1

IN THE

UNITED STATES DISTRICT COURT, FOR THE 

NORTHERN DISTRICT OF INDIANA,

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

v. Plaintiff, ) No. 2:14 CR 129

)

) Judge Joseph S. Van

) Bokkelen

ETHEL SHELTON, )

)

Defendant. )

ETHEL SHELTON’S REPLY TO THE GOVERNMENT’S RESPONSE TO HER 

MOTION FOR MISTRIAL 

DEFENDANT ETHEL SHELTON, through her attorney, respectfully 

requests that this Honorable Court grant her Motion for Mistrial and deny the 

government’s response in objection to the Motion. In support of this request, 

defendant Shelton, through counsel, states the following:

I. Defendant has good cause for failing to raise the suppression issue prior to 

trial.

The Federal Rules of Criminal Procedure provide that certain motions, 

including a motion to suppress, must be made before trial, “if the basis for the 

motion is then reasonably available and the motion can be determined without 

a trial on the merits.” Federal Rule of Criminal Procedure 12(b)(3). The basis for a 

motion to suppress was not reasonably available in this case, or the motion would 

have been made. The facts and circumstances regarding how certain evidence was 

collected and under whose direction was not disclosed until trial.

The government failed to disclose the information that Ms. Shelton would 

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have needed to file a pre-trial motion to suppress the illegal search conducted by 

Stafford Garbutt at the specific direction of the FBI agent in charge of Mr. Garbutt’s 

activities as an informant. First, the government refused to disclose the name of 

the confidential informant until immediately prior to trial. Secondly, the 

government did not at any time disclose that the documents collected by Mr. 

Garbutt were collected at the specific direction of Agent Holbrook and clandestinely, 

before office hours, to avoid detection by Ms. Shelton and others whose information 

he purloined. The fact that certain documents were collected, without the 

knowledge that the items were not given to the Confidential Human Source, but 

instead were surreptitiously taken by the source, was by itself insufficient for 

proceeding on a pre-trial motion to suppress evidence.

The key pieces of information did not come to light until both Mr. Garbutt 

and Agent Holbrook testified at trial. Defense counsel cannot presume that the 

government’s agents acted illegally and at the direction of the FBI agent in charge, 

without some good faith basis for doing so. Ms. Shelton was unaware of Mr. 

Garbutt’s searches because he purposefully undertook them when no one else was 

present to witness his conduct. Without the testimony at trial, there was no basis 

prior to trial for raising a pre-trial motion to suppress evidence, because the specific 

conditions under which the evidence was acquired were withheld and not included 

in any of the documents that were provided during discovery. That is the crux of 

the matter and heart of the Motion for Mistrial. 

The government cannot refuse to disclose even the name of the Confidential 

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Human Source and the fact that documents taken by the source were done 

surreptitiously and at the request of the FBI agent handler, and then criticize the 

defense for failing to raise the issue prior to trial. There is no basis in law to 

support the government’s assertion, and the government has provided none. The 

government fundamentally misunderstands the basis for the Motion and has not 

satisfactorily provided any reason for withholding the critical pieces of information 

upon which the motion is based.

Whether or not specific documents that were illegally taken from Ms. Shelton 

were introduced at trial also ignores the heart of the argument. The information 

gathered by the illegal searches and seizures was used to obtain the search warrant 

in accordance with which a large part of the government’s exhibits was obtained. It 

is this evidence that constitutes the fruit of the poisonous tree and would have been 

the subject of the Motion to Suppress that would have been filed if the government 

had disclosed the relevant and critical information that it withheld and that only 

came out under cross-examination at trial.

The government cites to the “good cause” appellate standard to the case at 

bar before the District Court. The citation to United States v. Shorter, 874 F.3d 969, 

974-975 (7th Cir. 2017), Govt. Resp. 8, comes from a case in which the issues raised 

on appeal had not been raised at all in the District Court:

having failed to raise any objection before the district court as to a 

defect [**12] in the indictment as required. See HN2 Fed. R. Crim. P. 

12(b)(3) (if "reasonably available" and resolvable without a trial on the 

merits, a defendant must challenge a defect in an indictment by 

motion); Fed. R. Crim. P. 12(c)(3) (if a defendant fails to file such a 

pretrial motion, he or she must show "good cause" for raising this 

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argument for the first time on appeal). Since defendant makes no claim 

that her challenges on appeal were unavailable in the district court, 

nor that she had good cause for not raising them until on appeal, 

her [*975] challenge to the indictment fails on that ground alone. See 

United States v. Acox, 595 F.3d 729, 730-32 (7th Cir. 2010) (failure to 

meet good cause standard is a sufficient ground to reject new argument 

on appeal); United States v. Johnson, 415 F.3d 728, 730-31 (7th Cir. 

2005) (same).

United States v. Shorter, 874 F.3d 969, 974-975, 2017 U.S. App. LEXIS 21768, *11-

12, 2017 WL 4942876. The government’s citation to Acox and Johnson are 

unavailing for the same reason.

The government’s citation of United States v. Cardena, 842 F.3d 959, 988-989 

(7th Cir. 2016), does not support its position in this case. At issue in Cardena was 

the introduction into evidence of a photospread depicting only African-American 

men, to which the defense objected at trial on foundational grounds. On appeal, the 

defendant objected to the photo-array on Due Process grounds, so the Seventh 

Circuit treated the objection as a motion to suppress identification. Unlike Ms. 

Shelton’s case, Cardena’s lawyer had in hand all that he needed to raise his motion 

to suppress identification prior to trial. The Seventh Circuit rejected the 

defendant’s argument on appeal because there was nothing in the record to support 

a finding under Federal Rule of Criminal Procedure 12(c)(3) that the defendant had 

“good cause” for failing to file a pre-trial motion, challenging the suggestive nature 

of the photo-array.

In this case, unlike in Cardena, the information upon which to base a pretrial motion to suppress evidence was not reasonably available to counsel, since the 

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facts and circumstances surrounding what time of day and under what conditions 

Stafford Garbutt conducted his search of Ms. Shelton’s office and other areas to 

which he did not have access in the normal course of events without obtaining 

permission from either Ms. Shelton or Ms. Elgin, was not disclosed to defense 

counsel – nor was the identity of the confidential human source disclosed pre-trial. 

Furthermore, the fact that Garbutt undertook the search at the direction of the FBI 

agent was not disclosed. This information, together with the clandestine nature of 

Garbutt’s activities, is what turned a permissible collection of information from 

willing participants – like Ms. Shelton – into a government sponsored warrantless 

and illegal search and seizure.

Citation to United States v. McMillan, 786 F.3d 630, 636 (7th Cir. 2015), Govt. 

Resp. 9, does not aid the Court’s inquiry in this case. In McMillan, a pre-trial 

motion to quash arrest and suppress evidence was filed before the district court, 

relying on one set of facts. On appeal, the defendant raised the failure to grant the 

motion to suppress relying on a different legal ground and asserting a different set 

of facts. The Court of Appeals denied the issue, finding that the defendant had not 

shown good cause in the district court for failing to raise the second ground in 

support of his motion. 

Here, we have a situation – still before this District Court – in which the 

matter has been raised at the earliest moment the relevant information became 

available to counsel – after the testimony of both Stafford Garbutt and FBI Agent 

Holbrook, wherein the two testified for the first time that Mr. Garbutt’s search had 

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been done without a warrant, surreptitiously before office hours, without the 

consent of anyone, and at the specific direction of Agent Holbrook.

While it is true that the Seventh Circuit has found that good cause is an 

“exacting standard”, Govt. Resp. 9, that standard is clearly met when the basis for 

the motion is not known before trial. The Suggs court rejected a finding of good 

cause under circumstances that are not at all similar to those in this case:

By that time, the court said, new counsel had access to discovery 

materials for five months, yet he never moved to reopen the expired 

motion deadline. And nothing in the record suggests, the court 

continued, that the basis for the motion was previously 

unknown or that the need for such a motion came as a surprise.

United States v. Suggs, 703 Fed. Appx. 425, 427, 2017 U.S. App. LEXIS 15933, *5, 

2017 WL 3601277. Unlike the situation in Suggs, the testimony at Ms. Shelton’s 

trial did come as a surprise to both defense counsel and to the Court. The basis for 

the motion was previously unknown, precisely because the government had not 

disclosed it. A defendant cannot be expected to raise issues that are not apparent 

from the discovery tendered, particularly when the critical information about the 

nature and circumstances of an illegal search and seizure are withheld from the 

defense.

The government suggests that the mere knowledge that the CHS “provided a 

letter ‘discovered on Shelton’s desk’ on December 5, 2013. (S-94)” should have 

provided a basis for counsel to surmise that “discovered on Shelton’s desk” meant 

“illegally taken without Shelton’s knowledge when the unidentified CHS went into 

the offices before anyone else was there so that he could search for information to 

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provide at the specific request of the Agent in charge.” This is unreasonable, and 

certainly not what is meant in the rules by “if the basis for the motion is then 

reasonably available.” In light of the information that Ms. Shelton was recorded by 

the CHS and worked with the CHS, “discovered on Shelton’s desk” could have 

meant that Shelton provided the information to the CHS, that someone else with 

permission to do so had provided the information to the CHS, or that the 

information was “discovered” in a legal manner and with permission of Ms. Shelton 

during working hours. There was simply no basis for filing a complaint about an 

illegal search, when no such search was described until the testimony of Garbutt 

and Holbrook at trial. Ms. Shelton has amply demonstrated “good cause” for failing 

to raise the illegal nature of the search and seizure prior to trial.

II. The surreptitious and warrantless search of Ms. Shelton’s office, and the 

filing cabinets and storage areas over which she had authority not shared 

with Mr. Garbutt, was not permissible, but an illegal violation of Ms. 

Shelton’s rights under the Fourth Amendment to the United States 

Constitution.

The government concedes, as it must, based on the testimony at trial, that 

Stafford Garbutt was acting as a government agent when he conducted the search 

and seizure of documents and other information from Ms. Shelton’s office, and filing 

cabinets and storage areas over which she had authority not shared with Mr. 

Garbutt. Govt. Resp. 11. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 487 

(1971); United States v. McAllister, 18 F.3d. 1412, 1417-1418 (7th Cir. 1994); Michael 

C. v. Gresbach, 526 F.3d 1008, 1014 (7th Cir. 2008). It is equally undisputed that 

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the searches and seizures undertaken by Mr. Garbutt were warrantless. Govt. 

Resp. 11-12, fn. 6.

In urging this Court to reject Ms. Shelton’s motion for mistrial, the 

government argues first that Ms. Shelton had no reasonable expectation of privacy 

in her office, and secondly, that she had no standing to raise the First Amendment 

in challenging the warrantless seizure of documents from her office. The 

government’s position is incorrect, and fails to address in any way its own failure to 

reveal discoverable information under Brady, Giglio and their progeny.

A. Ms. Shelton had a reasonable expectation of privacy in her office.

The Seventh Circuit has held that:

There is no dispute that HN5 "[w]arrantless searches are presumptively 

unreasonable under the Fourth Amendment." United States v. Strache, 202 F.3d 

980, 984 (7th Cir. 2000). Therefore, "[i]n the absence of a warrant, a search is 

reasonable only if it falls within a specific exception to the warrant requirement." 

Riley v. California, 134 S. Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014). 

United States v. Thurman, 889 F.3d 356, 365, 2018 U.S. App. LEXIS 11397, *15. 

The government concedes that no “exception to the warrant requirement existed 

which would have permitted Garbutt to enter her office.” Govt. Resp. 11-12, fn. 6. 

This must be the end of the matter. The government did not have probable cause 

and did not seek a warrant to permit Stafford Garbutt to search Ms. Shelton’s office, 

desk, filing cabinet, storages areas, or any other place over which she maintained 

authority exclusive of Stafford Garbutt. The government failed to disclose the 

information about the search that would have permitted the matter to be raised 

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pre-trial, in violation of its obligations under Brady and Giglio. The appropriate 

remedy for this conduct is to grant the defendant’s Motion for Mistrial.

Instead, the government argues that Ms. Shelton had no reasonable 

expectation of privacy in her office, based on two provisions of the Employee 

Handbook and the Supreme Court’s decision in O’Connor v. Ortega, 480 U.S. 709 

(1987), a case that addressed the right to privacy in a workspace in the context of an 

appeal from the granting of a Motion for Summary Judgment in a civil case. In 

Ortega, the Court distinguished between the expectation of privacy against an

employer’s search as opposed to the Fourth Amendment’s protection against a 

search by law enforcement. The Supreme Court’s decision did not leave public 

employees without any Fourth Amendment protection against law enforcement 

searches of their workspaces. In so far as the government suggests that Ms. 

Shelton had no reasonable expectation of privacy in her office, this is incorrect. 

In the context of a law enforcement search, while the “touchstone” of a 

search is reasonableness, a warrantless search is presumptively unreasonable:

As the text makes clear, HN2 LEdHN[2] [2] “the ultimate touchstone 

of the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 

547 U. S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006). Our cases 

have determined that “[w]here a search is undertaken by law 

[***15] enforcement officials to discover evidence of criminal 

wrongdoing, . . . reasonableness generally requires the obtaining of a 

judicial warrant.” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 

653, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995). Such a warrant ensures 

that the inferences to support a search are “drawn by a neutral and 

detached magistrate 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, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948). In 

the absence of a warrant, a search is reasonable only if it falls 

within a specific exception to the warrant requirement. See 

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Kentucky v. King, 563 U. S. 452, 460, 131 S. Ct. 1849, 179 L. Ed. 2d 

865 (2011.

Riley v. California, 134 S. Ct. 2473, 2482, 189 L. Ed. 2d 430, 439, 2014 U.S. 

LEXIS 4497, *14-15, 82 U.S.L.W. 4558, 42 Media L. Rep. 1925, 24 Fla. L. 

Weekly Fed. S 921, 60 Comm. Reg. (P & F) 1175, 2014 WL 2864483. Nothing 

in the Supreme Court’s Ortega decision contradicts the appropriate analysis 

when a law enforcement search is in question, rather than an employer’s 

search. Signing an Employee Handbook does not constitute a waiver of one’s 

Fourth Amendment rights, and no court’s decision supports such an 

interpretation.

The provisions of the Employee Handbook cited by the government, 

Govt. Resp. 14, limit the reasons for which the CTTO [Calumet Township 

Trustee’s Office] reserves the right to inspect personal property to situations 

in which theft or security are in issue. The provisions do not provide blanket 

permission to for anyone, let alone law enforcement, to conduct searches and 

seizures without reason to believe that theft or security issues are present, 

and it does not authorize such searches or seizures except when employees 

are on the premises or are conducting CTTO business. None of these 

conditions applied to the warrantless searches and seizures conducted by 

Stafford Garbutt at the FBI agent’s direction.

The government stretches the meaning of the Supreme Court’s 

opinions in Ortega, in asserting that Ms. Shelton had no expectation of 

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privacy in her workspace, and in applying some of the findings of some of the 

court to deny Ms. Shelton her legitimate right to be free from the 

unreasonable searches and seizures of law enforcement. In the first instance, 

there was no single opinion in Ortega:

(2) five members of the court agreed that the doctor had a reasonable 

expectation of privacy in his office, and (3) all the members of the court 

agreed that the doctor had a reasonable expectation of privacy in his 

desk and file cabinets. O'Connor v. Ortega, 480 U.S. 709, 711, 107 S. 

Ct. 1492, 1494, 94 L. Ed. 2d 714, 719, 1987 U.S. LEXIS 1507, *1, 55 

U.S.L.W. 4405, 42 Empl. Prac. Dec. (CCH) P36,891, 1 I.E.R. Cas. 

(BNA) 1617. 

Furthermore, all members of the Court agreed that “Public employees do not lose 

their reasonable expectation of privacy in their place of work merely because they 

work for the government instead of a private employer; the Fourth Amendment's 

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. [Per all members of the court.] O'Connor 

v. Ortega, 480 U.S. 709, 711, 107 S. Ct. 1492, 1494, 94 L. Ed. 2d 714, 719, 1987 U.S. 

LEXIS 1507, *1, 55 U.S.L.W. 4405, 42 Empl. Prac. Dec. (CCH) P36,891, 1 I.E.R. 

Cas. (BNA) 1617.

With respect to searches and seizures by law enforcement, the Ortega court 

cited to two cases, Mancusi v. DeForte, and Oliver v. United States, for the 

proposition that offices, like homes, are environments in which there is a legitimate 

expectation of privacy:

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Within the workplace context, this Court has recognized that employees may have a 

reasonable expectation of privacy against intrusions by police. See Mancusi v. 

DeForte, 392 U.S. 364 (1968). 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." Oliver v. United States, supra, at 178, 

n. 8. Thus, in Mancusi v. DeForte, supra, 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 successfully 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. . . . [It] seems clear that if DeForte had occupied a 'private' 

office in the union headquarters, and union records [****16] had been seized from a 

desk or a filing cabinet in that office, he would have had [***723] standing. . . . In 

such a 'private' office, [*717] DeForte would have been entitled to expect that he 

would not be disturbed except by personal or business invitees, and that records 

would not be taken except with his permission or that of his union superiors." 392 

U.S., at 369. 

O'Connor v. Ortega, 480 U.S. 709, 716-717, 107 S. Ct. 1492, 1497, 94 L. Ed. 2d 714, 

722-723, 1987 U.S. LEXIS 1507, *15-16, 55 U.S.L.W. 4405, 42 Empl. Prac. Dec. 

(CCH) P36,891, 1 I.E.R. Cas. (BNA) 1617. Nothing in the Ortega decision supports 

a finding that the fact that an employer may search an office to discover stolen 

documents or protect employee security abrogates an employee’s legitimate 

expectation of privacy in her office or her Fourth Amendment rights against 

unreasonable searches of law enforcement. In fact, precisely the opposite is true:

Given the societal expectations of privacy in one's place of work 

expressed in both Oliver and Mancusi, we reject the contention made 

by the Solicitor General and petitioners 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 employer. The 

operational realities of the workplace, however, may make some

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employees' expectations of privacy unreasonable when an intrusion is 

by a supervisor rather than a law enforcement official.

Id. 1 The government has not provided any reason, or case law, for 

invalidating the presumption of unreasonableness that attaches when law 

enforcement conducts a warrantless search, as set out in the Court’s more 

recent opinion of the application of the Fourth Amendment to law 

enforcement searches and seizures, in Riley, cited above.

Even if this Court were to deviate from settled law on the per se 

unreasonableness of warrantless searches and seizures, there is no evidence 

in the record before the Court that CTTO ever enforced the provisions of its 

handbook in the case of theft or security considerations, such that it would be 

reasonable for an individual to have no expectation of privacy in her 

 

1 Similarly, the government’s citation to this Court’s decision in Snider v. Pekney, 

has no bearing on the case at bar, because it, too, was addressing the rights of 

employers to search the lockers or workspaces of employees – subject to a different 

standard than the warrant and probable cause requirements when law enforcement 

is conducting the search and seizure. “Further, the Court of Appeals found that 

prior case law rejected the notion that the presence of law enforcement officers and 

the possibility that the search could uncover information leading to a criminal 

charge inevitably converted a search into a law enforcement search requiring 

probable cause and a warrant. Id. at 492-94 (citing U.S. v. Nechy, 827 F.2d 1161, 

1163 (7th Cir. 1987) (search found to be workplace search despite the presence and 

assistance of narcotics detectives because the search was objectively reasonable

despite the subjective motives of the agency personnel); Shields v. Burge, 874 F.2d 

1201, 1202 (7th Cir. 1989) (search found to be a workplace search despite the 

possibility of uncovering evidence of criminal wrongdoing)). Snider v. Pekney, 2010 

U.S. Dist. LEXIS 17161, *15, 2010 WL 724506.

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belongings, the contents of her desk, her filing cabinets, and other areas over 

which she had authority exclusive of Mr. Garbutt.

Entry of a person’s office for legitimate purposes, such as signing an 

attendance roster, does not give permission to such individuals to search a 

person’s desk or filing cabinets and take things out of the office without the 

office holder’s permission. Ms. Shelton’s office was not a public space, but a 

private office which she could and did close and lock as the occasion required.

Even if this Court were to find that Ms. Shelton had a diminished 

expectation of privacy in her office, it does not follow that she had no 

reasonable expectation of privacy in her desk, filing cabinets, shelves, and 

other spaces within her office, or on the floor over which she had authority 

exclusive of Stafford Garbutt, against searches and seizures by government 

agents for the purpose of finding evidence of criminal conduct. The examples 

provided by the government all include instances when Ms. Shelton is in her 

office and aware of who is coming and going. No examples are provided of 

Ms. Shelton being aware of, or having given permission to Stafford Garbutt, 

or anyone else to rifle through her desk or other areas in her office when she 

was not present. In fact, Ms. Shelton testified at trial that she gave no such 

permission to Mr. Garbutt or anyone else. Having individuals come into 

one’s office at work no more gives permission to those individuals to go 

through one’s desk, filing cabinets or other areas, than inviting a guest into 

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one’s home gives up all right to the privacy one has the right to expect in 

one’s desk, bookshelves, drawers, closets, medicine cabinets and other areas. 

B. Ms. Shelton’s First Amendment argument in support of her 

Motion for Mistrial has not been waived and merits 

consideration.

The government misunderstands Ms. Shelton’s argument that in the 

case of political expression – information protected by the First Amendment - 

the constraints of the Fourth Amendment are applied with greater rather 

than the lesser attention advocated by the government. The motion for 

mistrial is based on the government’s failure to fulfill its obligations under 

Brady and Giglio to inform defense counsel that FBI agent Holbrook directed 

informant Stafford Garbutt to undertake an unwarranted – and unlawful –

series of searches and seizures – before office hours in order to secure 

information that would subsequently be used to secure a search warrant for 

the offices of Ms. Shelton and others at the CTTO. The Motion for Mistrial is 

not simply about the filing of a Motion to Suppress, a motion to suppress 

would have been filed if the unknown information had been provided prior to 

trial. Instead, defense counsel and the court were surprised by the testimony 

that came out on cross-examination of two of the government’s witnesses at 

trial- the informant and the agent.

For these reasons, arguments about “waiver” – the knowing and voluntary 

giving up of recognized rights – and “forfeiture” – the failure to assert certain rights 

in a timely manner, have no place at this point in the litigation. “Waiver is different 

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from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a 

right, waiver is the "intentional relinquishment or abandonment of a known right." 

Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938); see, e. g., 

Freytag v. Commissioner, 501 U.S. 868, 894, n. 2, 115 L. Ed. 2d 764, 111 S. Ct. 2631 

(1991) (SCALIA, J., concurring in part and concurring in judgment) (distinguishing 

between "waiver" and "forfeiture"); Spritzer, Criminal Waiver, Procedural Default 

and the Burger Court, 126 U. Pa. L. Rev. 473, 474-477 (1978) (same); Westen, Away 

from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal 

Procedure, 75 Mich. L. Rev. 1214, 1214-1215 (1977) (same).United States v. Olano, 

507 U.S. 725, 733, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508, 519, 1993 U.S. LEXIS 

2986, *15, 61 U.S.L.W. 4421, 93 Cal. Daily Op. Service 3040, 93 Daily Journal DAR 

5188, 7 Fla. L. Weekly Fed. S 205

Ms. Shelton did not knowingly and voluntarily give up the right to 

raise the issue that first became apparent at trial. On the contrary, her 

motion for mistrial and trial objections were the first and proper steps that 

she could take to make the court and counsel aware of the issue. There has 

been neither waiver nor forfeiture of the Motion for Mistrial and the reasons 

therefore. Had Ms. Shelton neglected to object at trial, request the Mistrial, 

and proceed to briefing in accordance with this Court’s order, the government 

would have a basis for claiming forfeiture of the issue on appeal. Claims of 

waiver and forfeiture at this stage are premature and not well-founded under 

the circumstances of this case.

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The Motion to Dismiss the indictment, filed well in advance of trial –

in view of the government’s request to continue the case for several months 

for its own reasons – was denied as untimely by this Court and will be the 

subject of an appeal – but its subject matter has nothing to do with issues 

before the Court in the Motion for Mistrial. The government’s reference to 

this Motion does not illuminate any issue currently before the Court. Govt. 

Resp. 18.

The government’s attempts to sidetrack the central issue raised by the 

Motion for Mistrial notwithstanding, the appropriate remedy in this case for 

failing to disclose impeaching information so that the matter could have been 

raised pre-trial, instead of mid-trial, when the matter was first revealed, is to 

grant Ms. Shelton’s Motion for Mistrial.

III. Granting a Motion for Mistrial in this case is the appropriate remedy, 

based on the government’s failure to disclose information that would 

have led to a valid Motion to Suppress Evidence, the result of which 

would have been a dramatically different trial.

The ultimate question in deciding whether to grant a mistrial is whether the 

defendant has been deprived of a fair trial. “It is presumed that the trial judge is in 

the best position to determine whether a cautionary instruction, rather than a 

mistrial, is sufficient to address any potential prejudice. Canino, 949 F.2d at 937; 

see also United States v. Tejeda, 481 F.3d 44, 53-54 (1st Cir. 2007) (stating that the 

district judge is in the best position to assess the candor and credibility of the jurors 

during the voir dire following a motion for mistrial). Nevertheless, when reviewing 

the denial of a mistrial in this context, this Court must ultimately determine 

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whether the defendant was deprived of a fair trial. United States v. Clarke, 227 F.3d 

874, 881 (7th Cir. 2000).” United States v. Mannie, 509 F.3d 851, 856, 2007 U.S. 

App. LEXIS 28683, *11.

In Ms. Shelton’s case, there was no ability to correct the wrong caused by the 

government, either prior to trial, or during the trial. The jury did not know that the 

FBI agent in this case had directed the informant to conduct a warrantless search of 

the CTTO offices, including Ms. Shelton’s office, that the information so acquired 

illegally was used to secure a warrant, in accordance with which evidence was 

obtained and introduced against Ms. Shelton at trial. Nor was the jury informed 

that the government withheld the relevant information from defense counsel, 

depriving counsel of the ability to challenge the illegal search and its subsequent 

use. There was no way to seek or ask for a curative instruction, or any other 

remedy for the illegal conduct – apart from requesting a mistrial.

The government asserts that no evidence taken during the illegal search by 

Stafford Garbutt was introduced at trial, when in fact, all of the evidence introduced 

at trial was the fruit of the poisonous tree. Wong Sun v. United States, 371 U.S. 471 

(1963). Counsel argued this before the District Court during trial when making the 

oral motion for mistrial and so is not raising the matter for the first time in this 

written motion and reply in support of the oral motion. The government was on 

notice that counsel had taken this position and has in fact responded to the 

argument at length in its filing. Govt. Resp. 21-25.

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The Supreme Court has long held that “[t]he ultimate question, therefore, is 

whether the search pursuant to warrant was in fact a genuinely independent source 

of the information and tangible evidence at issue here. This would not have been 

the case if the agents' decision to seek the warrant was prompted by what they had 

seen during the initial entry, or if information [***484] obtained during that 

entry was presented to the Magistrate and affected his decision to issue the 

warrant. [emphasis added] Murray v. United States, 487 U.S. 533, 542, 108 S. Ct. 

2529, 2536, 101 L. Ed. 2d 472, 483-484, 1988 U.S. LEXIS 2881, *16, 56 U.S.L.W. 

4801.

The government cannot say that the information presented to the Magistrate 

who issued the warrant did not include information seized from Ms. Shelton’s desk, 

filing cabinets, drawers, office and storage areas. In fact, it concedes that this much 

is true. Govt. Resp. 24. The government presents no argument that the 

independent source doctrine applies in this case, since there is no independent 

source – the informant’s testimony about the items he illegally seized in support of 

his mere words was critical to establishing his credibility. It is not simply a matter 

of removing paragraphs and guessing about the likely result.

Furthermore, the question of the suppression is not the only issue. The 

government has not addressed at all the problem presented by the its failure to 

disclose the fact of the warrantless searches and seizures, that they were directed 

by the FBI agent, in consultation with government prosecutors – as represented at 

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the time the motion was made – and that knowingly illegally obtained evidence was 

used to support a warrant.

Approving what happened in this case, by failing to grant the motion for 

mistrial, puts the Court’s imprimatur on trial by ambush, allowing the government 

to knowingly engage in illegal conduct, rely on that conduct to obtain evidence 

cloaked in the legality of a search warrant, and then introduce that evidence at trial 

without revealing the misconduct to the jury. Ms. Shelton did not receive a fair 

trial. Had the jury known about the misconduct, its view of the evidence may have 

been very different. In this case, it is not possible to claim that it would have made 

no difference, where the jury claimed to have been hung on all counts and both 

defendants, and then split the verdict when the Court required them to continue 

deliberations.

Government misconduct has been found to be a basis for mistrial when it is 

not revealed to the defense. “... Giglio required the prosecution to disclose all 

material information "casting a shadow on a government witness's credibility," id.

(citing Bernal-Obeso, 989 F.2d at 333-34), and that the suppressed evidence "would 

have provided a fertile basis for defense counsel to probe bias and motives," id. [The 

Court] ruled that it was "reasonably probable that if effectively used, the 

suppressed evidence may have caused the jury to reject some or all of the testimony 

of the El Rukn inmate witnesses." Id. (citing United States v. Wallach, 935 F.2d 

445, 454 (2d Cir. 1991)). [The Court] therefore ordered that a new trial was required 

in the interest of justice. Id.” United States v. Doyle, 121 F.3d 1078, 1082, 1997 U.S. 

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App. LEXIS 20508, *6. Had the jury learned in Ms. Shelton’s case that the FBI 

agent had directed the informant to engage in illegal conduct with the knowledge of 

the supervising prosecutor at the time, it may have caused the jury members to 

reject the credibility of informant, the agent, and the reliability of the government’s 

case. This Court has no way of measuring the degree to which the informant’s use 

and the FBI agent’s determination that he was worth relying on depended upon the 

documents the informant was able illegally to obtain to support his allegations, 

particularly in view of his many admitted motives for cooperating with the 

government: lack of prosecution, loss of status, pay-cut, loss of use of company 

vehicles, personal romantic rejection by Mary Elgin, and his admitted lies to the 

agent and others in his personal life.

Courts do not generally countenance trial by ambush. In the civil context 

there are rules to prevent this, but it also is disfavored in the criminal context. For 

example, in United States v. Andrews, 1991 U.S. Dist. LEXIS 17897, *1, 1991 WL 

267758, “The court held that the government's actions amounted to a trial by 

ambush and constituted a mid-trial surprise which deprived defendant of an 

opportunity to investigation the government's allegations. The court held that 

allowing the challenged evidence would deprive defendant of the essential elements 

of a fair trial.” In Ms. Shelton’s case, the revelation that the FBI agent had directed 

the informant’s illegal conduct also constituted a mid-trial surprise that did not 

allow the defense sufficient time or opportunity to respond to it in a meaningful 

way.

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WHEREFORE, defendant ETHEL SHELTON, through her attorney, 

respectfully requests that this Court grant her Motion for a Mistrial, based on the 

government’s misconduct in directing an informant to conduct illegal searches and 

seizures of documents and other information from the offices of his colleagues, in 

violation of the Fourth Amendment to the United States Constitution; in relying, in 

whole, or in part, on that information to seek a search warrant, without disclosing 

that the information relied upon was illegally obtained, in violation of the Fourth 

Amendment; and by failing to meet its obligations under Brady v. Maryland, 373 

U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), Giglio v. United States, 405 U.S. 

150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), and their progeny, in withholding the 

fact of the informant’s illegal searches and seizures from the defense until such 

events were disclosed by the government’s own witnesses in the middle of trial, 

when it was too late to bring a pre-trial Motion to Suppress Evidence or to dismiss 

the indictment based on governmental misconduct, in violation of the Fifth 

Amendment right to Due Process and the Sixth Amendment right to a Fair Trial.

DATE: JULY 30, 2018 Respectfully submitted,

By: s/Andréa E. Gambino

Attorney for Ethel Shelton

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CERTIFICATE OF SERVICE

I hereby certify that on JULY 30, 2018, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system which sent notification of 

such filing to the following:

Maria Lerner, Esq.

Abizer Zanzi, Esq.

Assistant United States Attorneys

and I hereby certify that I have mailed by United State Postal Service, or handdelivered the document to the following non-CM/ECF participants: N/A.

DATE: JULY 30, 2018 Respectfully submitted,

By: s/Andréa E. Gambino

Attorney for Ethel Shelton

Law Offices of Andréa E. Gambino

53 W. Jackson Blvd., Suite 1332

Chicago, Illinois 60604

(312) 322-0014

agambinolaw@gmail.com

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