United States v. Scrushy

• Decision Date: 15 July 2013
• Docket Number: No. 12–10694.,12–10694.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Richard SCRUSHY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

721 F.3d 1288

UNITED STATES of America, Plaintiff–Appellee,

v.Richard SCRUSHY, Defendant–Appellant.

No. 12–10694.

United States Court of Appeals, Eleventh Circuit.

July 15, 2013.

John Alexander Romano, U.S. DOJ, Crim. Div., Richard C. Pilger, USDOJ—Bond Bldg. Crim. Div. Pub. Integrity Section, Patty Merkamp Stemler, U.S. DOJ, Washington, DC, Louis V. Franklin, Sr., U.S. Atty., Montgomery, AL, for Plaintiff–Appellee.

James K. Jenkins, Maloy Jenkins Parker, Boulder, CO, Arthur W. Leach, Alpharetta, GA, Leslie V. Moore, Leslie V. Moore, PC, Birmingham, AL, for Defendant–Appellant.

Appeal from the United States District Court for the Middle District of Alabama.

Before TJOFLAT and COX, Circuit Judges, and BOWEN,^* District Judge.

TJOFLAT, Circuit Judge:

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, 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.

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 “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 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 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.

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 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 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...