Are Richard Scrushy's current legal problems a self-inflicted, non-mortal wound? Prosecutors would argue Scrushy's recent troubles brought about by an alleged violation of his terms of release on a recent family trip to Disney World are, as usual, self-inflicted. But attorneys for the formerly high-flying businessman argue in a court document that the government's theory about Scrushy testing the waters for an eventual flee attempt are all wet. More >>
MONTGOMERY, Ala., March 29, 2007 -- Businessman Richard Scrushy may be headed to home confinement. There was a petition for a summons from his probation officer filed with the court Thursday that says Scrushy appears to have violated the instructions of the probation officer on a recent trip to Disney World.
According to the petition to modify conditions of relase:
"On February 21, 2007, the defendant obtained permission from the Court to travel to Orlando, FL specifically Walt Disney World from Friday, March 16, 2007, to Saturday, March 24, 2007. The probation officer verified that the defendant left his approved hotel on Tuesday, March 20, 2007, and departed the Orlando, FL area. "
"Supervision history of defendant and actions taken by officer: The defendant was originally released on bond by Chief U.S. Magistrate Judge Charles S. Coody on October 28, 2005. Following his conviction by a jury verdict on June 29, 2006, Chief U.S. District Judge Mark E. Fuller modified the defendant's conditions of release to include restricting the defendant's travel to the Northern District of Alabama and the Middle District of Alabama. The defendant has been supervised by the U.S. Probation Office in the Northern District of Alabama due to his residence being located in that district. The defendant has complied generally to the conditions imposed since his release. "
The probation officer is asking the court to place Mr. Scrushy on home confinement:
"The defendant shall participate in the Home Confinement Program to begin at a time and residence designated by the probation officer. During this time, the defendant will remain at his place of residence except for employment and other activities approved in advance by the probation officer. The defendant will maintain a telephone at his residence, without a modem, "call forwarding", "Caller ID", "call waiting", or portable cordless telephones. At the direction of the probation officer, the defendant shall wear an electronic monitoring device and follow electronic monitoring procedures specified by the probation officer. The electronic monitoring may include an active GPS device in order to monitor your compliance. The defendant shall pay the cost of electronic monitoring as directed by the probation officer."
2. "The defendant shall answer truthfully all inquires by the probation officer and follow the instructions of the probation officer."
Assistant U.S. Attorney Steve Feaga says, "We have the matter under advisement and we will be making our position known to the court at the appropriate time. It goes without saying that being released after being convicted of six felonies is a matter a criminal defendant should not take lightly. It's apparent from the matter contained in the petition that steps need to be taken to ensure that this defendant understands the very severe consequences of failure to follow the instructions of his probation officer."
The government has now asked that Scrushy's release be revoked or modified "for violating the conditions of his post-conviction release."
"..The United States asserts that at the revocation hearing, Defendant Scrushy, pursuant to Title 18, United States Code, Section 3143(a), has the burden of showing by clear and convincing evidence that he is not likely to flee pending sentencing and further that he is likely to abide by the conditions of his post-conviction release.
To support this Motion, the United States submits the following which basically echoes the petition from probation:
"1. On June 29, 2006, after the jury convicted Defendant Scrushyof six felony offenses (i.e., federal funds bribery, conspiracy, and honest services mail fraud) arising out of his paying bribes to then-Governor, now-convicted felon,DonSiegelmanandanother public official and depriving the citizens of Alabama of these officials' honest services, this Court ordered that he be released pending sentencing upon certain conditions. See Doc. # 536 (Petition for Warrant/Summons and Report for Defendant Under Pretrial Release Supervision).
2. On February21, 2007, this Court granted permission for Defendant Scrushyto travel to Walt Disney World in Orlando, Florida, from March 16, 2007, until March 24, 2007. While in Orlando, Defendant Scrushy was required to stay at a certain hotel.
3. Defendant Scrushy did not comply with this Court's orders and on March 20, 2007, he left the Orlando, Florida, area in contravention of this Court's order.
4. Defendant Scrushy traveled from Orlando, Florida, to Palm Beach, Florida, where he boarded a yacht and traveled to Miami, Florida.
5. These facts establish a reasonable presumption that Defendant Scrushy will not abide by the orders of this Court and may well be testing the abilityof the United States to monitor his activities in furtherance of a plan to flee the jurisdiction of this Court.
6. The United States Probation Office has petitioned this Court to issue a summons for Defendant Scrushy to appear before this Court to answer for his violation of this Court's order establishing the conditions of his post-conviction release pending sentencing.
The United States Probation Office has furthered petitioned this Court to modify the conditions of Defendant Scrushy's post-conviction release to require that he be placed on home confinement and subject to electronic monitoring to ensure his compliance with this Court's orders. "
Lawyers for Scrushy say he didn't violate the terms of his release.
Former Magistrate Judge and Cumberland School of Law Dean John Carroll says it is serious to violate the instructions of the probation officer but "it does not seem from this that they (probation) consider him a flight risk."
In a July order denying Scrushy vacation travel to the Bahamas, Judge Coody said that "following his conviction, the court considered whether to release the defendant pending sentencing. After considering all the evidence, the court concluded that 'the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released."
Judge Carroll told me Thursday morning it would be up to the judge whether or not to have a hearing on the issue. As to how long that might take, Carroll says it "depends on the calendar and how pressing the court feels the matter is. These items are supposed to be given priority."
Judge Carroll was right, Chief U.S. Magistrate Judge Charles S. Coody issued an order after consideration of the petition to modify conditions of release and has ordered a hearing for April 9, 2007 at 10 a.m. at the U.S. Courthouse.