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MONTGOMERY, Ala., June 22, 2007 -- An attorney for Richard Scrushy says his client shouldn't be facing the sentence of 25 years the government is asking.
"I think the biggest thing is the sentencing guidelines and in the statutes just overall, the sentencing case law, there's a huge difference between somebody who's a public official and somebody who's not," says attorney Art Leach. "And, at the time that these events occurred, Richard Scrushy was a private citizen."
Leach says the guidelines because of former Governor Don Siegelman's conviction "apply all kinds of enhancements to the governor, because of alleged violations of the public trust."
"Richard Scrushy shouldn't be anywhere near a 25-year sentence. And what they're doing is they're contorting the guidelines to try and get him a sentence that is reflective of the sentences that the government sought against Jeff Skilling and against Bernie Ebbers and against other corporate wrong doers. He shouldn't be anywhere close to a 25-year sentence. This is a single-event bribery case. It's ridiculous."
Leach says the government is "essentially looking to punish him for the case he got acquitted on in Birmingham. It's the only explanation that I think is logical." Attorneys for the government have denied they are looking to punish Scrushy for his acquittal in Birmingham.
In Scrushy's reply to the government's sentencing memorandum on June 12, Scrushy's attorneys argued:
"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..."
Leach says there shouldn't really be any surprises at next week's sentencing hearing.
"Well the whole system is kind of setup so there won't be surprises. You know you get a draft report you have to respond to it and lay out objections and the government has to do the same. They modify the report, you just file again. So it's really designed not to have surprises. I mean they may surprise me, I don't know, but I kind of doubt it."
I asked Leach what sense he got from Judge Fuller at a recent status conference. "You know the judge was very cordial and it was a very good meeting - no problem at all." I wanted to know if the judge indicated he would run a tight ship, like at previous hearings.
"No. Quite the contrary. He's going to let us put our evidence on. The indication from the court is that he's going to give us great leeway, but don't abuse it. Which is kind of the way it usually is. That might as well be the motto of federal court. I'll give you some leeway until I'm sick and tired of hearing what you're saying then I'll cut you off."
Leach is known on occasion to object in a courtroom so will he be an objection machine come next Tuesday, "Well you can object, but the rules are relaxed so it's not quite the same as in trial. The normal rules don't apply so you've got to object within the framework of relaxed rules."
So, how long should next week's sentencing take. As for his part Leach says, "It won't take that long. I can't say precisely but you know with cross examination and everything - maybe three hours or something like that. I personally think it ought to be over by Wednesday. I think that's the right guess, personally."
But Leach says it may take longer than he believes it should,"I wasn't at the status conference for the governor, but apparently at the one for the governor the estimates were anywhere from 2-to-4 days. I can't imagine what kind of evidence everybody's talking about presenting that it's going to take four days. Don't get me wrong, I understand that the governor probably has more evidence to present than we would, but I just can't picture how it's going to take four days."
I tried to get Leach to tell me who was on his witness list, but all I could get out of him was "I would prefer not to do that...There won't be any big surprises - there won't."
As to some of the unsettled issues related to the presentence report that will be brought up at the hearing, "There are some legal issues having to do with what is known as the fraud-loss amount in the guidelines. And there will be evidence presented on the fraud-loss amount. I'm sure the government's going to try to get their numbers before the court and I'm going to have some evidence that counters the fraud-loss amount. As far as Richard is concerned, that's really the whole thing. And then it's you know presenting evidence in mitigation and things of that nature. I would imagine, I haven't studied it carefully, but I would imagine that the governor's got a whole lot more issues because they've got different things going on with him in terms of whether or not he violated his trust and all that sort of stuff."
In their June 12 reply, Scrushy attorneys object to the government's claim that Scrushy got a benefit on a government claimed profit of more than $3 million related to the Phenix City hospital and the government's desire to double that and ask for a fine totaling $7,273,109.24.
As outlined in the Scrushy filing, the government has objected to the PSR finding that "there is no identifiable victim who incurred a physical or financial loss as a result of the counts of conviction - and to the recommendation of paragraph 79 that the Court not impose an order of restitution as a constituent part of Mr. Scrushy's sentence. Specifically, the Government contends that each of HealthSouth, UBS Warburg, and the Brookwood Hospital was a victim of the offenses for which Mr. Scrushy was convicted...This contention is factually and legally baseless."
Scrushy's reply says:
"The Government is seeking to attribute to Mr. Scrushy, for purposes of measuring the offense level...the "benefit" (i.e. profits) enjoyed by HealthSouth by means of the PET scanner and the Phenix City Hospital. It is quite simply illogical, and irreconcilably inconsistent, for the government to argue that HealthSouth both enjoyed benefits and suffered harm resulting from the very same conduct."
"Second, UBS Warburg, with its eyes wide open based on its own independent assessment of its business interests, made a business decision to forgive a debt owed by IHS, one of its customers. It did so believing that the funds relating to that debt forgiveness would be contributed to the AELF, and they were. Thus, as far as it was concerned, it got the full benefit from its bargain with HIS, and it suffered no loss."
"And finally, with respect to the allegations of loss in connection with the Brookwood Hospital, the CON Board unanimously voted to reject Brookwood's petition to the CON Board. The CON Board's decision did not result from the payment of any bribe by Richard Scrushy. Indeed, Richard Scrushy called the CON chair to report what he believed was a violation by Brookwood that he was properly required to bring to her attention. Trial testimony by the CON chair indicated that she believed the Scrushy call was appropriate. Moreover, neither Scrushy's phone call to the CON chair nor the helicopter rides and purchase order to Tim Adams was offense conduct (i.e., not charged as separate offenses), and thus, not compensable under the VWPA. Hughey v. U.S., 495 U.S. 411, 417 (1990) ("Congress intended restitution to be tied to the loss caused by the offense of conviction.")."
On Thursday, Judge Fuller denied a motion by the captain of Scrushy's Yacht the Chez Soiree that a subpoena be quashed requesting the boat captain's presence at the sentencing hearing. The government is asking for an enhancement to Scrushy's sentence alleging Scrushy obstructed justice by telling Bill Kurtz to tell the FBI he had an attorney, namely Leach, who was not in fact Kurtz's attorney. Kurtz was in charge of the yacht when Scrushy went on a much talked about trip down a Florida intercoastal waterway to Miami, which eventually resulted in Scrushy's being fitted with an ankle bracelet by Judge Fuller.
Leach says he's at a loss to understand what's going on. ""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."
The Atlanta attorney says he will of course seek an appeal bond to keep his client free on bond pending his appeal to the 11th Circuit. Regarding the issues that will be a part of that appeal bond and possibly a future appeal to the Atlanta court, Leach says:
"On a motion for an appeal bond you have to set out your issues and there are an awful lot of issues to select from. The jury composition challenges, the juror misconduct, there's a wide array of trial related issues including the fact that he did not allow us to put the HealthSouth contributions before the jury which would have countered this whole idea that the particular contribution in question was colossal. There's about half a dozen of them total that we're considering after that."
Eventually I'll get the motion filed. It'll all be set out there. It won't include everything it'll just include the ones that relate to his decision about whether or not to grant bond."
The sentencing hearing is scheduled to start Tuesday, June 26, at 9 a.m. And yes, the live version of the Courtroom Chronicles will make a return engagement so you can follow along events at your computer as they happen at next week's hearing.
Reported by: Helen Hammons