Filed: Jul. 15, 2013
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Summary: Case: 12-10694 Date Filed: 07/15/2013 Page: 1 of 40 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10694 _ D.C. Docket No. 2:05-cr-00119-MEF-CSC-4 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RICHARD SCRUSHY, Defendant - Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (July 15, 2013) Before TJOFLAT and COX, Circuit Judges, and BOWEN, * District Judge. TJOFLAT, Circuit Judge: * Honorable Dudley H. Bowen, J
Summary: Case: 12-10694 Date Filed: 07/15/2013 Page: 1 of 40 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-10694 _ D.C. Docket No. 2:05-cr-00119-MEF-CSC-4 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RICHARD SCRUSHY, Defendant - Appellant. _ Appeal from the United States District Court for the Middle District of Alabama _ (July 15, 2013) Before TJOFLAT and COX, Circuit Judges, and BOWEN, * District Judge. TJOFLAT, Circuit Judge: * Honorable Dudley H. Bowen, Jr..
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Case: 12-10694 Date Filed: 07/15/2013 Page: 1 of 40
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10694
________________________
D.C. Docket No. 2:05-cr-00119-MEF-CSC-4
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICHARD SCRUSHY,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(July 15, 2013)
Before TJOFLAT and COX, Circuit Judges, and BOWEN, ∗ District Judge.
TJOFLAT, Circuit Judge:
∗
Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
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On June 29, 2006, a Middle District of Alabama jury found Don Eugene
Siegelman, a former Governor of Alabama, and Richard Scrushy, the founder and
former Chief Executive Officer of HealthSouth Corporation, a major hospital
corporation with operations throughout Alabama, guilty of federal funds bribery, in
violation of 18 U.S.C. § 666(a)(1)(B); honest services mail fraud, in violation of 18
U.S.C. §§ 1341 and 1346; and conspiracy to commit the latter offenses, in
violation of 18 U.S.C. § 371.1 We affirmed Scrushy’s convictions and sentence
and all but two of Siegelman’s convictions in United States v. Siegelman
(Siegelman I), 561 F.3d 1215 (11th Cir. 2009). After it decided Skilling v. United
States, 561 U.S. ---,
130 S. Ct. 2896,
177 L. Ed. 2d 619 (2010), the United States
Supreme Court granted Scrushy and Siegelman’s petition for writ of certiorari and
remanded their cases to this court for reconsideration in light of Skilling. On
remand, we reversed two of Scrushy’s §§ 1341 and 1346 convictions and
remanded his case to the District Court for resentencing. United States v.
Siegelman (Siegelman II),
640 F.3d 1159 (11th Cir. 2011). On January 25, 2012,
1
Siegelman was also convicted of obstruction of justice, in violation of 18 U.S.C. §
1512(b)(3).
2
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the court sentenced Scrushy to concurrent sentences totaling 70 months’
imprisonment. 2
Scrushy now appeals the District Court’s judgment. The focus of his appeal
is the District Court’s denial of his motion for new trial filed on June 26, 2009,
while Siegelman I was before the Supreme Court on certiorari, and the denial of
his motion to recuse the trial judge, then Chief Judge Fuller,3 filed the same day.
We find no abuse of discretion in the challenged rulings and therefore affirm.
This case has had a convoluted history. To place the two rulings at issue
here in context, it is necessary that we trace what transpired between the return of
the jury’s verdicts on June 29, 2006, and Scrushy’s resentencing on January 25,
2012. In part I, we briefly describe the conduct that gave rise to Scrushy’s
convictions and recount the events that took place prior to the District Court’s
issuance of the rulings before us. In part II, we describe those rulings. Part III
addresses Scrushy’s arguments that the rulings constituted an abuse of discretion.
Part IV concludes.
I.
2
The court sentenced Siegelman to concurrent prison terms of 60 months on the § 371
conspiracy count and 70 months on the § 666(a)(1)(B) and §§ 1341 and 1346 substantive counts.
3
Judge Mark E. Fuller’s term as Chief Judge expired in 2011. For convenience, we refer
to him as Judge Fuller.
3
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Scrushy and Siegelman’s bribery convictions were based on allegations that
they made and executed a corrupt agreement whereby Scrushy gave Siegelman
$500,000 in exchange for Siegelman’s appointing him to Alabama’s Certificate of
Need Review Board. The honest services mail fraud convictions were based on
the same bribery allegations, but also the allegation that Scrushy used the board
seat he obtained from Siegelman to further HealthSouth’s interests.
A.
On September 29, 2006, following their convictions, Scrushy and Siegelman
jointly moved the District Court for a new trial pursuant to Federal Rule of
Criminal Procedure 33, asserting that they were denied a fair trial because of jury
exposure to extrinsic evidence, jury misconduct, and news media coverage of the
case.4 The extrinsic evidence consisted of an unredacted copy of the second
superseding indictment (on which the jury based its verdicts) obtained from the
Middle District of Alabama courts’ website and information from the same website
describing the role of the jury foreperson. Juror #5, whose “affidavits” of August 9
and September 1, 2006, were attached to the defendants’ motion, described the
extrinsic evidence as including “Internet stuff and information” some of the jurors
4
This is the only post-verdict motion the defendants filed jointly. Except as otherwise
indicated, they separately and simultaneously thereafter filed essentially identical motions
throughout the post-verdict litigation of the case.
4
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“brought in,” which was discussed along with the evidence in the case after the
jury retired to deliberate its verdicts.5
The juror misconduct purportedly occurred when “at least three jurors
engaged in one-on-one deliberations outside the presence of other jurors and, in
doing so, discussed extrinsic evidence.” Record, vol. I, no. 467, at 2–3. Defense
counsel supported this allegation by attaching to their motion copies of four emails
three jurors purportedly either sent to other jurors or received from other jurors
during the trial. 6 These emails were mailed anonymously to defense counsel
5
The jury retired to deliberate its verdicts on June 15, 2006, and returned its verdicts on
June 29, 2006. The above quotations were taken from Juror #5’s August 9 affidavit. That
affidavit also stated that he regretted finding the defendants guilty. He attributed the verdicts to
the pressure the jury was under. “The judge practically threatened us. He said that he was
appointed for a lifetime to be a judge so he has all the time in the world. He said he had no
problem holding us until next Fourth of July or however long it takes to reach a verdict.” Mot.
for New Trial Ex. 8, at 1, September 29, 2006, ECF No. 467-10. Also attached to the motion for
a new trial were the affidavits of Juror #5’s wife and their pastor, Stephen Hudson. The wife
said that Juror #5 “told [her] that things were not handled right . . . from internet communications
among the jury to the pressure and intimidation from the Judge.” Mot. for New Trial Ex. 7,
September 29, 2006, ECF No. 467-9. Hudson said that he had noticed “a drastic change” in
Juror #5 since the conclusion of the trial. Mot. for New Trial Ex. 6, September 29, 2006, ECF
No. 467-8.
6
Defense counsel received copies of these emails by mail in an envelope postmarked
September 5, 2006. The identity of the party who mailed the emails was not revealed. Scrushy
refers to the jurors by letter in his motion for new trial; the court refers to the jurors by number.
We refer to the sender and recipient of the email first by Scrushy’s designation, then by the
District Court’s designation.
The first email, Exhibit 10, was sent by Juror B (Juror #40) to Juror C (Juror #7) on May
29, 2006, at 10:41 p.m. It stated, “. . . need to talk . . . . . !?” Mot. for New Trial Ex. 10,
September 29, 2006, ECF No. 467-12. The second email, Exhibit 11, was sent from Juror B
(Juror #40) to Juror C (Juror #7) on May 29, 2006, at 11:38 p.m. It stated, “I agree some of the
kounts r confusing 2 our friends. Chek txt 30/38 still off trac.” Mot. for New Trial Ex. 11,
September 29, 2006, ECF No. 467-13. The third email, Exhibit 12, was sent from Juror D (it
5
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following the trial. On October 10, 2006, Scrushy’s counsel received a fifth email,
again from an anonymous person by mail. 7
Judge Fuller held a hearing on the motion for a new trial on October 31. He
scheduled the hearing for the purpose of ascertaining the origin and authenticity of
Juror #5’s affidavits and determining whether defense counsel had violated Local
Rule 47.1 of the Local Rules for the United States District Court for the Middle
District of Alabama for Civil and Criminal Cases, which forbids contacting a juror
for the purpose of inquiring into a jury verdict.8 Siegelman’s counsel said that he
was unclear from the email address whether this email was sent by a juror) to Juror B (Juror #40)
on June 25, 2006, at 11:28 p.m. It stated, “penalty 2 severe . . . . still unclear on couple of counts
against pastor & gov.” Mot. for New Trial Ex. 12, September 29, 2006, ECF No. 467-14. The
fourth email, Exhibit 13, was sent from Juror B (Juror #40) to Juror D (same address from third
email) on June 25, 2006, at 11:48 p.m. It stated, “. . . stay focused . . . . remember what judge
said . . . . have plans for 4th . . . . right?” Mot. for New Trial Ex. 13, September 29, 2006, ECF
No. 467-15.
It is unclear whether any of the eight juror emails cited in this opinion were sent in
response to an email received by the juror.
7
This email was purportedly sent from Juror B (Juror #40) to Juror E (it was unclear
from the email address whether this email was sent by a juror) on June 25, 2006, at 11:31 p.m. It
stated, “proud of you . . . other 6 kounts most important c.u.n..am.” Mot. for Expedited
Consideration of an Order to Require Preservation of Evidence Ex. 15, October 11, 2006, ECF
No. 472-1. Scrushy’s counsel submitted the email to the District Court with a request that the
court enter an order preserving the evidence.
8
Local Rule 47.1, Juror Information, Questionnaires and Contact, states, in subpart (b),
Attorneys, parties, anyone in their employ, or anyone acting for them or on their behalf
shall not, without filing a formal motion therefor with the Court and securing the Court’s
permission, initiate any form of contact for the purpose of interrogating jurors or alternate
jurors in civil or criminal cases, in any manner, in an attempt to determine what the jurors
thought about any aspect of the case or evidence, the basis for any verdict rendered or to
secure other information concerning the deliberations of the jury or any member thereof.
6
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obtained Juror #5’s affidavits this way: Juror #5’s pastor, Stephen Hudson,
consulted a Birmingham, Alabama, pastor, Charles Winston, about Juror #5’s
difficulty after the trial coming to terms with his vote to find Scrushy and
Siegelman guilty. Winston and Juror #5 subsequently had a conversation in which
Juror # 5 described what transpired during jury deliberations. Winston prepared a
document styled “Affidavit” for execution before a notary public. The body of the
document consisted of questions Winston posed to Juror #5 and Juror #5’s
answers. The words were Winston’s because Juror #5 did not read well. Juror #5
signed the document on August 9, 2006, but not before a notary. Winston then
gave the document to his wife, Debra Bennett Winston, a lawyer, who noticed that
Juror #5 had not signed the affidavit before a notary.
On a date between August 9 and September 1, 2006, Debra Winston met
with one or more of Siegelman’s lawyers and shared the information her husband
had obtained from Juror #5. On September 1, she prepared an affidavit for Juror
#5’s execution. He signed it before a notary. Like the August 9 affidavit, the
September 1 affidavit is in question and answer form, with Juror #5 answering the
questions Debra Winston asked him. The answers closely resemble the answers he
provided in the August 9 affidavit. At some point between September 1 and
September 29, when the motion for a new trial was filed, Debra Winston gave the
affidavits to Siegelman’s counsel.
7
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After hearing the testimony of the Winstons, Juror #5, his wife, and Hudson,
and considering Siegelman’s attorney’s representation concerning his acquisition
of Juror #5’s affidavits, Judge Fuller concluded that the evidence was insufficient
to establish a Local Rule 47.1 violation and that the defendants had made a
“colorable showing of extrinsic influence on the jury sufficient to warrant a further
inquiry.” Judge Fuller scheduled a hearing for November 17, 2006, so he could
question the jurors.
At the November 17 hearing, Judge Fuller asked each juror whether, during
the jury’s deliberations, he or she had been exposed to or considered “extrinsic
information.” He explained that the extrinsic information consisted of the
unredacted superseding indictment and the court’s website information about the
foreperson’s role, but he did not mention the five emails. Most of the jurors
recalled hearing about the unredacted superseding indictment and the information
about the foreperson’s role; several jurors also recalled that, during the trial, they
had been exposed inadvertently to some media coverage of the case.
On December 13, 2006, Judge Fuller denied the motion for a new trial. As
to the allegations of juror exposure to the extrinsic information, he found that even
though there was credible evidence that jurors had been exposed to the unredacted
second superseding indictment, information about the role of the foreperson, and
media coverage of the case, the exposure to the extrinsic information was harmless
8
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beyond a reasonable doubt. United States v. Siegelman, 467 F. Supp. 2d 1253,
1278 (M.D. Ala. 2006). As for the allegations of juror misconduct, Judge Fuller
assumed that the five emails depicted by Scrushy as being sent by jurors to other
jurors were authentic, but he nonetheless found that the exchange of the emails was
not “of the sort into which this [c]ourt can or should directly inquire by
interrogating jurors, nor is it in this [c]ourt’s view grounds for granting a new
trial.” Id. at 1280.
B.
On December 21 and 22, 2006, two more emails surfaced. These emails,
purportedly sent by one of the jurors to another juror, indicated that jurors may
have deliberated improperly. 9 Copies of the emails were mailed anonymously to
defense counsel and to co-workers of the two jurors in envelopes postmarked
December 20, 2006. The emails referenced “links” and “articles,” indicating that
9
Both emails, Exhibits 23 and 24, were sent from Juror B (Juror #40) to Juror C (Juror
#7) on June 25, 2006. Exhibit 23, sent at 10:09 p.m., stated, “. . . judge really helping w/jurors .
. . still having difficulties with # 30 . . . any ideas??? keeping pushing on ur side. did not
understand ur thoughts on statute but received links.” Mot. for Recons. Ex. 23, December 28,
2006, ECF No. 519-1. Exhibit 24, sent at 10:41 p.m., stated,
I can’t see anything we miss’d. u? articles u sent 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.
Mot. for Recons. Ex. 24, December 28, 2006, ECF No. 519-2.
9
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the jurors had considered extrinsic information on the merits of the case. The co-
workers gave the two jurors the emails they had received; one of the jurors
reported receiving the emails to the U.S. Marshals Service (the “Marshals”), and
the other reported the event to the court. 10 The Marshals then informed Judge
Fuller of the emails because he presided over the trial of the case and was the
Middle District of Alabama’s chief judge. Judge Fuller asked the Marshals to
investigate the matter. The Marshals, in turn, went to the acting U.S. Attorney,
who asked the U.S. Postal Inspection Service (the “Postal Service”) to join in the
investigation.11 The acting U.S. Attorney, Louis Franklin, assigned an Assistant
U.S. Attorney to oversee the investigation. Scrushy and his lawyers were not
informed of these events.
On December 28, 2006, about a week after the two additional emails came
to light, Scrushy moved the court to reconsider its order denying his motion for a
new trial or, in the alternative, to grant him a new trial based on newly discovered
evidence. Scrushy argued that the two new emails, if authentic, showed that jurors
had conducted far more extensive Internet research than previously admitted and
that the information they found was “not only damning to Defendant Scrushy, but
10
The record does not indicate whether the juror went to the court’s clerk’s office or
directly to Judge Fuller.
11
Since the U.S. Mails were involved, the Postal Service was the federal law
enforcement agency with jurisdiction to investigate the matter.
10
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that it appears to be related to the prior high-profile trial of Defendant Scrushy on
other criminal charges, where he was acquitted of all charges.” Record, vol. II, no.
519, at 9. Scrushy asked the court to summon the jurors to court for further
questioning.
On February 21, 2007, Scrushy and his lawyer each received through the
mail from an anonymous sender an email purportedly sent by the juror who
received the two emails contained in the envelope postmarked December 20, 2006,
to the juror who purportedly sent the two emails. 12 On February 26, 2007, Scrushy
filed a motion to supplement his motion for reconsideration, attaching the email as
an exhibit.
In early April 2007, while the alternative motions were pending, the
Marshals met with Judge Fuller and told him that the Postal Service had concluded
that the two emails the jurors’ co-workers had received on December 21 and 22
were not authentic but that they had not determined who sent them. 13 Scrushy and
his lawyers were unaware of the meeting. On June 22, 2007, Judge Fuller denied
Scrushy’s motion for reconsideration. He also denied Scrushy’s alternative motion
12
Juror C (Juror #7) purportedly sent the email to Juror B (Juror #40) on June 25, 2006,
at 10:47 p.m. It stated, “Great info 4 r friends. % of prosecution increases dramatically. Could
not find that when I surfed it. Gov/Pastor GONE.” Mot. to Supplement Previously Filed Mot. to
Recons. Ex. 26, February 26, 2007, ECF No. 532-1.
13
It does not appear that the email Scrushy attached to his February 26, 2007, motion to
supplement was given to the Marshals and the Postal Service.
11
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for a new trial. As he had done with the five emails presented with the defendants’
September 29, 2006, motion for a new trial, he treated the emails contained in the
envelopes marked December 20, 2006, and the email Scrushy and his lawyer
received on February 21, 2007 (“the three emails”) as authentic and concluded that
they were merely “cumulative” of the five emails that had surfaced earlier.
Moreover, on November 17, 2006, the jurors had already testified under oath about
their possible contact with extraneous information, and the questions put to them at
that time had been sufficiently broad to satisfy the requirements of law. United
States v. Siegelman, 2007 WL 1821291, at *5 (M.D. Ala. June 22, 2007).
Six days after denying Scrushy’s alternative motions, the District Court
sentenced the defendants. The court sentenced Siegelman to prison for terms
totaling eighty-eight months and Scrushy to terms totaling eighty-two months.
C.
Scrushy and Siegelman appealed their convictions and sentences on July 11,
2007. In addition to challenging the sufficiency of the evidence to convict, they
challenged the District Court’s denial of their joint motion for a new trial (on
December 13, 2006) and its denial of their motions for reconsideration (on June 22,
2007). At the time they filed their notices of appeal, they were still unaware of the
April 2007 meeting between Judge Fuller and the Marshals. Their attorneys
became aware of the meeting, however, when they received a letter, dated July 8,
12
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2008, from the chief of the Appellate Section of the Criminal Division of the U. S.
Department of Justice. The letter explained that, while preparing its answer brief
in response to Scrushy’s opening brief, the Government had become aware of the
meeting, and the investigation that led to it, and that defense counsel were being
notified of the same out of an “abundance of caution.” Record, vol. III, no. 954-1,
at 4. The letter stated the following:
On or about December 21, 2006, at least five co-workers of Jurors 7 and 40
received in the United States mail at their places of employment copies of
purported emails identical to the ones appended to defendant Scrushy’s
Motion to Reconsider filed on December 28, 2006. Like the envelopes
received by defense counsel, the envelopes did not bear a return address,
were postmarked December 20, 2006, and were sent from Montgomery,
Alabama. After the recipients showed the purported emails and envelopes to
Jurors 7 and 40, the jurors notified the United States Marshals Service.
(Juror 7 initially reported the mailings to the court, but the court referred him
to the Marshals Service.) The Marshals Service brought the mailings to the
attention of Acting United States Attorney Louis Franklin, who asked the
Postal Inspectors to attempt to determine who had sent the letters to the
jurors’ co-workers. Shortly thereafter, Mr. Franklin transferred oversight of
the investigation to an attorney in his office who was not involved in the
prosecution of defendants.
Over the next several weeks, a Postal Inspector interviewed Jurors 7 and 40
and some of the co-workers who had received in the United States mail
copies of the purported emails. The Postal Inspector also compared the
purported emails to test emails sent from and received by Juror 40’s email
account. Based on a comparison of the emails and information obtained
from the jurors and their co-workers, including information from a co-
worker of Juror 7 who monitored Juror 7’s emails during trial and did not
see any incoming emails from Juror 40, the Postal Inspector concluded that
the purported emails were not authentic and had been forged. Although the
Postal Inspector subsequently submitted the stamped envelopes and
13
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purported emails for forensic examination, the results were inconclusive. He
closed his investigation on September 10, 2007. No charges were brought.
[I]n early April 2007, . . . representatives of the United States Marshals
Service apprised Chief Judge Fuller that the Postal Inspectors were
investigating the receipt of purported emails by co-workers of the two jurors
and had concluded that the purported emails were not authentic, but that the
Postal Inspectors had not determined who had sent copies of the emails to
the co-workers. The Marshals who spoke to Chief Judge Fuller have
advised us that the Chief Judge did not solicit this report.
Record, vol. III, no. 954-1, at 3–4 (emphasis added).
After receiving this letter, Scrushy moved this court to appoint a special
master pursuant to Federal Rule of Appellate Procedure 48 to investigate the
authenticity of the three emails. 14 Then, in his reply brief (filed in response to the
Government’s answer brief), he argued that this court should remand the case to
the District Court for an evidentiary hearing, so that the Marshals could state under
oath, subject to cross-examination, what they said to Judge Fuller at their April
2007 meeting. 15 He also argued that contrary to what Judge Fuller stated in the
14
Siegelman did not also move the court for the appointment of a special master.
15
Ordinarily, as a prudential rule, this court does not consider issues an appellant raises
initially in his reply brief. See, e.g., United States v. Levy, 379 F.3d 1241, 1242 (11th Cir.
2004). Because Scrushy was not informed of the Marshals meeting with Judge Fuller until he
received the July 8, 2008, letter from the Department of Justice, the Siegelman I panel did not
invoke the prudential rule and, instead, considered and ruled on the meeting issue although sub
silentio.
14
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June 22, 2007, order denying his motion for reconsideration, Judge Fuller had not
assumed the authenticity of the three emails. 16
D.
This court decided Siegelman I on March 6, 2009. In affirming Scrushy’s
convictions and sentences, and Siegelman’s convictions in part,17 the panel found
no abuse of discretion in the District Court’s denial of the motion for a new trial on
December 13, 2006, and the motion for reconsideration on June 22, 2007.
Addressing the December 13 decision, the panel agreed with the District
Court that the jurors’ exposure to the extrinsic information—the unredacted second
superceding indictment and the information about the role of the jury foreperson—
and the news media coverage of the case was harmless. As for the five emails
supposedly sent by jurors to other jurors either before or during the jury’s
deliberation, 18 the panel rejected the argument that the emails evidenced “that there
was both premature jury deliberations and deliberation by fewer than all the jurors
in this case, and that this improper deliberation denied the defendants of their Sixth
16
Siegelman’s reply brief contained the same arguments.
17
Siegelman’s convictions on two counts of honest services mail fraud were reversed,
his sentences were vacated, and his case was remanded for resentencing. Siegelman I, 561 F.3d
at 1245.
18
As indicated supra, there were eight emails in all: five surfaced prior to the District
Court’s November 17, 2006, hearing; two surfaced on December 21–22, 2006; and one surfaced
on February 21, 2007. Two of the emails were sent on May 29, 2006, before the jury retired to
deliberate its verdicts on June 15, 2006; the other six were sent on June 25, 2006, during the
deliberation.
15
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Amendment right to an impartial jury.” Siegelman I, 561 F.3d at 1240. The panel
did so because all that the emails indicated was that the jurors might have
deliberated prematurely and thus contrary to the court’s instructions. Whether two
or more jurors actually deliberated prematurely—prior to June 15, 2006, when the
jury retired to deliberate—and did so in a way that effectively denied the
defendants their right to a trial by jury could not be determined unless the court
examined the jurors under oath. The court had “serious reservations” about the
authenticity of the five emails. It assumed, however, that they were authentic and
concluded that “the law barred it from questioning the jurors about their
deliberations, or about the emails purporting to suggest that the jurors deliberated
improperly.” Id. at 1242. The court drew the same conclusion about the three
emails that surfaced after it issued its December 13 decision. It assumed the emails
were authentic and then held that it would be inappropriate to summon the jurors to
the courthouse a second time to subject them to further inquiry. The panel agreed,
and therefore denied Scrushy’s motion for the appointment of a special master to
determine the authenticity of the three emails. Siegelman I, 561 F.3d at 1237 n.
26.
E.
After the decision in Siegelman I issued, the Supreme Court decided Skilling
v. United States, 561 U.S. ---, 130 S. Ct. 2896,
177 L. Ed. 2d 619 (2010), in which
16
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it held that the honest services mail fraud statutes were only intended to reach
schemes involving bribery or kickbacks. The Court vacated Siegelman I on June
29, 2010, and remanded the case for consideration in light of Skilling. On remand,
this court reversed Scrushy’s convictions on two of the honest services mail fraud
counts because they were based on a self-dealing theory of honest services fraud
that could no longer support a conviction after Skilling. United States v.
Siegelman (Siegelman II), 640 F.3d 1159, 1177 (11th Cir. 2011). The part of the
Siegelman I decision addressing the alleged juror misconduct remained unchanged.
On January 25, 2012, on receipt of this court’s mandate, Judge Fuller
resentenced Scrushy.
II.
The motions at issue in this appeal—Scrushy’s motions for a new trial and
for the recusal of Judge Fuller—were filed on June 26, 2009, after Siegelman I was
decided and before the Supreme Court issued its decision on June 24, 2010. 19 The
motion for a new trial was filed pursuant to Federal Rule of Criminal Procedure
33(b)(1), which requires that a motion for a new trial based on newly discovered
19
Siegelman moved the court to allow him to join in Scrushy’s motion to recuse on
October 7, 2009. Judge Fuller entered an order granting his request on October 15, 2009.
17
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evidence be filed within three years after the jury returns its verdict of guilty. 20
Scrushy sought a new trial on six grounds, 21 five of which are before the court in
this appeal: (1) his was a “selective prosecution” in violation of the equal
protection component of the Fifth Amendment Due Process Clause; (2) the three
emails dealt with in Judge Fuller’s June 22, 2007, order denying his motion for
reconsideration (of the December 13, 2006, decision denying a new trial) were
authentic and evidenced that jurors prematurely and improperly deliberated and
therefore denied his right to a trial before an impartial jury; (3) Judge Fuller, in
meeting ex parte with the Marshals, “violat[ed] . . . the Code of Conduct for United
States Judges, and deprived [Scrushy] of his Sixth Amendment Right to effective
assistance of counsel and his Fifth Amendment right to due process” 22; (4) U.S.
20
As indicated supra, the jury returned its verdicts against Scrushy (and Siegelman) on
June 29, 2006.
21
Scrushy’s motion explicitly asserted five grounds. Parsing the motion, we read it to
assert six grounds.
22
Scrushy alleged that
to determine the full extent of the prejudice he suffered, it will be necessary for
Defendant to have access to investigative reports and interviews of the Postal
Inspectors (identities unknown to Defendant), and a transcript of the ex parte
meeting between the Marshals and the Chief Judge (if one exists) or, if no
transcript exists, the testimony of the U.S. Marshals (identities unknown) and the
testimony of Chief Judge Fuller. Defendant also submits that he should be
provided with testimony or affidavits necessary to determine if other ex parte
meetings occurred with the Chief Judge, and if so, either the transcripts of such
meetings or, in the alternative, the testimony of all participants in any such
meetings or communications.
18
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Attorney Leura Canary’s failure to adhere to her unilateral decision to recuse
deprived him of a disinterested prosecutor;23 and (5) the prosecution effectively
denied Scrushy an impartial jury in failing to inform him of juror infatuation with
the FBI’s case agent.
The motion for recusal asserted two grounds. First, 28 U.S.C. § 455(a) 24
required Judge Fuller to recuse because an objective disinterested lay observer,
knowing that he had met with the Marshals ex parte, would entertain significant
doubt as to his impartiality. Second, 28 U.S.C. § 455(b)25 required Judge Fuller to
recuse because, in meeting with the Marshals, he acquired personal knowledge of
Record, vol. II, no. 953, at 15.
23
Canary voluntarily recused on May 16, 2002, while the case against Siegelman and
Scrushy was under investigation, after Siegelman’s lawyer wrote to the U.S. Deputy Attorney
General requesting her disqualification. Counsel’s request was based on an allegation of conflict
of interest because Canary’s husband, William J. Canary, was a paid consultant for political
campaigns of Republican opponents of Siegelman. Louis Franklin Sr. was appointed acting U.S.
Attorney for the case in January 2003, after the retirement of Charles Niven, who became acting
U. S. Attorney following Canary’s recusal.
24
Section 455(a) of Title 28 of the United States Code reads:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.
25
Section 455(b) of Title 28 of the United States Code provides in relevant part:
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge
of disputed evidentiary facts concerning the proceeding; . . .
(5) He or his spouse, or a person within the third degree of relationship to either of them,
or the spouse of such a person:
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
19
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disputed evidentiary facts and was likely to be a material witness in the
proceeding.
We turn first to the District Court’s handling of the motion to recuse, then to
the motion for a new trial.
A.
Judge Fuller asked the Chief Judge of the Eleventh Circuit to appoint a judge
to hear and decide the motion to recuse, and the Chief Judge appointed Judge
Robert Hinkle of the Northern District of Florida. Judge Hinkle denied the motion
in an order entered on June 29, 2011. He did so after a thorough study of the
record—from the commencement of the case through this court’s decision in
Siegelman II and the filing of the motions to recuse and for a new trial on June 26,
2009. We turn first to Judge Hinkle’s conclusion that the record established no
basis for recusal under § 455(a).
1.
After the Marshals informed Judge Fuller of the emails co-workers of two
jurors had received in the mail, he asked the Marshals to investigate the matter. 26
26
Shortly thereafter, on December 28, 2006, Scrushy moved the District Court to
reconsider its December 13, 2006, order denying his motion for a new trial and attached to the
motion copies of the two emails.
20
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The Marshals immediately contacted the acting U.S. Attorney, who asked the
Postal Service join in the investigation.
Three and a half months later, in April 2007, the Marshals met with Judge
Fuller ex parte and told him that the Postal Service had determined that the emails
were not authentic but was unable to identify the person who sent them. Scrushy
contends that Judge Fuller’s ex parte meeting with the Marshals, standing alone,
rendered his impartiality questionable as a matter of law.
Judge Hinkle found nothing improper about Judge Fuller’s meeting with the
Marshals ex parte and no cause for recusal under § 455(a). What transpired in this
case—the Marshals informing the trial judge that one or more jurors may have
engaged in conduct contemptuous of the court’s instructions to the jury—is not an
infrequent occurrence in the district courts. And Judge Fuller handled it in much
the same manner most district judges would—even where, as here, the case was
still ongoing before the judge. After reviewing the law of the Eleventh Circuit
counseling what a district judge should do on receiving extrinsic information
relating to a pending case, its parties, or its witnesses, Judge Hinkle concluded that
Judge Fuller’s meeting with the Marshals to receive the report of their
investigation did not automatically disqualify him from continuing with the case.
In sum, the ex parte meeting with the Marshals for such purpose would not lead an
21
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objective disinterested lay observer to entertain significant doubt about the judge’s
impartiality.
2.
Scrushy contended that Judge Fuller had to recuse under § 455(b) because
he acquired from the Marshals personal knowledge about a disputed evidentiary
fact—the authenticity of the three emails—underlying the second ground of the
motion for a new trial pending before him. The problem with this contention, as
Judge Hinkle saw it, was that Judge Fuller resolved the authenticity issue in
Scrushy’s favor by assuming that the emails were not forged, but, instead, were
authentic. Judge Fuller did not have to recuse because, in the words of § 455(b),
he did not have “personal knowledge of disputed evidentiary facts” concerning the
proceeding, nor was he likely to be a “material witness.” See 28 U.S.C. § 455(b).
Judge Hinkle also noted, correctly, that the Siegelman II decision had foreclosed
this ground of recusal.
B.
With Judge Hinkle having disposed of the recusal issues, Judge Fuller turned
to Scrushy’s motion for a new trial. Scrushy insisted that the court could not rule
on his motion without affording him an opportunity to engage in the discovery he
said he needed to establish the grounds of his motion. Scrushy represented that the
necessary discovery was in the hands of the Government. He therefore moved the
22
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court to require the Government to produce the following documents and
information as relating to grounds (1), (3), (4), and (5) of his motion for a new
trial.
I. Requests Relating to Issue [1] (Selective Prosecution)
1. The Prosecution Memorandum from the U.S. Attorney’s Office for
the Middle District of Alabama to both the Public Integrity Section
and the Organized Crime and Racketeering Section (“OCRS”),
including all updates and amendments to either document.
2. Case Map analysis showing progression of the investigation.
3. All reports, notes, memoranda, documents, e-mails and writings of
any kind relating to the decision in or about 2004 to “take a fresh look
at the case from top to bottom.”
4. All reports, notes, memoranda, documents, e-mails and writings of
any kind touching upon the investigation of Defendants Scrushy or
Siegelman by, to, or from: Alberto Gonzalez (Attorney General or
Legal Counsel to the President); Karl Rove (Special Assistant to the
President); Noel Hillman (Chief, Public Integrity Section); William
M. Welch II (Chief, Public Integrity Section); Brenda Morris
(Principal Deputy Chief, Public Integrity Section); Andrew Lourie
(Acting Chief, Public Integrity Section); Richard Pilger (Attorney,
Public Integrity Section); and personnel in OCRS.
5. All reports, notes, memoranda, documents, e-mails and writings of
any kind in the possession of the Office of Professional Responsibility
and the Executive Office for the United States Attorneys and/or the
Department of Justice itself which contain any evidence of any kind
which support the conclusion that the decision to investigate and/or
prosecute either Defendant Siegelman or Defendant Scrushy was
based on political considerations or political pressure of any kind, or
support the conclusion that Defendants were victims of selective
prosecution.
6. All reports, notes, memoranda, documents, e-mails and writings of
any kind relating in any way to the investigation of or decision not to
investigate the allegations of illegal campaign contributions arranged
by Lanny Young to either Senator Jeff Sessions or then-Attorney
General Bill Pryor.
23
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7. All reports, notes, memoranda, documents, e-mails and writings of
any kind relating to the decision to reject the negotiated plea
arrangement relating to Defendant Scrushy.
II. Requests Relating to Issue [3] (Ex Parte Meeting Between
Judge and Government
1. All reports of interviews, investigative reports, notes, memoranda,
documents, e-mails or writings of any kind which were generated or
obtained by the Postal Inspectors in the course of that agency’s
investigation of the copies of e-mails mailed to co-workers of Jurors 7
and 40.
2. All reports, notes, memoranda, documents, e-mails and writings of
any kind by the U.S. Attorney’s Office (a) requesting, directing or
authorizing the above investigation by the Postal Inspectors; or (b)
seeking authorization from Chief Judge Fuller to interview jurors in
the instant case or to reveal jurors’ names.
3. All reports, notes, memoranda, documents, e-mails and writings of
any kind that were shown or provided to Chief Judge Fuller relating to
the above investigation by the Postal Inspectors.
4. All reports, notes, memoranda, documents, e-mails, transcripts, and
writings of any kind reflecting the ex parte meeting between Chief
Judge Fuller and the U.S. Marshals in or about April 2007 concerning
the above investigation by the Postal Inspectors.
5. The names and contact information for all individuals who were
present or knew of the ex parte meeting described in the preceding
paragraph.
6. All transcripts, reports, notes, memoranda, documents, e-mails and
writings of any kind reflecting any additional ex parte meetings
between Chief Judge Fuller and any current or former federal or state
employee relating in any way to the prosecution of Defendants
Scrushy or Siegelman, or post-trial proceedings related to this case.
7. Any documents that the Appellate Section of the Department of
Justice relied on or reviewed which contributed or influenced in any
way to its decision to issue the July 8, 2008, letter by Patty Merkamp
Stemler, Chief of the Appellate Section, Department of Justice, and
any e-mails, memoranda or documents of any kind reflecting the
decision-making process to issue that letter.
24
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8. All reports, notes, memoranda, documents, e-mails and writings of
any kind in the possession of the Government reflecting any follow-up
investigations, inquiries or interviews concerning the April 2007 ex
parte meeting between the U.S. Marshals and Chief Judge Fuller.
III. Requests Relating to Issue [4] (U.S. Attorney Recusal)
1. All reports, notes, memoranda, documents, e-mails and writings of
any kind by or from U.S. Attorney Leura Canary on or after May 16,
2002 to any lawyer, law enforcement agent, paralegal or other
employee or contract employee or former employee of the U.S.
Attorney’s Office for the Middle District of Alabama, the Department
of Justice, or the Alabama Attorney General’s Office that touches in
any way on any aspect of the investigation or prosecution of
Defendants Scrushy or Siegelman or any post conviction proceedings
in that case.
2. All reports, notes, memoranda, documents, e-mails and writings of
any kind from any lawyer, law enforcement agent, paralegal or other
employee or contract employee or former employee of the U.S.
Attorney’s Office for the Middle District of Alabama, the Department
of Justice, or the Alabama Attorney General’s office on or after May
16, 2002, written or provided to U.S. Attorney Leura Canary that
touches in any way on any aspect of the investigation or prosecution
of Defendants Scrushy and Siegelman or any post conviction
proceedings in that case.
IV. Requests relating to Issue [5] (Prosecutorial Misconduct)
1. All e-mails, memoranda or documents of any kind to or from any
lawyer, law enforcement agent, paralegal or other employee or
contract employee or former employee of the U.S. Attorney’s Office,
the Department of Justice, or the Alabama Attorney General’s office
touching in any way on any member of the trial jury in the instant case
(or speculating on any contacts to, from or with said jurors), as well as
any knowledge or information concerning any contacts with or by
jurors or speculation that such contacts may or did occur which has
not been reduced to writing, along with the name and contact
information of any individual having such knowledge or information.
25
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Record, vol. III, no. 955, at 3–6.
Judge Fuller referred Scrushy’s motion for production to a Magistrate Judge
for a report and recommendation on whether any of the requested discovery was
needed to decide any of the grounds for a new trial and thus should be made
available to Scrushy’s counsel. The Magistrate Judge ordered the Government to
produce the discovery in camera. The Government complied. After examining the
discovery, he concluded that none of it supported any of Scrushy’s grounds for a
new trial. He therefore denied Scrushy’s motion for discovery.
Scrushy appealed the Magistrate Judge’s discovery decision to the District
Court, arguing that the Magistrate Judge erred in concluding that the discovery
provided no support for his motion for a new trial. Judge Fuller rejected Scrushy’s
argument and denied his motion. Without saying so explicitly, the Magistrate
Judge, and thus Judge Fuller, found Scrushy’s grounds for a new trial facially
insufficient as a matter of law.
In subsequently ruling on the merits of Scrushy’s motion for new trial, Judge
Fuller expressly found no merit in grounds (1), (4), and (5), and by implication
found no merit in ground (2). As for ground (3)—that Judge Fuller violated the
Codes of Judicial Conduct and denied Scrushy his Sixth Amendment right to
counsel and due process of law in meeting ex parte with the Marshals—Judge
Fuller relied in large part on Judge Hinkle’s order denying the motion to recuse.
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He concluded that “the arguments before Judge Hinkle on the motion to recuse are
identical to those presently before this Court. For the reasons stated, including the
depth of Judge Hinkle’s analysis and the soundness of his conclusions, the Court
finds no reason to revisit issues that have already been decided.” United States v.
Scrushy, 2012 WL 204159, at *7 (M.D. Ala. Jan. 24, 2012).
III.
As we indicated at the outset, this appeal focuses on the District Court’s
disposition of two motions Scrushy filed on June 26, 2009, a motion to recuse
Judge Fuller and a motion for a new trial. We review for abuse of discretion a
district court’s denial of a motion to recuse, In re Walker, 532 F.3d 1304, 1308
(11th Cir. 2008) (citing Christo v. Padgett,
223 F.3d 1324, 1333 (11th Cir. 2000),
and a motion for a new trial, United States v. Hernandez,
433 F.3d 1328, 1332
(11th Cir. 2005) (citing Butcher v. United States,
368 F.3d 1290, 1297 (11th Cir.
2004)). “A district court abuses its discretion when it misapplies the law in
reaching its decision or bases its decision on findings of fact that are clearly
erroneous.” Goodman-Gable-Gould Co. v. Tiara Condominium Ass'n, Inc.,
595
F.3d 1203, 1210 (11th Cir. 2010) (quoting Arce v. Garcia,
434 F.3d 1254, 1260
(11th Cir. 2006).
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We find no abuse of discretion in Judge Hinkle’s handling of the motion to
recuse or in Judge Fuller’s handling of the motion for new trial. We consider in
sequence the denial of the two motions.27
A.
A party may move for the recusal of a judge under 28 U.S.C. § 455. The
statute sets out two situations in which recusal is required. Section (a) provides
that recusal is necessary where a judge’s impartiality may reasonably be
questioned. 28 U.S.C. § 455(a) (2006) (“Any justice, judge, or magistrate judge of
the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.”). The standard of review is
“whether an objective, disinterested, lay observer fully informed of the facts
underlying the grounds on which recusal was sought would entertain a significant
doubt about the judge’s impartiality.” United States v. Patti, 337 F.3d 1317, 1321
(11th Cir. 2003) (quoting Parker v. Connors Steel Co.,
855 F.2d 1510, 1524 (11th
Cir. 1988)). The standard is thus an objective one, “designed to promote the
public’s confidence in the impartiality and integrity of the judicial process.” In re
27
In affirming the District Court’s denial of Scrushy’s motion for a new trial, we also
affirm, without discussion, the court’s rejection of Scrushy’s objection to the Magistrate Judge’s
refusal to permit discovery of the documents the Government had produced in camera and his
denial of an evidentiary hearing regarding the documents’ contents.
28
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Evergreen Sec., Ltd., 570 F.3d 1257, 1263 (11th Cir. 2009) (quoting Davis v.
Jones,
506 F.3d 1325, 1332 n.12 (11th Cir. 2007)).
Section (b) lists several circumstances requiring recusal, including “[w]here
[the judge] has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding,” 28 U.S.C. §
455(b)(1), and where the judge is “likely to be a material witness in the
proceeding,” 28 U.S.C. § 455(b)(5)(iv). In those circumstances, partiality is
conclusively presumed, making recusal mandatory because “the potential for
conflicts of interest are readily apparent.” Patti, 337 F.3d at 1321 (quoting Murray
v. Scott, 253 F.3d 1308, 1312 (11th Cir. 2001)).
Scrushy’s motion sought Judge Fuller’s recusal from hearing the pending
motion for new trial for two reasons: (1) § 455(a) required Judge Fuller to step
down because he met ex parte with the Marshals about a factual issue created by
the second ground of his motion for a new trial—whether the three emails were
authentic—and therefore cast doubt on his impartiality, and (2) § 455(b) required
recusal because, at the meeting, Judge Fuller learned that the Postal Service had
concluded that the emails were not authentic and thus acquired personal knowledge
of a disputed evidentiary fact central to that second ground. Judge Fuller would be
a material witness in the adjudication of that ground.
29
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Scrushy contends that Judge Hinkle abused his discretion in failing to
uphold these two grounds. We are not persuaded. As for ground (1), Scrushy
ignores the fact that Judge Fuller assumed the authenticity of the three emails in
denying his December 28, 2006, motion for reconsideration based on the emails.
Put plainly, he resolved the disputed factual issue in Scrushy’s favor and against
the federal prosecutor. It would defy common sense to conclude that a
disinterested lay observer would doubt Judge Fuller’s impartiality—that the
observer would think that Judge Fuller, in resolving the issue in Scrushy’s favor,
was somehow partial to Scrushy’s adversary, the federal prosecutor, and thus
would likely be partial in deciding Scrushy’s motion for a new trial.
As for ground (2), Judge Fuller disregarded any knowledge gained in the ex
parte meeting with the Marshals and assumed what Scrushy urged him to find, that
the emails were authentic. Because he resolved the factual dispute in Scrushy’s
favor—and Siegleman I accepted that resolution in affirming his denial of
Scrushy’s motion for reconsideration—the authenticity of the emails was no
longer at issue, and Judge Fuller was not likely to be a material witness in any
proceeding.
Having found no abuse of discretion in Judge Hinkle’s denial of Scrushy’s
motion to recuse, we turn to Judge Fuller’s denial of Scrushy’s motion for a new
trial.
30
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B.
Rule 33 provides that motions for a new trial based on newly discovered
evidence must be filed within three years of the verdict. Fed. R. Crim. P.
33(b)(1).28 “Motions for a new trial . . . are highly disfavored in the Eleventh
Circuit and should be granted only with great caution.” United States v. Campa,
459 F.3d 1121, 1151 (11th Cir. 2006). “Newly discovered evidence need not relate
directly to the issue of guilt or innocence to justify a new trial, but may be
probative of another issue of law.” Id. (internal quotation marks and citations
omitted). Questions regarding the “fairness or impartiality of a jury” may be
grounds for a new trial based on newly discovered evidence, id., as may evidence
that would “afford reasonable grounds to question . . . the integrity of the verdict.”
United States v. Williams,
613 F.2d 573, 575 (5th Cir. 1980).29
To obtain a new trial under Rule 33(b)(1), “a movant must satisfy four
elements: (1) the evidence must be newly discovered and have been unknown to
the defendant at the time of trial; (2) the evidence must be material, and not merely
cumulative or impeaching; (3) the evidence must be such that it would probably
28
Motions for a new trial based on any other grounds must be filed within fourteen days
of the verdict. Fed. R. Crim. P. 33(b)(2).
29
In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
31
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produce an acquittal; and (4) the failure to learn of such evidence must be due to
no lack of due diligence on the part of the defendant.” United States v. Espinosa-
Hernandez, 918 F.2d 911, 913 n.5 (11th Cir. 1990).
As indicated, supra, five of the six grounds Scrushy relied on in seeking a
new trial are before us in this appeal. We review them in order, starting with his
claim that he was subjected to selective prosecution in violation of his Fifth
Amendment right to the equal protection of the law. 30
1.
The Fifth Amendment’s Due Process Clause has an equal protection
component akin to the Equal Protection Clause of the Fourteenth Amendment. See
Bolling v. Sharpe, 347 U.S. 497, 499-500,
74 S. Ct. 693, 694–695,
98 L. Ed. 884
(1954). It prohibits the federal government from denying to any person in the
United States the equal protection of the laws. Scrushy seeks the vacation of his
convictions, and perhaps a judgment of acquittal, on the ground that the
Government denied him equal protection in prosecuting him for the crimes
contained in the second superseding indictment.
30
Scrushy argues that Judge Fuller abused his discretion in denying his motion for a new
trial without an evidentiary hearing. An evidentiary hearing was not required because the record
contained all the evidence needed to dispose of each of the grounds asserted as a basis for a new
trial.
32
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Scrushy was indicted because he contributed $500,000 to an issue-advocacy
campaign supported by then-Governor Siegelman and, in return, received an
appointment to Alabama’s Certificate of Need Review Board. His prosecution was
selective, he says, because other similarly situated people made campaign
donations and received gubernatorial appointments but were not prosecuted.
Scrushy’s selective prosecution claim fails for two reasons. First, a claim of
selective prosecution is not the proper subject of a Rule 33(b)(1) motion for a new
trial. Selective prosecution has “no bearing on the determination of factual guilt.”
United States v. Jones, 52 F.3d 924, 927 (11th Cir. 1995) (citing United States v.
Jennings,
991 F.2d 725, 730 (11th Cir. 1993)). Whether the decision to prosecute
Scrushy was motivated by improper reasons has no bearing on the integrity of the
trial or the verdict and is therefore not the proper subject of a Rule 33(b)(1)
motion.
Second, a claim of selective prosecution alleges a defect in the institution of
prosecution under Federal Rule of Criminal Procedure 12(b)(3)(A). 31 See Jones,
52 F.3d at 927. Rule 12(b) requires that the defense be raised by pretrial motion.
Id. at 927 n.5. If the defendant fails to raise the defense before trial, he waives the
31
Federal Rule of Criminal Procedure 12(b)(3)(A) provides:
(b) Pretrial Motions.
(3) Motions That Must Be Made Before Trial. The following must be raised before trial:
(A) a motion alleging a defect in the instituting the prosecution.
33
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defense. Id.; Fed. R. Crim. Pro. 12(e).32 Waiver may be excused, though, if the
defendant shows cause for his delay in presenting the defense. Fed. R. Crim. Pro.
12(e).
Scrushy did not raise his selective prosecution defense prior to trial, as
required by Rule 12(b). Instead, he waited until June 26, 2009, to raise it, in his
motion for a new trial. The delay should be excused, he says, because his
attorneys “did not have a good faith basis to file a selective prosecution claim prior
to trial.” Appellant’s Initial Brief at 48. It was not until June 2009 that they
acquired evidence to support the claim.
Scrushy relies in large part on two investigations into allegations of
politically motivated prosecutions that were ongoing when counsel filed the
motion for a new trial, one by the House of Representatives Committee on the
Judiciary, another by the Department of Justice Office of Professional
Responsibility. Although, as Judge Fuller noted, “many of the more detailed
factual allegations recited by the [Committee on the Judiciary] report . . . could not
have been known to Scrushy prior to trial, the materials provided to the Committee
32
When United States v. Jones, 52 F.3d 924 (11th Cir. 1995), was decided, the waiver
provision was contained in Federal Rule of Criminal Procedure 12(f). The waiver provision is
now contained in Federal Rule of Criminal Procedure 12(e), which provides:
(e) Waiver of a Defense, Objection, or Request. A party waives any Rule 12(b)(3)
defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any
extension the court provides. For good cause, the court may grant relief from waiver.
34
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on the Judiciary . . . coupled with the evidentiary attachments to Scrushy’s motion,
show that Scrushy had knowledge of, and co-defendant Siegelman was claiming . .
. selective prosecution . . . as early as three years prior to the commencement of
trial in this case.” United States v. Scrushy, 2012 WL 204159, at *3 (M.D. Ala.
Jan. 24, 2012). Scrushy’s excuse for the delay in presenting his claim of selective
prosecution is feeble at best. Judge Fuller acted well within his discretion in
rejecting ground (1) of Scrushy’s motion for a new trial.
2.
On December 28, 2006, Scrushy moved the District Court to reconsider its
December 13, 2006, order denying his motion for a new trial or, alternatively,
grant a new trial based on newly discovered evidence. The newly discovered
evidence consisted of the two juror emails defense counsel and the jurors’ co-
workers had received in envelopes postmarked December 20, 2006. Scrushy
added to this evidence the juror email he and his counsel received on February 21,
2007. Judge Fuller denied both motions on June 22, 2007, and this court affirmed
his rulings in Siegelman I.
Ground (2) of Scrushy’s June 26, 2009, motion for a new trial is the same
ground Scrushy advanced in his December 28, 2006, motion for a new trial.
Ground (2) is foreclosed for two reasons: (1) the three emails do not constitute
35
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newly discovered evidence; and (2) the law of the case doctrine bars its
relitigation.
3.
Although newly discovered evidence of judicial misconduct could,
depending on the circumstances, give rise to a motion for new trial under Rule 33,
Scrushy fails to explain why the misconduct he describes in ground (3)—Judge
Fuller’s ex parte meeting with the Marshals—amounted to one of those
circumstances requiring a new trial. The why is apparently this: the meeting took
place without advance notice to defense counsel about the meeting, its purpose,
and counsel’s right to be present. This, according to Scrushy, denied him of his
Sixth Amendment right to counsel and his Fifth Amendment due process right to
fair notice.
Judge Hinkle, in entertaining Scrushy’s motion to recuse, was aware of
Scrushy’s claim that Judge Fuller met with the Marshals ex parte in derogation of
his Fifth and Sixth Amendment rights. Implicit in Judge Hinkle’s finding that
Judge Fuller conducted himself appropriately—just as any district judge would
under similar circumstances—in meeting with the Marshals as he did is the notion
that his conduct did not infringe any of Scrushy’s rights as a litigant before the
court. We have affirmed Judge Hinkle’s decision, and we conclude that his ruling
effectively disposes of ground (3) of Scrushy’s motion for a new trial.
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4.
Scrushy’s fourth ground, that U.S. Attorney Leura Canary failed to abide by
her decision to recuse and thereby deprived Scrushy of his right to a disinterested
prosecutor, is devoid of merit. U.S. Attorney Canary recused while Scrushy and
Siegelman were being investigated, after Siegelman’s attorney wrote to the Deputy
Attorney General and the Director of the Executive Office for the United States
Attorneys requesting her disqualification. Acting U.S. Attorney Louis Franklin
was appointed to oversee the case.
As evidence of Canary’s continued involvement in the case, Scrushy offered
emails and statements provided by a whistleblower in the U.S. Attorney’s office,
Tamarah Grimes, indicating that Canary had kept up with the case and contributed
to litigation strategy. One email, in which Canary forwarded an email sent by
Siegelman’s campaign to supporters, said:
Heaven only knows how I got on this email list. Y’all need to read because he
refers to a “survey” which allegedly shows that 67% of Alabamians believe the
investigation of him to be politically motivated. (Perhaps grounds not to let him
discuss court activities in the media?) He also admits to making “bad” hires in his
last administration. Also, it shows that it was sent last Thursday night, though I
didn’t receive it until late Friday. Leura.
Record, vol. II, no. 953, at 18. In a second email, Canary forwarded a letter to the
editor claiming that the grand jury in the Siegelman investigation seemed to be
convening in response to Siegelman’s political campaign. A third email, sent by
an Assistant U.S. Attorney, discusses Grimes’s assignment to the case and says,
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“Leura and Louis both liked the concept.” Record, vol. II, no. 953, at 19. Grimes
also stated in a letter to Attorney General Eric Holder that “Mrs. Canary publically
[sic] stated that she had maintained a ‘firewall’ between herself and The Big Case.
In reality, there was no ‘firewall.’ Mrs. Canary maintained direct communication
with the prosecution team, directed some action in the case, and monitored the case
through members of the prosecution team and [assistant U.S. Attorney] Mrs.
Watson.” Record, vol. II, no. 953, at 19.
Scrushy frames his claim about Canary’s limited involvement with his case
as a deprivation of a disinterested prosecutor. Scrushy relies on the Supreme
Court’s decision in Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.
Ct. 2124,
95 L. Ed. 2d 740 (1987), which held that appointment of an interested
prosecutor was a structural defect requiring reversal of a conviction without a
showing of prejudice. As the District Court pointed out, however, in Young,
counsel for a party that was the beneficiary of a court order was the same counsel
appointed to prosecute in a contempt action alleging violation of that order. Such a
clear conflict of interest does not exist in this case. Canary recused herself
voluntarily before Scrushy was indicted, even though the Department of Justice
had found that no actual conflicts of interest existed. Another prosecutor, Assistant
U. S. Attorney Louis Franklin, was appointed to oversee the case. Scrushy makes
no allegation that Franklin had any conflict of interest. Moreover, there is no
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evidence that Canary’s emails influenced any decisions made by the U.S.
Attorney’s office in prosecuting Scrushy. Canary’s limited involvement in his case
did not deprive Scrushy of a disinterested prosecutor. In fine, Judge Fuller did not
abuse his discretion in rejecting ground (4) of Scrushy’s motion.
5.
Finally, in ground (5), Scrushy claims the prosecution engaged in
misconduct in failing to inform him of a juror’s infatuation with an FBI agent. His
claim is based on emails sent between Assistant U.S. Attorney Patricia Watson and
Grimes, the whistleblower, indicating that jurors sent messages through the
Marshals expressing romantic interest in the FBI Special Agent who sat at or near
the prosecution table during the trial. Watson wrote, “I just saw Keith [the FBI
Special Agent] in the hall. The jurors kept sending out messages through the
marshals. A couple of them wanted to know if he was married.” Record, vol. II,
no. 953, at 22. Grimes wrote back, “Yeah, that’s what Vallie [another member of
the prosecution] said. He said one girl was a gymnast and they called her
‘Flipper,’ because she apparently did back flips to entertain the jurors. Flipper was
very interested in Keith.” Record, vol. II, no. 953, at 22. Scrushy argues that the
prosecution’s failure to disclose the jurors’ romantic interest in the FBI Special
Agent was prosecutorial misconduct because the communication “raises a real
possibility of bias having infected the jury.” Record, vol. II, no. 953, at 60.
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Although evidence that goes to prosecutorial misconduct or the impartiality
of the jury may be the proper subject of a motion for new trial based on newly
discovered evidence, this claim fails on the merits. 33 The evidence—that jurors
had a romantic interest in the FBI agent and expressed that interest in notes sent
through the Marshals—is not material; nor would it be likely to produce an
acquittal on retrial. The assertion that a mere expression of attraction would infect
the jury’s decision with bias strains credulity. It was not misconduct for the
prosecution to fail to disclose this contact to the defense. Even if the contact
should have been disclosed, the failure to do so was harmless. Judge Fuller did not
abuse his discretion in rejecting ground (5).
IV.
For the reasons we have advanced in Part III, supra, the judgment of the
District Court is
AFFIRMED.
33
Judge Fuller’s opinion appears to presume that the juror contacts forming the basis of
the claim are the jurors’ emails that were addressed in the first motion for new trial and motion
for reconsideration: “These claims have been exhaustively addressed by this court, Judge Hinkle,
and the Eleventh Circuit.” Record, vol. IV, no. 1072, at 17. Although Scrushy’s claim involves
different juror contacts that have not yet been considered, we find the claim frivolous and
therefore see no need to remand the issue for determination by the District Court.
40
