MONTGOMERY, Ala., June 1, 2007 -- Attorneys for Richard Scrushy have filed their Sentencing Memorandum and Motion for Downward Departure. The motion was filed with the court just prior to midnight on Tuesday, May 29.
In the filing, attorneys argue the court should "Mr. Scrushy mindful of the rancor involved in the litigation of this case and the collateral issues that have been associated with it from its inception, respectfully submits that after this Court dispassionately considers the facts and sentencing law applicable in this case, it should impose a sentence that does not include a term of imprisonment."
Attorneys for the former HealthSouth CEO say Scrushy "believed, in good faith, that the contributions to the Alabama lottery campaign that lie at the core of this case were made for legitimate political purposes, and were no different in character than the hundreds of millions of dollars (if not more) that are contributed to candidates and political causes every year across the country. The conduct of Mr. Scrushy at issue in this case, particularly in light of the total absence of direct evidence of there having been an express quid pro quo, was no different in kind from that engaged in by upstanding citizens every day. He made a political contribution in hope of currying favor with an administration whose election he had not supported, much like people all across the country donate large sums to political parties and campaigns as a way to support the candidate or party of their choice or out of a sense of civic duty or due to devotion to their country and state and at times in part in the hope that they will obtain - but not with the express agreement that they will receive - appointed positions in government, access to express views, and assistance with legislation. "
Attorneys say Scrushy "maintains his innocence, and will vigorously pursue an appeal of his conviction after he is sentenced." They go on to say that they acknowledge "the Court will not consider, in any way helpful to him, his protestations of innocence when it sentences him. However, he hopes that the Court will take into consideration when sentencing him the political context in which the contributions deemed to have been bribes occurred and the blurry line (and First Amendment interests implicated) between the lawful making of a contribution with the hope and expectancy of just currying favor or mending fences with the administration in office or of receiving an appointed position and doing so, unlawfully, in light of an express agreement from the elected official recipient that an appointment would be made in direct exchange for the contribution. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976)"
Attorneys argue a sentence not involving a prison term "is a fair, just and reasonable sentence because (A) it reflects the history and characteristics of Mr. Scrushy - including his lack of criminal history, his ministry and undisputed philanthropy and good works, as well as his pre- and post-verdict public disgrace - considered in light of the nature of the bribery at the core of the case discussed above...Moreover, none of the offenses of which Richard Scrushy stands convicted preclude imposition of a sentence of probation. Hence, there are no limitations on this Court's discretion to impose a sentence that does not include a term of imprisonment."
The filing then lays out the history and characteristics of the businessman that the attorneys are hoping Judge Fuller will consider when deciding the sentence to be imposed. They outline his rise from his birth to CEO of HealthSouth, and outline his record of philanthropy which they say "will be detailed for the Court at sentencing."
"Richard Scrushy has been a committed philanthropist to small and large causes. His support of causes that helped people in need, particularly children has not just been limited to financial support. He has given generously of his personal time..."
"His philanthropy is not limited to supporting established projects. As the letters that will be submitted to the Court attest, Richard Scrushy is someone who people can count on for financial, emotional and spiritual support in their time of need. He has provided spiritual support to seriously ill persons, who needed help and also took care of their basic necessities of life.
Richard Scrushy is someone who impresses people who meet him with his dedication to his family, his spirituality and his integrity. He reaches out to help those in need. And he rarely turns anyone away."
"...In sum, Richard Scrushy has been a committed philanthropist for many years. He has made many donations of time and money to a number of needy causes. His financial contributions total an amount that was much greater than the $500,000 political contribution that is the subject of this prosecution."
Then the document goes on to talk about Scrushy's ordination as a minister and a "man of good works."
"Richard's ministry affects people from all walks of life. He is the pastor of Grace and Purpose Church, which also has a television ministry. He also is doing immensely needed work with Kingdom Builders International Ministries, which focuses on missions, evangelism, and education. Through these ministries, he provides financial support for orphanages and local churches in the United States, Africa and South America. His contributions allow local churches to provide social outreach services and simply to provide food, shelter and clothing to their communities.
In sum, Richard Scrushy's charitable activities with Kingdom Builders International Ministries provide food, shelter and clothing for thousands of needy children. His contributions are greater and more substantial than those of some entire countries. To accomplish what he has in this area requires not just financial support. It requires countless and tireless hours of his time and energy. It requires a devotion and contribution of himself that few of us are willing or able to give. A more detailed description of Richard Scrushy's work, through letters and pictures, will be presented to the Court at sentencing."
Attorneys argue that the wrong punishment guideline has been used and that another guideline "that most closely addresses the crime, which the government alleged against Richard Scrushy - making a contribution for the purpose of being appointed to the CON Board - results in a sentencing range that does not require imprisonment." They argue Scrushy "poses no risk of recidivism. He made the contribution and agreed to sit on the CON Board at the express request of Elmer B. Harris, a respected business leader, the Chairman, President and CEO of Alabama Power Company, and a life-long Republican who served as the Chairman of then Governor-elect Siegelman, a Democrat, out of a sense of public duty and loyalty to the Corporation he headed and the citizens and state of Alabama. As he viewed it, "What is good for Alabama is good for Alabama Power."
It was Elmer Harris who persuaded Richard Scrushy to mend fences with Siegelman, whom he had opposed in the election. It was Elmer Harris who personally asked Richard to accept another term on the CON Board. After all, Richard Scrushy had served other Alabama Governors on the CON Board and during his previous term had resigned his seat on the CON Board early because of the amount of work it took to be a diligent member of that Board. If Richard Scrushy so wanted to sit on the CON Board that he was willing to pay a bribe to do it, why resign early. It was Elmer Harris who recommended to Governor Siegelman to get to know Richard Scrushy and who recommended Scrushy for the CON Board. Richard Scrushy's motivation in making the contribution was based on the same motivations that drove Elmer Harris to serve as the elected governor's Transition Team Chair.
Third, Richard Scrushy has turned to the ministry, where there is zero chance that he will ever be tempted to or willfully commit another offense. Moreover, at his age and after the torment of the past several years and with the support of his wife, who is also a minister, the likelihood of recidivism is nil.
Lastly, every other circumstance in this case suggests that a sentence that does not include imprisonment is sufficient to comply with the purposes of sentencing and takes into account the mitigating circumstances of the case."
This particular document addresses little in the Presentence Investigation Report but does say that it " objects to any and all determinations in the Presentence Investigation Report ("PSR") that are based on facts that were not charged in the Indictment nor necessarily found by the jury beyond a reasonable doubt. He also objects to findings to be made by the Court at sentencing on a preponderance standard on the basis of information that is not subject to confrontation and not sufficiently reliable to comport with the rights guaranteed to him under the Indictment and Due Process Clause of the Fifth Amendment and the Confrontation Clause and jury trial guarantees of the Sixth Amendment. See e.g., United States v. Booker, 543 U.S. 220, 319 n.6 (Thomas, J. dissenting in part from the remedial opinion).."
"...the Fifth Amendment requires that any fact that increases the sentence, even if the ultimate sentence is within the range set forth for the offense under the United States Code, must be proved beyond a reasonable doubt."
Moreover, Mr. Scrushy objects to imposition of a sentence in a manner that applies a preponderance standard while giving the guideline calculation any presumptive weight of reasonableness; or that requires that a sentence below the guidelines be justified based on extraordinary circumstances; or that gives the guidelines more weight
Although the Eleventh Circuit has rejected the constitutional arguments, Richard Scrushy hereby asserts his rights to these Constitutional protections in this Court - thereby preserving arguments for appeal - whose parameters in the sentencing context have not yet been resolved by the Supreme Court. See United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007)..."
The filing goes on to say, "...there was no specific personal gain to Mr. Scrushy nor loss to the State of Alabama in this case, placing it well outside the heartland of bribery cases. In the main, bribery prosecutions involve both a personal gain to one or more individuals and a corresponding loss to the state or government..."
"In this case, another reason for departing downward is ...The political contributions made to AELF, with no specific financial gain to Mr. Scrushy certainly did not involve the harms that Congress sought to be prevented by the bribery statute. At most, the conduct is more akin to ... a misdemeanor that proscribes the offer or payment of money to procure appointive office.
Mr. Scrushy's post-offense rehabilitation, where the ministry, good works and charitable contributions are his main purpose in life also warrants a downward departure. ..."
"Mr. Scrushy's contributions of his time and money are exemplary and extraordinary. Indeed, because of his service and contributions, whole villages in Africa are able to send their children to school and feed and clothe them. Additional information concerning this aspect of Richard Scrushy's life will be provided to the Court before sentencing. Indeed, were Richard Scrushy to be sentenced to a lengthy term of imprisonment, a number of his charitable activities would necessarily cease to the detriment of many needy and deserving people..."
Finally the document goes on to state Scrushy should not spend time in prison due to "family circumstances."
"Mr. Scrushy is the father of nine children, the five youngest ones are aged 14, 12, 7, 4, and 2 years of age. All these minor children live with Mr. Scrushy and his wife."
"The two older children, aged 14 and 12, live with Mr. Scrushy and his wife although he is divorced from their mother because he provides them with the necessary and indispensable love and training that children, especially adolescents require."
Mr. Scrushy's wife would not be able to provide the care and nurturance that this children require. A downward departure for this reason is also warranted. The children are uniquely dependent on Mr. Scrushy for emotional nurturance."
Prosecutors have asked Scrushy be imprisoned above the guideline range for 25 years and are asking for a $7, 274,109.24, fine and an order of restitution of $628,000.
Attorneys attached other documents to this filing which outline specific objections to the Presentence Investigation Report. As time permits those documents will be outlined in other stories.