Lawyer Objects to Subpoena of Boat Captain: Judge Says Come Anyway

MONTGOMERY, Ala., June 20, 2007 -- A lawyer for Bill Kurtz, the boat captain for Richard Scrushy's yacht the Chez Soiree, on which Mr. Scrushy took a trip up an intercoastal waterway to Miami during a trip to Florida, has moved for a Motion to Quash a subpoena to have his client present during Scrushy's sentencing next Tuesday.

Mid-afternoon on Thursday, Chief District Judge Mark Fuller denied the motion and the boat captain will be required to be available.  In a matter further related to Mr. Scrushy on Wednesday, the 11th Circuit Court of Appeals denied Scrushy's Writ of Mandamus arguing that Judge Fuller should step aside due to alleged conflicts of interests related to interests he has in companies that have contracts with the government.

Kurtz captained the yacht on the little adventure which resulted in a hearing before Chief Magistrate Judge Charles Coody as to whether or not Scrushy had violated the conditions of his post-trial release.

One of Mr. Scrushy's attorneys, Art Leach, says he finds himself perplexed by it all.  "I don't understand it.  I know what happened.  I'm not worried about it.  I mean we've articulated it in the briefs.  It was really a very simple thing.  They want to convert a misunderstanding into some effort to obstruct justice as if the FBI has the right to talk to everybody in the whole wide world.  And it just isn't that way.  I mean as far as I was concerned as soon as I learned of the situation, I informed the government of the fact and obviously I can't represent him.  I represent Richard Scrushy.  There's a conflict there.  And I immediately informed the government of who represented the guy, John Aaron represents him.  And I think I got one more e-mail back from Louis that he was having difficulty getting John.  And within like 10 minutes, 15 minutes of Louis saying he was having trouble getting John I learned he and John had gotten together."

In his motion asking that the Kurtz not be forced to come back to Montgomery, lawyer John Aaron says Kurtz "has no knowledge that would be useful to any party in this hearing as to length of sentence, sentence departures, or sentence enhancements."

Aaron says Kurtz "was present at the Courthouse on April 9th and was never called to testify."

Assistant U.S. Attorney Steve Feaga says Kurtz has been subpoenaed because "we expect him to testify about the little foray in south Florida and in relation to the charge we make that Mr. Scrushy obstructed justice."

In its May 25, 2007 sentencing memorandum related to Scrushy, the government asked Chief District Judge Mark Fuller to increase Scrushy's punishment for "obstruction of justice.  Defendant Scrushy has willfully attempted to obstruct justice in the course of his sentencing proceedings in this case...Defendant Scrushy willfully attempted to prevent a witness from communicating information to the Federal Bureau of Investigation in its investigation of Defendant Scrushy's movements in Florida.  More specifically, Defendant Scrushy at the very least engaged in misleading conduct by instructing William Kurtz, captain of Defendant Scrushy's yacht to inform the FBI, when approached by an agent, that Kurtz was unwilling to speak to the FBI and that he was represented by Art Leach, one of Defendant Scrushy's defense attorneys.  Defendant Scrushy gave Kurtz these instructions knowing that Mr. Leach did not then, and had never, represented Kurtz.  (The government notes that Mr. Leach has directly communicated that fact to government counsel by e-mail on his own initiative.)  Defendant Scrushy advised Kurtz to invoke this spurious representation by counsel as a means to avoid providing information to the government about Defendant Scrushy's movements in Florida.  As a result, FBI Special Agent Keith Baker was prevented from interviewing Kurtz on or about April 4."  According to the government Scrushy testified at the bond revocation hearing, "I told him that we had a lawyer and to have them call the lawyer."

During the April 9th hearing, the magistrate judge called the e-mail from Scrushy attorney Art Leach to the acting U.S. Attorney in this case Louis Franklin "irrelevant...It goes to the question of whether Mr. Leach represents Mr. Kurtz and that's an irrelevant fact," said Judge Coody.

In Mr. Scrushy's recent reply to the government's sentencing memorandum, attorneys for Mr. Scrushy say the issue "at best, this is a disputed issue.  The government chose not to call Captain Kurtz at the April 9, 2007 bond revocation hearing in front of Judge Coody, and thus, his view of conversations with Mr. Scrushy was portrayed only by means of the selective hearsay testimony of Agent Baker.  In contrast, Mr. Scrushy took the stand at that hearing, and under oath, subject to cross-examination, and in the presence of Judge Coody, his recollection was not consistent with the Government's characterization of the related events:"

Mr. Kurtz was also not called to testify by the defense.  Defense attorneys quote from the transcript related to Scrushy's testimony in April in their June 12, 2007 reply to the government's sentencing memorandum:

"When he [Kurtz] called me and told me that -- that an FBI agent had called him and wanted to meet with him, and he - we talked about the - the meeting and about whether or not we had -- he had -- you know, we had a lawyer to meet with him, and he seemed to me that he really didn't want to meet with them.  I mean that was my -- my personal observation, that he didn't want to meet with them.  And so I told him just to tell them to have them call Art Leach.  That's all I knew to do. I didn't know what else --"

The defense also says in that filing that Scrushy was asked if there was "anything that you ever told the captain to indicate that you didn't want him saying anything or to hide anything or to lie about anything about the trip itself? A.  no, sir.  Matter of fact, I told Captain Kurtz to tell the absolute truth."

Aaron in his filing to squash the subpoena, filed on Wednesday, also says there is testimony available already as "part of the record in this case and is available to be used in the sentencing hearing."  Aaron says, "All the information Captain Kurtz would be able to testify to is available through the Federal Agent that has already testified."  He says, "The government has failed to provide any compelling reason why Captain Kurtz's testimony is necessary at the Sentencing hearing."

The government filed its response close to 6:30 p.m. Wednesday to the motion filed by Aaron and in addition to relating again the story of what Scrushy allegedly said to Mr. Kurtz, the prosecutors say, "The government anticipates that Mr. Kurtz's testimony will be necessary and helpful to the Court in fashioning a reasonable sentence for the defendants in this case."  Acting U.S. Attorney Louis Franklin signed the response which further argues that "Defendant Scrushy has objected to the obstruction of justice enhancement because, in part, only Special Agent Baker has testified to Defendant Scrushy's instructions and false statements to Mr. Kurtz.  Consequently, the United States avers that Mr. Kurtz's presence during the sentencing hearing is necessary to ensure that he is available to provide testimony to the Court on Defendant Scrushy's obstructive conduct."

Things will only continue to evolve as the case involving the former CEO and the former governor heads toward sentencing scheduled for next Tuesday, June 26.

Scrushy was convicted last June on bribery, conspiracy, and mail fraud charges related to $500,000 in contributions to former Governor Don Siegelman's Alabama Education Lottery Foundation and Scrushy's appointment to the state's Certificate of Need Review Board.  Approval from the Board is required when a health care facility proposes expansion, additional services or an increase in beds.

Both defendants have been submitting court filings and letters to the federal court pleading their side of the story as to the sentence Chief District Judge Mark Fuller should pronounce.

In one of Mr. Scrushy's filings earlier this month, attorneys argue that the sentence of 25 years requested by the government for Mr. Scrushy is out of line with both the sentencing guidelines and established precedent.

"To put it in context, the median sentence for bribery offenses in the Eleventh Circuit in 2006 was 20.5 months.  The sentence the government seeks for Mr. Scrushy is 15 times greater.  Former Louisiana Governor, Edwin Edwards was sentenced to 10 years imprisonment after conviction on 34 counts of RICO violations, extortion, mail fraud, and related conspiracies, including a conspiracy to commit money laundering in connection with a scheme to provide licenses to operation river boat casinos in return for bribes.  The contrast is equally stark if one considers sentences in the Middle District of Alabama.  The median sentence for the most analogous offenses -- fraud, forgery/counterfeiting, administration of justice offenses - was 5 months, 5 months and 24 months, respectively."

"Even more astonishing is the disparity between the 25 year prison sentence the government is asking for Mr. Scrushy and sentences for offenses that by almost all accounts are considered of a more serious nature.  In the Middle District of Alabama and in the Eleventh Circuit, for example, one can kidnap another human being, commit an arson, be convicted of pornography and prostitution, be a sexual abuser, or commit second degree murder and be sent to less time than the government seeks to have this Court sentence Richard Scrushy."

In a footnote attorneys argue, "For example the median sentence in the Eleventh Circuit in 2006, for kidnapping and hostage taking was 201.5 months (or 16.7 years).  For arson, the median sentence was 87 months (7.25 years).  For pornography and prostitution the median sentence was 78 months (6.5 years).  For sexual abuse, the median sentence was 135 months (11.25 years).  For drug trafficking offenses, the median sentence was 87 months (7.25 years).  For national defense offenses, the median sentence was 33.5 months (2.8 years)."

Attorneys for Scrushy argue that the requested 25 year term puts Scrushy "in league with Bernie Ebbers and Jeffrey Skilling, who, respectively, received sentences of 25 years for a fraud involving $11 billion, and 24 years and four months on account of a fraud involving $62 billion...On its face, the Government's suggested sentence is unreasonable, wildly disproportionate to the offense committed, and completely inconsistent with the underlying purposes of the enactment of the comprehensive reforms embodied in the Sentencing Reform Act of 1984..."

Estimates of how many days the sentencing will take were at first one day, two at the most.  But some people now feel it could take up to four days for sentencing to be completed.

Reported by:  Helen Hammons