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MONTGOMERY, Ala., July 9, 2007 -- Chief District Judge Mark Fuller on Monday issued a Memorandum Opinion and Order granting a motion filed by Siegelman's sentencing attorney Susan James which sought to correct the sentence and remove the restitution ordered of $181, 325 in relation to the Goat Hill construction project.
The probation officer in the case did not recommend the restitution sought by the government.
James argued in court documents that "The second superseding indictment on which Defendant Siegelman was tried and convicted reveals that the Governor was not convicted on the count relating to the G.H. Construction matter. In fact he was found not guilty." And, she argues in another document, "In the same relentless fashion seen at trial and sentencing the Government seeks more destruction on defendant Siegelman by requesting yet more. This Court should not fall victim to the Government's overreach at the risk of reversal."
Judge Fuller sided with the defendant in his order.
"It is firmly established law of the Eleventh Circuit that acquitted conduct may be taken into account for some purposes in sentencing so long as that acquitted conduct is proven by the government by a preponderance of the evidence...Furthermore, the Eleventh Circuit has held that "restitution is inappropriate if based on charges of which the defendant is acquitted, even if those charges relate to the crime of conviction." United States v. McArthur..."
"In sentencing Siegelman, this Court specifically ordered restitution based on conduct relating to the Goat Hill construction project - acquitted conduct proven by the government by a preponderance of the evidence and appropriately considered in determining an advisory guideline sentencing range. Siegelman correctly points out that restitution should not have been awarded on that basis. Therefore, Siegelman's sentence is due to be corrected pursuant to Federal Rule of Civil Procedure 35(a)."
In a footnote the judge outlines the government's position and explains why he did not impose further time on the former governor.
"The Government makes two arguments in opposition to Siegelman's motion. The Court finds neither persuasive. First, since Siegelman was convicted of the Obstruction of Justice offense as charged in Count 17 of the Second Superceding Indictment and the ordered restitution of $181,325 was a loss that was "caused and/or exacerbated by Siegelman's obstructive conduct," then restitution for the Goat Hill construction project is appropriate. Doc. # 630 at 2. Notably, and as admitted in its opposition, the Government was unable to locate case law supporting this proposition. Although this Court found that the Government proved the Goat Hill construction project conduct by a preponderance of the evidence and found that this conduct was relevant conduct, the relationship between this conduct and the count of conviction is too attenuated when it comes to the order of restitution."
"The Government argues in the alternative that if the sentence needs to be corrected under FRCP 35(a) then this Court should impose additional period of incarceration in order to completely correct the sentence. The Government cites McArthur for this proposition, namely that the district court must reevaluate its sentence in light of the vacated restitution award to give effect to this court's intent in creating a sentencing plan. 108 F.3d at 1357. As this Court would have fashioned the same sentence of incarceration even without the imposition of restitution, the Court is unwilling to entertain the government's suggestion that it impose further time of incarceration."
Attorney Susan James still had not seen the order late Monday afternoon but says the significance of the $181,325 being gone is "that's $181,325 the governor will not have to pay. He was jointly and severably liable with Lanny Young and I don't think there was much chance that Lanny was going to pay his part. So that's $181,325 he doesn't have to worry about paying, but it's also significant to show the extent to which the government would go to try and be punitive. It was the judge that imposed it, but the government's objection and the request for more time I think is significant in that it reveals the extent to which they would go to be punitive..."