Procedural History and Statement of Facts - Scrushy 11th Circuit - WSFA.com: News Weather and Sports for Montgomery, AL.

Procedural History and Statement of Facts - Scrushy 11th Circuit

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The following is taken directly from the Time Sensitive Motion for Issuance of Rule 17(c) Subpoenas And Motion to File Exhibits Under Seal filed by attorneys for Richard Scrushy in the 11th Circuit on July 12, 2007 and relates the chronology related to the issue of purported e-mails allegedly exchanged by jurors.

Procedural History and Statement of Facts

          1.  On June 29, 2006, Defendant was convicted by a jury in the United States District Court for the Middle District of Alabama for violations of 18 U.S.C.        §§ 666(a)(2) and 2 (federal funds bribery and aiding and abetting; 18 U.S.C. § 371 (conspiracy); and 18 U.S.C. §§ 1341, 1346 and 2 (honest services mail fraud and aiding and abetting). (Doc. 627.)  On June 28, 2007, the district court sentenced Defendant to 82 months imprisonment. (Id. at 2.) Defendant, a first offender convicted of public corruption crimes, was remanded to custody at sentencing, and is currently incarcerated at the Atlanta Federal Penitentiary.[1] The district court denied Defendant's request for voluntary surrender and denied his motion for appeal bond without any hearing or argument, and without making any findings. (Doc. 617.) On July 10, 2007, Defendant was designated to USP-SCP Beaumont, Texas, which is over 580 miles from his wife and five children (ages 2, 4, 7, 12 and 14).

          2.  On September 29, 2006 Defendants filed a joint "Motion for New Trial Pursuant to Rule 33(a) of the Federal Rules of Criminal Procedure." (Doc. 467.)[2] Attached to that motion were fourteen exhibits. These exhibits included:

          (a) News reports based on post-trial interviews with two jurors (Exhibits 1-5). In one taped interview, a juror admitted that she had seen "one Internet article." (Exhibit 5-A, B, C.)

          (b) Two exhibits consisted of affidavits of Juror A.[3] (Exhibits 8 and 9.) Included in the first affidavit was the statement, "I was confused between all the evidence and other Internet stuff and information that some of the jurors brought in and was talking about.... They were pulling stuff out of files and some were talking about having Internet information and talking about that too." (Exhibit 8 at 2.) In the second affidavit, Juror A stated: "After [Juror B] told us so much law and legal procedures during our deliberations, all the jurors got on [Juror B] and questioned [Juror B's] knowledge of knowing too much. At this time, [Juror B] admitted that [Juror B] had searched the internet." (Exhibit 9 at 1.)

          (c) Exhibit 10 was a copy of an anonymous letter that was received via U.S. mail by various trial counsel for Defendants Scrushy and Siegelman.  It contained a typewritten letter which stated in full:  "The enclosed e-mail shows that the jurors in the recent trial of Governor Siegelman and Richard Scrushy violated the Judges [sic] order by having communications and discussions outside the jury room. You should subpoena their records so you have the whole picture. Truth and Justice." (Exhibit 10.) With the letter was a copy of what appears to be an e-mail printed from a G-Mail account.  According to the document, the e-mail was sent from Juror B to Juror C on May 29, 2006 at 10:41 pm (prior to the Government completing its case in chief) with the text: "...need to talk.....!?" (Exhibit 10.)    (d) Exhibit 11 contained the contents of an additional anonymous letter that arrived via U.S. mail approximately ten days after the first letters. These envelopes contained what appears to be a copy of an e-mail printed from a G-Mail account, dated May 29, 2006. The e-mail appears to have been sent from Juror B to Juror C. It reads: "I agree some of the kounts r confusing 2 our friends. Chek text.30/38 still off trac."  (Exhibit 11.) [4]  

          (e) Exhibits 12 and 13 consisted of copies of what appear to be two additional e-mails that arrived in the mail approximately six days after Exhibit 11. The first is dated Sunday, June 25, 2006 at 11:28 pm.[5] (Exhibit 12.)  It appears to be printed from the same G-Mail  account as prior exhibits. The address indicates that it was sent from a third juror, Juror D, to Juror B. The text of the e-mail reads:  "penalty 2 severe...still unclear on couple of counts against pastor & gov." (Id.)[6]  Exhibit 13 appears to be dated Sunday, June 25, 2006 at 11:48 pm.  The address indicates that the e-mail was sent from Juror B to Juror D. The text reads:  "...stay focused....remember what the judge said...have plans for the 4th...right?"

          In their joint motion, Defendants requested the following relief:  authorization to interview jurors pursuant to Local Rule 47.1;[7] that the district court interview the jurors in camera under oath; an order requiring Jurors B and C to preserve any computers used during jury service and to make no deletions relating to their jury service on those computers; an order requiring all jurors to provide to the court in camera a list of all e-mail account addresses, all text-messaging account addresses, and all ISPs and phone companies which jurors used from date of summons until the date of verdict; and an order authorizing Defendants to issue subpoenas pursuant to Fed. R. Crim. P. 17(c) to all ISPs and telephone companies; and that the court conduct a hearing at which the jurors and any other relevant witnesses would be examined under oath. (Doc. 467 at 14-15.)

          3. On October 6, 2006, co-Defendant Siegelman filed an "Emergency Motion for Order to Require Preservation of Evidence." (Doc. 469; Addendum Tab 469.) That motion requested additional action by the district court to preserve records, specifically to address concerns that ISPs and phone companies routinely destroy records in the ordinary course of business. The court entered an order to show cause requiring the Government to respond to this emergency motion by October 13, 2006. (Doc. 470.)

          4. Prior to that response, additional anonymous letters were received by counsel for Defendants. A copy of the contents and envelopes were submitted to the court in two separate pleadings, both filed on October 11, 2006. Defendant Siegelman filed a "Motion to Supplement the Record on the Defendant's Joint Motion for New Trial." (Doc. 471.) Defendant Scrushy filed a "Motion for Expedited Consideration of an Order to Require Preservation of Evidence." (Doc. 472; Addendum Tab 472.)  Attached to those motions as Exhibit 15 was a copy of yet another apparent e-mail. It was dated Sunday June 25, 2006 at 11:31 pm.[8] This e-mail ends with the typed signature of Juror B and appears to be sent to yet another deliberating juror, Juror E. The text of the message reads: "proud of u... other 6 counts most important.... c.u.n..am." (Exhibit 15.) In this motion, Defendant urged the court to take expedited action on the requests to obtain and secure evidence and records in order to ensure that these materials were preserved for the record in this case, so that the authenticity of the apparent e-mails could eventually be determined.  Defendant specifically requested that the court enter appropriate orders to obtain and secure the information in camera and maintain them under seal for use in further proceedings. Defendant emphasized:  "Defendant is not seeking access to such evidence on an expedited basis. Defendant is seeking only that this Court take limited action to preserve evidence that may be critical to the determination of Defendants' new trial motion." (Doc. 472 at 5.)  Defendant submitted a proposed order to the court under seal covering the preservation of computer and ISP information of Jurors B and C. (Id.)

          5. On October 13, 2006, the Government filed its response. (Doc. 476.)  The Government opposed all relief requested by Defendants based on its contention, inter alia, that "Defendants' allegations of juror misconduct rely on exhibits that are entirely speculative and unauthenticated." (Id. at 2.)

          6. On October 20, 2006, both Defendants filed replies to the Government's response. (Docs. 478 and 479.)

          7.  On October 25, 2006, the district court entered an order stating that "the Court will conduct an evidentiary hearing on issues relating to possible post-trial contact with Juror #5" on October 31, 2006. (Doc. 477.)[9] The court did not address any of Defendants' requested relief.

          8.  After holding an evidentiary hearing at which the court itself questioned witnesses, including Juror 5, Juror 5's wife, Juror 5's pastor, the wife of Juror 5's pastor (who was a lawyer who assisted in the writing of Juror 5's affidavit), and the two notaries who notarized Juror 5's affidavits. (Transcript of Proceedings, October 31, 2006 at 1-259) (hereinafter "10/31/06 Tr." followed by the relevant page number). For this hearing, the court sua sponte issued subpoenas duces tecum to every witness for all records relating to the Juror 5 affidavits. (Court's Exhibits 1, 5; 7, 8, 9, 10, 11) (10/31/06 Tr. at 193-94.) The court used the documents to examine the witnesses to determine if any attorney had violated Local Rule 47.1.  While the court permitted counsel to suggest questions for the court to propound, the court would not permit counsel for either Defendant to question any of the witnesses.

          9.  On November 6, 2006, the court entered an order setting an evidentiary hearing to determine "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 in this case..." to be held on November 17, 2006. The order further provided:

      The court will conduct this hearing. It will determine the witnesses that it will subpoena and the documents those witnesses are to bring with them. The Court will determine the appropriate scope of inquiry made of these witnesses at the hearing, and it alone will question the witnesses.

(Doc. 492 at 8 n. 9; Addendum Tab 492)  In the same order, in regard to the alleged violation of Local Rule 47.1, the court found:

      The Court cannot say that this [October 31, 2006] hearing assuaged all of its concerns about whether the "affidavits" of Juror #5 were obtained through a violation of Local Rule 47.1 of the Local Rules for the United States District Court for the Middle District of Alabama for Civil and Criminal Cases. Indeed, the Court cannot even say that it found the relevant testimony on this issue to be at all credible.   

(Id. at 7).  In the same order, the district court denied Defendant Scrushy's "Motions for Expedited Consideration of an Order to Require Preservation of Evidence" (Docs. 472 and 474), as well as Defendant Siegelman's "Emergency Motion for Order to Require Preservation of Evidence" (Doc. 469). (Doc. 492 at 9.) The only finding as to these motions was:

      None of these motions contains any legal precedent or authority for the specific kind of relief requested. The Government opposes the motions. The Court is of the opinion that the relief sought in these defense motions is not necessary, appropriate, or required by law. Accordingly, these motions are due to be DENIED.

(Doc. 492 at 2 n.4.)

          10. On November 9, 2006, Defendant filed under seal a "Motion for Issuance of Subpoenas for November 17, 2006 Evidentiary Hearing." (No Doc. Number on Docket Sheet maintained by Clerk.)[10] In this motion, Defendant Scrushy renewed his request to obtain relevant documentary information.  Defendant specifically requested the court to issue subpoenas duces tecum to Jurors B and C (id. at ¶¶ 5-8); to the remaining jurors, both deliberating and alternates (id. at ¶¶ 9-12); to reporters who conducted post trial interviews with the jurors (id. at ¶¶ 13-16); and to the records custodians for the three ISPs that appear to have been used to send the e-mails. (Id. at 17-29). Defendant attached proposed text for each of the three subpoenas duces tecum as Attachments A, B and C to his motion. (Id.) Defendant attached to this motion as Exhibits 16 and 17 an affidavit and curriculum vitae of Phillip Hampton.  Mr. Hampton is a computer forensics specialist who previously has testified in federal and state courts as a computer forensic expert witness.  His affidavit addressed two key points.  First, he described in detail all of the access points for recovery of records that would reveal Internet searches and e-mail messages between known individuals. (Exhibit 16 at ¶¶ 3-16.)  Second, his affidavit addressed the need to act in a timely fashion:

      As with all computer-based investigation, time is of the essence because of the volatility of electronic data. Over time, the more a computer is used the greater the likelihood that electronic evidence on the computer hard drive, including records of deleted files, may be irretrievably lost. Preservation of such data via a computer forensic image of the computer hard drive(s) in question at the earliest possible time is a crucial step in carrying out computer forensic investigations.

(Exhibit 16 at ¶ 18.)

          11. On November 13, 2006, the court denied Defendant's motion (Doc. 496), for subpoenas for the November 17, 2006 evidentiary hearing. The court gave no reasons for the denial. (Unnumbered Doc.; Addendum Tab UN-2.)

          12. The court held an evidentiary hearing on November 17, 2006.  The only witnesses were the twelve jurors who returned the verdict.  Counsel for Defendants were allowed to request that the court ask specific questions, but were not allowed to question the jurors. Defendants made multiple objections to the court's failure to ask certain questions, and the manner in which the court interrogated the jurors. Specifically in regard to the instant issue, the court ignored requests to explore the existence or authenticity of the e-mails. (See, e.g., 11/17/07 Tr. at 18, 154-155, 161-162.)  The court never asked a single juror if he/she received or sent any of the e-mails as they appeared in Exhibits 10, 11, 12, 13, or 15.[11]

          13.  On November 20, 2006, the court entered an order finding that:

       [T]he court finds that there is credible evidence which establishes that during deliberations some of the jurors were exposed to the following extrinsic or extraneous evidence: (1) a copy of the Second Superseding Indictment obtained from the website of the United States District Court for the Middle District of Alabama and (2) juror information from the website of the United States District Court for the Middle District of Alabama concerning the foreperson's obligation to preside over the jury's deliberations and to give every juror a fair opportunity to express his or her views. In light of this evidence of juror exposure to extraneous information, this Court must, pursuant to Remmer v. United States, 347 U.S. 227 (1954) and its progeny, presume prejudice. Accordingly, the burden shifts to the Government to rebut the presumption. To rebut the presumption of prejudice, the Government must show that the jurors' consideration of the extrinsic evidence was harmless to the defendants.

(Doc. 503 at 1-2; Addendum Tab 503.)   The same order set out a briefing schedule for the parties.  The order made no finding as to the question of whether or not the jurors participated in e-mail communications during deliberations, or whether or not the e-mails are authentic.

          13. Prior to briefing, on November 24, 2006 Defendant Scrushy filed a "Motion to Unseal and for Access to Transcripts or Records." (Doc. 504.) This motion sought access to: (a) a sealed portion of the transcript of the October 31, 2006 hearing in which Juror 5 was questioned in camera; (b) the transcript of the voir dire of Juror 5; and (c) a copy of the jury questionnaire of Juror 5. (Doc. 504.) In an order entered on November 27, 2006, the court granted Defendant access to the sealed transcript portion and denied Defendant's other requests. (Doc. 507.) On November 29, 2006, Defendant Scrushy filed a "Motion to Supplement Record" (Doc. 509), consisting of copies of articles from the Montgomery Advertiser Website that were consistent with the admission of Juror 40[12] at the evidentiary hearing as to an article she accessed on the Internet (Exhibits 21-A through L).[13] On December 30, 2006, Defendant also filed a "Second Motion to Supplement Record" (Doc. 510), containing copies of the "WSFA Courtroom Chronicles," a blog that included virtual verbatim reports of all courtroom proceedings, including when the jury was not present, and discussed evidence that was excluded from the jury by a motion in limine (Exhibits 21-A through B). The court granted both motions to supplement. (Doc. 512.)

          14.  On December 1, 2006, all parties filed their briefs. The Government filed its "United States' Brief on Extrinsic Information." (Doc. 516; Addendum Tab 516.)  Defendant Siegelman filed his "Brief on Extrinsic Information." (Doc. 514; Addendum Tab 514.) Defendant Scrushy filed his "Brief on Jury Exposure to Extrinsic Information." (Doc. 515; Addendum Tab 515.) Defendant Scrushy argued, inter alia, that the court's inquiry of the jurors was legally insufficient to explore the entire picture of the jury's exposure to extrinsic evidence because:  the court foreclosed meaningful input into the scope, format and content of the questioning of the jurors; the court confused the jurors by use of technical legal terminology; on three occasions, the court interrupted jurors mid-sentence when the jurors were describing extrinsic information (11/17/07 Tr. at 52 line 15; 59 line 15; 74 line 8); the court failed to explore testimony where there were substantial contradictions in the previous public statements of the Jurors 7[14] and 40 or between the testimony of Jurors 7 and 40 and other jurors; the court failed to explore testimony by three jurors about a "foreman's book;" and the court failed to authorize subpoenas for Internet records for Internet searches by Juror 7 and Juror 40, despite the fact that other jurors (Jurors 38, 66, 30, and 5) indicated that the Internet research was much broader than that admitted to by Jurors 7 and 40. (Doc. 515 at 1-4.) Defendant Scrushy also contended that the court's finding in its November 20, 2006 order that there were only two items of extrinsic evidence (Doc. 503), was clearly erroneous in light of the testimony of multiple jurors who directly contradicted the testimony of Jurors 7 and 40, which the court credited even though these were the only two jurors who admitted accessing the Internet in violation of the court's orders. (Doc. 515 at 4-12.)

          15.  On December 13, 2006, the court issued a "Memorandum Opinion and Order" denying Defendants' motions for new trial. (Doc. 518.)  This opinion is published as United States v. Siegelman, 467 F. Supp. 2d 1253 (M.D. Ala. 2006). The court found that the exposure to extrinsic evidence was limited to the information accessed on the Internet by Jurors 7 and/or 40 relating to the role of the foreman, an unredacted copy of the second superseding indictment, and two unspecified news headlines. Id. 1267-69. Specifically in regard to the existence and authenticity of e-mails between the jurors, the court wrote: "Of course, Defendants urged the Court to obtain discovery from third parties which might have been able to authenticate these documents such as juror emails, but Defendants provided no legal precedent for such an unusual and intrusive investigation of jurors." Id. at 1279.  Later in the opinion, the court wrote:

      Initially, the Court had some concerns that the alleged e-mail which included a statement that the penalty was too severe might arguably present some evidence that some or all members of the jury had been exposed to extraneous information on the penalty. No evidence, argument or instruction concerning the penalties that any defendant might face had been discussed during the trial. To the contrary, the jury was instructed not to concern itself with matters of penalty.  While the Court believes it possible that either this e-mail was not authentic or that jurors might have been speculating about possible penalties and that either explanation would explain the comment regarding the penalty, out of an abundance of caution, the Court did ask all members of the jury about any exposure to extraneous information about penalties any defendant might face if convicted. The jurors credibly and unanimously denied such exposure. Accordingly, the Court is satisfied that none of the documents purporting to be juror emails relate in any way to any exposure to outside influence or information.

 

467 F. Supp. 2d at 1279 n.35 (emphasis added).

          16. On December 21 and 22, 2006, counsel for Defendants received additional anonymous letters.  As before, they contained what appear to be copies of e-mails between Juror B and Juror C, during the time period the jury was in deliberations. On December 28, 2006, Defendant Scrushy filed  a "Motion to Reconsider Order Denying New Trial and to Supplement Record, or in the alternative, Motion for New Trial Based on Newly Discovered Evidence." (Doc. 519; Addendum Tab 519.)  The copies of what appear to be e-mails were attached to the motion as Exhibits 23 and 24.  Exhibit 23 appears to be a copy of an e-mail sent on the G-Mail account of Juror B to the e-mail account of Juror C at 10:09 p.m. Sunday night, June 25, 2006.[15]  As before, the e-mail addresses contain the full name of each juror, plus the ISP and e-mail account of each juror.  The message states in its entirety:

                             ....judge really helping w/jurors...

                             still having difficulties with #30

                             ...any ideas???

                             keep pushing on ur side

                             did not understand ur thoughts on statute

                             but received links.

                             [first name of Juror B]

 

(Exhibit 23.)   Exhibit 24 appears to be a copy of an e-mail sent on the G-Mail account of Juror B to the e-mail account of Juror C at 10:41 p.m. Sunday night, June 25, 2006, 32 minutes after the prior e-mail. It states in its entirety:

                             I can't see anything we miss'd.u?

                             articles usent outstanding! Gov & pastor up s---t creek.

                             good thing no one likes them anyway. All public officials

                             r scum; especially this 1. pastor

                             is reall a piece of work

                             ...they missed before, but we won't

                             ...also, keepworking on 30...

                             will update u on other meeting.

                             [first name of Juror B]

  

In his motion, Defendant renewed each of his previous requests that the court take action to obtain and secure the records necessary to authenticate-or prove fraudulent-the copies of the e-mails: "Defendant respectfully renews each and every one of those requests, and respectfully submits that the necessity and urgency of such steps is greatly enhanced by the receipt of the two most recent     e-mails, especially in light of their content and likelihood of destruction." (Doc. 519 at 4.) Defendant argued that the e-mails, if authenticated, document three specific types of misconduct:  research of extrinsic information on the Internet (reference to "links" and "articles u sent were outstanding!"); the deliberation of two or more jurors outside the presence of the entire jury; and evidence of an orchestrated effort by Jurors B and C to carry on meetings or discussions with other jurors in order to convince them to find Defendants guilty, and using extrinsic information to do so. (Id. at ¶¶ 8-11.)  Finally, Defendant submitted that since the new e-mails unambiguously discuss extrinsic evidence and rebut the sworn testimony of Jurors B and C, that the new e-mails constituted a new, and additional "colorable showing of extrinsic influence [and] that the court must investigate the asserted impropriety." (Id. at 10, quoting United States v. Ayarza-Garcia, 819 F.2d 1043, 1051 (11th Cir. 1987) and citing United States v. Barshov, 733 F.2d 842, 851 (11th Cir. 1984), as well as United States v. Rowe, 906 F.2d 654, 656 (11th Cir. 1990), for its holding that "the court must investigate the asserted impropriety upon a merely colorable showing of extrinsic evidence.")). Defendant Siegelman filed a similar motion. (Doc. 520.)

          17. The only action the court took was to enter an order on January 11, 2007 requiring the Government to file a written response by January 19, 2007. (Doc. 522.)      The Government filed its "United States' Response to Defendants' Motions to Reconsider Order Denying New Trial" on January 19, 2007. (Doc. 523.) The Government opposed all relief requested, and argued:

       Defendants thus ignore the salient point in this Court's careful analysis of the entire e-mail issue: There were insufficient indicia of authenticity and reliability in the original emails to colorably support any investigation, action, or remedy.  The latest purported emails are just as bereft of reliability and authenticity as the original purported emails,...

 (Doc. 523 at 5; Addendum Tab 523.)

          18.  Beginning on February 21, 2007, before the court took any action on this issue, counsel received another set of anonymous letters, each containing what appeared to be copies of yet another e-mail. On February 26, 2007, Defendant filed a "Motion to Supplement Previously Filed Motion to Reconsider Order Denying New Trial and to Supplement Record, or in the alternative, Motion for New Trial Based on Newly Discovered Evidence."  (Doc. 532; Addendum Tab 532.) Attached to that motion as Exhibit 26 is what appears to be a copy of an e-mail sent from the account of Juror C to the e-mail account of Juror B at 10:47 p.m. Sunday night, June 25, 2006. This is six minutes after the e-mail in Exhibit 24, sent from Juror B to Juror C. Exhibit 26 reads in its entirety:

                                      Great info 4 r friends.

                                      % of prosecution increases dramatically.

                                      Could not find that when I surfed it.

                                      Gov/Pastor GONE....

  

(Exhibit 26.)  Defendant argued that the reference to "when I surfed it" was an explicit reference to accessing information on the Internet. (Doc. 532 at ¶ 7.) Defendant specifically argued that "the first, and most crucial, determination is as to the authenticity of these e-mails.... Defendant has asked this Court for permission to investigate, legal procedures to obtain documents, evidence and information that would prove or disprove authenticity, and even the most benign step of all-the simple preservation of evidence subject to destruction." (Id. at ¶ 11.)  Defendant renewed his request that the court obtain the computer and ISP evidence and hold an evidentiary hearing. (Id. at 13.)

          19. The Government filed a response on March 2, 2007. (Doc. 534; Addendum Tab 534.) As before, the Government attacked the e-mail as "[t]he latest unfounded, unauthenticated, purported e-mail,..." (Id. at 3.)

          20.  The court took no action on Defendant's motion until June 22, 2007, just four days before sentencing proceedings began. No hearing was held; no documents were obtained; no discovery request was considered or granted.  On June 22, 2007, the court entered a "Memorandum Opinion and Order." (Doc. 611; Addendum Tab 611.)  In regard to the authenticity of the copies of e-mails, the court included a lengthy footnote in which the court claimed that it "assumed arguendo that the documents are authentic," yet went on to offer reasons why "the Court does have some concerns about these documents." (Id. at 4 n.9.) In the end, the court concluded that it had no duty to conduct any further investigation of any kind, pointing in large part to its conclusion that the answers of the jurors at the November 17, 2006 evidentiary hearing to the twelve questions as phrased by the court definitively resolved all questions of any juror's exposure to extrinsic evidence. (Id. at 8-10.)  Nowhere does the court's order acknowledge that, notwithstanding Defendants' specific requests, the court did not ask a single juror-especially Jurors 7 and 40-if  any of the e-mails submitted as exhibits had been sent or received by them.



    [1] Defendant Scrushy's co-Defendant who was also convicted in this matter is Don Eugene Siegelman, the former governor of Alabama. Defendant Siegelman was sentenced to 88 months in prison.  He has filed a notice of appeal to this Court (Doc. 632), and was also taken into custody immediately upon sentencing.

   [2] Copies of this Motion for New Trial and attached exhibits have been submitted to this Court as an Addendum to this motion.  Since the exhibits contain the unredacted names of jurors and other identifying information, Defendant respectfully requests that this Court enter an appropriate Order allowing these and additional supporting documents to be filed under seal in order to protect the privacy of the jurors. See Addendum at Tab 467.

     [3] For purposes of this motion, as was done in all motions filed in the district court, Defendant will refer to the jurors as "Juror A," Juror B," etc., in order to comply with the order of the district court to maintain the confidentiality of the jurors. (Doc. 255 at ¶ 9.)

   [4] At a subsequent evidentiary hearing held on November 17, 2006, it became apparent that two of the deliberating jurors were Juror 30 and Juror 38. (Transcript of Proceedings, November 17, 2006 at 34 and 66) (hereinafter referenced as           " 11/17/06 Tr." followed by the relevant page number).

   [5] The jury began deliberating in this case on June 15, 2006 (Trial Tr. Vol. XXXII at 84), and returned a verdict on June 29, 2006. (Doc. 438).

    [6]  Defendant Scrushy is the Pastor of Grace and Purpose Church in Birmingham, Alabama.  Defendant Siegelman was Governor of Alabama from January 1999 through January 2003.

    [7] Middle District of Alabama Local Rule 47.1 prohibits any post-verdict interrogation of jurors without filing a formal motion and securing the court's permission.

   [8] This would place the e-mail as occurring during the period of time the jurors were deliberating and within minutes of the e-mails in Exhibits 12 and 13.

   [9] Juror # 5 was referred to as "Juror A" in Defendant's motions, and was the juror who provided the affidavits in Exhibit 8 and 9.

    [10] A copy of this motion is included in the sealed Addendum filed with this Court.  See Addendum at Tab UN-1.

     [11] The transcript of this proceeding has already been filed in the district court. (Doc. 505.)

     [12]   Referred to as Juror B in Defendant's motions.

     [13]  Juror 66 testified that Juror 40 told the other jurors "about another article on the website," (11/17/07 Tr. at 59-60), but the court subsequently refused to credit this testimony. (Doc. 518 at 30.)

    [14]  Juror 7 was referred to as Juror C in Defendant's motions.

    [15]  The jury returned its verdict on Thursday, June 29, 2006. (Doc. 438.)

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