Don Siegelman Appeal: Court Affirms Conviction On Most Counts

Bad news for former Alabama Governor Don Siegelman. The 11th Circuit Court of Appeals today upheld his conviction on all but two counts in a 68 page opinion, available here (pdf).

The three-judge panel of the 11th Circuit Court of Appeals was unanimous in ruling that there was enough evidence to convict Mr. Siegelman of bribery for having appointed a campaign contributor to a state hospital licensing board, rejecting his arguments that the testimony of a key aide who turned against him was not enough.

The judges threw out two lesser charges against Mr. Siegelman having to do principally with the actions of the businessman he appointed to the hospital board, Richard Scrushy, whose separate conviction was upheld. The judges thus rejected the prosecution’s contention that Mr. Siegelman had participated in a “broader self-dealing scheme.”

Siegelman will be resentenced. More thoughts and reaction below:

Ok, the key points. First, the bribery related counts and what they charged:
The bribery statute under which defendants were convicted makes it a crime for a state official to corruptly agree to accept anything of value from another person “intending to be influenced” in that person’s favor in an official action. 18 U.S.C. § 666(a)(1)(B).

The honest services mail fraud statute criminalizes the use of the mails to execute a scheme to defraud another of the right to a public official’s honest services. 18 U.S.C. §§ 1341, 1346.

The conspiracy statute prohibits two or more persons from conspiring to commit a federal offense. 18 U.S.C. § 371.

The Supreme Court has made it clear that:
...only if “payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act, are they criminal.”
Siegelman argued for and received a "quid pro quo" instruction but also wanted an instruction that the agreement for the quid pro quo (the CON board seat) had to be express. The Court today disagreed, citing a Supreme Court case that held:
...the “Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” Id.
It concluded:
Since the agreement is for some specific action or inaction, the agreement must be explicit, but there is no requirement that it be express.....Furthermore, an explicit agreement may be “implied from [the official’s] words and actions.”

....In this case, the jury was instructed that they could not convict the defendants of bribery unless “the Defendant and official agree that the official will take specific action in exchange for the thing of value.” This instruction required the jury to find an agreement to exchange a specific official action for a campaign contribution. Finding these facts would satisfy McCormick’s requirement for an explicit agreement involving a quid pro quo. Therefore, assuming a quid pro quo instruction was required in this case, we find no reversible error.

As to the sufficiency of the evidence as to whether there was a quid pro quo on the bribery, conspiracy and honest services mail fraud convictions the Court ruled it was up to the jury to decide:
Inferring actors’ states of mind from the circumstances surrounding their conversation, from their actions, and from their words spoken at the time is precisely the province of the jury.

The convictions that were tossed were the two mail fraud offenses in counts 8 and 9 alleging that Siegelman "caused a mailing that helped to execute a scheme between himself and Scrushy to deprive the State of Alabama of its right to their honest services as the Governor and as a member of the CON Board."

These counts alleged that Siegelman and Scrushy agreed not only to exchange money for a seat on the Board, but also that Scrushy “would and did use his seat on the CON Board to attempt to affect the interests of HealthSouth and its competitors,” and that Scrushy “would and did offer things of value to another Board member to attempt to affect the interests of HealthSouth and its competitors.”
The Court found the evidence insufficient here:
In order to uphold Siegelman’s convictions on Counts 8 and 9, the evidence must have been sufficient for the jury to conclude both that Siegelman knew that Scrushy intended to defraud Alabama of his honest services while on the Board and that Siegelman personally intended to participate in this fraud. We hold that it was not.
The Court rejected a statutes of limitations claim on the bribery counts. Siegelman waited until after the verdict to raise the challenge. He needed to do it before the verdict. The Court notes that the delay was intentional and made for strategic reasons:
The defendants apparently made a strategic decision not to present a statute of limitations defense at trial. Such a defense would have required them to make an argument to the jury that assumed their guilt on the bribery charges. While defendants are free to make the strategic decision not to do so, they may not later be heard to complain when the claim is held to have been waived.

The Court then addresses the obstruction of justice charge, noting the evidence must be viewed in a light most favorable to the Government. The jury had found Siegelman guilty of one but not the other.

This sort of split verdict is itself evidence that the jury considered the charges carefully and individually, addressed the strength of the evidence on each charge, and reached a reasoned conclusion.

Siegelman’s argument against the sufficiency of this evidence mirrors that he made against his convictions on virtually all the other counts – that the evidence in this case was not perfect, that it relied too heavily on circumstances and required the jury to draw inferences from those circumstances that might have been drawn differently by different jurors.

Next, the court upheld the admission of a co-conspirator's statement and rejected a claim of juror misconduct. The juror claim involved a few jurors who reviewed material on the internet. The trial court held a hearing on this after the trial.

[T]he district court found that there was credible evidence establishing that during deliberations some of the jurors were exposed to the following extrinsic evidence: (1) a copy of the Second Superseding Indictment obtained from the district court’s own website; and (2) juror information from the website concerning the foreperson’s obligation to preside over the jury’s deliberations and to give every juror a fair opportunity to express his views....The district court concluded that the exposure of the jury to this extrinsic information was harmless to the defendants. We agree.

On some jurors' exposure to tv coverage:

Our review of the record supports these findings and the district court’s conclusion that the exposure of these jurors to media reports about the trial was harmless. In view of the limited and incidental nature of this exposure and the substantial evidence of defendants’ guilt on the counts of conviction, we hold that the district court did not abuse its discretion in denying the defendants a new trial for this reason.

Moving on to the issue of two jurors who e-mailed with each other during deliberations, which is a no-no since deliberations must include all members of the jury, the court refused to find error. Noting that generally, courts are not allowed to inquire about what was said during jury deliberations, the court concludes:

[The e-mails]did not demonstrate premature deliberation or deliberation with fewer than all jury members sufficient to arise to a constitutional violation.

Several times in this opinion the Court relies on "the strength of the Government's evidence" against Siegelman and the fact that the jury rejected several charges against him. The latter, according to the court, indicates that the jury " carefully weighed the evidence and reached a reasoned verdict free of undue influence and did not decide the case prematurely."

The Court also rejected Siegelman's claims the judge should have been recused because he earned income from two aviation companies doing business with federal agencies, and his challenge that the jury selection wheel caused African-Americans to be underrepresented.

On sentencing issues, the Court upheld the trial court's upward departure from the sentencing guidelines. Siegelman said it resulted from his public comments. The Court disagrees:

The district court expressly stated that it was upwardly departing in order to “preserve the integrity of the judiciary and the confidence of the people of the state of Alabama in its elected officials.”

The case now goes back to the trial court to resentence Siegelman solely on the first seven counts. Given all the recent case law on the non-binding nature of the sentencing guidelines and the need to consider the statutory factors in 18 U.S.C. 3553, the sentencing judge could resentence him to a term of much less than 7 years. But, given the Judge's imposition of the upward departure, I wouldn't hold my breath hoping he's inclined to cut the former Governor some slack.

Siegelman is expected to seek a rehearing en banc from the full 11th Circuit.

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    Dammit. (5.00 / 1) (#2)
    by atdleft on Fri Mar 06, 2009 at 04:59:28 PM EST
    So how many of the judges on the 11th Circuit are GOP appointees? This just sucks on so many levels.

    I think at least two of the reviewing judges (5.00 / 1) (#7)
    by jeffinalabama on Fri Mar 06, 2009 at 05:52:02 PM EST
    (probaby not the correct term for it, there were 3 jusdges who did the initial review) were GOP appointees.

    As I stated downthread, this type of practice is common in Alabama. That doesn't make it illegal, even if it might be questionable.

    I don't think it meets the smell test, and the governor should not have been convicted.


    please remember (none / 0) (#6)
    by Jeralyn on Fri Mar 06, 2009 at 05:26:01 PM EST
    to put your urls in html format. Use the link button at the top of the comment box. If you must, get a short link at tinyurl.com.

    Comments with long links must be deleted, I cannot edit them.


    Sorry about that. (5.00 / 1) (#11)
    by atdleft on Fri Mar 06, 2009 at 09:43:33 PM EST
    I forget. May I try again?


    I'll remember to do that more often here. I'm not used to linking like this at some other blogs where I comment frequently.


    Links, kinks, and stinks (none / 0) (#15)
    by Jacob Freeze on Sat Mar 07, 2009 at 08:27:50 AM EST
    The NY Times article that Jeralyn linked probably leaves a slightly mistaken impression in the minds of most people who read it, although it's accurate as far as it goes.

    There were a grand total of 33 federal charges on the second federal indictment of Don Siegelman, the indictment that actually went to trial in 2006, after a previous indictment in 2004 was suddenly abandoned by the prosecution on the first day in court.  

    Siegelman was acquitted of 26 out of 33 of those charges, and convicted on 7 out 33.

    So the Appeals Court decision that was advertised almost everywhere as confirming all except two of the original charges on which Siegelman was convicted also also reduced the number of original charges for which he was convicted to 5 out of 33, and so far Siegelman has been acquitted on 28 out of 33 charges.

    So the feds brought two omnibus sets of charges against Siegelman, the first bus-load was dropped by the prosecution after one day in court, and out of the second bus-load, 33 charges, only 5 resulted in conviction.

    Considering that the "benefit" Siegel supposedly received by appointing Scrushy to a board to which three previous Republican governors had also appointed Scrushy consisted of support for an initiative to raise money for Alabama's ridiculously inadequate, crumbling, under-funded and under-staffed school system...

    A supposed "benefit" to Siegelman that was actually aimed at a greater benefit to the children of Alabama than anything accomplished by the three former Republican governors who also appointed Scrushy to exactly the same board to which he was appointed by Siegelman


    Continuation of previous comment (5.00 / 1) (#16)
    by Jacob Freeze on Sat Mar 07, 2009 at 08:35:24 AM EST
    (continues previous comment accidentally posted)

    The supposed "benefit" to Siegelman was actually aimed at a greater benefit to the children of Alabama than anything accomplished by the three former Republican governors who also appointed Scrushy to exactly the same board to which he was appointed by Siegelman...

    In all of two boat-loads of charges brought against Don Siegel, about 60 charges in all, the Republican prosecutors have managed to sustain conviction on a grand total of 5 charges out of 60, and the only "benefit" that anyone can even imagine for Don Siegelman was funding Alabama's ridiculously underfunded schools.



    This was a shady deal (5.00 / 1) (#4)
    by jeffinalabama on Fri Mar 06, 2009 at 05:16:47 PM EST
    b/t Scrushy and the gov. But I don't think this was any better or worse than what still happens in Alabama.

    I'm trying to follow (5.00 / 1) (#8)
    by dualdiagnosis on Fri Mar 06, 2009 at 06:02:18 PM EST
    you here. Are you stating that what Siegleman was convicted of is actually legal?

    Hmmmm... (5.00 / 2) (#9)
    by jeffinalabama on Fri Mar 06, 2009 at 06:10:57 PM EST
    I think the interpretations used by the prosecutors, and those by the judges, assume the worst. I'm not a lawyer, but this was a big news case here.

    Sorry about hedging, but I think this does happen frequently here, and the politicians use the same reasoning as Siegleman, yet there are no indictments.

    In Alabama, just like everywhere else, I suppose, there are facts, and then there are 'interpretations.'

    Again, I am not trying to hedge. I don't think this case was really at the level of prosecution, but the way it has been presented would certainly lead one to question the ethics, if not the legality.


    ok (none / 0) (#10)
    by dualdiagnosis on Fri Mar 06, 2009 at 06:11:54 PM EST
    That clears that up.

    But, but (none / 0) (#1)
    by dualdiagnosis on Fri Mar 06, 2009 at 03:41:02 PM EST
    didn't evil Karl Rove frame him?

    Yes... (5.00 / 1) (#12)
    by atdleft on Fri Mar 06, 2009 at 09:44:34 PM EST
    Hey, (none / 0) (#13)
    by dualdiagnosis on Fri Mar 06, 2009 at 11:15:04 PM EST
    maybe if you forwarded that to the appeals court they could still change their mind.

    Good for them (none / 0) (#5)
    by elrapido on Fri Mar 06, 2009 at 05:19:24 PM EST
    Can we please get over all the political prosecution at the best of Karl Rove nonsense now?

    11th Circuit Court Judges (none / 0) (#17)
    by dixieluke on Thu Mar 19, 2009 at 03:20:42 PM EST
    Bill Pryor is one, and he's definitely a Bush appointee. My husband and I used to attend Auburn games regularly, and Bill Pryor would be there often campaigning. Mostly, we saw him in the middle of a group of Pryor "groupies"--usually very good looking young women swarming around him. He was shamelessly flirting, hugging, being touched... My husband and I decided right then and there that Bill Pryor was not a good man, and as we studied him more, we discovered that he and Karl Rove were very close. I think he needs to be investigated, and oh, by the way, Richard Shelby's ethics violations were swept under the rug by the Gonzales Dept. of Justice and Ohio's Republican Voinovich. I have been writing many senators asking them to reopen Shelby's case. He was accused of leaking sensitive finance committee information to Fox News.