Don Siegelman Appeal: Court Affirms Conviction On Most Counts
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:
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 Supreme Court has made it clear that:
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.
...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.”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:
....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.
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.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.
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.
[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.
|< Clinton Brings Star Power To State | MN Supreme Court Denies Franken Request For Certification Of Election >|