Scrushy Motion to Recuse Finally Unsealed; Points to Judge's 'Substantial Income' from U.S. Government Contracts

MONTGOMERY, Ala., April 30, 2007 -- Scrushy attorney Jim Parkman's motion asking Chief District Judge Mark Fuller to recuse himself from the case was unsealed in part by the judge on Monday.  The previously sealed order, which was asked at first by Mr. Parkman to be filed under seal and which according to Judge Fuller was not in compliance with applicable standards,  lays out  a litany of facts related primarily to Chief District Judge Mark Fuller's involvement with Doss Aviation.

The motion cites Fullers "substantial income," as well as the position of assistant U.S. Attorney Steve Feaga in the Air Force Reserve and Langley Air Force Base.  Doss Aviation is the beneficiary of contracts at many Air Force bases including Langley.  The brief even discusses the recent problems related to the firing of eight United States Attorneys.

Some of the arguments presented by the motion, which has already been denied by the judge, include the following:

"...Similarly, for Judge Fuller to preside in a case involving a Plaintiff which pays a substantial amount of money to a corporation for which he is a controlling shareholder, would reasonably subject him to a claim of an appearance of impropriety and the questioning of his impartiality.  In the case at bar Judge Fuller, not his wife, personally receives the money from the United States government or as a direct result of his company's contractual arrangement with the United States.  It is far and away exceeding five figures per year so certainly it would be considered a very substantial income to him.

In the case at hand, the facts are even more heavily weighted to the side of disqualification due to the size of the government contracts, the very substantial incomes generated to the judge as a result of these military contracts, and the removal of one degree of relationship, more particularly, that being it is the judge and not his wife in the present case who is garnering a financial benefit.

In Advisory Opinion No. 94 the Committee established facts requiring recusal.  The Committee referenced the aforementioned Opinion No. 27 and then wen further by stating "[w]e also have said that it would create an appearance of impropriety for a judge who contracts with a party for the use of a service mark to hear cases involving the party...."

"...In the present case, the renewal and extension of Doss Aviation's contracts with the United States was not a standardized transaction.  The relationship was in fact being renegotiated prior to and during the trial process of Scrushy.  The size of the investment is without question enormous.  The Judge gets an extremely large recurring check each year as a result of the relationship of the parties as he is one of only a small number of owners of the companies that contract with the government making his interest in these contracts very large.  It is also notable that Judge Fuller is the registered agent for Doss, with the address for official mail to be sent to the Federal Courthouse in Montgomery, Alabama.  Lastly, it is undeniable that this is truly a very unique situation.

Albeit speculative on the part of Scrushy due to time constraints and resources, it is extremely doubtful that their is another Federal District Court Judge in the United States that owns a large if not controlling interest in a corporation that has or had contracts with the United States that total in excess of $258,000,000.00.  Nor does Scrushy believe there is a United States District Judge that makes up to $2,000,000.00 annually as a result of his association with the United States government which is separate and apart form his responsibilities as a Federal Judge or his obligations  on the bench.

Doss Aviation, Inc., Doss of Alabama, Inc. and the subsidiary company Aureus International do business with government departments, two of which, in particular, form the basis by which a reasonable person might believe Judge Fuller's impartiality as to Scrushy might reasonably be questioned.  These relationships should, at a minimum, have been fully disclosed prior to trial in this matter, and Scrushy should have been requested to waive the conflict or request recusal.

A.  Uniform supplier to the Federal Bureau of Investigation

The criminal case for which Scrushy was ultimately convicted was initiated by an investigation by the Federal Bureau of Investigations, and agents Keith Baker and James Murray.  After this investigation by the FBI, the case was turned over to the United States Attorney's Office for prosecution.  The FBI showed its interest in a conviction of Scrushy by requesting and receiving permission for two agents to be present in the courtroom throughout the course of the trial, when normal procedure is to allow only one representative.

In addition, the FBI was the primary investigative agency on Scrushy's previous criminal case held in Birmingham, Alabama during the summer of 2005.  FBI agents led the raid on Healthsouth and coordinated the secret recording of Richard Scrushy by a fellow employee as well as interviewing hundreds of witnesses.  Several of their agents were present throughout the trial in Birmingham and many actually testified.

Aureus International, as a division of Doss of Alabama, Inc., markets itself by stating that it provides clothing for the Federal Bureau of Investigation.  Judge Fuller, as an owner of Doss of Alabama, Inc. stands to gain financially by Aureus International's business relationship with the Federal Bureau of Investigation..."

"B. Military Contracts"

"Doss Aviation, Inc. of which Judge Fuller appears to be one of the controlling shareholders, if not the largest, garnered in excess of two hundred fifty eight million dollars ($258,000,000.00) in government military contracts since its inception.  These relationships include contracts with the United States Army, Navy and most importantly the United States Air Force which have previously been outlined above.

On or about August 30, 2002, only one month after Judge Fuller's appointment to the Federal Bench, the Department of the Air Force awarded a contract to Doss Aviation, Inc. for Helicopter Maintenance reported to be for an aggregated total contract valued at thirty million four hundred seventy four thousand eight hundred and seventy five dollars ($30,474,875.00).  Moreover, just prior to the beginning of the Scrushy's criminal trial, the Department of the Air Force announced, on or about February 8, 2006, that Doss Aviation, Inc. had won the bid on the contract referenced in Paragraph 24 above.

The Defendants' criminal trial started on May 5, 2006.  Following the commencement of the criminal trial of Scrushy, the Department of the Air Force announced, on or about May 25, 2006 and just prior to the close of the Government's case in chief, that Doss Aviation, Inc. had been awarded the contract to train pilots and navigators referenced in Paragraph 24 above.  The 10.5 year contract to train pilots and navigators for the Air Force, was far and away the largest contract Doss Aviation ever received from the United States military or from any other party for that matter, reported to be for an aggregated total contract price of $178,218,969.65.  This contract is not a 10.5 year guaranteed contract, but is renewable from year to year.  The fact that this is a renewable contract lends itself to the argument by a reasonable person that Judge Fuller has an ongoing incentive to keep the government pleased, although Doss was awarded the contract initially, this contract could always be rescinded.

The United States is contractually bound to Doss and it is in Doss's financial interest to maintain these contracts with the United States.  It is therefore in Judge Fuller's financial interest for the United States to keep these contracts with Doss.  Certainly, Judge Fuller nor anyone else for that matter, would argue that his receiving millions of dollars as a result of his ownership in Doss Aviation would be considered an insubstantial financial interest...It is fair to say that the financial success of these companies depends largely on its business relationships with the United States Government, and this financial success is passed through to the owners of these corporations, including Judge Fuller.

Additionally, Assistant United States Attorney Feaga, was a lead prosecutor assigned to this case, and was at all times during the prosecution of defendants a colonel in the United States Air Force reserve.  Attorney Feaga took an active role in the prosecution of Scrushy an aggressively sought his conviction and confinement.  In addition, Attorney Feaga was assigned to Langley Air Force Base, which upon information and belief, has a contract for fuel distribution services with Doss Aviation, Inc. (See Exhibit 25).  While it is unknown to Scrushy if Attorney Feaga personally worked on any contracts with Doss Aviation, Inc., it is very likely someone within his office of Staff Judge Advocate with Langley Air Force Base did have involvement with the review, amendment and approval of these contracts.  A reasonable man could come to the conclusion that Judge Fuller might be inclined not to rule against an attorney whose office had direct involvement with the review, amendment and approval of Doss Aviation, Inc.'s contracts.

Moreover, the Executive Branch of the United States Government, which includes both the FBI and the United States Military, certainly has taken a keen interest in the legal proceedings of Mr. Scrushy.  As this Court may or may not know, the offices of Healthsouth Corporation were raided by the FBI on March 18, 2003, for alleged securities laws violations and falsifications of the company's books and records.  This followed many other corporate scandals of the time for false reporting of income involving other well known companies such as Enron, Worldcom and Tyco just to name a few.

The result of these scandals caused the creation of and act now commonly known as the Sarbanes Oxley Act for securities reporting and verification by company officials of thie income reporting.  As a result of this act Mr. Scrushy was indicted on October 29, 2003, on an eighty two (82) count indictment which contained within it charges based on the new Sarbanes Oxley Act, the first of their kind.  One would certainly not view as speculative the Executive Branch's interest in Mr. Scrushy's case as evidenced by President Bush's visit to Birmingham, Alabama on Air Force One the day before Mr. Scrushy's indictment was announced.

It appears that President Bush was attempting to persuade potential jurors in an attempt to influence them for the soon to come trial of Scrushy in Birmingham.  Mr. Bush appears to comment directly about Scrushy when he stated:  "...And our confidence was shaken by the fact that some of our chief executive officers forgot what it meant to be responsible citizens.  They didn't tell the truth.  They didn't tell the truth to their employees.  They didn't tell the truth to their shareholders.  They betrayed the trust.  We passed the laws, by the way, that are sending a clear signal: 'If you betray the trust, there will be a consequence.  We will hold you responsible for not telling the truth.' But the fact that some in corporate America betrayed the trust affected our confidence."  He went on to state "first of all, as I mentioned, we passed new laws that say,'If you're going to cheat, we'll hold you to account.'  And if you noticed, some of those who behaved irresponsibly are now being held to account."

It was most surely embarrassing to the Government and the FBI when Mr. Scrushy walked out of the Birmingham Courthouse a free man.  Especially, in light of United States Attorney Alice Martin's statement that the trial was a "defining moment" for Sarbanes Oxley and that all the evidence pointed toward Scrushy directing the massive earnings overstatement.  A reasonable man seeing all of these facts in light of the government's loss in Birmingham could believe that the Executive Branch of the United States wanted to see that Mr. Scrushy was punished despite his acquittal of all charges in Birmingham.

It is certainly not beyond reason that the Executive Branch tries or tried to influence governmental prosecutions in light of the recent firings of some eight United States Attorney's.  Some of these attorneys have stated that they were fired for not indicting or investigating people that persons associated with the Executive Branch wanted indicted or investigated.  Many people in the public and in Congress have gone so far as t call for the resignation of the United States Attorney General Alberto R. Gonzales as a direct result of the congressional investigation and scandal alleging undue influence on the justice system.

As previously been discussed, both the FBI and United States Military are arms of the Executive Branch of the United States.  Unlike a United States Attorney, a Federal Judge has a lifetime appointment and cannot simply be fired.  If a Federal Judge enters rulings unfavorable to the United States, there is generally no way for the Executive Branch to injure on punish that Judge.  In this instance, however, there is a remedy available to the Executive Branch against Judge FUller should they disagree with any of his rulings, that being the denial or cancellation of Doss Aviation, Inc.'s military contracts."

Further on in the motion, "Scrushy asserts that the facts outlined in this Motion should have been disclosed pre-trial, at which time Scrushy would have been given the opportunity to either enter a waiver, or request recusal.  It is the Defendant's position he would have requested such recusal, but was never given the opportunity.  This evidenced by the facts that he had established a history of this through his request to the Honorable Judge Coody asking that he recuse himself in prior filings with this Court."

While the above contains most of what is in the filing by Mr. Parkman, for a complete copy and an examination of those exhibits released Monday by Judge Fuller, click on the links below.

Brief in support of Motion to Dismiss (Doc. # 551);  Click Exhibit 2, 3,  8910,  11,  12, 13, 141516, 171819202122, 2324252628.

The Motion to Recuse is signed by Jim Parkman, Martin Adams, and William White.  Judge Fuller took attorneys to task on their handling of the filing of the motion.

Reported by: Helen Hammons