Siegelman, Scrushy Attorneys File Motions for Acquittal

MONTGOMERY, Ala., August 4, 2006 -- Attorneys for former Governor Don Siegelman have filed a renewed Motion for Acquittal in the government corruption case. Around midnight Friday night, the renewed motion concerning counts 3,5,6,7, and 9 was filed.

In the first motion, Siegelman attorney Vince Kilborn says the government's theory was wrong on Count Seventeen which alleges Siegelman obstructed justice:

"On or about October 16, 2001, in the Middle District of Alabama, the defendant DON EUGENE SIEGELMAN, aided and abetted by others known and unknown to the Grand Jury, did knowingly corruptly persuade and attempt to knowingly corruptly persuade another person, and did engage in misleading conduct toward another person, with intent to hinder, delay, and prevent the communication to a law enforcement officer of the United States of information relating to the commission of a federal offense and a possible commission of a federal offense, to wit, defendant DON EUGENE SIEGELMAN did cause Nicholas D. Bailey to provide him with a check in the amount of $2,973.35 with the notation "balance due on m/c" with intent to hinder, delay, and prevent communication to the Federal Bureau of Investigation by Clayton "Lanny" Young and Nicholas D. Bailey, and by counsel for Nicholas D. Bailey, of information concerning federal offenses related to $9,200 that Clayton "Lanny" Young gave to DON EUGENE SIEGELMAN on January 20, 2000."

The filing says the statute involved is a tampering statute and not one that addresses "a disguise or cover-up that does not involve tampering.  The government offered no evidence that Governor Siegelman tampered with Mr. Young, Mr. Bailey, or Mr. Beck."

The motion talks about the whole issue of the check Bailey wrote on October 16, 2001 "to buy Governor Siegelman's remaining interest in a motorcycle."

In the filing, Siegelman's attorney says

"Mr. Bailey's claim that the October 2001 transaction was part of the disguise does not make sense.  Any 'disguise' of Mr. Young's involvement was complete when Mr. Bailey wrote the June 5, 2001 check.  Mr. Bailey did not say - and the government offered no other evidence - how the October 2001 transaction added anything, or was in any way necessary, to the 'disguise' created by the June 2001 transaction.  All the October 2001 transaction did was allow Mr. Bailey to reap some profit - to sell the motorcycle for far more than he invested in it."

In the second filing (a corrected version filed 08/07), by David McDonald, the Siegelman team asserts Judge Fuller made an error in departing from the 11th Circuit Pattern Jury Instructions by "adopting the government's Rule 29 arguments and the government's arguments at the jury Charge conference that a quid pro quo in exchange for a specific official act is not requisite to proving a bribery-based charge."

The filing says Governor Siegelman's "proposed honest services jury instruction that provides that in order to prove the bribery-based honest services charges for campaign contributions the government must prove an explicit quid pro quo in exchange for a specific official act" was denied by the Court.

McDonald argues that the Court followed a First Circuit case, U.S. v Sawyer, which deals with gratuities.

"The Court's honest services charges to the jury thus included First Circuit honest services gratuities case rationale that did not require the government to prove a quid pro quo for the honest services alleged bribery-based campaign contribution benefits here, much less an explicit quid pro quo for the honest services alleged bribery-based campaign contributions benefits at issue in Counts Five through Nine.  Indeed, in all due respect, even the First Circuit Sawyer case recognizes there must be proof of a 'specific quid pro quo' for honest service 'bribery-like' cases!"

The motion says concern was expressed at the jury charge conference by the Court "over the government's insistence that the Court apply the First Circuit's rationale...stating that the government needed to understand that in the event there was a conviction and appeal regarding the honest services charges the honest services charges could very well be reversed on appeal."

McDonald also argues that the government, in its opening statement, said that it "bore the burden of proof of proving that Mr. Scrushy and Governor Siegelman reach an explicit agreement that if Mr. Scrushy paid Governor Siegelman $500,000, Governor Siegelman would appoint Mr. Scrushy to the CON Board."

The document quotes from Mr. Feaga's opening statement on May 1: "If it's campaign money, you have to find there was an expressed what they call quid pro quo, an[] expressed agreement."  The Siegelman lawyer also argues that Mr. Bailey couldn't testify to "an explicit promise or undertaking" between Scrushy and Siegelman "because Bailey was never in a room with Governor Siegelman and Mr. Scrushy, and Bailey did not participate or observe any conversations between Mr. Scrushy and Mr. Siegelman."

Furthermore, the filing denies that contributions arranged by Mr. Scrushy were "not 'of value' as required within the meaning of the  U.S. Code and that the government did not prove beyond a reasonable doubt that the Count 3 charge was brought within "five years of the alleged crime" as required by the statute of limitations.

McDonald further states that the prosecution relied on "suspect witness testimony and on inferences drawn from purely circumstantial evidence."  He goes on to say that the quid pro quo requirement is "heightened in campaign contribution cases tor require an explicit quid pro quo" saying this "has been widely recognized by the courts to apply to any type of federal bribery charge involving campaign contributions as well as any bribery-type honest services charges involving campaign contributions."

The motion challenges whether or not the $500,000 contributed by Scrushy was of any benefit to Siegelman.  "Throughout the trial, the government repeatedly argued that Governor Siegelman benefited from the $500,000 contribution because he guaranteed an AEF debt.  However, the evidence clearly demonstrates that this debt did not exist and was not even contemplated in July of 1999 when Mr. Scrushy committed to raising $500,000."

Scrushy's motion , filed just before 6 p.m., asks for a judgment of acquittal on all the counts against Mr. Scrushy, counts 4-9.  This motion  is filed as a supplement to a previous Motion for Judgment of Acquittal filed on June 8, 2006 at the close of the government's case.

The filing talks about private contributions and the funding of political campaigns:

"The evidence in this case conclusively demonstrates that the political contributions at issue were entirely legitimate campaign contributions, made for the purpose of establishing a relationship with an elected official.  Political contributions which are not protected by the law are distinguished by the presence of a quid pro quo, which the Supreme Court has defined as ' return for an explicit promise or undertaking by the official to perform or not perform an official act.'  Government's evidence failed to fulfill the Government's bold claim in their indictment that the contributions were a quid pro quo for the appointment of Defendant Scrushy to the CON Board."

The motion leans heavily on the testimony of former president and CEO of Alabama Power Elmer Harris saying,"When this court considers the evidence presented in the Defendant's case...most notably the testimony of Defendant's witness Elmer D. Harris - Defendant respectfully submits that no reasonable jury could have found Defendant Scrushy guilty on any count of the Indictment."

The motion states that Scrushy's initial meeting with Siegelman was to establish a "vitally important relationship" with the new Governor after Scrushy had publicly supported Siegelman's opponent and that Scrushy had "no desire or intention to serve on the CON Board."

According to the motion the entire political system of the country is in jeopardy:

"The convictions in this case, obtained without any evidence of a payment in exchange for an explicit promise of a political appointment, will remake the entire electoral system unless they are overturned."

The filing claims that Since Scrushy did not seek, "nor was explicitly promised" a seat on the CON Board, any political contributions that were made were not only legitimate, but were protected political activity."

The arguments hinge on whether or not there was a quid pro quo.  "It is the absence of proof of this essential element, and affirmative evidence that no quid pro quo ever existed, that are fatal to the Government's proof in Defendant's case."

As to counts 6-9, the motion states "there is no proof that defendant's political contributions were made with the specific intent to obtain appointment to the CON Board, that defendant deprived the state of his honest services on the CON Board in any way, or that the mailings were for the purpose of executing the alleged scheme."

Also, the motion charges that "the Government's entire case demonstrated that, as a result of appropriate recusals in every case in which the interests of HealthSouth were implicated, neither Defendant Scrushy nor HealthSouth gained a single thing as a result of Defendant Scrushy's or Thomas Carmen's presence on the CON Board."  Repeating an argument from the earlier filing for acquittal the document says Scrushy performed his duties properly and didn't have any involvement with the two HealthSouth projects at issue in these counts, namely the PET scanner and the rehab hospital.

In conclusion the motion wraps up with the following on the issue of political contributions:

"The Government's crusade to criminalize the activities of Defendant Scrushy in relation to this matter is contrary to, and forbidden by, the express holdings of the Supreme Court in McCormick and Sun-Diamond.  Those holdings protect the type of activity that occurred in the instant case for the simple reason that the Supreme Court recognized in McCormick:"

"This case has already begun to reverberate among knowledgeable individuals in the political system.  Unless the law as set out in the unambiguous holdings of the United States Supreme Court is both followed and enforced, no one will be able to contribute to anyone holding or seeking political office so long as they hope for any consideration of any kind from that individual at any time during his or her tenure without fear of the consequences suffered by Richard Scrushy in this case.  That simply is not the law of the land at this point in time."

The motion says if there is to be a change in the electoral process the change "must come from the Congress or the Supreme Court, not from the U.S. Attorney's office through a prosecution of protected political activity which, under current law, is specifically exempted from criminal prosecution."

The government has until August 18th to file any response to the motions.  Then the defense will have until the 25th to respond to any government response.  Judge Fuller has said previously he will wait until he has all the briefs to decide whether or not oral arguments are necessary.

Reported by:  Helen Hammons