coming forward. Garbutt had also had a falling out
with Elgin that resulted in significant reductions in his status, salary, and
benefits.
44 No. 19‐3388
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.
Improper admission of evidence does not require reversal
if the error was harmless. United States v. Chaparro, 956 F.3d
462, 481 (7th Cir. 2020). An evidentiary error is harmless if it is
“clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.” Neder v.
United States, 527 U.S. 1, 18 (1999). See also United States v.
Thornton, 642 F.3d 599, 605 (7th Cir. 2011) (“In determining
whether an evidentiary error is harmless, we consider whether,
in the mind of the average juror, the prosecution’s case would
have been significantly less persuasive had the improper
evidence been excluded.”). We may affirm if the error did not
substantially influence the verdict because other untainted
incriminating evidence is overwhelming, as the government
claims here. Chaparro, 956 F.3d at 482.
Under that standard, the error here cannot be characterized
as harmless. Indeed, the tainted evidence shaped the entire
trial. It provided corroboration for the testimony of the govern‐
ment’s star witness, Stafford Garbutt, a man with suspect
motives and significant credibility problems. Garbutt, who was
deeply involved in the charged conduct, had an incentive to
implicate his former co‐workers in order to avoid criminal
liability himself. From his own testimony, it was also apparent
that Garbutt’s formerly intimate relationship with Elgin had
suffered a significant rupture that included name‐calling,
No. 19‐3388 45
demotion, a reduction in salary and the loss of perquisites. The
remaining evidence cannot be fairly described as overwhelm‐
ing. Shelton’s motion to suppress and motion for a mistrial
should therefore have been granted.15 We vacate her conviction
and remand for proceedings consistent with this opinion.
C.
For the sake of completeness, and to the extent that any‐
thing remains for retrial following the suppression of the
evidence procured through the tainted warrant, we will
address Shelton’s claims that there was insufficient evidence to
convict her of either conspiracy to commit wire fraud or
conspiracy to commit honest services wire fraud. Although she
framed the arguments as founded on insufficiency of the
evidence, Shelton also argues that neither count was pleaded
or proved under a valid legal theory. According to Shelton,
there was insufficient evidence to support Count I, which
charged a conspiracy to commit wire fraud based on the use of
government employee time to engage in campaign activities,
because the evidence showed that the employees completed
the campaign work in addition to rather than instead of their
regular duties. Shelton also portrays Count I as an attempt to
make out an honest services wire fraud claim through the back
door after Skilling v. United States, 561 U.S. 358 (2010), limited
honest services cases to bribery and kickbacks. As for Count
VI, Shelton asserts that there was insufficient evidence to
demonstrate that there was any agreement to engage in a
15
Because we have concluded that a significant part of the evidence against
Shelton should have been suppressed and her motion for mistrial granted,
we need not address her additional arguments under Brady and Giglio.
46 No. 19‐3388
bribery or kickback scheme, and instead the government was
making a legally insufficient proof based on the use of govern‐
ment time and resources for campaign work, a theory that she
asserts is invalid under Skilling and under Kelly v. United States,
140 S. Ct. 1565 (2020).
1.
Count I charged Shelton, along with Elgin, Wheeler and
Elgin’s son Hunter, with conspiring to commit wire fraud. R. 1,
at 4. The object of the conspiracy was:
to obtain money and property of CTTO [Calumet
Township Trustee’s Office], by using the time,
resources and employees of CTTO to further the
personal and political interests of MARY ELGIN,
ETHEL SHELTON, STEVEN HUNTER, and ALEX
WHEELER, rather than to benefit the citizens of
CTTO.
R. 1, at 4. Specifically, the government asserted that the
defendants used public employees and Township resources
(such as computers, printers and storage space) to run cam‐
paign fundraisers and other campaign activities during regular
work hours while paying those employees with Township
funds.
Whether there was sufficient evidence to prove this scheme
with the evidence presented at the trial is no longer at issue
because a large part of that evidence should have been ex‐
cluded. But this was a viable legal claim as charged and as the
government argued it at trial. Although honest services wire
fraud covers only bribery and kickback cases, regular wire
No. 19‐3388 47
fraud cases may be brought when the object of the conspiracy
is to obtain money or property. Kelly made clear that, to prove
“money or property” wire fraud, the government must
demonstrate that obtaining the money or property was not
simply the byproduct of a fraudulent scheme but rather was
the very object of the fraud. Kelly, 140 S. Ct. at 1573.
In Kelly, the government sought to prove wire fraud in a
scheme where the defendants, who were state government
employees, closed three of four bridge lanes in order to punish
the mayor of the city whose inhabitants used those lanes in
retaliation for the mayor not supporting a particular guberna‐
torial candidate. As cover for the bridge scheme, the defen‐
dants used government employees to conduct a sham traffic
study and to provide a backup toll collector for the single
remaining lane. The government charged a wire fraud scheme
based in part on the use of salaried employees to conduct the
sham traffic study and cover the toll collection. The Court
rejected the government’s wire fraud theory based on those
employee salaries because the defendants were not seeking to
obtain the services those employees provided. That is, they did
not care about the traffic study or providing the backup toll
collector. These implementation costs were not the object of the
bridge scheme but were simply the byproduct of the true
object of the scheme. Kelly 140 S. Ct. at 1573–74. In other words,
“a property fraud conviction cannot stand when the loss to the
victim is only an incidental byproduct of the scheme.” Kelly,
140 S. Ct. at 1573.
The Court made clear, however, that a “government’s right
to its employees’ time and labor, by contrast, can undergird a
property fraud prosecution.” Kelly, 140 S. Ct. at 1573. As
48 No. 19‐3388
examples of valid money‐or‐property wire fraud claims, the
Court cited cases where a mayor used deception to get on‐the‐
clock employees to renovate his daughter’s new home, and
where a city parks commissioner induced his employees into
doing gardening work for political contributors. Id. In each of
those cases, “the cost of those employees’ services would
qualify as an economic loss to a city, sufficient to meet the
federal fraud statutes’ property requirement.” Id. The loss to
the victim in each of those schemes, the Court noted, was not
an incidental byproduct of the scheme but rather was the
object of the schemes. “The entire point of the fraudsters’ plans
was to obtain the employees’ services.” Id. In contrast, in the
bridge fraud scheme, the object was political retaliation, and
the cost of employee labor to provide cover for the scheme was
the cost of implementing that scheme, a mere byproduct of the
scheme itself.
The scheme charged here fits comfortably into the paradig‐
matic cases that the Court described as legitimate money‐and‐
property wire fraud in Kelly. If the object of the charged
scheme in Count I was to obtain the services of on‐the‐clock
government employees to run political campaigns that
benefitted Elgin, Shelton and Wheeler, then the labor costs of
this plan were not a byproduct of the scheme; they were the
object of the scheme. The government essentially alleged that
Elgin, Shelton and Wheeler were using Township staff to run
their campaigns on government time while using government
resources. It did not matter to the money‐or‐property wire
fraud conspiracy charge that the campaign work itself also
involved a possible kickback scheme; all that mattered for this
count was that the defendants were alleged to be using
No. 19‐3388 49
government employees on government time to benefit their
own personal interests rather than to attend to their govern‐
ment jobs. The government presented evidence, for example,
that an information technology employee in the Trustee’s
Office spent a week helping Shelton with technology issues
related to campaign tasks. There was also evidence that
campaign banners and flyers were printed using Trustee’s
Office printers. Several employees engaged in campaign tasks
throughout the workday. That said, the jury acquitted Wheeler
even when presented with the evidence that we have now
concluded should have been excluded. It is impossible to
predict what a jury would find if presented with the scaled‐
down version of the evidence now available to the government
to prove Shelton’s charged participation in a scheme to use
government employees to conduct non‐government work, and
we offer no opinion on the subject.
2.
Count VI charged Shelton, Elgin, Hunter and Wheeler with
conspiracy to commit honest services wire fraud. The indict‐
ment described the scheme as depriving the citizens of
Calumet Township of their right to the honest and faithful
services of the defendants through the solicitation and pay‐
ment of bribes and kickbacks in the form of campaign ticket
payments and forced political work. Specifically, the object of
the conspiracy was for:
the Defendants to use their official authority within
CTTO, to obtain money and property through the
solicitation and receipt of bribes and kickbacks from
CTTO employees. These bribes and kickbacks
50 No. 19‐3388
consisted of the Defendants requiring 1) a partial
return of the employee’s salary in the form of cam‐
paign fundraising ticket purchases for ELGIN and
EPIC, ELGIN’S political fundraising committee
controlled by ELGIN and 2) requiring political work
to be done by CTTO employees on CTTO time for
ELGIN and EPIC; and depriving CTTO and the
citizens of Calumet Township of their right to the
honest and faithful services of the Defendants.
R. 1, at 11. The indictment noted that, prior to Elgin’s election,
the previous trustee expected his employees to kick back two
percent of their salary as a condition of being hired or retained
in their jobs. Elgin instead sought to obtain kickbacks of
employee salary indirectly in the form of purchases of fund‐
raising tickets and forced engagement in political work on
Elgin’s behalf. The dollar amount of tickets that each employee
was expected to purchase was related to a percent of salary,
ranging from one half to one and a half percent, depending on
the employee’s wages. The indictment charged that the
defendants forced the employees to purchase tickets or engage
in campaign work on behalf of Elgin under threat of possible
retaliation in some aspect of their jobs if they failed to do so.
According to the indictment, the defendants “used their official
authority to threaten or retaliate against employees who did
not kick back a portion of their salary through the purchase of
campaign tickets or who refused to do campaign work” for
Elgin and her political action committee, EPIC. R. 1, at 12.
Shelton raises wide‐ranging arguments regarding the
honest services count, from factual insufficiency to legal
insufficiency. She contends, for example, that the evidence was
No. 19‐3388 51
insufficient to demonstrate that she joined any agreement to
solicit bribes or kickbacks, and that, under Skilling, the salaries
of employees used for campaign work is insufficient to support
an honest services wire fraud conviction. As with the other
wire fraud count, a diminished body of evidence is now
available for the prosecution at any retrial on this count. We
therefore focus on the legal theory that the government pressed
for the honest services count. Shelton is correct that there were
some problems with the government’s honest services legal
theory as pleaded and proved at trial.
As we noted above, Skilling limits honest services wire
fraud cases to those involving bribery and kickbacks. Although
the government sought to charge and prove a kickback case, it
defined the object of the scheme as a hybrid of a Skilling honest
services case and a money‐or‐property wire fraud case. It
described the honest services scheme as (1) requiring a partial
return of salary in the form of the purchase of campaign
fundraiser tickets, and (2) requiring political work to be done
by Township employees on Township time. R. 1, at 12. In both
instances, the indictment alleged that the defendants used their
official authority to “threaten or retaliate” against employees
who did not pay for tickets or “volunteer” to work on the
campaign fundraisers during work hours. Kickbacks, the court
correctly instructed the jury, involve the exchange of a thing of
value for official action by a public official. R. 327, at 31.
There are a few potential problems with how the govern‐
ment charged and sought to prove this count. First, the
indictment charged the “thing of value” as payments for
tickets and forced campaign work on Township time, with an
emphasis on the work being done on Township time. Although
52 No. 19‐3388
forced campaign work might be a “thing of value” supporting
a kickback charge, that is not how the government presented
the case, instead emphasizing that the work was done on the
taxpayers’ dime. There was no evidence, for example, of an
agreement to base layoff or retention decisions on whether an
employee worked on the campaign, regardless of whether that
labor was done on government time or on the employee’s own
time. The government’s emphasis in the kickback claim
regarding forced campaign work was instead simply that it
was conducted on government time. But Kelly made clear that
employee salaries that were the byproduct of a fraudulent
scheme could not support an honest services charge. In the
ticket‐selling kickback scheme, employee labor was not the
object of the scheme; it was the byproduct of running the
scheme.
A legally viable honest services conspiracy would have
involved an agreement to accept a kickback of a percent of
salary through fundraising ticket purchases in exchange for the
official act of allowing compliant employees to retain their jobs
during the various layoffs that occurred under budget pres‐
sures. And this was certainly one theory that the government
pressed in the indictment and during the trial. The government
might also have proved that the defendants agreed to accept
kickbacks in the form of campaign labor from employees in
order to retain their jobs, again requiring a thing of value in
exchange for an official act, but there was no evidence of such
an agreement. Instead, in the forced “volunteer” work part of
the count, the government went beyond the limits of Skilling by
arguing that employee salaries that were a byproduct of a
No. 19‐3388 53
fundraising kickback scheme could support an honest services
wire fraud charge.
And that leads to another objection that Shelton has to the
government’s honest services case. Although she acknowl‐
edges that fundraising tickets were packaged and marketed to
employees, and some employees believed that their jobs
depended on purchasing tickets, she contends that there was
no evidence to prove that any of the conspirators actually
intended to take any official action against persons not pur‐
chasing tickets. Indeed, in one recorded conversation presented
to the jury, the defendants discussed the difficulty of compel‐
ling employees to buy tickets when the employees did not
believe that Elgin could not retaliate if they failed to do so. The
defendants were left to strategize over how they could imply
that there would be consequences for employees failing to buy
the tickets. If the defendants had no intention of carrying
through on the implied threats—in other words, that they did
not intend to take any official action—that raises the possibility
that the victim of the scheme was not the Township but the
employees.
We addressed this scenario in United States v. Hawkins, 777
F.3d 880 (7th Cir. 2015). In that case, the defendants were
analysts employed by the Cook County Board of Review, an
agency that decides the claims of property owners who believe
that their assessed valuations (and therefore their property
taxes) are excessive. An undercover agent paid the defendants
to arrange for lower assessments, and the assessments were in
fact reduced except for one property where the challenge was
untimely. Charged with honest services wire fraud, the
defendants asserted that, although they took the money, they
54 No. 19‐3388
did nothing in exchange for the cash and intended only to
deceive the payor. In other words, they never took an official
act in exchange for the money and never intended to do so. The
payment was not so much a bribe, then, as a gratuity. Al‐
though this was fraud, we concluded that it was not honest
services wire fraud because an “agent’s secret receipt of a
gratuity … does not violate § 1341, for a payment that does not
entail a plan to change how the employee or agent does his job
is neither a bribe nor a kickback.” Hawkins, 777 F.3d at 882. In
other words, accepting money to be rewarded for an official
position is not enough to meet the definition of bribery under
Skilling unless the money is taken “in exchange for” an official
act. 777 F.3d at 883. This is not to say that proof of a completed
exchange is essential to an honest services conviction because
a “plan to take money in exchange for an official act constitutes
a scheme to defraud, whether or not the plan succeeds.” 777
F.3d at 883–84. The question is whether there was evidence of
such a plan here, or whether the defendants were merely
creating an impression with employees that there would be
consequences for non‐payment. Although this conduct would
be unlawful, it would not constitute honest services fraud
unless the defendants intended to take official acts such as
retaining employees who paid for their tickets or laying off
employees who did not pay up.
Shelton contends that there was insufficient evidence to
prove that she joined a scheme for kickbacks in exchange for
official action. She points out that the Township was undergo‐
ing extensive layoffs due to budgetary constraints, and a
significant number of people lost their jobs during Elgin’s
incumbency, including some who purchased tickets. There was
No. 19‐3388 55
evidence, though, that Shelton maintained lists of employees
who purchased tickets and employees who did not. Although
candidates were required to track and report donations,
tracking employees who did not pay up was not required and
this provides some evidence that non‐compliant employees
were targeted at layoff time. There was also testimony from an
employee in the department run by Elgin’s son who was
terminated after she refused to purchase tickets. We offer no
opinion on whether enough evidence remains to sustain an
honest services wire fraud conviction on any retrial, but the
district court must ensure that the government’s case does not
stray beyond the constraints of Skilling, Kelly, and Hawkins.
Given how the government presented and argued the case, it
is possible that the jury relied on a theory that contravened
those cases.
III.
In sum, we conclude that the district court erred when it
found that Shelton lacked any reasonable expectation of
privacy in her office. For the reasons stated, Garbutt’s docu‐
ment collection, undertaken at the direction of the FBI, violated
her Fourth Amendment rights. Moreover, we conclude that the
warrant would not have issued in the absence of the informa‐
tion gathered as a result of the unlawful searches. The district
court should have suppressed the evidence obtained from the
search authorized by that warrant, and granted Shelton’s
motion for a mistrial. We reverse Shelton’s convictions and
remand for proceedings consistent with this opinion.
REVERSED AND REMANDED.