United States v. Bourassa, Case No. 4:18-cr-3-MLB

United States of America, v. Jeffrey Alan Bourassa (1), Cheri Lea Rau (3), and Joseph M. Propps, Jr. (16), Defendants.

Case No. 4:18-cr-3-MLB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ROME DIVISION

December 31, 2020

OPINION & ORDER

Defendants Jeffrey Alan Bourassa, Cheri Lea Rau, and Joseph M. Propps, Jr. move to dismiss the indictment or, alternatively, to disqualify the prosecution team. (Dkts. 714; 755; 774.) The Magistrate Judge recommends denying Defendants' motion. (Dkt. 1024.) Defendants object to that recommendation. (Dkts. 1050; 1056; 1071.) The Court overrules Defendants' objections and adopts the Magistrate Judge's report and recommendation ("R&R").

I. Background

In August 2018, a federal grand jury returned a 23-count indictment against 23 defendants, including Defendants Bourassa, Rau, and Propps. (Dkt. 279.) The indictment charges Defendant Bourassa with conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d) (Count 1); conspiracy to traffic a controlled substance in violation of 21 U.S.C. § 846 (Count 2); kidnapping in violation of 18 U.S.C. § 1959(a)(1) (Count 9); and maiming in violation of 18 U.S.C. § 1959(a)(2) (Count 10). (Id. at 2-34, 38.) The indictment also charges Defendant Rau with Counts 1 and 2, and Defendant Propps with Count 2. (Id. at 2-34.)

In Summer 2019, Defendants filed a motion to dismiss the indictment or, alternatively, to disqualify the prosecution team. Defendants say dismissal or disqualification is required because Cobb County District Attorney Victor Reynolds actively participated in this federal prosecution despite representing each Defendant in related matters several years earlier while working as a criminal defense attorney. Defendants claim Mr. Reynolds essentially "switched sides" (from defending them to prosecuting them) in violation of their due process rights under the Fifth and Fourteenth Amendments, their right to counsel under the Sixth Amendment, and the Georgia Rules of Professional Conduct.

In January 2020, the Magistrate Judge held an evidentiary hearing at which testimony was offered by Mr. Reynolds, Jimmy Berry (an attorney who shared office space with Mr. Reynolds), Defendant Rau, and Defendant Bourassa. (Dkt. 914.) The parties then filed supplemental briefs. (Dkts. 980; 993; 1001; 1002; 1005; 1009; 1011; 1016; 1021.) Defendant Bourassa's supplemental brief includes a request, joined by Defendant Propps, to reopen the evidence. (Dkts. 1002 at 14-21; 1011 at 3 n.2.) The Magistrate Judge recommends denying Defendants' motion as well as their request to reopen the evidence. (Dkt. 1024.) Defendants objected to the R&R.

II. Standard of Review

The district court must "conduct[] a plain error review of the portions of the R&R to which neither party offers specific objections and a de novo review of the Magistrate Judge's findings to which [a party] specifically objects." United States v. McIntosh, 2019 WL 7184540, at *3 (N.D. Ga. Dec. 26, 2019); see 28 U.S.C. § 636(b)(1) ("[T]he court shall make a de novo determination of those portions of the [R&R] to which objection is made."); United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (plain error review appropriate in absence of objection). "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). After conducting the required review, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

III. Discussion

Defendants claim Mr. Reynolds actively participated in this federal prosecution despite previously representing them in connection with related matters. Defendants say this violates Rules 1.6, 1.7, and 1.9 of the Georgia Rules of Professional Conduct; the Due Process Clause; and the Sixth Amendment. Defendants further claim that, as a result of these violations, the Court should dismiss the indictment or disqualify the prosecution team. The Court disagrees.¹

A. Georgia Rules of Professional Conduct

1. Rules 1.7 and 1.9

Rule 1.7 says "[a] lawyer shall not represent or continue to represent a client if there is a significant risk that . . . the lawyer's duties to another client, a former client, or a third person will materially and adversely affect the representation of the client." Ga. R. Prof. Conduct 1.7(a). Rule 1.9 includes a similar prohibition: "A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client." Id. 1.9(a). The Magistrate Judge found Mr. Reynolds did not violate these rules because, even assuming he previously represented Defendants, he never joined the federal prosecution team in this case (and thus never represented a party adverse to his former clients). (Dkt. 1024 at 22.) The Court agrees.

"The prosecution team is defined as the prosecutor or anyone over whom he [or she] has authority, and includes both investigative and prosecutorial personnel." Sargent v. Sec'y, Fla. Dep't of Corr., 480 F. App'x 523, 529 (11th Cir. 2012). Whether state officials are part of a federal prosecution team requires "a case-by-case analysis of the extent of interaction and cooperation between the two governments." United States v. Antone, 603 F.2d 566, 570 (5th Cir. 1979). In conducting this analysis, courts ask whether the state officials "essentially functioned as agents of the federal government under the principles of agency law." Moon v. Head, 285 F.3d 1301, 1309 (11th Cir. 2002).

Antone and Moon provide useful data points on what is required for state officials to count as members of a federal prosecution team. In Antone, the court held that "state agents were in a real sense members of the [federal] prosecutorial team" because both groups "cooperated intimately from the outset of [the] investigation"; they shared "investigative files"; they were part of "a joint investigative task force . . . formed to solve" issues in the case; they held "joint meeting[s]" and divided tasks; they "pooled their investigative energies to a considerable extent"; "state officers were important witnesses in the federal prosecution"; and "[t]he entire effort was marked by [a] spirit" of "extensive cooperation." Antone, 603 F.2d at 568-70. In contrast, the Moon court held a Tennessee law enforcement official was not part of a Georgia prosecution team because, even though "the Georgia prosecutor utilized [him] as a witness to provide background information to the Georgia courts," he "was not under the direction or supervision of the Georgia officials"; he "could have refused to share any information with the Georgia prosecutor" (whether or not he actually did so); and "the Georgia and Tennessee agencies shared no resources or labor." Moon, 285 F.3d at 1310 (emphasis added).

Our case is far closer to Moon than Antone. Like the state official in Moon, there is no evidence Mr. Reynolds or anyone in his office was "under the direction or supervision" of federal officials during the investigation and prosecution of these Defendants or that he or anyone in his office was required to "share any information" with the federal prosecutors and investigators. And, unlike in Antone, there is no evidence that Mr. Reynolds's office and the federal prosecution team "cooperated intimately from the outset" of this case; held joint investigative meetings; formed a joint investigative task force; divided tasks; or "pooled their investigative energies to a considerable extent." On the contrary, Mr. Reynolds testified that he was not "involved" in the federal prosecution of Defendants; he was never "involved in any prosecution of Jeffrey Bourassa"; he never met with the U.S. Attorney's Office or attended a "strategy meeting" about this case; he never "direct[ed] any part of the federal case"; he made no "strategic or other decisions in the federal investigation"; his Assistant District Attorneys did not work "directly on the federal case or under the direction of the U.S. Attorney"; they were never "designated as part of the federal prosecution team"; he was not aware of "a state investigation that assisted the federal investigation"; he did not meaningfully discuss the investigation with federal officials; and he "always" disqualified himself from "any case involving someone [he] may have represented prior." (Dkts. 754-1 ¶¶ 2, 5; 914 at 10, 23, 26-27, 51, 59-60.)

Defendants counter that, in 2015, Mr. Reynolds's office provided the U.S. Attorney's Office with certain "files" about Defendant Bourassa in response to a request from federal officials investigating this case. (Dkt. 914 at 26, 52; see Dkt. 754-1 ¶ 5.) But "[t]he mere fact that the United States may have requested and received documents from another agency in the course of its investigation does not convert the investigation into a joint one." United States v. Ferguson, 478 F. Supp. 2d 220, 239 (D. Conn. 2007) (quoting United States v. Finnerty, 411 F. Supp. 2d 428, 433 (S.D.N.Y. 2006)). And Mr. Reynolds testified that the 2015 file share "was the extent of any cooperation between the Cobb County District Attorney's Office and the federal government in the Bourassa federal RICO prosecution." (Dkt. 754-1 ¶ 5.) Defendants offered no evidence to contest this representation.²

Defendants also point out that, in June 2016, Mr. Reynolds signed a wiretap application seeking authorization for state and federal investigative agencies to intercept the communications of several individuals, including four people later named as co-defendants in this case. (Dkt. 1012 at 8-9, 13, 19.) Defendants did not provide the Court with this wiretap application until August...