United States v. Scrushy

• Decision Date: 24 January 2012
• Docket Number: CASE NO. 2:05-cr-119-MEF [WO]
• Parties: UNITED STATES OF AMERICA v. RICHARD M. SCRUSHY
• Court: U.S. District Court — Middle District of Alabama

UNITED STATES OF AMERICA v. RICHARD M. SCRUSHY

CASE NO. 2:05-cr-119-MEF [WO]

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

Date: January 24, 2012

MEMORANDUM OPINION AND ORDER

In 2006, Defendant Richard M. Scrushy ("Scrushy") and co-defendant former Alabama Governor Don Siegelman ("Siegelman") were convicted of federal funds bribery, in violation of 18 U.S.C. § 666(a)(1)(B), and five counts of honest services mail fraud and conspiracy, in violation of 18 U.S.C. §§ 1341, 1346, and 371.¹ Siegelman was also convicted of obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3). Now pending before the Court is Scrushy's motion for new trial based on newly discovered evidence. (Doc. # 953.) The motion raises five separate issues of perceived structural and constitutional error in the trial: (1) that Scrushy was selectively prosecuted in violation of his equal protection rights under the Fifth Amendment; (2) that ex parte communications between the United States Marshals Service and the undersigned regarding certain e-mails purportedly sent between jurors violated his Sixth Amendment right to counsel and Fifth Amendment right to due process; (3) that then-United States Attorney Leura Canary's ("Canary") alleged failure to abide by her publicly-announced recusal from the case deprived him of his right to adisinterested prosecutor; (4) that the Government's failure to report contacts with jurors and the U.S. Marshals' involvement in ex parte communications deprived him of his Fifth Amendment right to a fair trial and Sixth Amendment right to an impartial jury; and (5) that the Government engaged in prosecutorial misconduct by witness coaching, withholding exculpatory and impeaching evidence and failing to correct false and misleading testimony by Government witness Nick Bailey in violation of his Fifth Amendment rights.² His claims fail on their merits, and his motion for a new trial is due to be DENIED.

I. STANDARD OF REVIEW

A motion for a new trial made under Fed. R. Crim. P. 33(b)(1) must be "grounded on newly discovered evidence[.]" See also United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc). Because maintaining the finality of convictions is "critically important" to our criminal justice system, Gilbert v. United States, 640 F.3d 1293, 1309 (11th Cir. 2011) (en banc) (Carnes, J.), "[m]otions for a new trial based on newly discovered evidence are highly disfavored in the Eleventh Circuit and should be granted only with great caution." Campa, 459 F.3d at 1151. "[T]he defendant bears the burden of justifying a new trial." Id.

Newly discovered evidence giving rise to a meritorious Rule 33(b)(1) motion may support a claim of innocence, reveal a Brady or Giglio violation, or malign the integrity of the jury's verdict. See Campa, 459 F.3d at 1151 ("Newly discovered evidence need not relate directly to the issue of guilt or innocence to justify a new trial, 'but may be probativeof another issue of law.' For instance, the existence of a Brady violation, as well as questions regarding the fairness or impartiality of a jury, may be grounds for a new trial.") (quoting United States v. Beasley, 582 F.2d 337, 339 (5th Cir. 1978))). The common thread that ties together the types of evidence supporting a proper Rule 33(b)(1) motion is that the newly discovered evidence must, in some non-attenuated and material way, impugn the reliability of the jury's verdict.

To obtain a new trial on non-Brady claims based upon newly discovered evidence, a defendant must show that:

(1) the evidence was discovered after trial[;] (2) the failure of the defendant to discover the evidence was not due to a lack of due diligence[;] (3) the evidence is not merely cumulative or impeaching[;] (4) the evidence is material to issues before the court[;] and (5) the evidence is such that a new trial would probably produce a different result.

United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quoting United States v. Ramos, 179 F.3d 1333, 1336 n.1 (11th Cir. 1999)). "Failure to meet any one of these elements will defeat" the motion. United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995). To obtain a new trial premised on Brady claims, the defendant must show that:

(1) the Government possessed favorable evidence to the defendant; (2) the defendant [did] not possess the evidence and could not [have] obtain[ed] the evidence with any reasonable diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the evidence been disclosed to the defendant, there is a reasonable probability that the outcome would have been different.

United States v. Vallejo, 297 F.3d 1154, 1163-64 (11th Cir. 2002); see also United States v. Elso, 364 F. App'x 595, 598-99 (11th Cir. 2010). With respect to Giglio challenges, "thedefendant must demonstrate that the prosecutor 'knowingly used perjured testimony, or failed to correct what he subsequently learned was false testimony, and that the falsehood was material.'" Vallejo, 297 F.3d at 1163-64 (quoting United States v. Dickerson, 248 F.3d 1036, 1041 (11th Cir. 2001)). With these principles of law in mind, the Court now turns to Scrushy's specific issues.

II. DISCUSSION

A. Selective Prosecution

Nearly three years after the jury's verdict, Scrushy maintains for the first time in this Court that he was selectively prosecuted for political purposes in violation of his Fifth Amendment right to equal protection and First Amendment right to contribute to issue-advocacy campaigns. (Doc. # 953 at 40.) Stated briefly, Scrushy argues that the prosecution of this case was initiated to ensure that Siegelman, a Democrat, would be defeated by his Republican opponent, Bob Riley, in the 2006 Alabama gubernatorial race. This claim fails procedurally and on the merits.

1. Waiver and Lack of "Good Cause"

"[S]elective prosecution is a defect in the institution of the prosecution that has no bearing on the determination of factual guilt." United States v. Jones, 52 F.3d 924, 927 (11th Cir. 1995) (emphasis added) (citing United States v. Jennings, 991 F.2d 725, 730 (11th Cir. 1993)). "Federal Rule of Criminal Procedure 12(b) requires that this defense be raised by pretrial motion[.]" Id. at 927 n.5 (citing Jennings, 991 F.2d at 730). "If the defendant fails to raise a selective prosecution defense prior to trial, the defendant waives the defense[.]"Id. (citing Fed. R. Crim. P. 12(f)). "However, the court may grant relief from [the] waiver if the defendant shows cause for [the] delay in raising the defense." Id. (citing Jennings, 991 F.2d at 730); Fed. R. Crim. P. 12(e). By raising it for the first time three years post-verdict, Scrushy has waived the defense of selective prosecution. In fact, Scrushy was required to raise his selective prosecution defense not just before the trial commenced, but within the time prescribed by the Court to file pretrial motions. Jennings, 991 F.2d at 729-30. The Scheduling Order (Doc. # 103), as amended (Doc. # 120), required that "[a]ll pretrial motions [be] filed on or before February 13, 2006." (Doc. # 103.) Although Scrushy filed a plethora of pretrial motions, not one raised a selective prosecution defense. (See Docs. #34, 56, 69, 104, 105, 123, 124, 126, 130, 131, 132, 133, 147, 189, 242, & 266.)

To pursue this claim now, Scrushy must demonstrate "good cause" for the very substantial delay in raising the defense. Fed. R. Crim. P. 12(e). The defendant wholly fails to acknowledge his waiver of a selective prosecution defense and, by consequence, does not even broach the subject of "good cause" for the three year delay. Furthermore, as demonstrated below, no "good cause" exists in this case.

In support of his selective prosecution claim, Scrushy relies heavily on allegations recited by the April 17, 2008 report prepared for John Conyers, Jr., Chairman of the United States House of Representatives Committee on the Judiciary ("the Conyers Report"). In this report, the Committee on the Judiciary investigated allegations that "political considerations may have improperly influenced federal criminal prosecutions in a number of cases aroundthe country." (Doc. # 953, Ex. I-A, at i.)³ The Conyers report depends in large part on allegations by Attorney Dana Jill Simpson ("Simpson") to substantiate the contention that the prosecution of Siegelman was improperly motivated. (Doc. # 953, Ex. I-A, at 7-19.) Simpson relayed conversations she allegedly had with Rob Riley, the son of Republican Bob Riley, that implicated Karl Rove, the Department of Justice and then-United States Attorney Canary's husband in efforts to prosecute Siegelman. (Doc. # 953, Ex. I-A, at 9-10.) The report concludes with the recommendation that "a thorough and fair review by the Executive Branch [of the Department of Justice]" be undertaken. (Id. at 34.)

Although many of the more detailed factual allegations recited by the Conyers Report—and in particular the factual allegations of Simpson—could not have been known to S crushy prior to trial, the materials provided to the Committee on the Judiciary, which form the basis of the Conyers Report's conclusions, coupled with the evidentiary attachments to Scrushy's motion, show that Scrushy had knowledge of, and co-defendant Siegelman was claiming, a potential selective prosecution claim as early as three years prior to the commencement of trial in this case.⁴

Scrushy previously had been indicted in the Northern District of Alabama on similar charges, which were eventually dismissed for lack of evidence. Siegelman's attorney at the time, Doug Jones, testified before the House of Representatives Committee regarding theDepartment of Justice's supposed switch in its position on the case that occurred in mid-2004. (Doc. # 953, Ex. I-A, at 7.) Jones testified that the Department of Justice had "written off" any investigation of Siegelman, but then he was informed that "'there had been a meeting in Washington'" that led to a "...