United States v. Siegelman, 12–14373.

• Decision Date: 20 May 2015
• Docket Number: No. 12–14373.,12–14373.
• Citation: 786 F.3d 1322
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Don Eugene SIEGELMAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

786 F.3d 1322

UNITED STATES of America, Plaintiff–Appellee

v.Don Eugene SIEGELMAN, Defendant–Appellant.

No. 12–14373.

United States Court of Appeals, Eleventh Circuit.

May 20, 2015.

John Alexander Romano, Patty Merkamp Stemler, Richard C. Pilger, U.S. Department of Justice, Washington, DC, George L. Beck, Jr., Louis V. Franklin, Sr., U.S. Attorney's Office, Montgomery, AL, for Plaintiff–Appellee.

Susan Graham James, The James Firm, Jeffery C. Duffey, Law Office of Jeffery Duffey, Montgomery, AL, G. Robert Blakey, Notre Dame Law School, Notre Dame, IN, Gregory Bestor Craig, Michael A. McIntosh, Clifford M. Sloan, Skadden Arps Slate Meagher & Flom, LLP, Washington, DC, Hiram Chester Eastland, Jr., Eastland Law Offices, PLLC, Greenwood, MS, William Perry Hall, David Allen McDonald, Kilborn Roebuck & McDonald, Vincent F. Kilborn, III, Attorney at Law, Mobile, AL, Charles Redding Pitt, Jaffe & Drennan, P.C., Birmingham, AL, for Defendant–Appellant.

Don Eugene Siegelman, Oakdale, LA, pro se.

Appeal from the United States District Court for the Middle District of Alabama. D.C. Docket No. 2:05–cr–00119–MEF–CSC–1.

Before JILL PRYOR, FAY, and EBEL,^* Circuit Judges.

Opinion

EBEL, Circuit Judge:

Defendant–Appellant Don Eugene Siegelman appeals from the district court's order denying his motion for a new trial and the court's amended final judgment sentencing him to seventy-eight months in prison. Exercising our jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we hold that the district court did not abuse its discretion in denying Siegelman's motion for a new trial and did not err in calculating Siegelman's sentence under the Guidelines. Accordingly, we affirm.

BACKGROUND¹

From 1995 to 2003, Siegelman served the State of Alabama first as Lieutenant Governor and then as Governor. During his time in office, Siegelman engaged in a range of conduct that eventually became the focal point of a state-federal criminal investigation. See United States v. Siegelman, 640 F.3d 1159, 1164, 1168 (11th Cir.2011) [hereinafter Siegelman II ]. That investigation targeted Siegelman and several other individuals, including: Richard Scrushy, the Chief Executive Officer of a major hospital corporation with operations throughout Alabama; Nicholas Bailey, Siegelman's close associate and former confidential assistant; and Lanny Young, Siegelman's long-time business associate. See id. at 1164, 1166, 1168.

As a result of the investigation, Plaintiff–Appellee United States (the “Government”) charged Siegelman and Scrushy with multiple counts of federal funds bribery and honest services mail fraud, and one count of conspiracy to commit honest services mail fraud. These charges were based on an arrangement (the “Siegelman–Scrushy Exchange”) wherein Siegelman appointed Scrushy to the Certificate of Need (“CON”) Board, a state board that determined the number of healthcare facilities in Alabama, in exchange for Scrushy's $500,000 donation to the Alabama Education Lottery Foundation (the “Foundation”), a foundation Siegelman established to raise money for a ballot initiative that would help fund universal education in Alabama through the creation of a state lottery. Id. at 1164–67. Although Siegelman eventually reported Scrushy's donation, Bailey helped Siegelman conceal the donation for approximately two years. Id. at 1167–68.

The Government also charged Siegelman, but not Scrushy, with, inter alia, honest services wire fraud, additional counts of honest services mail fraud, and obstruction of justice. The obstruction of justice charges were based on a series of sham transactions (the “Siegelman–Young–Bailey Sham Transactions”) carried out after the investigation into Siegelman had commenced, wherein Siegelman, Young, and Bailey attempted to conceal a $9200 payment that Young had made to Siegelman. Id. at 1164, 1168, 1177. The honest services wire fraud charges, as well as the additional counts of honest services mail fraud, were based on conduct arising from a general “pay-for-play” agreement (the “Siegelman–Young Agreement”) wherein Young gave Siegelman money and other things of value in return for official action that benefited Young's business interests.²

In 2006, a jury found Siegelman and Scrushy—who were tried together³ —each guilty of one count of federal funds bribery, four counts of honest services mail fraud, and one count of conspiracy to commit honest services mail fraud, all pertaining to the Siegelman–Scrushy Exchange. Id. at 1164, 1169, 1172. The jury also found Siegelman guilty of one count of obstruction of justice related to the Siegelman–Young–Bailey Sham Transactions. Because the jury acquitted Siegelman of all other charges, he was not convicted of any counts that were based on the Siegelman–Young Agreement. Id. at 1169. The district court thereafter sentenced Siegelman to eighty-eight-months' imprisonment and Scrushy to eighty-two-months' imprisonment.

On appeal, we reversed two of Siegelman's fraud convictions related to the Siegelman–Scrushy Exchange, but affirmed all of Scrushy's convictions. See United States v. Siegelman, 561 F.3d 1215, 1232, 1245 (11th Cir.2009). The Supreme Court granted certiorari, vacated the judgment, and remanded the case back to this Court for further consideration in light of Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). See United States v. Siegelman, 561 F.3d 1215 (11th Cir.2009), 561 U.S. 1040, 130 S.Ct. 3542, 177 L.Ed.2d 1120 (2010) ; Scrushy v. United States, 561 U.S. 1040, 130 S.Ct. 3541, 177 L.Ed.2d 1120 (2010). On remand from the Supreme Court, we reversed two of Siegelman's fraud convictions (again), as well as two of Scrushy's fraud convictions that were related to the Siegelman–Scrushy Exchange, and remanded the case so both defendants could be resentenced. See Siegelman II, 640 F.3d at 1174–77, 1190.

Importantly, during the pendency of their joint appeal, Siegelman and Scrushy each filed a motion for a new trial under Fed.R.Crim.P. 33(b)(1) and a related motion for additional discovery. These separate—but nearly identical—motions were based, in relevant part, on allegations that U.S. Attorney Leura Canary continued to participate in the defendants' prosecution after voluntarily disqualifying herself because of a possible conflict of interest. According to Siegelman and Scrushy, they were each entitled to a new trial under Rule 33(b)(1) because evidence of Canary's purported failure fully to honor her disqualification surfaced after they were originally sentenced.

On remand for resentencing, Scrushy's motions were considered first. After a magistrate judge denied Scrushy's motion for additional discovery, the district court denied his motion for a new trial and ultimately issued an amended final judgment resentencing Scrushy to seventy-months' imprisonment. Scrushy appealed the district court's order denying his motion for a new trial. This Court affirmed, concluding, in relevant part, that “Canary's limited involvement in [the] case did not deprive Scrushy of a disinterested prosecutor.” United States v. Scrushy, 721 F.3d 1288, 1303, 1307–08 (11th Cir.2013).

While Scrushy's appeal was pending in our court, the same magistrate judge denied Siegelman's motion for additional discovery and the same district court denied Siegelman's motion for a new trial, which was based on, inter alia, the same allegations that Canary had failed to honor her voluntary disqualification. Noting that Siegelman's motion “by and large copie[d] the one filed by Scrushy,” the district court rejected Siegelman's argument that Canary's alleged failure to honor her disqualification deprived him of his right to a disinterested prosecutor. Order Den. Siegelman New Trial Mot. at 2, 15–17. The district court thereafter issued an amended final judgment sentencing Siegelman to seventy-eight-months' imprisonment. Siegelman now appeals, arguing that he is entitled to appellate relief because the district court (1) abused its discretion in denying his motion for a new trial, and (2) erred in calculating his sentence under the Guidelines.

DISCUSSION

We begin our analysis by considering whether the district court erred in denying Siegelman's motion for a new trial based upon U.S. Attorney Leura Canary's alleged failure to honor her disqualification. As to that, we affirm the district court's order denying Siegelman's motion for a new trial. Next, we consider whether the district court improperly calculated Siegelman's sentence on remand. Finding no reversible error in the district court's sentencing calculation, we also affirm the district court's amended final judgment sentencing Siegelman to seventy-eight-months' imprisonment.

I. New Trial Motion

Although the district court denied Siegelman's motion for a new trial on several grounds, the only ground at issue on appeal relates to U.S. Attorney Canary's alleged failure to honor her disqualification. Canary voluntarily disqualified herself in May 2002, before Siegelman and Scrushy were indicted. Scrushy, 721 F.3d at 1298 n. 23. Siegelman's lawyer had requested Canary's disqualification based on an alleged conflict of interest flowing from Canary's husband, who had worked as a paid consultant for Siegelman's political opponents. Id. Although the Department of Justice had advised Canary “that no actual conflicts of interest exist,” she nonetheless removed herself from the defendants' prosecution out of “an abundance of caution.” Press Release, U.S. Attorney Leura Canary (May 16, 2002), Scrushy's New Trial Mot., Exhibit III–B. Eventually, Acting U.S. Attorney Louis Franklin was appointed to oversee the case. Scrushy, 721 F.3d at 1298 n. 23.

On appeal, Siegelman argues that the district court should have granted his motion for a new trial because he presented sufficient evidence to show that Canary violated his right to a disinterested prosecutor under Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1...