United States v. Don Eugene Siegelman ( 2011 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_____________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13163 MAY 10, 2011
_____________ JOHN LEY
CLERK
D.C. Docket No. 05-00119-CR-F-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DON EUGENE SIEGELMAN,
RICHARD SCRUSHY,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Middle District of Alabama
____________
(May 10, 2011)
ON REMAND FROM THE UNITED STATES
SUPREME COURT
Before TJOFLAT, EDMONDSON, and HILL, Circuit Judges.
PER CURIAM:
This case is before us on remand from the Supreme Court of the United
States for reconsideration in light of Skilling v. United States, 561 U.S. ___, 130 S.
Ct. 2896 (2010). The parties were ordered to re-brief the case; oral argument was
heard.
I.
Don Eugene Siegelman is the former Governor of Alabama. Richard
Scrushy is the founder and former Chief Executive Officer of HealthSouth
Corporation (“HealthSouth”), a major hospital corporation with operations
throughout Alabama. The defendants were convicted of federal funds bribery, in
violation of 18 U.S.C. § 666(a)(1)(B), and five counts of honest services mail
fraud and conspiracy, in violation of 18 U.S.C. §§ 1341, 1346, and 18 U.S.C. §
371. Siegelman was also convicted of obstruction of justice, in violation of 18
U.S.C. § 1512(b)(3).
The bribery convictions were based on allegations that the defendants made
and executed a corrupt agreement whereby Scrushy gave Siegelman $500,000 in
exchange for Siegelman’s appointing him to Alabama’s Certificate of Need
2
Review Board (the “CON” Board). The honest services mail fraud convictions
were also based in part upon these bribery allegations, but two of the counts also
alleged that Scrushy used the CON Board seat to obtain favorable treatment for
HealthSouth’s applications. The conspiracy count alleged that Scrushy and
Siegleman conspired to violate the honest services statute. Siegelman’s
obstruction of justice conviction is based on allegations that he corruptly
influenced another to create a series of sham check transactions to cover up a
separate “pay-to-play” payment to him.1
This is an extraordinary case. It involves allegations of corruption at the
highest levels of Alabama state government. Its resolution has strained the
resources of both Alabama and the federal government.
But it has arrived in this court with the “sword and buckler” of a jury
verdict. The yeoman’s work of our judicial system is done by a single judge and a
jury. Twelve ordinary citizens of Alabama were asked to sit through long days of
often tedious and obscure testimony and pour over countless documents to decide
what happened, and, having done so, to apply to these facts the law as the judge
has explained it to them. And they do. Often at great personal sacrifice. Though
1
The obstruction of justice allegations involved conduct unrelated to the Siegelman-
Scrushy bribery, mail fraud and conspiracy charges.
3
the popular culture sometimes asserts otherwise, the virtue of our jury system is
that it most often gets it right. This is the great achievement of our system of
justice. The jury’s verdict commands the respect of this court, and that verdict
must be sustained if there is substantial evidence to support it. Glasser v. United
States, 315 U.S. 60, 80 (1942).
Furthermore, to the extent that the verdict rests upon the jury’s evaluations
of the credibility of individual witnesses, and the reasonable inferences to be
drawn from that testimony, we owe deference to those decisions. In our system,
the jury decides what the facts are, by listening to the witnesses and making
judgments about whom to believe. This they have done, and, though invited to do
so,2 we shall not substitute our judgment for theirs.
This is not to say that the judgment below is inviolable. Having determined
what the facts are, a jury applies the law as the judge instructs them. The
defendants’ lawyers assert that there were errors in those instructions. They also
contend that the court committed other legal mistakes during the course of the
trial. Our duty as an appellate court is to answer properly presented questions
from the parties in the case as to whether the law was correctly interpreted by the
2
The defendants assert that this is a case in which we owe no deference to the jury’s
findings of fact, but we disagree.
4
district court. With this in mind, we have reviewed the claims of legal error in the
proceedings below, and our opinion as to their merit follows. First, however, we
recount the facts as the jury found them.3
II.
Don Siegelman was elected Governor of Alabama in 1998 on a campaign
platform that advocated the establishment of a state lottery to help fund education
in Alabama. After his election, he established the Alabama Education Lottery
Foundation (the “Foundation”) to raise money to campaign for voter approval of a
ballot initiative to establish a state lottery. Darren Cline, the Foundation’s
fundraising director, testified that Siegelman “called the shots” on the lottery
campaign. The lottery initiative was eventually defeated in a referendum held in
October of 1999.
On March 9, 2000, the Foundation borrowed $730,789.29 from an Alabama
bank in order to pay down debt incurred by the Alabama Democratic Party for get-
out-the-vote expenses during the lottery campaign. This note was personally and
unconditionally guaranteed by Siegelman.4
Richard Scrushy, the CEO of HealthSouth had served on the CON Board
3
Where the jury need not have found a particular fact to be established in order to reach
their verdict, we indicate who testified to that fact.
4
There was another personal guarantor, but each was individually liable.
5
under three previous governors of Alabama. The CON Board is an arm of the
State Health Planning and Development Agency and exists to prevent unnecessary
duplication of healthcare services in Alabama. The Board determines the number
of healthcare facilities in Alabama through a process that requires healthcare
providers to apply for and obtain a certificate of a healthcare need before opening
a new facility or offering a special healthcare service. The CON Board decides
which healthcare applications will be approved for an announced healthcare need,
choosing between competing applications and ruling on objections filed by an
applicant’s competitor. The Governor of Alabama has sole discretion to appoint
the members of the CON Board, who serve at his pleasure.5 Scrushy had
supported Siegelman’s opponent in the just prior election.
Nick Bailey was one of Siegelman’s closest associates and had worked on
Siegelman’s campaign for governor. Cline testified that “whatever [Bailey] told
me that the Governor wanted was what the Governor said.” Cline also testified
that “if the Governor wanted to get something done, then [Bailey] went ahead –
blindly went ahead and did it.”
Bailey testified that, after Siegelman’s election in 1998, Siegelman met with
Eric Hanson, an outside lobbyist for HealthSouth, and told Hanson that because
5
Three of the nine seats on the Board are reserved for health care industry providers.
6
Scrushy had contributed at least $350,000 to Siegelman’s opponent in the election,
Scrushy needed to “do” at least $500,000 in order to “make it right” with the
Siegelman campaign. Bailey testified that Siegelman was referring to the
campaign for the lottery initiative, and that Hanson was to relay this conversation
to Scrushy. Bailey also testified that, in another conversation, Hanson told Bailey
that Scrushy wanted control of the CON Board.
Mike Martin is the former Chief Financial Officer of HealthSouth. He
testified that having influence over the CON Board was important to Scrushy and
HealthSouth because it determined the number of healthcare facilities in the state,
thereby affecting HealthSouth’s ability to grow. He testified that Scrushy told him
that to “have some influence or a spot on the CON Board,” they had to help
Siegelman raise money for the lottery campaign. Scrushy said that if they did so,
“[they] would be assured a seat on the CON Board.” Martin testified, “[W]e were
making a contribution . . . in exchange for a spot on the CON Board.”
Bailey testified that lobbyist Hanson “made it clear to him that if Mr.
Scrushy gave the $500,000 to the lottery campaign that we could not let him
down” with respect to the CON Board seat. Bailey also testified that he “reminded
the Governor periodically of the conversations that [Bailey] had with Eric Hanson
and the conversations that the Governor had with Eric Hanson about what Mr.
7
Scrushy wanted for his contributions, and that was the CON Board.”
Martin also testified that Scrushy told him that HealthSouth could not make
the payment to the lottery campaign, nor could he do it personally because “we
[HealthSouth] had not supported that and that his wife, Leslie, was against the
lottery, and it would just look bad if HealthSouth made a direct contribution to the
lottery, so we needed to ask – he instructed me in particular to ask our investment
banker, Bill McGahan, from [the Swiss bank] UBS, to make the contribution.”
Bill McGahan did not want to make such an “out of the norm” donation and
hoped the matter would “go away.” Over the next two weeks, Martin called
McGahan at least once a day to ask him about the status of the UBS donation, and
told McGahan that Scrushy was going to fire UBS if it did not make the
contribution. Finally, Martin testified, Scrushy himself called McGahan to “put
more pressure” on him to make the contribution.
McGahan testified that he did not want UBS to make such a large
contribution directly, so he told Martin that he would get Integrated Health
Services (“IHS”) of Maryland to make the donation to the lottery campaign in
exchange for UBS reducing an outstanding fee that IHS owed UBS. IHS agreed to
this arrangement and donated $250,000 to the Foundation in exchange for a
reduction of $267,000 in the fee it owed UBS.
8
The IHS “donation” was in the form of a check dated July 19, 1999, made
payable from itself to the Foundation. Martin testified that Scrushy told him it
was important that he, Scrushy, hand deliver the IHS check to Siegelman, so
Martin delivered the check to Scrushy so that he could do so.
Some time later,6 Siegelman and Scrushy met in Siegelman’s office. Bailey
testified that after Scrushy left, Siegelman showed the IHS check to Bailey and
told him that Scrushy was “halfway there.” Bailey asked, “what in the world is he
[Scrushy] going to want for that?” Siegelman replied, “the CON Board.” Bailey
then asked, “I wouldn’t think that would be a problem, would it?” Siegelman
responded, “I wouldn’t think so.”
Siegelman appointed Scrushy to the CON Board on July 26, 1999 – one
week after the date on the IHS check.7 Siegelman directed Bailey to contact the
Board chair-designee to tell her that Siegelman wanted Scrushy to be vice-chair of
the CON Board, and the Board so chose. Bailey testified that Siegelman made
Scrushy vice-chair “[b]ecause [Scrushy] asked for it.” Scrushy stayed on the
Board until January of 2001, at which time Siegelman appointed Thom Carman,
HealthSouth’s vice-president, to the remainder of Scrushy’s term. Siegelman
6
Bailey told the FBI that Scrushy gave the check to Siegelman in a meeting on July 14,
1999, but testified at trial that he did not remember exactly when the meeting was.
7
Seven other Board members were appointed that day.
9
subsequently reappointed Carman to a full term. While Carman was on the Board,
HealthSouth successfully applied for and received Certificates of Need for a
mobile PET scanner and a rehabilitation hospital.
Darren Cline, the Foundation’s fundraising director, testified that Siegelman
gave him the IHS check and told him it was from Scrushy. Cline was concerned
about the amount of the donation from one person, and Siegelman told him to hold
the check. In November of 1999, however, at Siegelman’s direction, Bailey
retrieved the check and opened a new checking account in the Foundation’s name
at a Birmingham bank. Bailey made an initial deposit of $275,000 – the $250,000
IHS check and a $25,000 check from another company. Cline was never told.
On March 9, 2000, the Foundation borrowed, from the same Birmingham
bank, $730,789.29 to repay the Alabama Democratic Party’s debt in connection
with the lottery initiative and Siegelman guaranteed the loan. At that time, the
Foundation had over $447,000 in its checking account at the bank, $250,000 of
which had come from the IHS check deposited in November of 1999. On March
13, 2000, $440,000 was debited from the account to pay down the Foundation’s
loan.
In May, Siegelman and Bailey traveled to HealthSouth’s headquarters in
Birmingham, where Siegelman met privately with Scrushy in Scrushy’s office. At
10
that meeting, Scrushy gave Siegelman a check issued by HealthSouth for $250,000
payable to the Foundation.8 On May 23, 2000, the $250,000 check was applied
directly against the Foundation’s loan balance.
The Foundation was required to disclose contributions received and
expenditures made in statements filed with the Alabama Secretary of State. It
failed to file timely any disclosure regarding any funds received until July of 2002,
after Alabama newspapers questioned whether the financial dealings between the
Foundation and the Alabama Democratic Party had been properly reported and the
Secretary of State’s Office had written a letter to the state Attorney General’s
Office about the Foundation’s non-disclosure of the payoff of the Democratic
Party’s campaign loan. All funds received were then reported.
Lanny Young was a long-time business associate of Siegelman’s who
testified that he was part of a “pay-to-play” arrangement with Siegelman existing
over many years. He testified that he would provide money, campaign
contributions, and other benefits in return for official action, as needed, that
benefitted Young’s business interests. He testified that in January of 2000,
Siegelman asked him for $9,200 to buy a motorcycle. The evidence was that
8
HealthSouth’s political contributions coordinator testified that she did not know about
the donation until she read about it in the newspaper. The Foundation’s fundraising director
testified that he was not present when Scrushy gave Siegelman either of the checks.
11
Siegelman had already purchased the motorcycle. Young testified that he and
Bailey worked out the details for the transaction.
Bailey testified that he did not want Young to give the money directly to
Siegelman, so Bailey told Young to write the check to him, Bailey, which he
deposited into his own account. He then wrote a check to Lori Allen, Siegelman’s
wife, which he gave to Siegelman and which was deposited into Siegelman’s bank
account that same day. There was testimony that a check written to the IRS for
fourth quarter estimated taxes would not have cleared the account but for the
$9200 deposit.
By June of 2001, Siegelman was well aware of the federal-state
investigation into the Foundation’s finances and his dealings with Young. Bailey
and Young each testified that, in an effort to cover up Young’s $9,200 payment to
Siegelman, Bailey gave Young a check for $10,503.39, on which he noted
“repayment of loan [the $9,200] plus interest” in order to make it appear that he
had borrowed the $9,200 from Young. Bailey also wrote a check to Siegelman for
$2,973.35 with the notation “balance due on m/c” to provide a reason for his
borrowing money from Young, which was to purchase the motorcycle from
Siegelman. Bailey testified that he did not borrow the money to buy the
motorcycle, but that Young’s $9,200 had gone through him to Siegelman and “we
12
used the motorcycle to cover it up.” Bailey testified that Siegelman was aware of
and approved Bailey’s writing of the $10,503.39 check to Young.
Bailey testified that he gave Siegelman the $2,973.35 check at the office of
Siegelman’s attorney, who, along with Bailey’s own attorney, was present for the
transfer. Neither lawyer was told that the purpose of the transaction was part of
the coverup of the $9,200 payment from Young to Siegelman. Siegelman
accepted the check, and provided Bailey with a bill of sale for the motorcycle,
which the attorneys helped finalize. Bailey testified that he lied about the
transaction to the lawyers, that he and Siegelman knew that the federal
investigation was going on, and that he later lied to federal investigators about the
transaction to protect himself and Siegelman.
On December 12, 2005, a grand jury returned a second superseding
indictment against Siegelman and Scrushy and two other defendants.9 Both
Siegelman and Scrushy were charged with federal funds bribery, honest services
conspiracy and honest services mail fraud.10 Siegelman was also charged with
9
The superseding indictment replaced an earlier version of the indictment.
10
The federal funds bribery statute criminalizes the taking of a bribe by an official of a
state agency that receives over $10,000 in federal funds annually. 18 U.S.C. § 666. Honest
services mail fraud criminalizes the mailing of a letter in connection with a scheme to defraud a
state agency of an official’s honest services in the performance of his official duties. 18 U.S.C.
§§ 1341 and 1346. The conspiracy count charged the defendants with agreeing to violate the
honest services statute. 18 U.S.C. § 371.
13
multiple counts of racketeering conspiracy, racketeering, honest services wire
fraud, obstruction of justice and extortion.
Trial on the indictment began on May 1, 2006. On June 29, 2006, the jury
convicted Siegelman and Scrushy on the bribery, conspiracy and honest services
mail fraud counts, and Siegelman was convicted of one count of obstruction of
justice. The jury acquitted Siegelman on the remaining twenty-two counts. The
other two defendants were acquitted on all counts against them.
Siegelman and Scrushy were each sentenced to approximately seven years
in federal prison.11
On appeal, Siegelman and Scrushy together allege nine errors in the trial
proceedings. With respect to the bribery, conspiracy and honest services mail
fraud counts against them, defendants assert that the court’s instructions
erroneously failed to require the jury to find a quid pro quo in order to convict;
that, in any event, there was insufficient evidence of any quid pro quo; that the
bribery counts were barred by the statute of limitations; and that the trial court
erroneously admitted hearsay to prove these counts. Defendants also allege that
there was juror misconduct requiring the grant of a new trial and that the
11
Siegelman and Scrushy were denied bond pending appeal, but a panel of this court
subsequently released Siegelman pending resolution of this appeal.
14
procedures used to select their grand and petit juries violated the Jury Selection
and Services Act of 1968 and the United States Constitution. Siegelman contends
that there was insufficient evidence that he obstructed justice and that the district
court abused its discretion in sentencing him by upwardly departing from the
Sentencing Guidelines. We shall consider each of these allegations of error in
turn.
III.
1. Counts 3 and 4: Federal Funds Bribery.
The bribery statute under which defendants were convicted makes it a crime
for a state official to corruptly agree to accept anything of value from another
person “intending to be influenced” in that person’s favor in an official action. 18
U.S.C. § 666(a)(1)(B).
Siegelman and Scrushy’s bribery convictions in this case were based upon
the donation Scrushy gave to Siegelman’s education lottery campaign.12 As such,
the convictions impact the First Amendment’s core values – protection of free
political speech and the right to support issues of great public importance. It
would be a particularly dangerous legal error from a civic point of view to instruct
12
Although the conspiracy and mail fraud counts (Counts 5-9) alleged a broader scheme
for Scrushy to self-deal once on the CON Board, they also incorporated the bribery scheme
alleged in Counts 3 and 4.
15
a jury that they may convict a defendant for his exercise of either of these
constitutionally protected activities.13 In a political system that is based upon
raising private contributions for campaigns for public office and for issue
referenda, there is ample opportunity for that error to be committed.
The Supreme Court has guarded against this possibility by interpreting
federal law to require more for conviction than merely proof of a campaign
donation followed by an act favorable toward the donor. McCormick v. United
States, 500 U.S. 257 (1991). In reviewing a Hobbs Act prosecution for the federal
crime of extortion under color of official right, the Court said:
Serving constituents and supporting legislation that will benefit the
district and individuals and groups therein is the everyday business of
a legislator. It is also true that campaigns must be run and financed.
Money is constantly being solicited on behalf of candidates, who run
on platforms and who claim support on the basis of their views and
what they intend to do or have done. Whatever ethical considerations
and appearances may indicate, to hold that legislators commit the
federal crime of extortion when they act for the benefit of constituents
or support legislation furthering the interests of some of their
constituents, shortly before or after campaign contributions are
solicited and received from those beneficiaries, is an unrealistic
assessment of what Congress could have meant by making it a crime
to obtain property from another, with his consent, “under color of
13
Arguably, the potential negative impact of these statutes on issue-advocacy campaigns
is even more dangerous than it is to candidate-election campaigns. Issue-advocacy campaigns
are a fundamental right in a free and democratic society and contributions to them do not
financially benefit the individual politician in the same way that a candidate-election campaign
contribution does. Defendants assert, and we do not know otherwise, that this is the first case to
be based upon issue-advocacy campaign contributions.
16
official right.” To hold otherwise would open to prosecution not only
conduct that has long been thought to be well within the law but also
conduct that in a very real sense is unavoidable so long as election
campaigns are financed by private contributions or expenditures, as
they have been from the beginning of the Nation.
Id. at 272.
To avoid this result, the Court made clear that only if “payments are made
in return for an explicit promise or undertaking by the official to perform or not to
perform an official act, are they criminal.” Id. at 273 (emphasis added). The
Court quoted the Court of Appeals for the Fifth Circuit, which had said that:
A moment’s reflection should enable one to distinguish, at least in the
abstract, a legitimate solicitation from the exaction of a fee for a
benefit conferred or an injury withheld. Whether described familiarly
as a payoff or with the Latinate precision of quid pro quo, the
prohibited exchange is the same: a public official may not demand
payment as inducement for the promise to perform (or not to perform)
an official act.
Id. (quoting United States v. Dozier, 672 F.2d 531, 537 (5th Cir. 1982)).
While the Supreme Court has not yet considered whether the federal funds
bribery, conspiracy or honest services mail fraud statutes require a similar
“explicit promise,” the Seventh Circuit Court of Appeals has observed that
extortion and bribery are but “different sides of the same coin.” United States v.
17
Allen, 10 F.3d 405, 411 (7th Cir. 1993).14
The district court in this case instructed the jury that they could not convict
the defendants of bribery in this case unless “the defendant and the official agree
that the official will take specific action in exchange for the thing of value.”
(emphasis added). This instruction was fashioned by the court in direct response
to defendants’ request for a quid pro quo instruction, and was given in addition to
the Eleventh Circuit’s pattern jury instruction for § 666 bribery cases. So, even if
a quid pro quo instruction was required, such an instruction was given.
Defendants, however, assert that this instruction was inadequate under
McCormick. Defendants assert that the instruction failed to tell the jury that not
only must they find that Siegelman and Scrushy agreed to a quid pro quo, the
CON Board seat for the donation, but that this agreement had to be express. We
disagree that McCormick requires such an instruction.
McCormick uses the word “explicit” when describing the sort of agreement
that is required to convict a defendant for extorting campaign contributions.
Explicit, however, does not mean express. Defendants argue that only “proof of
14
We acknowledge, as the defendants point out, that several district courts, in unpublished
opinions, have extended the McCormick rationale to the bribery and honest service statutes. The
government points to no contrary authority, relying instead on inapposite authority not involving
campaign contributions.
18
actual conversations by defendants,” will do, suggesting in their brief that only
express words of promise overheard by third parties or by means of electronic
surveillance will do.
But McCormick does not impose such a stringent standard. One year after
McCormick, the Supreme Court approved the following jury instruction:
However, if a public official demands or accepts money in exchange
for [a] specific requested exercise of his or her official power, such a
demand or acceptance does constitute a violation of the [federal
extortion statute] regardless of whether the payment is made in the
form of a campaign contribution.
Evans v. United States, 504 U.S. 255, 258 (1992). The Court held that the
instruction “satisfies the quid pro quo requirement of McCormick v. United
States.” Id. at 268. The Court said that the “Government need only show that a
public official has obtained a payment to which he was not entitled, knowing that
the payment was made in return for official acts.” Id.
The instruction approved in Evans required that the acceptance of the
campaign donation be in return for a specific official action – a quid pro quo.15 No
generalized expectation of some future favorable action will do. The official must
agree to take or forego some specific action in order for the doing of it to be
15
The Latin means “something for something,” Black’s Law Dictionary 1282 (8th ed.
2004).
19
criminal under § 666. In the absence of such an agreement on a specific action,
even a close-in-time relationship between the donation and the act will not suffice.
But there is no requirement that this agreement be memorialized in a
writing, or even, as defendants suggest, be overheard by a third party. Since the
agreement is for some specific action or inaction, the agreement must be explicit,
but there is no requirement that it be express. To hold otherwise, as Justice
Kennedy noted in Evans, would allow defendants to escape criminal liability
through “knowing winks and nods.” 504 U.S. at 274 (Kennedy, J. concurring).
See also United States v. Blandford, 33 F.3d 685, 696 (6th Cir. 1994) (“Evans
instructed that by ‘explicit’ McCormick did not mean express”); accord United
States v. Giles, 246 F.3d 966, 972 (7th Cir. 2001); United States v. Tucker, 133
F.3d 1208, 1215 (9th Cir. 1998); United States v. Hairston, 46 F.3d 361, 365 (4th
Cir. 1995).16
Furthermore, an explicit agreement may be “implied from [the official’s]
words and actions.” Evans, 504 U.S. at 274 (Kennedy, J., concurring). As Justice
16
Nor is this court’s prior holding in United States v. Davis, 30 F.3d 108 (11th Cir. 1994),
to the contrary. In Davis, we acknowledged that, after McCormick, “an explicit promise by a
public official to act or not act is an essential element of Hobbs Act extortion, and the defendant
is entitled to a reasonably clear jury instruction to that effect.” Id. at 108. We reversed Davis’
conviction not only because his jury did not receive a reasonably clear instruction, but because
the court in that case “informed the jury that ‘a specific quid pro quo is not always necessary for
a public official to be guilty of extortion.’” Id.
20
Kennedy explained:
The criminal law in the usual course concerns itself with motives and
consequences, not formalities. And the [jury] is quite capable of
deciding the intent with which words were spoken or actions taken as
well as the reasonable construction given to them by the official and
the payor.
Id. See also United States v. Massey, 89 F.3d 1433, 1439 (11th Cir. 1996) (holding
that bribery conviction under general federal bribery statute, 18 U.S.C. § 201, may
be supported by “inferences drawn from relevant and competent circumstantial
evidence”).
In this case, the jury was instructed that they could not convict the
defendants of bribery unless they found that “the Defendant and official agree[d]
that the official will take specific action in exchange for the thing of value.” This
instruction required the jury to find an agreement to exchange a specific official
action for a campaign contribution. Finding this fact would satisfy McCormick’s
requirement for an explicit agreement involving a quid pro quo. Therefore, even
assuming a quid pro quo instruction is required to convict the defendants under §
666, we find no reversible error in the bribery instructions given by the district
court.17 Furthermore, the evidence of a corrupt agreement between Siegelman and
17
Skilling did not deal with federal funds bribery under § 666 at all and, so, does not affect
our consideration of these counts of conviction.
21
Scrushy to exchange the CON Board seat for a campaign donation was sufficient
to permit a reasonable juror to find such a quid pro quo.
2. Counts 5, 6, 7, 8, 9: Honest Services Mail Fraud & Conspiracy
Counts 6, 7, 8 and 9 charge Siegelman and Scrushy with violations of 18
U.S.C. §§ 1341 and 1346, which criminalize the use of the mails “to deprive
another of the intangible right of honest services.” Count 5 charges the defendants
with a conspiracy to commit these “honest services” offenses, in violation of 18
U.S.C. § 371. Both defendants were convicted of all these counts.
After the defendants were convicted, the Supreme Court had the opportunity
to consider the reach of these honest services criminal statutes. In Skilling v.
United States, 561 U.S. ___, 130 S. Ct. 2896 (2010), the Court held that Congress
intended these statutes to reach only those schemes to defraud the public that are
based upon allegations of bribery and/or kickbacks.18 After Skilling, therefore,
prosecutions based upon any other theory – for example, self-dealing – are not
18
Deprivation of an intangible right to honest services was a lower court sanctioned
theory of prosecution under the mail fraud statute – § 1341– at one time. In McNally v. United
States, 483 U.S. 350, 360 (1987), however, the Supreme Court held that the mail fraud statute
reached only schemes to defraud another of tangible property. Congress responded almost
immediately by enacting § 1346, which broadened mail fraud to reach schemes to defraud
another of the intangible right to honest services. After twenty years of widely diverging theories
as to what could be prosecuted as a deprivation of honest services, the Court in Skilling clarified
that Congress intended to reenact only that portion of the pre-McNally case law that was aimed at
bribery and kickback schemes. 130 S. Ct. at 2905.
22
permitted. The defendants contend that Skilling, and other errors, require that
their honest services convictions be overturned.
A. Counts 6 and 7: The Bribery of Siegelman as Honest Services Fraud
Counts 6 and 7 charge that Scrushy’s bribery of Siegelman deprived the
public of the right to the defendant’s honest services. Thus, there is no Skilling
error here – a bribery (or kickback) scheme is required under Skilling and one was
alleged.
Notwithstanding this fact, the defendants assert that their convictions on
these counts must be reversed because the jury was not instructed that the
government was required to prove a quid pro quo in order to convict them on a
bribery theory of honest services fraud.19 We find no merit in this contention.
The honest services fraud alleged in Counts 6 and 7 of the indictment is
predicated upon the same pay-to-play scheme that was alleged in the § 666 bribery
counts – Counts 3 and 4.20 Without deciding whether a quid pro quo must be
proved in an honest services bribery prosecution, 21 we hold that any error in the
19
This is the same argument defendants asserted as to the § 666 bribery instructions.
20
Count 6 charges mail fraud in connection with the mailing of a letter appointing Thom
Carman as Scrushy’s replacement on the CON Board. Count 7 charges a mailing in connection
with Carman’s reappointment to the Board.
21
Skilling limited § 1346 to bribery and kickback schemes, holding that, in the absence of
such narrowing, the statute would provide insufficient notice of what conduct is prohibited by it.
23
honest services instructions as to Counts 6 and 7 was harmless. Since Counts 6
and 7 re-allege the pay-to-play scheme charged in Counts 3 and 4, the jury
instructions as to all these counts may be read in tandem. On Counts 3 and 4, the
jury was instructed that they could not convict Scrushy of bribing Siegelman
unless they found that the defendants “agree[d] that the official will take specific
action in exchange for the thing of value.” Having been instructed they must find
a quid pro quo to convict of the bribery alleged in Counts 3 and 4, and having
The Court’s rationale reminds us that even the narrowed honest services statute must provide
constitutionally adequate notice of what conduct is prohibited.
Since a campaign donation – unlike bags of cash delivered to the official himself – is
protected First Amendment activity and, indeed, the normal course of politics in this country, due
process requires that the potential campaign donor have notice of what sort of conduct is
prohibited. Absent an explicit agreement to “buy an appointment” there is nothing inherently
corrupt about a donation followed by an appointment. It is the corrupt agreement that transforms
the exchange from a First Amendment protected campaign contribution and a subsequent
appointment by a grateful governor into an unprotected crime.
In McCormick, which interpreted the extortion under color of official right statute, the
Court required such an agreement – a quid pro quo – in order to prove that the official and the
campaign contributor corruptly agreed to a specific exchange. In so doing, the Court protected
both the First and the Fifth Amendments by reading the statute to require an agreement to swap
money for office, thereby putting both government officials and potential contributors on notice
that such an agreement would subject them to prosecution.
Although Skilling refers us to the pre-McNally bribery cases as examples of the fact
patterns that would supply notice of what constitutes an honest services bribery violation, none of
these cases was a campaign donation case. After Skilling, it may well be that the honest services
fraud statute, like the extortion statute in McCormick, requires a quid pro quo in a campaign
donation case. Thus seen, § 1346 would criminalize only the agreement to exchange a campaign
donation for an appointment The official’s duty to provide honest services, which includes the
duty to exercise his appointment powers independently of the receipt of any campaign donation,
would be violated only by an agreement to exchange an appointment for a campaign donation.
Such an agreement would amount to the official’s “selling” to the appointee the official’s duty
and authority to make appointments.
24
done so, any error in the honest services instructions as to Counts 6 and 7 was
harmless. See Cupp v. Naughten, 414 U.S. 141, 148-48. (1973) (jury instructions
must be evaluated as a whole). Therefore, we shall affirm defendants’ convictions
on Counts 5, 6 and 7.22
B. Counts 8 and 9: Scrushy’s Self-Dealing
Counts 8 and 9 allege a broader scheme than that alleged in Counts 6 and 7.
These counts allege that Scrushy “would and did use his seat on the CON Board to
attempt to affect the interests of HealthSouth and its competitors,” and that
Scrushy “would and did offer things of value to another Board member to attempt
to affect the interests of HealthSouth and its competitors.”23 Although Scrushy
was not on the Board when the alleged self-dealing occurred, the indictment
charged that it was part of the scheme that Siegelman and Scrushy “orchestrated
Scrushy’s replacement on the Board by another person employed by HealthSouth.”
The mailings charged in connection with these allegations were letters sent by the
Board to HealthSouth, notifying it that it had been awarded Certificates of Need in
22
We held above that the evidence of a bribery scheme was sufficient to support the jury’s
verdict as to Counts 3 and 4, and, similarly, we hold it sufficient as to the same scheme alleged in
Counts 5, 6, and 7.
23
The government’s initial brief on appeal states that, as to Counts 8 and 9, “the jury had
to find that Scrushy and Siegelman intended to deprive the public of their right to honest services
and intended to deceive the public, and that Siegelman intended to alter his official actions as a
result of Scrushy’s purported campaign contributions.” Red Brief, p. 53-54 (emphasis added)
25
connection with the rehabilitation hospital (Count 8) and the PET scanner (Count
9).
Although Counts 8 and 9 incorporate the bribery scheme, thus surviving
Skilling, they allege a broader scheme of which, Siegelman argues, he was
unaware and in which he did not participate. He contends that there was no
evidence at trial to link him to Scrushy’s self-dealing scheme. We agree.
Siegelman may be held criminally liable for Scrushy’s conduct on the Board
only if he was a knowing party to a scheme that included that conduct. United
States v. Toney, 598 F.2d 1349, 1355 (5th Cir. 1979). It was the government’s
theory, argued at trial and in its brief on appeal, that not only did Siegelman know
that Scrushy wanted the seat in order to self-deal on the CON Board, but that “it
was certainly foreseeable to Siegelman that Scrushy would bribe another Board
member to further HealthSouth’s interests” since “[a]fter all, Scrushy paid
Siegelman $500,000 to get HealthSouth a seat on the Board in the first place.”
The problem for the government is that there was scant evidence at trial to support
this position.
The evidence at trial was that Scrushy resigned from his seat on the Board
in January of 2001 and that, the next day, Siegelman appointed Thom Carman,
HealthSouth vice-president, to the remainder of the term. When Scrushy’s term
26
expired in July, Siegelman reappointed Carman.
While on the Board, Carman employed another member of the Board, Tim
Adams, to prepare the application for the PET scanner, paying him $8000 to do
so.24 There was also testimony that Adams was paid another $3000 for “additional
work he apparently had done on the PET scanner application” in return for his
agreement to attend the CON Board meeting at which HealthSouth’s application
for a rehabilitation hospital in Phenix City was considered. At the meeting,
Carman recused himself from voting on the application. Adams attended, and
although he abstained from voting, under the Board’s rules, his abstention did not
affect the quorum his presence established, thus permitting a vote to be taken.
There was no opposition to the application and the Board unanimously approved
the application.
Six months later, the PET scanner application was also approved. At this
meeting, Adams’ presence was not necessary to the quorum. Carman recused
himself, and Adams abstained from voting. The application was unopposed and
passed unanimously.
Alva Lambert, the Executive Director of the Board, testified that unopposed
24
There was testimony that Adams had never written a CON Board application, and that
his work was substandard.
27
applications were routinely approved, and that both these applications were
consistent with prior Board actions. There was no evidence that Siegelman knew
of Carman’s actions in hiring Adams to prepare the application. There was no
evidence that he knew of any of these Board actions.
The testimony in support of the government’s allegation of a pay-to-play
scheme whereby Scrushy paid Siegelman for a seat on the CON Board came
principally from Bailey, Martin, Young, McGahan, and Skelton. Of these
witnesses, only Skelton, HealthSouth’s lawyer in charge of certificates of need,
had any knowledge about Scrushy’s subsequent alleged self-dealing while on the
CON Board. Her testimony, however, did not mention Siegelman. Alva Lambert,
the Executive Director of the CON Board during the relevant time and the other
primary government witness in support of the allegations of Scrushy self-dealing,
testified that the Siegelman CON Board was an “extremely well-balanced” Board,
that CON Boards had never to his knowledge turned down an application for a
PET scanner, and that he never saw Siegelman exert any influence or try to exert
any influence whatsoever over a Board decision.
Neither in its brief nor at oral argument did the government point to any
testimony in support of its allegation that Siegelman and Scrushy agreed to a
broader scheme in which Scrushy would self-deal on the Board. Nor has our
28
independent and careful review of record revealed any.
Rather, the government’s brief argues that Siegelman’s knowing
participation in the broader self-dealing scheme may be inferred from three facts
proven at trial: first, that Siegelman and Scrushy agreed to exchange the CON
Board seat for money; second, that the amended Foundation financial statements
that disclosed the Scrushy donations, which were filed around the time of the
mailings, did not list Scrushy as the ultimate source of the IHS check; and third,
that Siegelman was still governor when the PET scanner and Phenix City projects
were approved and could have removed Scrushy or Carman from the Board at any
time. The first two of these facts relate primarily to the initial pay-to-play scheme,
and the final fact is not sufficient to show participation in a broader scheme, much
less knowing participation. None is remotely sufficient to permit a jury to infer
that Siegelman agreed to a broader self-dealing scheme.
In view of this absolute lack of any evidence whatsoever from which the
jury could infer that Siegelman knowingly agreed to or participated in a broader
scheme that included Scrushy’s alleged subsequent self-dealing while on the
Board, we shall reverse Siegelman’s convictions on Counts 8 and 9.
As to Scrushy’s convictions on Counts 8 and 9, one thing is clear. After
Skilling, his conviction cannot rest upon the self-dealing theory articulated in the
29
indictment. The government, therefore, points to other allegations in Counts 8 and
9 that Scrushy bribed Tim Adams (a member of the CON Board) in order to obtain
favorable CON Board action on the two HealthSouth applications. This post-
Skilling theory of Scrushy’s honest services fraud as to the Board remains viable.
The issue on appeal, then, is whether the government sufficiently proved that
Scrushy bribed Adams.25
The government’s proof of these allegations was that Scrushy resigned from
his seat on the CON Board in January of 2001 and that, the next day, Siegelman
appointed Thom Carman, HealthSouth vice-president, to the remainder of the
term.
Carman employed another member of the Board, Tim Adams, to prepare the
application for the PET scanner, paying him $8000 for the work. There was
testimony that Scrushy “was aware” of this. There was also testimony that Adams
was paid another $3000 for “additional work he apparently had done on the PET
scanner application” in return for his agreement to attend the CON Board meeting
at which HealthSouth’s application for a rehabilitation hospital in Phenix City was
25
Scrushy did not challenge the sufficiency of the evidence as to Counts 8 and 9 in his
initial brief on appeal. He did challenge the legal sufficiency of the charges. This challenge has
now been vindicated by Skilling. In view of the fact that the government has now offered a
bribery theory in support of the convictions on these counts, he is entitled to challenge that
evidence this time around.
30
considered. Lori Skelton, a HealthSouth lawyer testified that Adams had never
written a CON Board application and that his work was substandard. At the
meeting during which the hospital application was considered, Adams attended
but abstained from voting, as he had prepared the application. Under the rules, his
abstention did not affect the quorum, thus permitting a vote to be taken. There
was no opposition to the application and the Board unanimously approved the
application.
Six months later the PET scanner application was also approved. At this
meeting, Adams’ presence was not necessary to the quorum, and he again
abstained from voting. The application was unopposed and passed unanimously.
Alva Lambert, the Executive Director of the board testified that the unopposed
applications were routinely approved, and that both these applications were
consistent with prior board actions. There was no evidence that Scrushy knew of
any of these actions.
During closing, the government primarily argued the Siegelman/Scrushy
pay-to-play conspiracy, but did say that:
[Scrushy’s] own lawyer [Skelton] told you that Adams began to ask
him for stuff, and they began to be concerned that he was trying to
use his position. And they were concerned that he might harm their
interests. So what did they do? Did they report him? No, because
that’s not why Scrushy was up here. He was trying to influence him.
31
What did he do? He paid him, even though his lawyer told him you
need to leave this guy alone; this isn’t good.
The government also argued that, as a result of the CON Board seat,
Scrushy was able “to start manipulating Tim Adams’ activities, start courting him
and bringing him down and engaging in agreements to give him money.”
We conclude that the evidence that Scrushy bribed Adams is insufficient to
support Scrushy’s conviction on these counts. The evidence at best shows only
that Skelton hired Adams to prepare the scanner application, which he did, and for
which he was paid. Scrushy was “aware” of this.
The government’s case, even in Counts 8 and 9, was always primarily
focused on the pay-to-play scheme between Scrushy and Siegelman. The vast
majority of the allegations and testimony went to prove this scheme. The
government always described the scheme alleged in Counts 8 and 9 as self-
dealing, and its attempt now – post-Skilling – to emphasize the alleged bribery of
Adams finds some, but not much, support in the proof. The evidence that Adams
intended to alter his official actions as a result of the receipt of benefits from
Scrushy is insufficient, and Scrushy’s convictions on Counts 8 and 9 must be
reversed.26
26
The legal sufficiency of the jury instruction regarding the bribery of Adams is not
discussed here because we find the evidence insufficient to support the jury’s verdict. But we
32
3. Count 17: Obstruction of Justice
Siegelman was charged with two counts of obstruction of justice.27 The
indictment alleged and the government undertook to prove that eighteen months
after the $9200 pay-to-play payment to Siegelman from Lanny Young, Siegelman
and Bailey became aware of the federal-state corruption investigation and
instigated a series of sham check transactions in an effort to cover up the payment.
The coverup was designed to make it appear that Bailey had borrowed the $9200
from Young so that he could buy a motorcycle from Siegelman.
Count 16 alleged that Siegelman corruptly persuaded Bailey to write a
note that the Adams bribery could not benefit from the same spill over effect of the quid pro quo
instruction given in the § 666 instructions, since it was a different bribery. Therefore, the honest
services jury instruction would have to support Scrushy’s convictions on these counts, and that
instruction is deficient if a quid pro quo is required for conviction. The instruction required that
“they intended to alter their official actions as a result of the receipt of campaign contributions or
other benefits.” The instruction conveys the requirements for a quid – a campaign contribution –
and a quo – an official action – but the “as a result of” language fails adequately to require the
pro – the corrupt agreement to make a specific exchange.
27
Section 1512(b)(3) provides in pertinent part:
Whoever knowingly uses intimidation, threatens, or corruptly persuades another person,
or attempts to do so, or engages in misleading conduct toward another person, with intent
to –
...
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge
of the United States of information relating to the commission or possible
commission of a Federal offense . . .
33
check for $10,503 to Young with the notation “repayment of loan plus interest.”
Count 17 alleged that Siegelman corruptly persuaded Bailey to write and give him
a check for $2973.35 with the notation on it that it was the “balance due on m/c.”
Count 17 also alleged that Siegelman engaged in misleading Bailey’s attorney
with the intent to hinder or prevent the attorney’s communication of information
regarding these transactions to the FBI.
The jury acquitted Siegelman of Count 16, but convicted him on Count 17.
Siegelman contends that the evidence was insufficient to show that he persuaded
Bailey to write the check charged in Count 17 or that he misled Bailey’s attorney.
We turn now to the evidence.
At trial, Young testified that in January of 2000, Siegelman asked him for
$9200 to buy a motorcycle and that he gave it to Siegelman as part of the pay-to-
play, on-going agreement he had with Siegelman. He also testified that, eighteen
months later, after the federal-state corruption investigation began, he and Bailey
had the following conversation:
Young: Right after the investigation started, Nick [Bailey] called
me and asked me if I could recall how I made out the
check for the motorcycle. And I said – on what account I
had written the check for the motorcycle. And I said no,
why? He said because if it’s on one of your personal
accounts, you are going to have a motorcycle in your
driveway tonight.
34
Bailey testified that the coverup began when:
Bailey: I found out about the investigation that was going
on with Lanny – could have involved others; we
weren’t sure at the time. I wanted to repay
Lanny’s $9200. I did it in the form of a check.
Did a promissory note with Lanny to repay this
$9200 plus interest, $10,503.
Bailey gave the following testimony regarding Siegelman’s involvement in
this first step in the coverup:
Government: When you went to write this check to Lanny
[Young] to disguise this earlier transaction, did
you do that with the knowledge of the Governor?
Bailey: Yes.
Government: Did you talk to him about it before you did it?
Bailey: Yes.
Government: Was he in agreement with you doing that?
Bailey: Yes.
Government: When you talked to him about why you were going to do
that, did you guys talk about the fact that this criminal
investigation was going on?
Bailey: Yes.
Government: What were you and the Governor trying to accomplish
when you wrote that check back to Lanny Young 17
months after that check had been written for $9200 to the
Governor?
Bailey: To disguise the $9200 that went from Lanny to me to the
Governor.
Young’s testimony regarding the purported repayment was:
Government: Had you loaned Nick Bailey any money that would cause
him to give you that $10,503 check?
Young: No.
35
Government: Well, what was going on when he wrote you that check,
if you know?
Young: He was trying to make the $9200 look like a loan.
Bailey testified that the final step in the coverup was to give Siegelman a
$2,793.35 check with the notation on it that it was “balance due on m/c” to make it
appear that the check was Bailey’s final payment for the motorcycle. His
testimony about Siegelman’s involvement in this step of the coverup was:
Government: What was going on here?
Bailey: We made a decision to finalize the agreement we made
regarding the motorcycle early on, and this was to finish
that. We met at the Governor’s attorney’s office and
with my attorney, and that’s when I finished paying the
Governor in full for the motorcycle to carry out the plan
that we had entered into probably 12 to 18 months
earlier.
Government: And what was that plan?
Bailey: To disguise the $9200 from Lanny to the Governor.
Finally, Bailey testified regarding his interview with the FBI regarding this
meeting:
Government: Now, not long after [he gave the check to
Siegelman] you had an occasion to be interviewed
by federal and state criminal investigators, didn’t
you.
Bailey: Yes, sir.
Government: When they questioned you about this transaction on that
occasion, did you tell them the truth about what had
happened?
Bailey: No.
Government: Why not?
36
Bailey: There were a number of reasons; but primarily, I was still
trying to protect myself and my boss.
The jury considered all of this testimony and found Siegelman guilty of the
obstruction of justice charged in Count 17, but not in Count 16. This means that
the jury decided, as a matter of fact, that Siegelman persuaded Bailey to write the
check for $2973.35, but not the initial check for $10,500.
In evaluating the sufficiency of the evidence to support the jury’s verdict,
we are required to “view the evidence in the light most favorable to the
government and resolve all reasonable inferences and credibility evaluations in
favor of the jury’s verdict.” United States v. Robertson, 493 F.3d 1322, 1329 (11th
Cir. 2007). The evidence needs not “be wholly inconsistent with every conclusion
except that of guilt, provided that a reasonable trier of fact could find that the
evidence established guilt beyond a reasonable doubt.” Id. (internal quotation
marks omitted).
A reasonable juror could have concluded that Siegelman persuaded Bailey
(he asked and Bailey agreed) to take the final step in the coverup by giving him a
$2793.35 check with the notation that it was final payment for the motorcycle.
See United States v. Tocco, 135 F.3d 116, 126-27 (2d Cir. 1998) (affirming jury
inference of persuasion from defendant’s strong influence over witness who was
37
employee); United States v. Morrison, 98 F.3d 619, 629-30 (D.C. Cir. 1996)
(making a request sufficient persuasion). The testimony was that Siegelman knew
and agreed that Bailey would disguise Young’s payment to Siegelman as a loan to
Bailey to buy the motorcycle by “paying back” Young with his own check. The
evidence further showed that Siegelman accepted and cashed the $2973.35 check
from Bailey with the notation that it was final payment for the motorcycle.
Finally, the jury had heard testimony that Bailey always did what Siegelman asked
him to do.
The jury’s acquittal on Count 16 shows that it was not convinced beyond a
reasonable doubt that Siegelman instigated the coverup by directing Bailey to “pay
back” Young with the initial $10,500 check. But, by the time Bailey wrote the
check to Siegelman for $2793.35, just over four months later, as a final step in the
coverup, the jury’s conviction on Count 17 indicates that it concluded Siegelman
not only knew what Bailey was doing to cover up Young’s corrupt payment, but
that he was directing the coverup by persuading Bailey to write the check to him.
This sort of split verdict is itself evidence that the jury considered the
charges carefully and individually, addressed the strength of the evidence on each
charge, and reached a reasoned conclusion. See United States v. Dominguez, 226
F.3d 1235, 1248 (11th Cir. 2000) (making these comments in the context of
38
allegations of premature jury deliberations).
Siegelman’s argument against the sufficiency of this evidence is the same he
made against his convictions on virtually all the other counts – that the evidence in
this case was not perfect, that it relied too heavily on circumstances and required
the jury to draw inferences from those circumstances that might have been drawn
differently by different jurors.
But this is far too academic a view of trial by jury. In the absence of a
defendant’s confession or observation of his wrongdoing by a third person, proof
by circumstantial evidence and the fair inferences to be drawn therefrom is both
necessary and permissible. Siegelman’s contention throughout his brief that
“there was no evidence” to support a particular inference too often means merely
that there was no evidence other than Bailey or Young’s testimony. While
Siegelman may not approve that the testimony of co-conspirators was sufficient to
support the jury’s findings of fact, the jury was free to disregard or disbelieve it.
They believed it.
With respect to the “misleading” prong of the statute, the evidence was
more than sufficient to support the jury’s finding that the delivery of the final
check in the presence of the two lawyers and the use of the lawyers to “finalize”
the sale of the motorcycle to Bailey was an attempt to “create witnesses as part of
39
a cover-up and to use unwitting third parties or entities to deflect the efforts of law
enforcement agents in discovering the truth,” United States v. Veal, 153 F.3d
1233, 1247 (11th Cir. 1998) (statute satisfied by “the possibility or likelihood that
[the defendants’] false and misleading information would be transferred to federal
authorities. . .”). The jury was entitled to infer from the sham check transaction in
Bailey’s lawyer’s presence that Siegelman intended to mislead the lawyer into
believing that the transaction was legitimate, that Bailey had, indeed, purchased
the motorcycle from him, and that the check was final payment. As the “unwitting
third party,” the lawyer would be in a position factually to support the coverup
since Siegelman clearly knew that there was a “possibility” that the federal
investigators would come asking.28
4. Admission of a Co-conspirator’s Statement
Defendants challenge the admission of Hanson’s out-of-court statement to
Martin at a HealthSouth retreat in the fall of 1999. Martin testified that Hanson
“was bragging about the fact that he was able to get [HealthSouth] a spot on the
CON Board with the help of the [IHS] check.”
Under Fed. R. Evid. 801(d)(2)(E), a court has the discretion to admit co-
28
Indeed, the “bill of sale” for the motorcycle, prepared by the attorneys, was introduced
at this trial. Similarly, Bailey had also delivered the “loan re-payment” check for $10,503.39 to
Young in the office of Young’s lawyer.
40
conspirator statements made during and in furtherance of the conspiracy. The
court’s admission of such statements is an abuse of its discretion to do so if the
statements do not meet this legal standard. United States v. Magluta, 418 F.3d
1166 (11th Cir. 2005).
This court applies a liberal standard in determining whether a statement was
in furtherance of a conspiracy. United States v. Santiago, 837 F.2d 1545, 1549
(11th Cir. 1988). “The statement need not be necessary to the conspiracy, but must
only further the interests of the conspiracy in some way.” United States v. Miles,
290 F.3d 1341, 1351 (11th Cir. 2002). “[I]f the statement ‘could have been
intended to affect future dealings between the parties,’ then the statement is in
furtherance of a conspiracy.” United States v. Caraza, 843 F.2d 432, 436 (11th
Cir. 1988) (quoting United States v. Patton, 594 F.2d 444, 447 (5th Cir. 1979)).
Finally, “[s]tatements between conspirators which provide reassurance, serve to
maintain trust and cohesiveness among them, or inform each other of the current
status of the conspiracy further the ends of the conspiracy . . . .” United States v.
Ammar, 714 F.2d 238, 252 (3d Cir. 1983). Even defendants concede that boasting
or bragging is in furtherance of a conspiracy if the statements are directed at
obtaining the confidence or allaying the suspicions of co-conspirators. Santiago,
837 F.2d at 1549.
41
Hanson’s statement at the HealthSouth retreat furthered the conspiracy. We
agree with the government that, given Martin’s own involvement in the conspiracy
(obtaining the IHS check), Hanson’s bragging to him about purchasing the CON
Board seat “with the help of” the IHS check informed Martin that their plan had
worked and that Martin’s involvement had helped. This alone is sufficient to
permit its introduction under Ammar, 714 F.2d at 252. Additionally, however, the
statement is easily seen to affect the co-conspirators’ future dealings because
Martin’s assistance might be needed in connection with the second $250,000
donation and Hanson knew this. Thus, Hanson’s statement easily meets the
Caraza standard. 843 F.2d at 436 (approving statement admitted after several
acts of conspiracy helping to ensure final acts). The district court did not abuse its
discretion in admitting this evidence.
5. Juror Misconduct
Defendants filed a joint motion for a new trial under Fed. R. Crim. P. 33(a),
alleging juror misconduct by way of both juror exposure to extraneous information
as well as by improper juror deliberation and that each impropriety violated the
Sixth Amendment and requires a new trial.29 After conducting two evidentiary
29
Scrushy has moved this court to appoint a special master under Fed. R. App. R. 48 to
investigate the matter. The request is denied.
42
hearings on this issue,30 the district court held that no substantial violation of the
Sixth Amendment occurred that required a new trial. We review the denial of a
motion for new trial based on alleged juror misconduct for an abuse of discretion.
United States v. Venske, 296 F.3d 1284, 1290 (11th Cir. 2002).31 We will consider
each of the claims of misconduct in turn.
A. Juror Exposure to Extraneous Information
The Sixth Amendment to the United States Constitution guarantees the right
to trial by an impartial jury. U.S. Const. amend. VI. To protect the right to an
impartial jury, the Supreme Court has recognized that “[d]ue process means a jury
capable and willing to decide the case solely on the evidence before it, and a trial
judge ever watchful to prevent prejudicial occurrences and to determine the effect
of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217
(1982). The jury must determine guilt solely on the basis of the evidence
presented at trial and the court’s instructions as to the applicable law. Turner v.
Louisiana, 379 U.S. 466, 472-73 (1965).
We presume, however, that the jury has been impartial. United States v.
30
In the first of these hearings, the court considered the affidavit of Juror 5 to determine
whether it established sufficient reason to conduct further inquiry, concluding that it did.
31
Of course, the district court’s findings of facts supporting its legal conclusion are
reviewed only for clear error. United States v. Cuthel, 903 F.2d 1381, 1383 (11th Cir. 1990).
43
Winkle, 587 F.2d 705, 714 (5th Cir. 1979).32 A defendant who alleges denial of this
right resulting from juror exposure to extraneous information has the burden of
making a colorable showing that the exposure has, in fact, occurred. Id. See also
United States v. Ayarza-Garcia, 819 F.2d 1043, 1051 (11th Cir. 1987). If the
defendant does so, prejudice to the defendant is presumed and the burden shifts to
the government to show “that the jurors’ consideration of extrinsic evidence was
harmless to the defendant.” Remmer v. United States, 347 U.S. 227 (1954);
United States v. Ronda, 455 F.3d 1273, 1299 (11th Cir. 2006).33
If the district court concludes the exposure to the extrinsic evidence was
harmless to the defendant, on appeal, we review this conclusion for an abuse of
discretion. Id. at 1296 n.33. In doing so, we look at all the circumstances and we
consider: (1) the nature of the extrinsic evidence; (2) the manner in which it
reached the jury; (3) the factual findings in the district court and the manner of the
court’s inquiry into the juror issues; and, (4) the strength of the government’s case.
Id. at 1299-1300.
32
All decisions of the Fifth Circuit prior to October 1, 1981, when this court was
established, have been adopted as decisions of this court. Bonner v. Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981).
33
Ronda recognized that there has been some inconsistency in our application of Remmer,
but, as in Ronda, we decline to consider this issue because it has no bearing on the outcome. 455
F.3d at 1299 n.36.
44
Defendants attached several exhibits to their motion regarding juror
misconduct, including news articles after the trial and copies of affidavits by Juror
5 and his wife and his wife’s pastor. This material, especially the affidavit of Juror
5, suggested that, during the trial, some of the jurors may have seen information
about the trial on the internet.
Finding that the defendants had made a colorable showing of extrinsic
influence on the jury, the district court held a hearing to which all twelve jurors
were summoned and told to bring with them any material related to outside
information that they or any other juror considered during trial or deliberations.
At the hearing, the court asked each juror a series of twelve questions designed to
reveal the nature and extent of any extrinsic evidence to which the jurors were
exposed.34 Each juror testified under oath in response to the twelve questions and
follow-up questions.
Based upon this testimony, the district court found that there was credible
evidence establishing that during deliberations some of the jurors were exposed to
the following extrinsic evidence: (1) a copy of the Second Superseding Indictment
obtained from the district court’s own website; and (2) juror information from the
website concerning the foreperson’s obligation to preside over the jury’s
34
These questions are attached as Exhibit “A” to this opinion.
45
deliberations and to give every juror a fair opportunity to express his views.
1. Exposure to a Book About the Role of the Foreperson
As a matter of fact, and based upon the testimony given by the jurors in the
hearing, the district court found that the extrinsic evidence accessed from the
district court’s own website by Juror 7 and mentioned by him in jury deliberations
did not pertain to any substantive issue in defendants’ trial. It concerned only the
process of deliberation. Furthermore, it did not contradict any instruction given by
the court, was consulted and discussed for only a few moments of a more than
five-day deliberation. It was discussed to encourage full participation by all the
jurors. The district court concluded that the exposure of the jury to this extrinsic
information was harmless to the defendants.
We agree. In substantially similar circumstances, we affirmed a district
court’s decision that a new trial was not required in a case where the jury foreman
went to the library and checked out a book entitled What You Need to Know for
Jury Duty, and then exposed the jury to it. United States v. De La Vega, 913 F.2d
861, 869 (11th Cir. 1990). In that case, the foreperson read the book, implemented
suggestions for jury procedures outlined in the book, brought the book to the jury
room, and showed some other jurors a page in the book that outlined
organizational steps for deliberation. Id. at 869-70. We held that the district court
46
did not abuse its discretion in concluding that there was no reasonable possibility
that the introduction of this extrinsic information prejudiced the defendants such
that a new trial was required. Id. at 870-71.
The district court did not abuse its discretion in concluding that the
introduction of similar information in this case was harmless beyond a reasonable
doubt. The district court carefully investigated this matter. Its factual findings
that this information was unrelated to the charges or any evidentiary matter in the
case, and that it was introduced by a juror, not an outside influence, are not clearly
erroneous. Furthermore, the district court held, and we agree, that the
government’s case was strong on the counts of conviction. In view of these
findings, we conclude that the district court did not abuse its discretion in holding
that there was no reasonable possibility of prejudice to the defendants arising out
of the exposure of the jury to this extrinsic evidence and denying the motion for a
new trial.
2. Exposure to the Unredacted Second Superseding Indictment
During trial, the district court granted the government’s motion to cure what
the court had determined was mutiplicitous charging of the federal funds bribery
counts by removing reference to Siegelman in Count 4 and to Scrushy in Count 3
47
of the Second Superseding Indictment.35 The district court provided the jury with
a copy of the resulting redacted Second Superseding Indictment for its
deliberations.
Based upon its questioning of the jurors, the district court found that Juror 7
and Juror 40 accessed a copy of the unredacted Second Superseding Indictment
early during the jury’s deliberations. They each obtained the indictment from the
court’s website in order to be able to review the allegations outside of the jury
deliberation room. Additionally, some other members of the jury became aware
that Jurors 7 and 40 had spent time outside of the jury room reviewing the content
of this document. While the jury did not discuss this fact at length, it did discuss
it. There was no evidence, however, that any members of the jury other than
Jurors 7 and 40 actually read the unredacted Second Superseding Indictment, or
that either Juror 7 or Juror 40 ever realized that there was any difference between
the two indictments.
The district court found that the two jurors had been exposed to the
unredacted indictment, which was extrinsic information, and that other jurors had
been exposed to the fact that those jurors had obtained a copy of the document
35
The government had charged both in each count, thereby permitting each to be
convicted twice for the same offense.
48
from the internet. Considering the totality of the circumstances, including the
substantial evidence of defendants’ guilt on the counts of conviction, the district
court concluded that the jury’s exposure to this extrinsic information was harmless
beyond a reasonable doubt and it denied them a new trial.
We agree. This extrinsic evidence was the charging document itself. The
district court specifically found that, prior to the redaction, the jurors had been
repeatedly exposed to comment by the court and all the parties on the contents of
the Second Superseding Indictment. Exposure to the original indictment,
including the duplicitous charging, was, therefore, innocuous and cumulative of
information properly before the jury. The district court specifically found that the
exposure of any juror to the unredacted indictment would not have provided that
juror with factual information to which the juror did not already properly have
access, nor would it have provided that juror with any legal knowledge different
from that provided to the jury as a whole.
Furthermore, the jury was repeatedly instructed that the indictment was not
evidence of guilt, and that it must decide the case solely on the evidence properly
admitted during the trial. The jury is presumed to follow the district court’s
instructions. See United States v. Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996).
Based upon the district court’s investigation of this claim, its careful review
49
of the nature, source and use of the extrinsic information in the context of the
substantial evidence of defendants’ guilt, we hold that the district court did not
abuse its discretion in denying defendants a new trial for this reason.
3. Exposure to Limited Portions of Media Coverage
During the hearing, Jurors 7, 22, and 40 revealed that they had inadvertently
experienced limited exposure to some media coverage during the trial. These
jurors testified that, despite their best efforts, they had overheard snippets of
television coverage or seen headlines regarding the case in newspapers or online.
The court found that such limited, inadvertent exposure was not surprising given
the intense media scrutiny of the trial. The court further found that the jurors’
testimony was especially credible since it was clear to it that the jurors felt
compelled to disclose even the most incidental and inadvertent exposure to
extrinsic information. Juror 22 testified that she would leave the room or mute the
television when the news came on, and Jurors 7 and 40, who saw headlines,
testified that they did not read the accompanying stories prior to the verdict. The
court also found that there was no evidence that the jury discussed any media
reports prior to the verdict.
Our review of the record supports these findings and the district court’s
conclusion that the exposure of these jurors to media reports about the trial was
50
harmless. In view of the limited and incidental nature of this exposure and the
substantial evidence of defendants’ guilt on the counts of conviction, we hold that
the district court did not abuse its discretion in denying the defendants a new trial
for this reason.
B. Juror Deliberations
Defendants rely upon purported emails allegedly exchanged between jurors
during trial and deliberations. Documents said to be copies of such exchanges
were mailed anonymously to the defense, to argue that there was both premature
jury deliberation and deliberation by fewer than all the jurors in this case, and that
this improper deliberation deprived the defendants of their Sixth Amendment right
to an impartial jury.
These allegations posed a very different problem for the district court from
those suggesting that the jury had been subject to external influences. District
courts are subject to very stringent limitations on their authority to question jurors
about their deliberations, and to use one or more juror’s testimony to impeach the
verdict of all. In fact, for nearly a century, the Supreme Court has recognized a
near-universal and firmly established common-law rule flatly prohibiting the use
of juror testimony to impeach a verdict. Tanner v. United States, 483 U.S. 107,
117 (1987); McDonald v. Pless, 238 U.S. 264 (1915).
51
The Court has repeatedly emphasized the important policy considerations
that require the shielding of juries from public scrutiny of their deliberations.
Williams v. Florida, 399 U.S. 78, 100 (1970). “The essential feature of a jury
obviously lies in the interposition between the accused and his accuser of the
commonsense judgment of a group of laymen, and in the community participation
and shared responsibility that results from that group’s determination of guilt or
innocence.” Id. Because our system of justice so prizes this unique and essential
feature of our criminal justice system, it both anticipates and tolerates some level
of imperfection in the system. United States v. D’Angelo, 598 F.2d 1002, 1004-05
& n.4 (5th Cir. 1979).36 As the Supreme Court has explained:
There is little doubt that postverdict investigation into juror
misconduct would in some instances lead to the invalidation of
verdicts reached after irresponsible or improper juror behavior. It is
not at all clear, however, that the jury system could survive such
efforts to perfect it. Allegations of juror misconduct, incompetency,
or inattentiveness, raised for the first time days, weeks, or months
after the verdict, seriously disrupt the finality of the process.
Moreover, full and frank discussions in the jury room, jurors’
willingness to return an unpopular verdict, and the community’s trust
in a system that relies on the decisions of laypeople would all be
undermined by a barrage of postverdict scrutiny of juror conduct.
Tanner, 483 U.S. at 120-21 (internal citations omitted).
36
For example, we permit logically inconsistent jury verdicts as to different counts, and
even as to different co-defendants. We permit jury nullification. We do not inquire whether a
verdict is the result of compromise, mistake or even carelessness.
52
Permission to attack jury verdicts by postverdict interrogations of jurors
would allow defendants to launch inquiries into jury conduct in the hope of
discovering something that might invalidate the verdicts against them. “Jurors
would be harassed and beset by the defeated party in an effort to secure from them
evidence of facts which might establish misconduct sufficient to set aside a
verdict.” Id. at 119-20 (quoting McDonald, 238 U.S. at 267-68)). Such events
would result in “the destruction of all frankness and freedom of discussion” in the
jury room. Id. And, as early as 1892, the Supreme Court expressed concern that
such postverdict investigation would “induce tampering with individual jurors
subsequent to the verdict.” Mattox v. United States, 146 U.S. 140, 149 (1892). In
a justice system that depends upon public confidence in the jury’s verdict, such
events are unacceptable.
In an effort to protect the jury system, the Federal Rules of Evidence
enshrine the common law rule against the admission of a juror’s testimony to
impeach the jury’s verdict. Rule 606(b) provides:
(b) Inquiry into validity of verdict or indictment. Upon an inquiry
into the validity of a verdict or indictment, a juror may not testify as
to any matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or any other juror’s
mind or emotions as influencing the juror to assent to or dissent from
the verdict or indictment or concerning the juror’s mental processes in
connection therewith, except that a juror may testify on the question
53
whether extraneous prejudicial information was improperly brought
to the jury’s attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may a juror’s
affidavit or evidence of any statement by the juror concerning a
matter about which the juror would be precluded from testifying be
received for these purposes.
Fed. R. Evid. 606(b).
By disallowing a juror to impeach the jury’s verdict by testimony about their
deliberations, the rule operates to protect jurors from postverdict investigation and
to protect the verdict from endless attack.37
We have previously affirmed district courts that have denied motions for a
new trial while declining to conduct investigations into jury deliberations. Cuthel,
903 F.2d at 1381. In Cuthel, we held that the district court did not abuse its
discretion in failing to conduct an evidentiary hearing despite evidence of
premature deliberations by the jury and evidence of intrajury pressure to reach a
verdict. Id. at 1383; see also United States v. Barshov, 733 F.2d 842, 852 (11th Cir.
1984) (duty to investigate arises only in the context of extrinsic influence); United
37
The only exception to the rule is to permit the sort of examination of jurors conducted
by the district court in this case to determine whether the jury considered extrinsic information to
the defendant’s prejudice, as discussed in the immediately preceding portion of this opinion. The
district court found as a matter of fact that it had “no doubt whatsoever that the documents
purporting to be juror emails on which the Defendants rely are wholly unrelated to any evidence
of jury exposure to extraneous information or outside influence.” We conclude that this finding
of fact is not clearly erroneous. In addition, we see no abuse of discretion in the way the district
court dealt with the three other emails called to its attention after the evidentiary hearings.
54
McElroy by McElroy v. Firestone Tire & Rubber Co., 894 F.2d 1504, 1511 (11th
Cir. 1990) (denying defendant’s requests to interview the jury members based on
allegations of improper deliberations).
The district court said that it had serious reservations about the authenticity
of these purported emails, but concluded that the law barred it from questioning
the jurors about their deliberations, or about the emails purporting to suggest that
the jurors deliberated improperly.38 Instead, it stated that “[e]ven if the Court were
to assume arguendo the authenticity of these documents,” it would not find that
the emails established that the jury either deliberated prematurely or without all its
members in any significant measure.
The court based this conclusion upon its factual findings that some of the
emails might relate to discussion of the case prior to the submission of the case to
the jury, that others might indicate limited deliberation by fewer than all the
members of the jury, and that some indicate possible consideration of penalties
faced by the defendants. According to the district court, this was the most that the
emails showed.
38
Defendants urged the court to obtain information regarding the emails from the jurors’
internet providers but provided the court with no legal authority in support of this “unusual and
intrusive investigation of jurors.” In view of the law governing postverdict investigation of
jurors, the court denied the request.
55
The court concluded that, while “it is unquestionably clear that such
discussions constitute misconduct, it is not the sort of conduct that this Court can
or should directly inquire into by interrogating jurors, nor is it in this Court’s view
grounds for granting a new trial.” Considering the totality of the circumstances,
the strength of the government’s case, the length of jury deliberations, and the
court’s instructions to the jury, including the instructions not to decide or discuss
the case prematurely, the district court held that there was no reasonable
possibility that the defendants suffered prejudice from any premature
deliberations, discussion of penalty, or deliberation with fewer than all the
members of the jury present.
We agree. Additionally, we note that the verdict in this case was split in
that Siegelman was acquitted of many of the charges.39 Such a split verdict lends
supports to a conclusion that the jury carefully weighed the evidence and reached
a reasoned verdict free of undue influence and did not decide the case prematurely.
United States v. Dominguez, 226 F.3d 1235, 1248 (11th Cir. 2000); Cuthel, 903
F.2d at 1383.
39
Scrushy argues that because he was convicted on all counts against him, that the verdict
was not split as to him. The law, however, is to the contrary. See United States v. Baker, 432
F.3d 1189, 1237 (11th Cir. 2005) (a split verdict is one in which the jury finds “guilt as to some
defendants or charges but not as to others”).
56
We conclude, therefore, that the district court did not abuse its discretion in
deciding that the purported emails, assuming they are authentic, do not entitle
defendants to a new trial. The district court applied the relevant factors to the
email evidence, and was well within its discretion to conclude that they did not
demonstrate premature deliberation or deliberation with fewer than all jury
members sufficient to arise to a constitutional violation.40
6. District Court Failure to Recuse
Scrushy contends that he is entitled to a new trial because Chief Judge
Fuller should have disclosed his “extraordinary extrajudicial income from business
contracts with the United States Government pursuant to 28 U.S.C. § 455(a).”
This claim is predicated upon Chief Judge Fuller’s ownership interest in two
aviation companies that engage in business with agencies of the United States
government. This claim was raised over nine months after trial and incorporated
information learned from the internet and from Chief Judge Fuller’s Financial
Disclosure Reports.
A motion for recusal based upon the appearance of partiality must be timely
40
Defendants moved just before oral argument for permission to file supplemental
information regarding juror misconduct. At oral argument, the government represented to the
court that its investigation into that misconduct did not involve the allegations of juror
misconduct at issue in this appeal. For this reason, we shall deny the motion.
57
made when the facts upon which it relies are known. The untimeliness of such a
motion is itself a basis upon which to deny it. Phillips v. Amoco Oil Co., 799 F.2d
1464, 1472 (11th Cir. 1986). The rule has been applied when the facts upon which
the motion relies are public knowledge, even if the movant does not know them.
See National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 957-59
(2d Cir. 1978). The purpose of the rule is to “conserve judicial resources and
prevent a litigant from waiting until an adverse decision has been handed down
before moving to disqualify the judge.” Summers v. Singletary, 119 F.3d 917, 921
(11th Cir. 1997).
Scrushy’s recusal motion was untimely, based upon information readily
available to him prior to trial, and has all the earmarks of an eleventh-hour ploy
based upon his dissatisfaction with the jury’s verdict and the judge’s post-trial
rulings. It has no merit.
7. Jury Selection Procedures
Federal criminal defendants have both a statutory and a constitutional right
to a grand and a petit jury selected at random from a fair cross-section of their
community. Juror Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1869
(the “JSSA”); U.S. Const. amend. VI. By its terms, the JSSA provides remedies
for only a “substantial failure to comply” with its requirements for jury selection
58
procedures that are random, objective, and that produce a jury that is a fair-cross
section of the community. 28 U.S.C. § 1861 and 1867(d). Mere technical
deviations from the JSSA’s requirements do not violate the JSSA if they do not
result in impermissible discrimination in the jury selection process. United States
v. Gregory, 730 F.2d 692, 699 (11th Cir. 1984).
Before their trial, both Siegelman and Scrushy filed virtually identical
motions, alleging that the Middle District of Alabama committed substantial
violations of the JSSA in constructing its Qualified Jury Wheels in 2001 and 2005,
and in the selection from those wheels of both their grand and petit juries.
Defendants claimed that these violations resulted in their juries being not a fair-
cross section of their community. Specifically, Scrushy and Siegelman challenged
the Middle District’s liberal deferral policy and its procedures for summoning
previously deferred jurors, claiming that they resulted in juries that under-
represented African-Americans. The district court denied these challenges.
Defendants appeal this denial.
A panel of this court has upheld the jury selection procedures of the Middle
District of Alabama in a case raising virtually the same claims as those asserted
here. United States v. Carmichael, 560 F.3d 1270 (11th Cir. 2009). Carmichael
held that the Middle District’s jury selection procedures – including the liberal
59
deferral policy and the procedures for summoning previously deferred jurors – did
not substantially violate the JSSA. Id. at 1281. Additionally, Carmichael held
that the Middle District’s jury selection procedures did not result in the systematic
under-representation of African-American jurors on the 2001 Qualified Jury
Wheel or in the jury pools selected from that wheel. Id.
In his brief, which Siegelman adopted, Scrushy acknowledges the identity
between the claims presented in Carmichael and his claims presented here,
conceding that “[b]ut for the fact that only the petit jury which was drawn from the
2001 jury wheel was challenged there [and the petit jury was drawn from the 2005
wheel here], the issues presented overlap.” This is not surprising since the same
expert who opined in Carmichael about alleged violations of the JSSA and the
Constitution is relied upon here, using the same evidence in support of those
claims. At the time defendants filed their pre-trial motion, however, Carmichael
had not yet been decided. Now that it has, it disposes of their claims as to the
2001 jury wheel.
With respect to the 2005 wheel, the district court in this case held that
defendants were not entitled to any relief because the challenged objectivity and
randomness practices did not apply to that wheel. Additionally, the district court
found that defendants had not shown the absolute racial disparity between the
60
composition of his juries and the community at-large of over 10% that is required
to establish a statutory or constitutional violation. See Carmichael, id.; see also
United States v. Gresham, 63, Fl3d 1074, 1078-79 (11th Cir. 1995). We agree.
Defendants’ claims regarding the Middle District of Alabama’s jury
selection procedures are without merit and do not entitle them to any relief.
8. Siegelman’s Sentence
Siegelman contends that the district court’s decision to grant an upward
departure under U.S.S.G. §§ 2C1.1 cmt.n.5, 5K2.0 (2002) violated the First
Amendment and 18 U.S.C. § 3553(a) because it was allegedly based on
Siegelman’s statements criticizing the prosecutors in and the prosecution of this
case. If this were true, we might agree.41 It does not, however, accurately describe
the district court’s reasons for the upward departure.
In both its written motion for an upward departure and its arguments at
sentencing, the government maintained that Siegelman’s criminal conduct
reflected such a systematic and pervasive corruption of the office of Governor and
Lieutenant Governor, as well as various state agencies, such as the CON Board, as
to cause a loss of public confidence in the government of the State of Alabama.
41
The government argues persuasively that, even if there was error here, it was harmless
as the departure did not affect Siegelman’s ultimate sentence. As we need not, we do not reach
this argument.
61
The government’s motion focused on this allegation of systematic and pervasive
corruption of state government. The government contended that Siegelman “for
over six years abused the Executive Branch of the State of Alabama.”
The statute permits and the cases relied upon by the government uphold
upward departures where the district court finds that there was pervasive
corruption of a governmental function resulting in a loss of public confidence in
state or local government. See U.S.S.G. §§ 2C1.1 cmt.n.5, 5K2.0; United States v.
Shenberg, 89 F.3d 1461, 1476-77 (11th Cir. 1996); United States v. Reyes, 239
F.3d 722, 744-45 (5th Cir. 2001).
Although the government did refer at sentencing to Siegelman’s very public
criticisms of the federal criminal justice system, including complaints of selective
prosecution, there is no indication that the court based its upward departure
decision on these attacks. In replying to Siegelman’s counsel statement about
saving the issue of alleged selective prosecution for another day, the court
responded, “Then let’s do that.”
In considering the request for an upward departure “as set forth in the
Government’s motion,” the district court found that Siegelman’s conduct resulted
in a loss of public confidence in the executive branch of Alabama government.
The district court took judicial notice of the “plethora of media attention” to the
62
case by the local and national media, and relied on this in finding that the case had
severely undermined public confidence in Alabama state government.
Siegelman does not contend that an upward departure for his systematic and
pervasive corruption of state government was inappropriate, and even his attorney
at sentencing conceded that “certainly the argument could be made, in all candor,
that there could be some question as to public confidence in this case.”
The district court expressly stated that it was upwardly departing in order to
“preserve the integrity of the judiciary and the confidence of the people of the state
of Alabama in its elected officials.” We find no abuse of discretion in the district
court’s upward departure in sentencing Siegelman.
III.
As to Siegelman, we affirm Counts 3, 5, 6, 7 and 17. We reverse as to
Counts 8 and 9 and vacate the convictions on these counts.
As to Scrushy, we affirm as to Counts 4, 5, 6, and 7. We reverse the
convictions on Counts 8 and 9. Scrushy’s sentence as to Counts 8 and 9 is
vacated.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. All
pending motions in this case are DENIED. Remanded for resentencing.
63
Exhibit A
First question: Did anyone other than another juror try to influence your
thinking about this case or your vote on the substantive counts
against any Defendant?
Second question: Do you have any reason to believe that any juror was subjected
to attempts to influence his or her thinking about the case by
anyone other than another juror?
Third question: Did anyone other than another juror attempt to discuss the case
with you during the time you were a juror in this case?
Fourth question: During the time that you were serving as a juror did you view
any news reports or other information relating to this case or to
any Defendant from sources such as newspapers, magazine,
radio, or television broadcasts or Internet sites?
Fifth question: During the time that you were serving as a juror did you view
any materials from any books, newspapers, Internet sites or any
other source relating to any witness, any legal issue, or any
factual issue related to this case?
Sixth question: During the time that you were serving as a juror did you in any
way attempt to independently investigate any facts or law
relating to this case?
Seventh question: During the time that you were serving as a juror did you
overhear any conversations between persons not on the jury or
between non-jurors as to any member of the jury relating to this
case?
Eighth question: During the time that you were serving as a juror did you view
or hear any extraneous information about the penalty that might
be applicable to any Defendant if he was convicted of the
charges in this case?
64
Ninth question: During the time that you were serving as a juror did you obtain
extraneous information from any source about your role as a
juror, your jury service generally, or the role of the foreperson?
Tenth question: During the time that you served as a juror did any other juror
say or do anything that caused you to believe that he or she
may have been exposed to extraneous information as I have
defined it about this case from any source?
Eleventh question: During the time that you were serving as a juror did you view
or hear any extraneous information about either the law
applicable to this case or any factual material relating to this
case?
Twelfth question: Did you bring any documents in response to the subpoena
relating to extraneous information?
65