United States v. Don Eugene Siegelman

Opinion

[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.

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?