Scrushy Appeal Bond Filing Outlines Some 11th Circuit Appeal Issues

MONTGOMERY, Ala., June 29, 2007 -- Although Chief District Judge Mark Fuller explicitly stated, without hearing argument, that neither defendant Richard Scrushy nor former Governor Don Siegelman were eligible for an appeal bond, meaning he did not believe there were substantial issues which could result in the overturning of their convictions on appeal, attorneys for Richard Scrushy filed their appeal bond motion Thursday evening and in the document outline at least three areas that will be a basis for their appeal to the 11th Circuit in behalf of Mr. Scrushy.

It is important to note that these are far from all the issues which may be raised.  On Friday, Judge Fuller issued an order officially denying Scrushy's appeal bond.

"Defendant Scrushy is cognizant of the fact that this case has been hard fought, has occasionally resulted in personal rancor, and has resulted in extensive litigation of many issues. However, at the end of the day, and setting aside the long history of this case, as to the issue of setting of bond for Defendant Scrushy pending appeal, this Court should consider only one question: Will Defendant Scrushy's appeal present "substantial questions" - defined as "close questions" or ones that "very well could be decided the other way - that, if decided in his favor, would likely result in a reversal or remand for new trial?"

"And, though this Court, no doubt, is of the mind that any contentions of legal error that Defendant Scrushy might plan to raise on appeal do not amount to reversible error, Defendant Scrushy intends to present at least three issues on appeal, discussed in some length below, which, from the requisite objective vantage point, at least meet the "substantial question" standard set by the Eleventh Circuit: "

"(1) that this Court failed to make sufficient inquiry into certain evidence that members of the jury improperly consulted with extraneous Internet materials during the course of the deliberations; "

In more detail the brief covers some of the "substantial questions" of law and fact that if decided in his favor, likely will result in a reversal or in an order for a new trial.

The first of these relates to the lack of investigation by the Court into evidence "proffered by Defendant Scrushy, on its face, that certain jurors conducted research on the Internet."  While it is true Chief District Judge Mark Fuller held a hearing on the issue in November 2006, this filing asserts there was unexplored evidence later proffered.

Presented below is a major portion of the Scrushy filing:

"The First Substantial Question: Whether this Court Erred in Failing to Undertake any Investigation of Evidence Proffered by Defendant Scrushy Indicating, on its Face, that Certain Jurors Conducted Research on the Internet. "

"On December 21 and 22, 2006, shortly after this Court issued its December 13, 2006 Order (Doc. 518) denying Defendant Scrushy's Motion for New Trial Pursuant to Rule 33(a) (Doc. 467) ("Motion for New Trial"), Defendant Scrushy and counsel received anonymous letters, each containing what appear to be copies of two e-mails between jurors in this case."

"The first of the e-mails, copies of which were received in late December 2006, is dated June 25, 2006, and it was attached as EXHIBIT 23 to the Renewed Motion for New Trial. EXHIBIT 23 appears to be a copy of an e-mail sent on the Gmail account of Juror B to the e-mail account of Juror C at 10:09 p.m. Sunday night, June 25, 2006. This e-mail states in its entirety:"

"....judge really helping w/jurors...

still having difficulties with #30

...any ideas???

keep pushing on ur side

did not understand ur thoughts on statute

but received links.

[first name of Juror B]

EXHIBIT 23 (emphasis added). "

"The second of these e-mails, is dated June 25, 2006, and it was attached as EXHIBIT 24 to the Renewed New Trial Motion. EXHIBIT 24 appears to be a copy of an e-mail sent on the Gmail account of Juror B to the e-mail account of Juror C at 10:41 p.m., Sunday night, June 25, 2006, and it states in its entirety: "

"I can't see anything we miss'd. u?

articles usent outstanding! gov & pastor up s---t creek.

good thing no one likes them anyway. all public officials

r scum; especially this 1. pastor

is reall a piece of work

...they missed before, but we won't 

...also, keepworking on 30...

will update u on other meeting.

[first name of Juror B]

EXHIBIT 24 (emphasis added). "

""The verdict in this case was returned on Thursday, June 29, 2006, just four days after these emails. Furthermore, beginning on February 21, 2007, Defendant Scrushy and some of his counsel received anonymous letters, each containing what appear to be copies of another e-mail between jurors in this case. This e-mail, also dated June 25, 2006, appears to have been printed from a Gmail account and sent from Juror C to Juror B, and it was attached as EXHIBIT 26 to the Motion to Supplement. The e-mail states in its entirety:"

"Great info 4 r friends.

% of prosecution increases dramatically.

Could not find that when I surfed it.

Gov/Pastor GONE....

EXHIBIT 26 (emphasis added). "

"If they are authenticated, the three e-mails between Jurors B and C now in question, all obtained after this Court had ruled on Defendant Scrushy's New Trial Motion, shed a new light - as distinct from the evidence adduced in connection with the Motion for New Trial - both on the nature of the extra-deliberation communications between jurors in this case and the improper extrinsic information that they had obtained during deliberations. "

"More specifically, these e-mails reveal:"

"(1) that at least Jurors B and C had accessed the Internet to obtain far more extensive extrinsic materials than previously admitted by them and than previously considered by this Court when it entered its Order denying Defendant Scrushy's New Trial Motion; and "

"The e-mails also corroborate the testimony of Juror 66 at the November 17, 2006 evidentiary hearing to the effect that Juror C had information about the indictment that he/she obtained from the Internet, which he/she read to the other jurors and discussed with them, (id. at 52-53, 54-55, 57), and that Juror B discussed information that he/she researched about the indictment and discussed a news article viewed on the Internet. (Id. at 59, 60-61.) "

"They also corroborate the affidavit of Juror A - effectively rejected by this Court in its Order denying a new trial - in which he averred that Juror B admitted that he/she "had searched the Internet," and that the same juror told the other jurors "so much law and legal procedures during our deliberations, all the jurors got on her and questioned her knowledge about knowing too much." (Motion for New Trial, EXHIBIT 9 at 1; see also Motion for New Trial, EXHIBIT 8 at 2 ("I was confused between all the evidence and other Internet stuff and information that some of the jurors brought in and was talking about....They were pulling stuff out of files and some were talking about having Internet information and talking about that too.")). "

"Second, considered in juxtaposition with each other, and in context, the new e-mails, if authenticated, prove that Jurors B and C accessed the Internet to obtain extrinsic information that is far more substantive and prejudicial to Defendant Scrushy than previously known. In the first of the three e-mails between these jurors, Juror B tells Juror C at 10:09 p.m. on June 25: "did not understand ur thoughts on statue but received links." (EXHIBIT 23.) In the next e-mail, sent at 10:41 p.m. on that same day, Juror B tells Juror C, among other things "articles u sent were outstanding!," and, in what must be construed as a reference to the prior acquittal of Defendant Scrushy on other charges in the Birmingham matter, "they missed before, but we won't." (EXHIBIT 24.) In the next e-mail, EXHIBIT 26, sent at 10:47 p.m., Juror C tells Juror B "Great info 4 r friends. % of prosecution increases dramatically. Could not find that one when I surfed it. Gov/Pastor GONE...." (EXHIBIT 26.) "

"This Court has dismissed the significance of these newly-discovered e-mails as being "merely cumulative of the exhibits before the Court prior to the December 13, 2006 ruling." (Order Denying Supplemental New Trial Motions at 10.) The Court further states that these exhibits, "if authenticated, are merely impeaching and do not warrant further investigation."

"First, it is hard to fathom how hard evidence - previously unknown to the Defendants and to theCourt - strongly supporting an inference that jurors accessed the Internet to read extrinsic articles can be characterized as being "merely cumulative."

"The e-mails (if authenticated), in fact, constitute new and materially significant evidence that Jurors B and C engaged in misconduct that should lead to a new trial of this matter. Moreover, that the Court further diminishes the significance of the new e-mails by further characterizing them as being "merely impeaching" is similarly difficult to understand. Central to this Court's denial of the supplemental new trial motions is its conclusion that it has already engaged in a thorough and sifting investigation, including questioning of Jurors B and C, in response to which they each acknowledged having accessed the Internet on a limited basis but denied conducting any other Internet research."

"Critical to the Court's conclusion that no further inquiry was warranted based on the new e-mails was its finding that Jurors B and C were credible witnesses, yet would the Court's view of their credibility not change if it were to learn, upon authentication of the newly-discovered e-mails, that, contrary to their sworn testimony, they had engaged in the sort of far-reaching Internet research revealed in the newly discovered e-mails? And if its credibility assessment were to change, in conjunction with its digestion of the substance of the new e-mails, would this Court not be compelled to order a new trial under the Sixth Amendment? Cf. United States v. Bagley, 473 U.S. 667, 676 (1985) ("Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule. Such evidence is evidence favorable to an accused so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.")"

"More to the point, however, for purposes of this motion and not to the end result, even without their having been authenticated, the e-mails in question undeniably make a "colorable showing" that the jury was exposed to prejudicial extrinsic evidence. As such, Defendant Scrushy has thus met his burden to trigger a mandatory investigation by the Court, a point that the Court entirely ignores in the Order Denying Supplemental New Trial Motions. If the e-mails were to be authenticated, then Defendant Scrushy submits that they demonstrate beyond question that such extrinsic exposure occurred and prejudiced Defendant Scrushy to a degree that his convictions should be vacated. If the e-mails turn out not to be authentic, then a hoax has been perpetrated that should be addressed accordingly. Either way, because the e-mails are so powerful on their face, under the binding Eleventh Circuit authority of Barshov, Chiantese, and Rowe, this Court had no option other than to investigate their authenticity. Yet the Court has refused to investigate or authorize an investigation, and its failure to do so constitutes reversible error."

"The Court no doubt disagrees that it has committed reversible error by failing to investigate the authenticity of the newly-produced e-mails, but, it should nevertheless acknowledge that Defendant Scrushy's claim of reversible error on this account presents a "substantial question" - that is, "one of more substance than would be necessary to a finding that it was not frivolous... [or a] 'close' question or one that very well could be decided the other way[,]" Giancola, 754 F.2d at 901 - which, if decided in Defendant Scrushy's favor, will "likely to result in reversal," within the meaning of 18 U.S.C. § 3143(b)(1)(B). Accordingly, an appeal bond should be set for Defendant Scrushy."

"The Second Substantial Question: Whether This Court Erred in Denying Defendant Scrushy's Rule 29 Motion for Judgment of Acquittal In Light of the Absence of Evidence of an Express Quid Pro Quo Necessary to Support his Convictions."

"The United States Supreme Court has held in the clearest of terms that the ability of candidates to seek contributions and the right of citizens to support political candidates with their contributions is essential to our democracy, and, as a consequence, it is activity that is protected under the Constitution. McCormick v. United States, 500 U.S. 257 (1991). It is in light of the sacrosanct nature of the right of the citizenry to engage in political activity that the Supreme Court has permitted political contributions to be the subject of criminal prosecution only when they are made as part of an express quid pro quo, that is when the contributions are made "in return for an explicit promise or undertaking by the official to perform or not perform an official act." McCormick, 500 U.S. at 273."

"Here, as Defendant Scrushy has already argued extensively, both orally and in writing,6 the Government's evidence failed to fulfill its bold claim in the indictment that the contributions attributed to Defendant Scrushy constituted a quid pro quo for his appointment by Governor Siegelman to the CON Board. Defendant Scrushy understands that this Court has denied his Rule 29 Motion for Judgment of Acquittal (Doc. 468), but the issue of the sufficiency of the evidence as to the existence of the requisite quid pro quo necessary to support his convictions in this case is certainly a "close question," not frivolous, and "one that very well could be decided the other way." Giancola, 754 F.2d at 901. Furthermore, if this issue were to be resolved in Defendant Scrushy's favor, then there is no doubt that his convictions would be reversed and that judgments of acquittal would be entered.7 It is for this additional reason that this Court should grant this motion and permit Defendant Scrushy to remain free on bond pending the disposition of his appeal. "

Without reiterating all of the exhaustive discussion on this issue already set forth in Defendant Scrushy's prior Rule 29 briefing, fundamentally, the Government's evidence failed to establish a quid pro quo for two main reasons:

(1) no one witnessed the June 29, 1999 meeting where the alleged express agreement as between Governor Siegelman and Defendant Scrushy was made, and the only circumstantial evidence offered to prove the existence of quid pro quo - the testimony of Nick Bailey - does not, in fact, support even an inference of such an express agreement; and

"First, notwithstanding the uncontroverted evidence that Defendant Scrushy did not even want a seat on the CON Board in 1999, the only evidence offered by the Government at trial as to the existence of a quid pro quo was Bailey's testimony that he engaged in the following conversation with Governor Siegelman after the Governor supposedly showed him a check provided by Defendant Scrushy at the June 29, 1999 meeting:"

Q [Mr. Feaga]: Okay. Now, when you saw the Governor, did he have this check in his hand? Did he have it?

A [Mr. Bailey]: Yes, sir.

Q: Okay. Now when the Governor showed you the check, what, if anything did he say to you?

A: He made a comment referring to Mr. Scrushy's commitment to give 500,000 and he's halfway there.

Q: Okay. And what, if anything, did you say to him?

A: I said-I responded by saying, what in the world is going [sic] to want for that; and his response was the CON Board or the C-O-N Board.

Q: Okay. And what did you-

A: I wouldn't think there would be a problem with it. And he said I wouldn't think so.

(May 2, 2006 Transcript of Proceedings at 175-76 (emphasis added)) .

"Tellingly, Bailey neither witnessed nor testified about anything that he had heard directly from Defendant Scrushy, and indeed, his testimony fails to reveal the source for the Governor's belief that Defendant Scrushy desired a seat on the CON Board. In fact, Bailey's testimony fails to establish - and there is no proof otherwise - that the Governor and Defendant Scrushy even discussed the make-up of the CON Board during the June 29, 1999 meeting. In the end, therefore, Bailey's testimony, can only stand for the proposition that the Governor believed that Defendant Scrushy wanted a seat on the CON Board as a consequence of his donations, a belief that was no doubt similar to that of many politicians who consider political appointments for campaign donors. "

"Crucially, evidence as to Governor Siegelman's belief as to Defendant Scrushy's desire to become a member of the CON Board is insufficient even to support an inference that Defendant Scrushy made the donations at issue as part of an express quid pro quo, that is, with "a specific intent to give or receive something of value in exchange for an official act," Sun-Diamond Growers, 526 U.S. at 404-05 (emphasis in original). "

"Moreover, the Bailey testimony is not sufficient to sustain Defendant Scrushy's guilt for another compelling, reason: the conversation that Bailey testified to having had with the Governor simply could not have occurred as Bailey claims. Taking Bailey's testimony at face value, two crucial events precipitated the Bailey-Governor Siegelman conversation: first, the meeting between the Governor and Defendant Scrushy; and, second, the Governor's supposed act of showing Bailey a $250,000 check that Bailey believed was signed by Defendant Scrushy. The critical statements in the conversation, as testified to by Bailey, simply do not make any sense without the presence of the check and the conversation occurring in the immediate aftermath of the meeting between the Governor and Defendant Scrushy. "

"Yet, if there is anything that is clear from the evidence in this case, it is the conclusion that the $250,000 check in question was not in existence at the time of the meeting between the Governor and Defendant Scrushy on June 29, 1999. See detailed discussion of evidence in Defendant Scrushy's Motion for Judgment of Acquittal (Doc. 413 at n.2. Quite simply, the evidence in the case conclusively demonstrates that it was physically impossible for the conversation about the check between Governor Siegelman and Bailey to have occurred as Bailey recounted in his testimony. "

"Because the content of the conversation - the content that supposedly establishes the quid pro quo - so clearly hinges on the existence of the check in order to make any sense at all, the proof that the check did not exist on the date of that meeting brings the supposed Bailey-Governor Siegelman conversation squarely within the ambit of the holding of the Eleventh Circuit that testimony is inherently unbelievable if it is "so contrary to the teachings of basic human experience ... that no reasonable person would believe it beyond a reasonable doubt. If a witness were to testify that he ran a mile in a minute, that could not be accepted, even if undisputed." United State v. Chancey, 715 F.2d 543, 546 (11th Cir. 1983); accord United States v. Kelley, 412 F.3d 1240, 1247 (11th Cir. 2005). Bailey's testimony as to the existence of an express quid pro quo, therefore, should be disregarded entirely."

"At the end of the day, it is neither unusual nor unlawful for a politician to consider appointed positions for his political benefactors, and, likewise, for those benefactors to seek out such positions. The Supreme Court, of course, recognized this fact of political life in McCormick, and it is for this precise reason that evidence of an express quid pro quo - and not the mere possibility of such an express agreement - is a necessary predicate to conviction on a bribery charge premised on campaign contributions. Such evidence is entirely lacking here. "

"All the while recognizing that this Court has already disagreed with the foregoing analysis, Defendant Scrushy nevertheless submits that the sufficiency of the evidence as to the existence of a quid pro quo will certainly frame an issue on a appeal that is more than frivolous. Indeed, at a minimum, it will necessitate just the sort of "close call" that the Eleventh Circuit has already held constitutes a "substantial question" mandating release on bond pending appeal under 18 U.S.C. § 3143."

"The Third Substantial Question:  Whether the 2001 and 2005 Qualified Jury Wheels, from which Defendant Scrushy's Grand and Petit Juries and the Jury Pools Drawn from them Failed to Fairly Represent the African-American Citizens of the Middle District of Alabama, in Violation of the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq., the Jury Plan of the Middle District of Alabama, the Sixth Amendment, and the Equal Protection Clause of the Fifth Amendment. "

"The final "substantial question" presented by Defendant Scrushy's upcoming appeal of his convictions arises out of his jury challenge relating to the 2001 Qualified Jury Wheel (hereinafter, "QJW") from which the grand jury that indicted him was selected, and the 2005 QJW from which his petit jury was selected. See Defendant Richard M Scrushy's Preliminary Motion to Dismiss and Challenge to the Composition of Petit jury Pools in the Middle District of Alabama (Doc. 104) ("Jury Challenge Motion"). The heart of the challenge is Defendant Scrushy's claim that the jury system in both these periods failed to fairly represent the African-American citizens that live in the Middle District of Alabama. "

Footnote:  "Stated succinctly, Defendant Scrushy challenges this District's compliance with (1) the JSSA in light of (a) The Clerk's use of outdated mailing addresses, (Objections to R&R at 6-8); (b) The Clerk's liberal deferral practices, (Objections to R&R at 9-11); (2) the District's Jury Plan, and thus the JSSA, in light of: (a) The Clerk's violation of the 15% limitation, (Objections to R&R at 12-20); (b) the computer failure to randomly distribute previously-deferred jurors within the jury pool (or, the "scattering" violation), (Objections to R&R at 20-22); (c) The Clerk's use of "double draw" pools, (Objections to R&R at 23-24); (d) The Clerks' violation of ¶ 16(e) of the Jury Plan - "jurors who are called but not needed or not chosen for actual service shall be deferred for one year and then placed back into the Qualified Jury Wheel" - by giving jurors a two-year excuse, (Objections to R&R at 24-25); and (e) The Jury Plan's failure to comply with the requirement of § 1863(b)(2) that the use of voter lists be supplemented by "some other source or sources of names...," (Objections to R&R at 26-28); (3) ¶ 9(a) of the Jury Plan and § 1863(b)(4) of the JSSA in light of The Clerk's failure to empty the jury wheel every four years, (Objections to R&R at 25-26); (4) the Fair Cross Section clause of the Sixth Amendment, (Objections to R&R at 29-43); and (5) the Equal Protection Clause of the Fifth Amendment.

"Although the statistical analyses as to the extent and precise causes of this under-representation can be debated and parsed in many ways, as Chief Magistrate Judge Coody's R & R in this case and rulings of the District Judge and Magistrate Judge in a contemporaneous jury challenge filed in the unrelated case of United States v. Leon Carmichael, Sr., Case Number 2:03cr259-MHT 8 surely do, one fact is indisputable: The jury system in the Middle District of Alabama has consistently and systematically produced juries that exclude over one-third of the African-American community that resides in this District. This pattern of exclusion of African-Americans has been in place continuously since at least the 1997 QJW, which this Court in 2001 found to be in substantial violation of the Jury Selection and Service Act. United States v. Clay, 159 F. Supp. 2d 1357 (M.D. Ala. 2001). Defendant has submitted, and continues to submit, that this under-representation and the irregularities that have created it are a substantial violation of the Jury Selection and Service Act, 28 U.S.C. § 1861 et seq. (hereinafter, "JSSA"), the Jury Plan for the Middle District of Alabama (hereinafter "Jury Plan"), the Sixth Amendment to the United States Constitution, and the equal protection clause of the Fifth Amendment. "

"While the R & R of Chief Magistrate Judge Coody, as well as the Boyd R & R and Thompson Opinion have rejected all of these claims in both cases, the salient consideration in terms of the appeal bond issue now before this Court is that each of these judges has acknowledged that there are significant problems with the jury system in this District. "

"The first in time was Magistrate Boyd, who wrote in Carmichael:"

"Notwithstanding this adverse Recommendation, this Magistrate Judge cannot ignore that the same evidentiary record which warrants denial of a new trial to these defendants also documents a compelling need for the Middle District of Alabama to examine, and undertake to remedy, administrative inaction and operational deficiencies which may undermine the integrity of and public confidence in, the District's Jury Plan. For court personnel assigned to implement the Jury Plan, the Clay decision should have served, at the very least, to heighten an appreciation for the statutory and constitutional imperatives to ensure each criminal defendant's right to a jury which is at once representative of a fair cross-section of the community and of a fair selection process. That it did not is a fact underscored repeatedly and with unmistakable clarity from the testimony and exhibits adduced at the evidentiary hearing .... After addressing for almost a year the discovery issues, hearings, and legal analysis generated by this jury composition challenge, this court is constrained to add its voice to the chorus for operational changes which, if not undertaken, may burden the District with repeated litigation.   Boyd R & R at 100 n. 147. "  

"Thereafter, Judge Thompson wrote in the same case:""

The court will adopt the magistrate judge's recommendation and reject the defendants' challenge to this court's jury selection process. However, while the defendants are not entitled to a new trial, it should not be overlooked that they have identified several undisputed violations of the JSSA and the Middle District's jury plan. It is also apparent that the defendants are narrowly shy of having satisfied the second Duren factor of a greater-than-absolute racial disparity. "

"The court therefore adopts the magistrate judge's caution that there is "a compelling need for the Middle District of Alabama to examine, and undertake to remedy, administrative inaction and operational deficiencies which may undermine the integrity of, and public confidence in, the District's Jury Plan Thompson Opinion, 467 F. Supp. 2d at 1315. Judge Thompson thereafter recommends to the Court as a whole that the Administrative Office of the Courts be "immediately invited down to do a complete audit of the court's jury selection process,...." Id. at 1315."

"For purposes of appeal, therefore, the real question will be whether the JSSA and Jury Plan violations (which are a subset of JSSA violations) are of a sufficient magnitude to justify an order of a new trial, and whether, more broadly, the failure of the jury system failed to fairly represent the African-American citizens that live in the Middle District of Alabama constituted violations of the Sixth Amendment and the Equal Protection Clause of the Fifth Amendment. These are much more than frivolous considerations on the undisputed facts, and indeed, Judge Thompson has specifically found with respect to at least one facet of the jury challenge - the 15% limitation - that the "question is a close one." Thompson Opinion, 467 F.Supp. at 1304 (emphasis added). And it is because the issues presented in Defendant Scrushy's jury challenge are so close that Defendant Scrushy's jury challenge on appeal presents a "significant question," within the meaning of 18 U.S.C. § 3143, such that this Court should allow for the release of Defendant Scrushy on an appeal bond pending his appeal."