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Case No. 12-10694
District Court Case No. 2:05-CR-119-MEF
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
UNITED STATES OF AMERICA,
Appellee-Plaintiff,
v.
RICHARD SCRUSHY,
Appellant-Defendant.
On Appeal from the United States District Court for the Middle District of Alabama
BRIEF OF APPELLANT RICHARD M. SCRUSHY __________________________________________________________________
Arthur W. Leach James K. Jenkins Suite 225 MALOY JENKINS PARKER 5780 Windward Parkway 900 Arapahoe Avenue Alpharetta, Georgia 30005 Boulder, Colorado 80302 404-786-6443 303-443-9048 Leslie V. Moore Suite 204 5148 Caldwell Mill Road Birmingham, Alabama 35244 205-403-9116
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USA v. Scrushy Case No. 12-10694
Certificate of Interested Persons And Corporate Disclosure Statement
Pursuant to Eleventh Circuit Rule 26.1, Appellant Richard M. Scrushy
certifies that the following persons have an interest in the outcome of this case:
Honorable Charles S. Coody, United States Magistrate Judge
Louis V. Franklin, Sr., Acting United States Attorney
Honorable Mark E. Fuller, Chief Judge, Middle District of Alabama
Honorable Robert L. Hinkle, District Judge, Northern District of Florida
James K. Jenkins, Attorney for Richard Scrushy
Arthur W. Leach, Attorney for Richard Scrushy
Leslie V. Moore, Attorney for Richard Scrushy
Richard C. Pilger, Department of Justice, Public Integrity Section
John Alexander Romano, Department of Justice, Appellate Section
Don Eugene Siegelman, Co-Defendant in trial court
Peter L. Sissman, Attorney for Don Siegelman
Morgan Stanley (symbol MS)
Patty Merkamp Stemler, Department of Justice, Appellate Section
UBS AG (symbol UBS)
C-1 of 1
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Statement Regarding Oral Argument
Appellant Richard Scrushy respectfully requests oral argument. This case
involves the denial of a motion to recuse based on ex parte meetings between the
trial judge and members of the United States Marshals Service and the Postal
Inspector where there is no full disclosure on the record of the basis for
disqualification. During the second ex parte meeting, the court was informed of the
results of an investigation concluding that documents central to a motion then
pending before the court were not authentic. This appeal also presents issues
relating to the scope of discovery in a motion for new trial based on newly
discovered evidence and the denial of an evidentiary hearing on the motion for new
trial. These latter two issues arise in the context of an extensive evidentiary
showing (including 73 exhibits) as to documents, e-mails and investigative reports
that are likely to exist and are in the exclusive custody of the Government. Oral
argument would enable counsel to assist the Court in identifying the portions of the
record that are important to these determinations, as well as assist the Court in
determining if the court below applied the correct legal standards in determining
these motions.
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Table of Contents
Certificate of Interested Persons and Corporate Disclosure Statement …… C-1 of 1 Statement Regarding Oral Argument……………………………………………... i Table of Contents ………………………………………………………………… ii Table of Citations ………………………………………………………………... iv Statement of Jurisdiction ……………………………………………………….. vii Statement of the Issues ………………………………………………………....... 1 Course of Proceedings …………………………………………………………… 2 Statement of Facts ……………………………………………………………….. 3 Standards of Review ……………………………………………………………... 7 Summary of the Argument ………………………………………………………. 8 Argument and Citations of Authority …………………………………………… 10 I. THE DENIAL OF SCRUSHY’S MOTION TO RECUSE BASED ON THE DISTRICT JUDGE’S PARTICIPATION IN TWO EX PARTE MEETINGS WAS ERROR BECAUSE THERE WAS NO FULL DISCLOSURE ON THE RECORD OF THE BASIS FOR DISQUALIFICATION AND THE COURT APPLIED A SUBJECTIVE STANDARD RATHER THAN THE REQUIRED OBJECTIVE STANDARD ……………… 10 A. THIS COURT SHOULD REMAND FOR A COMPLETE DETERMINATION OF THE FACTS RELATING TO THE EX PARTE MEETINGS BECAUSE THERE WAS NO FULL DISCLOSURE ON THE RECORD OF THE FACTUAL BASIS FOR DISQUALIFICATION……………………………………………… 12
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B. BY CONCLUDING THAT THE TRIAL COURT WAS NOT ACTUALLY AFFECTED BY WHAT WAS SAID IN THE EX PARTE MEETINGS THE COURT BELOW FAILED TO APPLY THE REQUISITE OBJECTIVE STANDARD IN DETERMINING THE RECUSAL MOTION……………………………………………… 19
II. THE COURT ABUSED ITS DISCRETION IN DENYING ALL DISCOVERY REQUESTS BASED ON A FACIALLY INCOMPLETE IN CAMERA INSPECTION, APPLICATION OF AN INCORRECT LEGAL STANDARD, AND FAILURE TO CONSIDER KEY PORTIONS OF SCRUSHY’S EVIDENTIARY SHOWING ……………………………..... 28 A. THE MAGISTRATE’S REPRENTATIONS OF THE MATERIALS EXAMINED IN HIS IN CAMERA REVIEW ARE NOT SUPPORTED BY THE RECORD ………………………….. 29 B. THE MAGISTRATE APPLIED AN INCORRECT LEGAL STANDARD IN DENYING THE MOTIONS FOR DISCOVERY……. 34 C. THE COURT FAILED TO CONSIDER KEY SHOWINGS THAT THERE WAS A FIRM EVIDENTIARY BASIS TO BELIEVE THAT EVIDENCE THAT WOULD ENABLE SCRUSHY TO PROVE HIS CLAIMS LIKELY EXISTS ……………. 41 III. THE DENIAL OF SCRUSHY’S MOTION FOR NEW TRIAL WITHOUT CONDUCTING AN EVIDENTIARY HEARING WAS AN ABUSE OF DISCRETION ………………………………………………. 47 Conclusion …………………………………………………………………….. 58 Certificate of Compliance ……………………………………………………… 60 Certificate of Service …………………………………………………………… 61
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Table of Citations
Cases Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) ………... 17 Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) ……………………… 19 Easley v. University of Michigan Bd. of Regents, 853 F.2d 1351 (6th Cir. 1988) …………………………………………………………… 17 Harris v. Nelson, 394 U.S. 286 (1969) ……………………………………......... 28 Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969) ……………………………….. 38 Mattox v. United States, 146 U.S. 140 (1892) ………………………………… 56 Neder v. United States, 527 U.S. 1 (1999) …………………………………….. 53 Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir. 1988)………………... 7, 25 Pekar v. United States, 315 F.2d 319 (5th Cir. 1963) ………………………….. 56 Price Bros. Co. v. Philadelphia Gear Corp., 629 F.2d 444 (6th Cir. 1980) …… 17 Remmer v. United States, 347 U.S. 227 (1954)…………………………………. 56 Scrushy v. United States, 130 S.Ct. 3541 (2010) ………………………………… 2 Skilling v. United States, 130 S.Ct. 2896 (2010) ………………………………... 2 United States v. Adams, 785 F.2d 917 (11th Cir. 1986) ………………………... 16 United States v. Armstrong, 517 U.S. 456 (1996) …………………………... 34, 50 United States v. Betner, 489 F.2d 116 (5th Cir. 1974) ………………………….. 56 United States v. Campa, 459 F.3d 1121 (11th Cir. 2006) (en banc) …………… 50
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United States v. Espinosa-Hernandez, 918 F.2d 911
(11th Cir. 1990) … ……………………………………………. 7, 29, 36, 46 United States v. Frazier, 387 F.3d 1224 (11th Cir. 2004) (en banc) …………. 7, 47 United States v. Gordon, 817 F.2d 1538 (11th Cir. 1987) ……………… 36, 49, 51 United States v. Kelly, 888 F.2d 732 (11th Cir. 1989) …………………………… 7 United States v. Meinster, 488 F.Supp. 1342 (S.D. Fla. 1980) …………………. 16 United States v. Patti, 337 F.3d 1317 (11th Cir. 20030 ……...... 7, 8, 16, 19, 20, 24 United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B 1981) …………………. 16 United States v. Potashnick, 609 F.2d 1101
(5th Cir. 1980) ………………………………………… 8, 17, 20, 25, 26, 27 United States v. Rhymes, 196 F.3d 207 (4th Cir. 1999) ………………………… 17 United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009)
(“Siegelman I”) …………………………………………………. 2, 5, 24, 56 United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011)
(“Siegelman II”) …………………………………………………… 3, 6, 56 United States v. Simms, 385 F.3d 1347 (11th Cir. 2004) ………………………. 16 United States v. Slocum, 708 F.2d 587 (11th Cir. 1983) …………………….. 8, 47 United States v. State of Alabama, 828 F.2d 1532 (11th Cir. 1987) …………. 7, 17 United States v. Velarde, 485 F.3d 553 (10th Cir. 2007) ….. 7, 9, 28, 29, 34, 37, 39 Young v. U.S. ex rel. Vuitton et Fils, 481 U.S. 787 (1987) ……………………… 52
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Statutes and Rules 28 U.S.C. § 144 …………………………………………………………………. 17 28 U.S.C. § 455(a) ……………………………………………10, 17, 23, 25, 26, 27 28 U.S.C. § 455(b)(1) ………………………………………. 10, 18, 23, 24, 26, 27 28 U.S.C. § 455(b)(5)(iv) ……………………………………………….. 10, 24, 26 28 U.S.C. § 455(e) ………………………………………………………………. 16 28 U.S.C. § 1291………………………………………………………………… vii Fed. R. Evid. 403 ………………………………………………………………... 37 Fed. R. Evid. 608(b) …………………………………………………………….. 37
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Statement of Jurisdiction
This appeal is from the orders of the district court denying Appellant’s
motion for recusal (Doc. 1024), the district court’s order (Doc. 1078) affirming the
magistrate judge’s denial of discovery on Appellant’s motion for new trial (Doc.
1070), and the district court’s January 30, 2012 denial of Appellant’s motion for
new trial based on newly discovered evidence without a hearing. Doc. 1072.
Appellant Scrushy timely filed his notice of appeal on February 6, 2012. Doc. 1080.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291, which gives the courts of
appeals jurisdiction over all final decisions of the district courts of the United
States.
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Statement of the Issues
I. Should this Court remand Appellant’s recusal motion based on the district
judge’s participation in two ex parte meetings because there was no full disclosure
on the record of the factual basis for disqualification and the court applied a
subjective standard in determining recusal instead of the required objective
standard?
II. Did the district court abuse its discretion by denying all requests for discovery
in support of Appellant’s motion for new trial by relying on a facially incomplete
in camera review, application of an incorrect legal standard, and failure to consider
key portions of Appellant’s showing that the evidence sought likely exists?
III. Did the district court abuse its discretion by denying Appellant’s motion for
new trial without conducting an evidentiary hearing?
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Course of Proceedings
In June 2006, Appellant Richard Scrushy and co-defendant former governor
of Alabama Don Siegelman were convicted of federal funds bribery, honest
services mail fraud and bribery. Docs. 437, 438.
Scrushy moved for a new trial based on evidence of jury misconduct. Doc.
467. It was denied after an evidentiary hearing. Doc. 518. Scrushy filed a motion
for reconsideration based on newly discovered evidence of misconduct (Doc. 519),
which was denied without an evidentiary hearing. Doc. 611.
On June 28, 2007, the court sentenced Scrushy to 82 months in prison. Doc.
627. This Court affirmed on March 6, 2009. United States v. Siegelman, 561 F. 3d
1215 (11th Cir. 2009) (“Siegelman I”).
On June 26, 2009, Scrushy filed a motion for new trial based on newly
discovered evidence. Doc. 953. Scrushy also filed a motion to recuse the trial judge
based on an ex parte meeting between the judge and Government investigators
(Doc. 954), and motions for discovery. Docs. 955, 985. This Court assigned the
case to Judge Robert Hinkle of the Northern District of Florida.
In June 2010, the Supreme Court granted certiorari, vacated this Court’s
decision and remanded for further consideration in light of Skilling v. United States,
130 S.Ct. 2896 (2010). Scrushy v. United States, 130 S.Ct. 3541 (2010). On May
10, 2011, this Court reversed Scrushy’s convictions on two counts, affirmed his
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remaining convictions, and remanded for re-sentencing. United States v. Siegelman,
640 F.3d 1159 (11th Cir. 2011) (“Siegelman II”).
On June 29, 2011, Judge Hinkle filed his order denying Scrushy’s recusal
motion. Doc. 1024. On January 18, 2012, the magistrate judge denied Scrushy’s
motions for discovery. Doc. 1070. On January 24, 2012, the district court denied
Scrushy’s motion for new trial without a hearing (Doc. 1072), and upheld the
discovery denial on February 1, 2012. Doc. 1078.
On January 30, 2012, Scrushy was re-sentenced to serve 70 months in prison.
Doc. 1075. Scrushy filed his notice of appeal to this Court on February 6, 2012.
Doc. 1080.
Appellant Scrushy has been incarcerated since June 28, 2007.
Statement of Facts
After his conviction in 2006, Scrushy moved for a new trial based on
evidence of jury misconduct contained in anonymously sent copies of what
appeared to be e-mails between jurors on the case, and asked for leave to interview
the jurors or subpoena computer records. Doc. 467. The court held an evidentiary
hearing in which the court asked each juror about exposure to extrinsic evidence,
but never asked about the e-mails. Doc. 1024 at 4-5. On December 13, 2006, the
court denied the motion for new trial in a lengthy opinion (Doc. 518), finding that
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there was limited exposure to extrinsic information but that it did not affect the
fairness of the trial or warrant further inquiry. Doc. 1024 at 5.
On December 20, 2006, someone anonymously mailed copies of more
e-mails, not only to defense counsel and Scrushy, but to co-workers of two jurors.
Id. These e-mails mentioned an exchange of “articles” and “links.” Co-workers
reported this to the jurors; one juror reported it to the United States Marshal; one
reported it to the court. Id. at 6. The Marshal notified Chief Judge Fuller and the
Acting U.S. Attorney, who asked the United States Postal Inspection Service to
investigate, and assigned the matter to an Assistant United States Attorney not
involved in this case. Defense counsel was not notified. Id. at 6-7.
On December 28, 2006, Scrushy filed a motion to reconsider the court’s
December 13, 2006 order. Id.; Doc. 519. Copies of an additional e-mail arrived in
February of 2007, and the record supplemented. Doc. 532.
In April of 2007, while Scrushy’s motion to reconsider based on the
additional e-mails was still pending, and without Scrushy’s or counsel’s knowledge,
a deputy marshal and/or postal inspector briefed Chief Judge Fuller on the
investigation of the e-mails. Doc. 1024 at 7. This ex parte meeting was not
revealed to Scrushy until July 8, 2008 (after Scrushy filed his initial brief in this
Court), when the Chief of the Appellate Section in the Department of Justice
informed counsel in a letter (“DOJ Letter”), which stated in part:
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While the investigation was ongoing, in early April 2007, well after the second evidentiary hearing on November 17, 2006, representatives of the United States Marshals Service apprised Chief Judge Fuller that the Postal Inspectors were investigating the receipt of purported emails by co-workers of the two jurors and had concluded that the purported emails were not authentic, but that the Postal Inspectors had not yet determined who had sent copies of the emails to the co-workers.
Doc. 954-1 at 2-3.
On June 22, 2007, some two months after the April 2007 ex parte meeting,
Chief Judge Fuller denied Scrushy’s motion to reconsider based on the additional
e-mails, concluding that no further investigation was necessary and that the
additional e-mails were “merely cumulative and impeaching.” Doc. 611 at 3, 12-13.
This Court denied Scrushy’s direct appeal in March of 2009. It rejected
Scrushy’s arguments concerning jury misconduct and the sufficiency of the trial
court’s investigation of misconduct, and denied Scrushy’s motion to authorize
subpoenas or appoint a special master. Siegelman I, 561 F.3d 1215. Shortly
thereafter, Scrushy filed an extensive motion for new trial based on newly
discovered evidence, raising five separate claims. Doc. 953. Scrushy also filed a
motion to recuse Chief Judge Fuller based on the April 2007 ex parte meeting. Doc.
954. Additionally, Scrushy filed specific discovery requests relating to each of his
five claims. Docs. 955, 985.
In May of 2010, Chief Judge Fuller entered an order referring the recusal
motion to another judge. Doc. 1006. This order included two statements
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summarizing his memory of two ex parte meetings concerning the e-mails. Doc.
1006 at 3. This Court assigned the case to Judge Hinkle for disposition. Doc. 1007.
After the Supreme Court vacated this Court’s original decision, this Court
reversed two of Scrushy’s convictions and remanded for resentencing. Siegelman
II, 640 F.3d 1159. Judge Hinkle then entered an order denying Scrushy’s recusal
motion without conducting any inquiry into the facts surrounding the ex parte
meetings. Judge Hinkle reasoned that this Court’s denial of Scrushy’s jury
misconduct claim resolved the recusal issue, and concluded that even though Chief
Judge Fuller had been exposed to extrinsic information, the information was
unrelated to Scrushy’s pending motion, and he was unaffected by the information.
Doc. 1024 at 29.
After recusal was denied, the court denied Scrushy’s discovery requests
(Doc. 1070), and Chief Judge Fuller denied the new trial motion without an
evidentiary hearing. Doc. 1072.
Scrushy brings this appeal from the denial of these motions.
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Standards of Review
I. This Court reviews recusal decisions under an abuse of discretion standard.
United States v. Kelly, 888 F. 732, 745 (11th Cir. 1989). The standard for
determination of a § 455(a) motion is “whether an objective, disinterested, lay
observer fully informed of the facts underlying the grounds on which recusal was
sought would entertain a significant doubt about the judge’s impartiality.” Parker v.
Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988). Recusal under 28 U.S.C.
§ 455(b) is mandatory because the potential for conflicts of interest are readily
apparent. United States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003). Recusal is
to be determined under an objective standard. Id. at 1321-23. A clear error of
judgment or application of the wrong legal standard constitutes an abuse of
discretion. United States v. Frazier, 387 F.3d 1224, 1259 (11th Cir. 2004) (en
banc). Any doubts about recusal should be resolved in favor of disqualification.
Kelly, 888 F.2d at 745 (citing United States v. State of Alabama, 828 F.2d 1532,
1540 (11th Cir. 1987)).
II. A denial of discovery on a new trial motion is reviewed for abuse of
discretion. United States v. Espinosa-Hernandez, 918 F.2d 911 (11th Cir. 1990).
The standard for granting discovery is whether “there is a firm evidentiary basis for
believing such evidence likely exists.” United States v. Velarde, 485 F.3d 553, 561
(10th Cir. 2007).
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III. Denial of an evidentiary hearing on a motion for new trial is reviewed
under an abuse of discretion standard. United States v. Slocum, 708 F.2d 587, 600
(11th Cir. 1983).
Summary of the Argument
The court below abused its discretion by denying Scrushy’s motion to recuse
for two reasons. Scrushy’s motion was based on two ex parte meetings with Chief
Judge Fuller in which a deputy marshal and/or a postal inspector informed the
court that copies of e-mails between jurors were forgeries. The authenticity of
those e-mails was a material fact in Scrushy’s motion for reconsideration of his
jury misconduct claim which was pending before Chief Judge Fuller. Judge
Hinkle’s reliance on a brief summary of the ex parte meeting provided fifteen
months after the meeting by the Department of Justice and Chief Judge Fuller’s
brief recitation of his memory of the meeting provided three years later deprived
Scrushy of “a full disclosure on the record of the basis for disqualification.” Patti,
337 F.3d at 1322 n.6. Further, by finding that Chief Judge Fuller was not actually
affected by the ex parte disclosure, Judge Hinkle employed an impermissible
subjective standard in determining the recusal motion. This is contrary to the
objective standard applicable to all disqualification issues. Patti, 337 F.3d at 1321.
See also United States v. Potashnick, 609 F.2d 1101, 1113 (5th Cir. 1980).
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The magistrate judge abused his discretion in denying all of Scrushy’s
discovery requests. First, the denial relied in large part on the magistrate’s claim
that there was an in camera inspection of “all documents that would be responsive
to defendant’s discovery requests.” Doc. 1070 at 1. However, the record shows that
the described in camera inspection could not have occurred, since it did not
include any materials relating to four of Scrushy’s five grounds for new trial.
Second, the magistrate applied an incorrect legal standard by requiring Scrushy to
show that he would ultimately prevail in his new trial motion as a prerequisite to
granting discovery, rather than the applicable standard of whether there was a
“firm evidentiary basis for believing such evidence likely exists.” Velarde, 485
F.3d at 561. Third, the discovery order addressed only parts of Scrushy’s evidence,
and ignored Scrushy’s substantial evidentiary basis that the evidence sought in
discovery likely exists.
The court below abused its discretion in denying an evidentiary hearing on
Scrushy’s motion for new trial by: applying the wrong legal standard in requiring
Scrushy to prove that he would ultimately prevail on his motion; improperly
finding waiver as to his selective prosecution claim; ignoring binding Supreme
Court authority as to structural error; requiring Scrushy to prove prejudice without
first providing discovery or an evidentiary hearing; and by failing to address one of
Scrushy’s five new trial claims.
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Argument and Citations of Authority
I. THE DENIAL OF SCRUSHY’S MOTION TO RECUSE BASED ON THE DISTRICT JUDGE’S PARTICIPATION IN TWO EX PARTE MEETINGS WAS ERROR BECAUSE THERE WAS NO FULL DISCLOSURE ON THE RECORD OF THE BASIS FOR DISQUALIFICATION AND THE COURT APPLIED A SUBJECTIVE STANDARD RATHER THAN THE REQUIRED OBJECTIVE STANDARD. Scrushy’s recusal motion (Doc. 954), was based on Chief Judge Fuller’s
participation in an ex parte discussion in which a deputy marshal and/or a postal
inspector informed him that the e-mails that were the focus of Defendant’s then-
pending motion for reconsideration based on jury misconduct were not authentic.
Doc. 954-1. Chief Judge Fuller concluded that another judge should decide the
recusal request. Doc. 1006 at 5. This Court designated District Judge Hinkle. Doc.
1007. Judge Hinkle, without a hearing, denied Scrushy’s motion to recuse as
“unfounded.” Doc. 1024 at 38. Scrushy’s motion for new trial was subsequently
denied by Chief Judge Fuller, also without a hearing. Doc. 1072.
Scrushy argued that recusal was required under 28 U.S.C. §§ 455(b)(1) and
(b)(5)(iv) because Chief Judge Fuller had “personal knowledge of disputed
evidentiary facts” and because he was “likely to be a material witness” as to the
new trial motion. Doc. 954 at 4-7. Scrushy argued that recusal was also required
under 28 U.S.C § 455(a) because the court’s “impartiality might reasonably be
questioned.” Doc. 954 at 7-9.
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The fundamental flaws in Judge Hinkle’s order are two-fold. First, neither
Judge Hinkle, nor Scrushy’s attorneys, nor this Court in considering Scrushy’s
appeal, know what occurred in the ex parte meetings. The only information as to
what occurred is found in a letter by the Chief of the Criminal Division’s Appellate
Section of DOJ, which revealed for the first time the ex parte meeting that
occurred fifteen months before (Doc. 954-1), and the statements contained in Chief
Judge Fuller’s order filed three years after the ex parte meetings. Doc. 1006 at 3.
While Judge Hinkle has concluded that “what was said in the April 2007 meeting
does not matter; it is not a disputed issue,” (Doc. 1024 at 36), Scrushy respectfully
disagrees. When there is an admitted ex parte discussion in which a Government
agent discusses a material fact to a motion then pending before that judge, there
must first and foremost be a complete determination of what the communication
was. The determination of those facts cannot be delegated to the Government or
the judge who participated in the meetings.
Second, a review of Judge Hinkle’s order demonstrates that the court
employed an impermissible subjective standard in ruling on Scrushy’s recusal
motion – concluding that since Chief Judge Fuller said that he did not consider the
authenticity of the questioned e-mails and that “here the judge has shown
impeccable demeanor and has given not a hint of personal reaction to the
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information he received,” (Doc. 1024 at 34), there was no prejudice to Scrushy
from the ex parte discussion.
A. THIS COURT SHOULD REMAND FOR A COMPLETE DETERMINATION OF THE FACTS RELATING TO THE EX PARTE MEETINGS BECAUSE THERE WAS NO FULL DISCLOSURE ON THE RECORD OF THE FACTUAL BASIS FOR DISQUALIFICATION.
When Scrushy filed his motion to recuse, the only available facts as to any
ex parte meetings were found in what was revealed in the DOJ Letter. Doc. 954-1.
Judge Hinkle found that prior to that time, neither the prosecutors in this case nor
Chief Judge Fuller had revealed the occurrence to Scrushy or counsel. Doc. 1024 at
7-9.
While the DOJ Letter clearly advised that an ex parte meeting occurred “in
early April 2007,” (Doc. 954-1 at 2), and that “representatives of the United States
Marshals Service apprised Chief Judge Fuller that the Postal Inspectors were
investigating the receipt of purported emails by co-workers of the two jurors and
had concluded that the purported emails were not authentic,…” the letter did not
contain any information concerning an earlier ex parte meeting, who was present at
either meeting, what was said by any of the participants, or whether any reports of
interviews or other materials were shown to the judge. The letter was clearly
prepared to simultaneously stake out the Government’s position in the appeal then
pending (and already briefed by Scrushy) before this Court:
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The information does not alter the government’s conclusion that the purported e-mails appended to defendant Scrushy’s Motion to Reconsider provided no basis for the district court to reconsider its December 12, 2006 order denying the defense motion for new trial, or to grant a new trial based on newly discovered evidence.
Id. at 3.
The only other factual information in the record is contained in Chief Judge
Fuller’s May 2010 order, which concluded that Scrushy’s recusal motion should be
referred to another judge. Doc. 1006. This order revealed two ex parte meetings:
According to the Court’s memory of these events, the U.S. Marshals’ staff apprised the Court of the receipt of the purported e-mails by the jurors’ co-workers, and the Court directed the U.S. Marshal to investigate any attempt to influence, coerce, or intimidate a federal juror. * * * According to the Court’s recollection, in April 2007, representatives of the U.S. Marshals Service and the U.S. Postal Inspection Service briefed the Court on the on-going investigation, during which a postal inspector volunteered to the Court that his preliminary conclusion was that the alleged juror e-mails were not authentic.
Doc. 1006 at 3.
In his June 26, 2009 motion to recuse, Scrushy summarized the unanswered
questions about the ex parte meeting, noting that it was not even clear if there were
other unrevealed ex parte communications. Scrushy argued that without complete
disclosure of the facts, the record would be left in the hands of the Government and
any revelations the court might later make. Docs. 954 at 3; 5 n.1; 970 at 6.
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Nonetheless, Judge Hinkle concluded that there was no need to determine
what was said in the ex parte meetings. The opinion repeatedly relies on the DOJ
Letter and Chief Judge Fuller’s order as the only facts on which to base his
conclusion that although “extrinsic information came to the judge for reasons
unrelated to a pending motion, […] the judge decided the motion based on the
record properly before him, ignoring the extrinsic information.” Doc. 1024 at 29.
Similarly, Judge Hinkle concluded, “[H]ere the judge has shown impeccable
demeanor and has given not a hint of any personal reaction to the information
received.” Id. at 34. Notwithstanding the conflicts between the DOJ Letter and
Chief Judge Fuller’s version as to the first ex parte meeting and the question of
who initially directed that an investigation into the e-mails commence, Judge
Hinkle relies on only Chief Judge Fuller’s version of the purpose of the
investigation in reaching the important conclusion that the Government initiated
the investigation into the e-mails “not for the purpose of supporting the
government in the Siegelman and Scrushy case but for the purpose of determining
whether a new crime had been committed and, if so, who committed it.” Id. at 22.
The problem with this is simple. Because there was no full disclosure of the
factual basis for recusal and there is no transcript of the ex parte discussion (Doc.
1024 at 36), the only facts available are those that were provided by the DOJ and
Chief Judge Fuller. Scrushy does not have to ascribe any bad faith on the part of
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the Government or Chief Judge Fuller in order to have access to all the facts
concerning ex parte meetings that occurred and that admittedly included discussion
of a key fact material to the determination of a motion then pending before that
judge. It is fair to say that the only sources relied on by Judge Hinkle in
determining what happened at the meetings have substantial interests in the
outcome of any inquiry into those meetings. Again, this is not to ascribe any
wrong-doing or bad faith; it is simply a fact that the only information comes from
interested parties in the form of conclusory statements written well after the events.
As it stands now, neither Judge Hinkle, nor Appellant Scrushy, nor this
Court in reviewing this decision as yet know what was said at those meetings. Or
who attended the meetings aside from Chief Judge Fuller.1 Or what was shown to
the judge. 2 Or who made the decision to order an investigation into the e-mails.3
Or even if these were the only ex parte meetings.4
1 Compare Doc. 954-1 at 2-3 with Doc. 1006 at 3 (contradiction as to which agencies were at April 2007 ex parte). Neither version provided any names. 2 The DOJ Letter states: “[t]he Postal Inspector also compared the purported emails to test emails sent from and received by Juror 40’s email account.” Id. at 2. 3 Compare Doc. 954-1 at 2 with Doc 1006 at 3 (Acting U.S. Attorney Franklin or Chief Judge Fuller). 4 The DOJ Letter does not even indicate that this was the only ex parte meeting, containing only a carefully worded “I am not aware of” non-denial denial. Doc. 954-1. Nor does Chief Judge Fuller. Doc. 1006 at 3.
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Fundamental fairness requires that before a determination as to whether or
not recusal is required, there must be a complete and fair determination of what
occurred. A party may enter into a waiver of a ground for recusal under § 455(a).
However, “waiver may be accepted provided it is preceded by a full disclosure on
the record of the basis for disqualification.” 28 U.S.C. § 455(e). See Patti, 337 F.3d
at 1322 n.6. It would seem that no court, either at the trial level or the appellate
level, should act without “a full disclosure on the record of the basis for
disqualification.”
Counsel can find no cases where there was no transcript of the ex parte
discussions and the moving party requested that the facts be fully explored where
the district court determined the recusal motion only on the basis of the brief
representation by the Government and the judge involved in the ex parte
proceedings. Each of the three cases relied on by Judge Hinkle at pages 29-35 of
his opinion involved ex parte proceedings that were transcribed and provided to
opposing counsel. United States v. Simms, 385 F.3d 1347, 1352 (11th Cir. 2004);
United States v. Adams, 785 F.2d 917, 919 (11th Cir. 1986); and United States v.
Phillips, 664 F.2d 971, 1001 n.33 (5th Cir. Unit B 1981), see also United States v.
Meinster, 488 F.Supp. 1342, 1349 (S.D. Fla. 1980).
Where there is no “full disclosure on the record of the basis for
disqualification,” this Court has remanded for a hearing to determine those facts.
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For instance, in State of Alabama, the district judge denied a recusal motion under
28 U.S.C. §§ 144 and 455. This Court remanded for an evidentiary hearing before
another judge who “held a hearing and received evidence in the matter.” 828 F.2d
at 1539. Based on that record this Court reviewed the subsequent order denying
recusal and reversed. Id. at 1546. In Potashnick, 609 F.2d 1101, the Fifth Circuit
remanded the case “for the limited purpose of determining whether [the district
judge] was disqualified to hear the case.” Id. at 1106.5 A different district judge
heard the motion and found no reasonable basis for disqualification. The Court
reversed. Id. at 1106-07. See also Price Bros. Co. v. Philadelphia Gear Corp., 629
F.2d 444, 447 (6th Cir. 1980) (remanding recusal motion for evidentiary hearing
and holding, “The present state of the record raises many questions that must be
answered prior to any further consideration of the other issues raised on this
appeal”), after remand, 649 F.2d 416; and Easley v. University of Michigan Bd. of
Regents, 853 F.2d 1351, 1358 (6th Cir. 1988) (limited remand for evidentiary
hearing to determine facts relating to recusal).
Scrushy’s motion suggested that his recusal request should be handled as the
trial court did in very similar circumstances in United States v. Rhymes, 196 F.3d
207 (4th Cir. 1999). Doc. 954 at 6-7. In Rhymes, the prosecutor received notice
5 See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting all decision of the Fifth Circuit rendered before October 1, 1981 as binding precedent).
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after trial accusing a witness of violating the sequestration rule. The prosecutor
directed his agent to investigate. When the prosecutor notified the trial judge in an
ex parte conversation, the judge directed him to notify the defense. The prosecutor
notified the defense, detailing the results of the investigation and providing copies
of the agent’s reports. The trial judge “recused himself pursuant to 28 U.S.C.
§ 455(b)(1) due to his personal knowledge of evidentiary facts placed in dispute by
appellants’ motions.” Another judge presided over an evidentiary hearing at which
the trial judge testified in a telephone conference call. 196 F.3d at 215. The referral
judge denied the motions for new trial, and the Fourth Circuit subsequently
affirmed. Id. at 216, 218.
That, however, did not occur here. Without a “full disclosure on the record
of the basis for disqualification,” it was inappropriate to deny Scrushy’s motion to
recuse. This Court should, at a minimum, order a limited remand with instructions
that an evidentiary hearing be conducted to determine what happened in the ex
parte meetings, as well as whether or not there were any other ex parte meetings.
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B. BY CONCLUDING THAT THE TRIAL COURT DID NOT CONSIDER WHAT WAS SAID IN THE EX PARTE MEETINGS THE COURT BELOW FAILED TO APPLY THE REQUISITE OBJECTIVE STANDARD IN DETERMING THE RECUSAL MOTION.
As this Court set out in Patti, 28 U.S.C § 455 creates two primary reasons
for recusal:
A judge should recuse himself under § 455(a) when there is an appearance of impropriety. See id. § 455(a)…. The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. Thus, the standard of review for a § 455(a) motion is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality, and any doubts must be resolved in favor of recusal.
337 F.3d at 1321 (internal quotations and citations omitted). And:
[A] judge should recuse himself under § 455(b) when any of the specific circumstances set forth in that subsection exist, which show the fact of partiality. 28 U.S.C. § 455(b)(1)-(5)…. Recusal under this subsection is mandatory, because the potential for conflicts of interest are readily apparent.
337 F.3d at 1321 (internal quotations and citations omitted). In Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009), the
Supreme Court emphasized that recusal requires an objective inquiry:
The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules…. In lieu of exclusive reliance on that personal inquiry, or appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias.
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129 S.Ct. at 2263 (citation omitted).
This Court’s holding in Patti likewise requires that recusal be determined by
objective standards rather than an inquiry to determine if actual bias exists. 337
F.3d at 1321-23. See also Potashnick 609 F.2d at 1113 (recusal required under
§ 455(b)(5)(iii) because of the judge’s relative’s financial interest in his former law
partnership, despite finding that the judge’s “financial interest was not actually
affected by the outcome of the case”).
Judge Hinkle’s order hinges on his determination that Chief Judge Fuller
was not actually affected by the ex parte discussion of a factual matter material to
Scrushy’s pending motion. The underpinnings of that conclusion consist of, first,
Chief Judge Fuller’s representation that he was not affected by the information
revealed in the April 2007 ex parte meeting and, second, that this Court effectively
ruled on Chief Judge Fuller’s ex parte exposure on direct appeal by rejecting
Scrushy’s claim of jury misconduct. Doc. 1024 at 18-19
Judge Hinkle repeatedly concluded in his opinion, “In any event, the answer
is again that the judge did not consider what was said in the April 2007 meeting in
any way.” Doc. 1024 at 37. This conclusion turns, in the first instance, on Judge
Hinkle’s belief that Chief Judge Fuller assumed that the e-mails were authentic and,
hence, the information in the ex parte meeting that the e-mails were forgeries could
not have affected Judge Fuller’s decision.
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In his order referring the recusal motion, Chief Judge Fuller stated that, “On
June 22, 2007, the Court, again assuming that the e-mails were authentic, denied
Scrushy’s motion to reconsider.” Doc 1006 at 2. An examination of the June 2007
order (Doc. 611), reveals that it never indicates that Chief Judge Fuller assumed
that all the e-mails were authentic. While Chief Judge Fuller goes to great length in
footnote 9 of the order to clarify that he assumed that the first group of e-mails
were authentic when the court first rejected Scrushy’s claims of jury misconduct in
its December 13, 2006 order, there is no such indication as to the additional e-
mails (Docs. 519-1, 2; 532-1), which were both the subject matter of Scrushy’s
motion to reconsider and the ex parte information that they were forgeries. Doc.
611 at 4 n.9, 10. 6
To the extent that Judge Hinkle’s conclusion that Chief Judge Fuller “did not
consider what was said in the 2007 meeting,” (Doc. 1024 at 37), is based on his
belief that the judge assumed the e-mails were authentic in ruling on Scrushy’s
reconsideration motion, the evidence is not there, and cannot be divorced from
Chief Judge Fuller’s subjective assessment in 2010 of what he considered in ruling
on the motion to reconsider in 2007. This conclusion does not rest on the objective
assessment required under § 455. It turns on the question of whether or not Chief
6 In fact, Scrushy had told Chief Judge Fuller in his motion, “[i]f the e-mails are found not to be authentic, then the matter of the e-mails is effectively put to rest,….” Doc. 519 at 11.
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Judge Fuller’s decision was actually affected by the information in the ex parte
meeting. These considerations are inimical to the principle that recusal under § 455
must be determined on the basis of an objective inquiry rather than a subjective
determination of whether the judge was actually biased.
The other underpinning of Judge Hinkle’s decision is his conclusion that this
Court’s decision on direct appeal rejecting Scrushy’s claims of jury misconduct
foreclosed any claim that Chief Judge Fuller should be disqualified. Judge Hinkle
reasons that this Court “squarely rejected the defendants’ position that the district
court should have granted a new trial or at least conducted or authorized a broader
investigation,” (Doc. 1024 at 18-19), and that Judge Hinkle would reach the same
conclusion:
In light of the Eleventh Circuit’s decision on appeal and the analysis set out above, what was said in the April 2007 meeting does not matter; it is not a disputed issue. The judge properly decided all issues presented after the meeting, and will properly decide all further issues, without considering what was said in the April 2007 meeting in any way. End of story.
Id. at 36. There are multiple problems with this conclusion. First, neither Judge Hinkle
when he decided the recusal motion, nor this Court when it decided Scrushy’s
direct appeal, knew what was said in the ex parte meetings, whether the
investigators shared any materials with Chief Judge Fuller, or even if there were
other, still undisclosed ex parte meetings. All that was available at the time of
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Scrushy’s direct appeal was the DOJ Letter. All that was available to Judge Hinkle
was the same letter and Chief Judge Fuller’s statement in his order referring the
recusal motion. How can an objective assessment of whether recusal is required
under §§ 455(a) or (b) be made without a full disclosure of what occurred in the ex
parte meetings?
Second, Judge Hinkle’s order states that, “Mr. Scrushy’s reply brief fully
addressed the April 2007 meeting, the appellate section chief’s letter reporting it to
the defense, and the failure of the court or the government to report it earlier.” Doc.
1024 at 10. Scrushy’s opening brief in this Court did not discuss the DOJ Letter
because his counsel was unaware of the ex parte meeting until after Scrushy filed
his initial brief. Scrushy’s reply brief used the DOJ Letter exclusively to rebut the
Government’s argument that no investigation of the jurors’ e-mails should occur.
Reply Brief of Richard M. Scrushy, 2007 WL 5613997 at 25-27. Due to the
Government’s unilateral decision to withhold any notice of the ex parte meeting
until after Scrushy filed his initial brief on direct appeal, the issue of recusal could
not have been raised before the district court, and was not before this Court on
direct appeal. This Court was reviewing only the question of whether Chief Judge
Fuller abused his discretion in denying Scrushy’s motion for new trial and motion
for reconsideration based on jury misconduct, failure to conduct a full investigation,
and Scrushy’s request for subpoenas. Siegelman I, 561 F.3d at 1236-1243 & n.26.
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Judge Hinkle’s order also fails to fully address Scrushy’s claim that recusal
is required under § 455(b)(1) because Chief Judge Fuller has “personal knowledge
of disputed evidentiary facts,” and under § 455(b)(5)(iv) because Chief Judge
Fuller is “likely to be a material witness” on Scrushy’s motion for new trial. Doc.
954 at 5. Judge Hinkle’s order recognizes that Scrushy’s motion for new trial
raised a claim of judicial misconduct based on Chief Judge Fuller’s ex parte
meeting in April of 2007. Doc. 1024 at 11.
However, in denying Scrushy’s motion, Judge Hinkle limited his discussion
to the question of whether Chief Judge Fuller would be a material witness to what
was said at the April 2007 meeting. Under the objective standard applicable to a
determination of recusal under § 455(b), the only questions are whether or not
Chief Judge Fuller has personal knowledge of material facts and/or was likely to be
a material witness at the hearing on the motion for new trial. Once it is determined
that one or more of the circumstance set out in subsection (b) exists, recusal is
mandatory because “once it has been established that one of the enumerated
circumstances exists, there can be no dispute about the propriety of recusal.” Patti,
337 F.3d at 1321. Judge Hinkle’s failure to determine whether Chief Judge Fuller
has knowledge of material facts and/or would be a witness at the new trial motion
was clear error.
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Finally, Judge Hinkle’s order fails to adequately address Scrushy’s claim
that recusal was required under § 455(a). The correct standard is an objective one:
“whether an objective, disinterested, lay observer fully informed of the facts
underlying the grounds on which recusal was sought would entertain a significant
doubt about the judge’s impartiality.” Parker, 855 F.2d at 1524. See also
Potashnick, 609 F.2d at 1111 (language in § 455(a) “sets up an objective
standard”). Judge Hinkle’s order addresses the appearance of impartiality question
only in passing, and in the same paragraph in which he rejected Scrushy’s claims
under § 455(b), concluding, “The judge properly decided all issues presented after
the meeting, and will properly decide all further issues, without considering what
was said in the April 2007 meeting in any way. End of story.” Doc. 1024 at 36.
First, since there was no evidentiary hearing, it is impossible to conclude
that Judge Hinkle properly applied the required test set out by this Court in Parker.
There is no way to consider if an objective, lay observer would “entertain a
significant doubt”, because we simply do not have the facts necessary to be “fully
informed of the facts underlying the ground on which recusal was sought.” Parker
at 1524.
Second, Judge Hinkle’s conclusion that Chief Judge Fuller “will properly
decide all further issues” is based on what? It is Judge Hinkle’s opinion of whether
he was actually affected by the ex parte information.
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Third, Judge Hinkle’s failure to determine the facts and failure to apply the
requisite objective standard turns the true intent of § 455(a) on its head. As Circuit
Judge Fay wrote in Potashnick:
This overriding concern with appearances, which also pervades the Code of Judicial Conduct and the ABA Code of Professional Responsibility, stems from the recognized need for an unimpeachable judicial system in which the public has unwavering confidence…. Because 28 U.S.C. 455(a) focuses on the appearance of impartiality, as opposed to the existence in fact of any bias or prejudice, a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street. Use of the word “might” was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.
609 F.2d at 1111.
The uniform recognition of the need for an objective determination of the
grounds for recusal under either § 455(a) or (b) is well founded, as illustrated by
the opinion here in question. Instead of applying the objective tests required by the
statute and case law, Judge Hinkle’s opinion posits that trial judges “routinely
receive extrinsic information” (1024 at 26), and “[n]or should it come as a shock
that the information will sometimes be relevant to an issue in a case.” Id. at 28. The
opinion continues, “These situations arise with some frequency. When they do, the
judge considers the evidence in the pending proceeding and ignores the extrinsic
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information that came to the judge from a different source. Chief Judge Fuller did
that here. The record contains not a hint to the contrary.” Id. at 28.
Judge Hinkle may be right. But that is not the question, nor is it the
procedure by which these difficult questions of recusal are required to be decided.
Factual information that was central to the determination of a motion then pending
before Chief Judge Fuller was provided to him by agents of the Government
without Scrushy’s or counsel’s knowledge. Scrushy had no opportunity to contest
or rebut that information. As Judge Hinkle recognizes, “Our adversary system of
justice knows no more fundamental principle.” Id. at 26. That this event occurred,
and that we still do not have a full picture of what occurred, does not adequately
protect “the integrity and dignity of the judicial process from any hint or
appearance of bias.” Potashnick, 609 F.2d at 1111. Nor does it insure that
Scrushy’s motion for new trial was properly determined by a judge who should
have been disqualified.
At a minimum, this Court should order a limited remand to determine all of
the facts concerning the ex parte meetings and whether recusal is required under §
455(a) or (b) under the appropriate objective legal standards required by law.
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II. THE COURT ABUSED ITS DISCRETION IN DENYING ALL DISCOVERY REQUESTS BASED ON A FACIALLY INCOMPLETE IN CAMERA REVIEW, APPLICATION OF AN INCORRECT LEGAL STANDARD, AND FAILURE TO CONSIDER KEY PORTIONS OF SCRUSHY’S EVIDENTIARY SHOWING. Along with his motion for new trial Scrushy filed a motion for discovery.
Doc. 955. Scrushy made requests for specific documents and information
concerning each of the five grounds that he alleged as a basis for a new trial. Id. at
3- 8, ¶¶ 1-23.
The district court referred the discovery motions to a magistrate judge. Doc.
1027. The magistrate entered orders requiring production of documents and
records for an in camera review. Docs. 1040, 1042, 1048. After an in camera
review, the materials were sealed and filed in the record. Doc. 1087. The
magistrate entered an order denying all discovery. Doc. 1070. Scrushy filed a
timely appeal to the district court (Doc. 1077), which summarily affirmed the next
day. Doc. 1078.
In Harris v. Nelson, 394 U.S. 286 (1969), the Supreme Court held in the
analogous context of discovery in a habeas corpus proceeding that “where specific
allegations before the court show reason to believe that the petitioner may, if the
facts are fully developed, be able to demonstrate that he is confined illegally and is
therefore entitled to relief, it is the duty of the court to provide the necessary
facilities and procedures for an adequate inquiry.” In Velarde, 485 F.3d 553, a
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case relied on by the magistrate (Doc. 1070 at 2-3), the court held that the district
court erred in refusing to allow discovery before denying a motion for new trial,
holding that the standard for granting discovery should be whether “there is a firm
evidentiary basis for believing such evidence likely exists.” Id. at 561. See also
Espinosa-Hernandez, 918 F.2d 911 (holding court should not have denied motion
for new trial without first according discovery and an evidentiary hearing). A
denial of discovery in this context is reviewed for abuse of discretion. Id.
The discovery order should be reversed and Scrushy’s motion for new trial
remanded with instructions to fashion “discovery mechanisms suitable to the case
before it,” Velarde, 485 F.3d at 560, so that Scrushy can have access to documents
and witnesses in exclusive Government control and have a fair opportunity to
prove the allegations in his motion. The discovery denial was an abuse of
discretion for three reasons.
A. THE MAGISTRATE’S REPRESENTATIONS OF THE MATERIALS EXAMINED IN HIS IN CAMERA REVIEW ARE NOT SUPPORTED BY THE RECORD.
Scrushy’s motion contained specific discovery requests relating to each of
five issues on which Scrushy’s new trial motion sought relief. Doc. 955. The
discovery requests relating to Scrushy’s selective prosecution claim were set out in
¶¶ 1-7. Requests relating to Scrushy’s claim of judicial misconduct were set out in
¶¶ 8-15. Discovery requests relating to the failure of U.S. Attorney Leura Canary
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to honor her recusal were set out in ¶¶ 16-17. 7 Requests as to prosecutorial
misconduct (improper contacts with jurors) were set out at ¶ 18 (Doc. 955 at 6),
and requests as to prosecutorial misconduct (Brady/Giglio/Napue) were set out in
¶¶ 19-23. The requests listed specific reports, documents, e-mails, notes and
memoranda and showed they were likely to exist in relation to each discrete issue.
Deliberately or not, the magistrate’s order denying all discovery requests
creates the erroneous impression that the magistrate ordered that documents
relating to all of Scrushy’s discovery requests be produced, and the magistrate
reviewed the relevant documents and found nothing that supported Scrushy’s
claims.
At the very outset of his order, the magistrate states:
[T]he court ordered the United States to produce for an in camera review all documents that would be responsive to defendant’s discovery requests. The court has carefully and thoroughly reviewed all material provided by the United States. The material does not further the defendant’s claims, does not contain exculpatory material, and contains nothing justifying an evidentiary hearing.
Doc. 1070 at 1-2 (emphasis added).
7 The magistrate noted that the correct term should be “disqualification” rather than recusal. Scrushy agrees, but chose to employ the term “recusal” so that it accurately reflects the record as it was used in Canary’s announcement of her disqualification. Doc. 953-30.
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As to Scrushy’s requests pertaining to his selective prosecution claim, the
magistrate found:
The court has thoroughly reviewed in camera the documents that Scrushy seeks [fn.: The Office of Special Counsel report and the Conyers report are now both publically available to the defense]. They do not support his hypothesis that other evidence exists to support his claim, nor is there anything in the material provided by the United States that is contrary to the evidence already in the hands of the defense.
Doc. 1070 at 11.
As to requests pertaining to the U.S. Attorney recusal claim, specifically as
to e-mails written or received by the U.S. Attorney that would prove her continued
involvement in this prosecution, the magistrate found:
The problem with this contention is that it is rank speculation, and simply wrong speculation at that…. In addition, the court has laboriously reviewed the documents provided to it by the government related to this issue. This is not a case in which there is any conflicting evidence. In this case, there is no evidence to support the defendant’s supposition that “other emails exist.” There is nothing in the material provided to the court that is contrary to the evidence already in Scrushy’s possession. This is not a matter of withholding any documents; there are no documents. Accordingly, the defendant’s motion for discovery on this issue will be denied.
Doc. 1070 at 19-20 (emphasis added).
The magistrate entered two orders requiring production of materials for an in
camera review. The first was for production of a notebook kept by Nick Bailey
during his witness preparation. Doc. 1040. The second order required the
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Government to produce all materials related to interviews of Nick Bailey. Doc.
1042, clarified in Doc. 1048. The magistrate’s statements and implications that his
in camera review included materials other than those encompassed in his two
orders (Docs. 1040, 1042), are not supported by the record. The in camera review
plainly did not include any materials relating to four of Scrushy’s five claims for a
new trial.
The magistrate’s representations as to the discovery requests relating to the
e-mails to or from U.S. Attorney Canary are at odds with the record. The wording
of the order denying discovery as to these e-mails states that he “laboriously
reviewed the documents provided to it by the government related to his issue.” Doc.
1070 at 19. The magistrate’s finding that “there is no evidence to support the
defendant’s supposition ‘that other e-mails’ exist,’” id. at 20 (emphasis in original),
clearly implies that the in camera review included the e-mails specifically
requested by Scrushy in his discovery motion. However, since the Government
was never ordered to produce any materials relating to the U.S. Attorney’s failure
to honor her recusal, it is not surprising that the in camera review would find no
such e-mails.
These findings are further undercut by the supplemental showing that
Scrushy made in support of his motion for discovery. Doc. 1000. Scrushy cited to a
summary judgment motion filed by the U.S. Attorney’s office in a Freedom of
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Information Act proceeding.8 A declaration attached to the summary judgment
motion by Middle District of Alabama First Assistant Sandra Stewart shows that
documents relating to the recusal of the U.S. Attorney not only exist, but had also
been indexed. These materials include the entire file of the then-First Assistant and
a CD containing “all the captured electronic records from U.S. Attorney Canary’s
computer system.” Doc. 1000-2.9 At the time the magistrate found that no such
documents existed, he was on notice that documents relevant to this issue had been
gathered and indexed in the D.C. District Court proceeding.10
The magistrate’s findings as to Scrushy’s selective prosecution issue also
relied in significant part on the magistrate’s findings based on his in camera review
and also appear to have misstated the materials reviewed. Doc. 1070 at 11.
The materials actually reviewed by the magistrate are a part of the sealed
record in this case. Docs. 1049, 1058, 1086. These sealed materials should
8 John Aaron v. U.S. Department of Justice, U.S. District Court for the District of Columbia, Case No. 1:09-cv-00831. A copy of the motion for summary judgment was attached to Scrushy’s motion to supplement. (Doc. 1000-1), as was Stewart’s declaration. Document 1000-2. 9 Based on the search terms used, it is unlikely that the electronic search would have captured all e-mails showing Canary’s later involvement in the case. But the filing definitively shows that all of Canary’s “computer, network drive and email” not only still existed, but could be searched. Doc. 1000-2 at 3. 10 It is noteworthy that in the FOIA proceeding, the Government opposed production by invoking FOIA Act Exemption 7(A), claiming production would “interfere with the government’s ability to defend against” Scrushy’s pending new trial motion in his criminal case. Doc. 1000-1 at 19-23.
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confirm that none of the materials relate to Scrushy’s discovery requests save those
pertaining to the interviews and preparation of the testimony of Government
witness Nick Bailey.
The magistrate’s findings denying Scrushy’s numerous and specific
discovery requests based on his in camera review have no support in the record.
For this reason alone, the order denying discovery should be reversed and
remanded to the district court with instructions, at a minimum, to conduct a
meaningful in camera review of the materials actually sought by Scrushy’s
discovery requests.
B. THE MAGISTRATE APPLIED AN INCORRECT LEGAL STANDARD IN DENYING THE MOTIONS FOR DISCOVERY.
As the Supreme Court held in Harris v. Nelson, 394 U.S. at 300, “where
specific allegations before the court show reason to believe that a petitioner may, if
the facts are fully developed, be able to demonstrate” that he is entitled to relief, “it
is the duty of the court to provide the necessary facilities and procedures for an
adequate inquiry.” The applicable standard in determining whether to grant
discovery is whether “there is a firm evidentiary basis for believing such evidence
likely exists.” Velarde, 485 F.3d at 561.
The magistrate judge failed to apply this standard in his determination of
Scrushy’s discovery requests. In regard to Scrushy’s selective prosecution claim,
the magistrate instead quoted from United States v. Armstrong, 517 U.S. 456, 468,
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(1996) for the proposition that “[t]he standard for obtaining discovery on this claim
is especially rigorous.” Doc. 1070 at 5. The magistrate omitted the language
describing the actual standard to be applied:
However, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The Courts of Appeals “require some evidence tending to show the existence of the essential elements of the defense,” discriminatory effect and discriminatory intent.
Id. (citations omitted).
Under Armstrong, in order to establish a selective prosecution claim, a
defendant must make “a credible showing of different treatment of similarly
situated persons.” Doc. 1070 at 5. The magistrate denied Scrushy’s discovery
request because “Scrushy fails to identify anyone who committed bribery but was
not prosecuted.” Id. at 8. The magistrate ignored Scrushy’s discovery requests for
documents relating to investigations of illegal donations to Republican candidates
by the U.S. Attorney and Alabama Attorney General. Docs. 955 at 4, 13; 985 at 2-
3. The magistrate also ignored Scrushy’s allegations and documentation
concerning six named individuals who were large contributors to the campaigns of
Governor Riley (the Republican candidate who defeated Democrat Siegelman)
who were subsequently appointed to key positions or whose businesses were
beneficiaries of a pledge of $50 million by the State of Alabama. Doc. 953 at 10-11,
¶ 16.
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The magistrate was applying a standard other than the correct “firm
evidentiary basis for believing such evidence likely exists,” standard. As this
Court has held, the real question is whether “discovery might lead” or whether
discovery “might also enlighten the District Court…” Espinosa-Hernandez, 918
F.2d at 913, 914. See United States v. Gordon, 817 F.2d 1538, 1540 (11th Cir.
1987), vacated in part on other grounds, 856 F.2d 1312, in which this Court
concluded:
Thus, Gordon is entitled to an evidentiary hearing on the selective prosecution claim so that the full facts may be known. Gordon is entitled to discovery of the relevant Government documents relating to the local voting fraud cases the Government has prosecuted and any voting fraud complaints which they have decided not to pursue.
See also Armstrong, 517 U.S. at 468 (holding that “[i]f discovery is ordered, the
Government must assemble from its own files documents which might corroborate
or refute defendant’s claim.”).
The magistrate also relied on his conclusion that this claim failed because
Scrushy could not show that this evidence was newly discovered. Doc. 1070 at 8.
Whether this evidence was newly discovered is addressed infra, Issue III. The
magistrate made the same error that caused this Court to reverse the trial court for
failing to grant discovery in Espinosa-Hernandez. There, the court denied
discovery in support of a new trial motion based on a determination “that the
newly discovered evidence would be purely impeaching, and in any event, unlikely
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to lead to a different outcome at trial.” 918 F.2d at 913. This Court reversed and
remanded for discovery and an evidentiary hearing on the new trial motion,
holding that “[t]he District Court was premature in concluding that the newly
discovered evidence would merely be impeaching and that this evidence would be
unlikely to lead to an acquittal on retrial,” id. (footnote omitted), and, “[i]t is thus
too soon to declare out of hand that the new evidence will not require a new trial.”
Id. at 914. In Velarde, the Tenth Circuit reversed the denial of a new trial motion
based on the trial court’s determination that suppressed evidence of a victim’s false
allegations in two other instances would be inadmissible under F.R.Evid. 608(b)
and 403. The Tenth Circuit concluded that an evidentiary hearing or discovery
should occur first, holding: “When determining whether to conduct discovery,
however, the issue cannot be what the defense has already proved, but what the
defense might reasonably be able to prove if discovery is conducted.” 485 F.3d at
561.
As to discovery on Scrushy’s second claim, judicial misconduct based on the
ex parte meetings with Chief Judge Fuller, the magistrate concluded that since
Scrushy cannot prevail in light of Judge Hinkle’s analysis of the recusal issue, he is
not entitled to any of his discovery requests asking for documents, names of
participants, investigatory files (to determine the purpose of the Postal Inspector’s
investigation), or even whether there were additional unrevealed ex parte meetings.
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Doc. 1070 at 12-14. Discovery requests found in Doc. 955 at 4-5, ¶¶ 8-15. This
determination is likewise premature, especially in light of the fact that the only
information available as to the ex parte meetings is that which the Government and
Chief Judge Fuller have chosen to reveal.
The magistrate also concluded that Scrushy should be denied discovery on
this claim because “Scrushy does not identify any prejudice that he has allegedly
suffered.” Doc. 1070 at 14. First, it is unclear how Scrushy is supposed to be able
to demonstrate prejudice when the only things he knows about the admitted ex
parte meetings are found in the DOJ Letter and Chief Judge Fuller’s order. Aside
from the fact that once an ex parte meeting is shown to have occurred, the
government has a heavy burden of proof to show that there was no prejudice,
Haller v. Robbins, 409 F.2d 857, 860 (1st Cir. 1969), it is clear that the magistrate
is applying a far different standard in determining Scrushy’s right to discovery on
this claim than is required by the case law.
In denying Scrushy’s requests as to his claim based on U.S. Attorney recusal,
the magistrate again fails to apply the correct standard. The magistrate improperly
places the burden on Scrushy to show that he was prejudiced before he is entitled
to discovery: “There is no evidence that the ‘wall’ erected between the United
States Attorney and the prosecution team was breached in any significant or
material matter.” Doc. 1070 at 16-17. “[Scrushy] provides the court with no
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credible evidence that the United States Attorney directed, managed, influenced or
controlled any aspect of the prosecution of the case.” Id. at 18. And: “Scrushy has
not demonstrated that he was deprived of a fair trial by her actions.” Id. at 19.
Scrushy’s discovery motion specifically requested either production or an in
camera review of any documents or writings, specifically including any e-mails,
either to or from the U.S. Attorney “that touches in any way on any aspect of the
investigation or prosecution of Defendants Scrushy or Siegelman or any post
conviction proceedings in that case.” Doc. 955 at 5, ¶¶ 16-17. Whether Scrushy
can or even needs to demonstrate prejudice is an issue for a later day. Whether
Scrushy is entitled to production or a meaningful in camera review of the relevant
documents and e-mails must be determined on the correct standard of “whether
there is a firm evidentiary basis for believing such evidence likely exists,” Velarde,
485 F.3d at 561.
The magistrate did not apply the correct standard as to Scrushy’s fourth
claim (prosecutorial misconduct based on improper contacts between the U.S.
Attorney’s office and the jury) because the magistrate failed to even acknowledge
these discovery requests. Scrushy’s motion requested all documents (specifically
including e-mails) of any kind “touching in any way on any member of the trial
jury in the instant case (or speculating on any contacts to, from or with said jurors),
as well as any knowledge or information concerning any contacts with or by
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jurors….” Doc. 955 at 6, ¶ 18. While the magistrate seemed to acknowledge that
Scrushy’s motion contained “two discrete inquiries” relating to prosecutorial
misconduct, the order mischaracterized both as relating to Government witness
Nick Bailey. Doc. 1070 at 4 n.2. The only substantive discussion relating to any
claims of prosecutorial misconduct relate to Bailey. Id. at 20-26. While the
magistrate’s order notes that “Scrushy also complains that the United States
engaged in misconduct by failing to report ‘improper’ contacts with jurors and
participating in ex parte conversations with Chief Judge Fuller,” the magistrate
concluded that “[t]hese issues have been addressed and based on the law of the
case doctrine, [are] not properly before the court now.” Id. at 20 n.11. Scrushy’s
discovery request relating to improper jury contacts is not addressed in the order.
The magistrate’s order denying Scrushy’s entire discovery request is replete
with considerations that are far removed from the legal standard a court is required
to apply. It is not a question of whether a defendant can demonstrate that he was
prejudiced or denied a fair trial, or that he can rebut the claims and denials of the
Government without having access to documents and other evidence in the
Government’s exclusive control, or whether the defendant will ultimately prevail
in any of his new trial claims. The only question is whether “there is a firm
evidentiary basis for believing such evidence likely exists.” Velarde, 485 F.3d at
561. If there is, as Scrushy shows below, then discovery should be granted.
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C. THE COURT FAILED TO CONSIDER KEY SHOWINGS THAT THERE WAS A FIRM EVIDENTIARY BASIS TO BELIEVE THAT EVIDENCE THAT WOULD ENABLE SCRUSHY TO PROVE HIS CLAIMS LIKELY EXISTS.
The magistrate compounded his error by selectively considering and
rejecting some of Scrushy’s showings, often making credibility decisions between
conflicting versions by accepting at face value all Government assertions, while at
the same time repeatedly ignoring Scrushy’s evidentiary showing that the evidence
sought in discovery likely exists.
In regard to Scrushy’s selective prosecution claim, the magistrate concluded
that discovery should be denied because “Scrushy fails to identify anyone who
committed bribery but was not prosecuted.” Doc. 1070 at 8. This finding is simply
wrong. The magistrate ignored Scrushy’s showings as three individuals who made
large campaign contributions to the campaign of Siegelman’s Republican rival in
gubernatorial campaigns. Scrushy’s showing included documents relating to the
campaign contributions by the named individuals, as well their subsequent
appointment to state positions, including the board appointment that Scrushy was
prosecuted for. Doc. 953 at 10-11, ¶¶ 16 a-c. Scrushy also attached exhibits
documenting campaign contributions to Governor Riley in 2005 by three
individuals and a biotechnology PAC totaling $745,000, followed by a pledge of
$50 million in state funds to the establishment of the Hudson-Alpha Institute for
Biotechnology. Id. at ¶¶ 16-e.
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Scrushy cited the comments in the 2008 Report of the Judiciary Committee
(“Conyers Report”):
It is difficult to assess whether Mr. Young’s assertions regarding Republicans were investigated or fairly evaluated without access to prosecution files and personnel, and the existing public record, and in particular the many statements on the subject by Acting U.S. Attorney Franklin, can only be described as confusing…. The issue of potential selective prosecution remains of significant concern.
Doc. 953-2 at 16. In regard to Scrushy’s showing as to his judicial misconduct claim, the
magistrate adopted Judge Hinkle’s order finding that Chief Judge Fuller’s recusal
was not required and concluded that no discovery would be allowed. Doc. 1070 at
12-14. That conclusion goes to the ultimate question in the new trial motion –
whether or not any misconduct occurred – without authorizing discovery under the
applicable standard in order to give Scrushy a fair opportunity to prove his claim.
Scrushy made eight specific requests for discovery as to this claim. Doc. 955 at 4-5,
¶¶ 8-15.
Scrushy’s showing that this evidence likely exists was unrebutted. The DOJ
Letter and Chief Judge Fuller’s May 2010 order show that at least two ex parte
meetings occurred, and that the subject matter included a discussion that the juror
e-mails were not authentic. Id. Scrushy lists numerous documents that likely exist,
including: a transcript of this, and any other ex parte meetings; any reports of
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interviews and investigations conducted by the Postal Inspector 11; any documents
or writings obtained by the Postal Inspector 12; any reports or memos generated by
the Marshal; the names the participants in the meetings with Chief Judge Fuller;
any memos, documents or e-mails reflecting this or any other ex parte meetings;
and any documentation relating to the decision to investigate the jurors’ complaints
and the scope of that investigation.13 Most of these documents and writings are
certain to exist in Government files in light of the events that occurred and the
descriptions provided by the DOJ Letter.
As to the failure of the U.S. Attorney to honor her recusal, the magistrate
dismissed out of hand Scrushy’s showing that the evidence sought by discovery is
likely to exist, by belittling the content of U.S. Attorney’s e-mails produced by a
whistleblower and by concluding that no other e-mails exist based on an in camera
review of documents that could not have possibly occurred. Doc. 1070 at 14-20.
Scrushy’s request for discovery on this issue included any documents or e-mails
from U.S. Attorney Canary to any member of the prosecution team that touched in
11 The DOJ letter states that Juror 7 and 40 and at least one co-worker of juror 7 were interviewed. Doc. 954-1. 12 The DOJ letter states the Postal Inspector used the computers of the jurors to generate sample e-mails. Doc. 954-1. 13 Judge Hinkle’s order denying recusal makes an important factual determination as to the purpose and scope of the investigation by relying solely on Chief Judge Fuller’s conclusory representation. Doc. 1006 at 22, 29.
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any way on any aspect of the investigation or prosecution of Siegelman or Scrushy
and any documents or e-mails to U.S. Attorney Canary having anything to do with
the investigation or prosecution. Doc. 955 at 5-6, ¶¶ 16-17.
Scrushy submitted a copy of one e-mail in which U.S. Attorney Canary,
post-recusal, suggested litigation strategy (Doc. 953-36); another that forwarded
materials of interest to the prosecution team (Doc. 953-37); and one involving
funding and personnel decisions relating to the prosecution team. Doc. 953-38.
Scrushy also submitted a letter of a former paralegal involved in the case sent to
Attorney General Holder stating that: “Mrs. Canary maintained direct
communication with the prosecution team, directed some action in the case, and
monitored the case through members of the prosecution team and [First Assistant
U.S. Attorney] Watson.” Doc. 953-39 at 3.
It is not a question of whether the e-mails Scrushy was able to obtain via a
whistleblower definitively prove that Canary “directed, managed, influenced or
controlled” the prosecution, as the magistrate required. Doc, 1070 at 18. The only
question is whether or not Scrushy showed that documents, especially other
e-mails showing the scope and details of Canary’s involvement likely exist. As set
our supra, Issue II-A, Canary’s e-mails have been preserved and many were
indexed in the D.C. District Court proceeding.
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In support of his discovery requests relating to his fourth claim
(prosecutorial misconduct based on improper contacts between the U.S. Attorney’s
office and the jury during trial) (Doc. 955 at 6, ¶ 18), Scrushy provided evidence
obtained from the Conyers Committee Report that there were e-mails during trial
discussing information during trial from inside the jury room, including an e-mail
from First Assistant U.S. Attorney Watson stating: “I just saw [F.B.I Special
Agent] Keith [Baker]. The jurors kept sending out messages through the marshals.
A couple of them wanted to know if he was married.” Doc. 953-43. Another e-mail
to First Assistant Watson: “Yeah, that’s what [Government paralegal] Vallie
[Byrdsong] said. He said one girl was a gymnast and they called her ‘Flipper’
because she apparently did back flips to entertain the jurors. Flipper was very
interested in Keith.” Id. Scrushy submitted additional evidence of improper post-
conviction contacts between Juror 40 and the prosecution team. Docs. 953-39 at 5;
Doc. 953-42.
The magistrate judge did not address this discovery request or Scrushy’s
evidence that additional evidence likely exists. In light of the unguarded and
unambiguous discussion of jurors’ contacts that appear in the e-mails and the
additional evidence submitted, it is likely that additional e-mails exist. At a
minimum, the magistrate should have conducted an in camera inspection of all
relevant e-mails to determine if further evidence of such improper contacts exists.
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Conclusion
The magistrate abused his discretion by denying every discovery request that
Scrushy made, almost all of which is in the exclusive control of the Government.
The magistrate mistakenly misrepresented the scope and materials subjected to his
in camera review; failed to apply the appropriate legal standard to determine the
availability of discovery; and ignored most of Scrushy’s evidentiary showing that
the materials he sought likely existed. As this Court recognized in Espinosa-
Hernandez, 918 F.2d at 913-14, the question is whether discovery “might lead” to
proof of a defendant’s new trial claim. As the court in Velarde emphasized:
“When determining whether to conduct discovery, the issue cannot be what the
defense has already proved, but what the defense might reasonably be able to
prove if discovery is conducted.” 485 F.3d at 561. Scrushy’s evidentiary showing
was detailed, well documented and substantial. His discovery requests were
specifically targeted and carefully linked to his showing that the evidence sought
was likely to exist. This Court should remand his case to the district court with
directions to grant discovery so that Scrushy can obtain the necessary facts for a
fair hearing on his motion for new trial.
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III. THE DENIAL OF SCRUSHY’S MOTION FOR NEW TRIAL WITHOUT CONDUCTING AN EVIDENTIARY HEARING WAS AN ABUSE OF DISCRETION. After recusal was denied, Chief Judge Fuller denied Scrushy’s motion for
new trial without conducting an evidentiary hearing. Doc. 1072. Denial of an
evidentiary hearing on a motion for new trial is reviewed under an abuse of
discretion standard. Slocum, 708 F.2d at 600. A clear error of judgment or
application of the wrong legal standard constitutes an abuse of discretion. Frazier,
387 F.3d at 1259.
The district court denied Scrushy’s selective prosecution claim without
granting him discovery or an evidentiary hearing based on the court’s
determination that: Scrushy waived the claim by failing to raise it pretrial; Scrushy
failed to point to any comparators who were not prosecuted; and Scrushy failed to
show selective prosecution would have had a bearing on the jury’s determination
of factual guilt. Doc. 1072 at 4-11.
In finding waiver, the court relied on testimony by Siegelman’s prior lawyer
and a letter by Scrushy’s lawyer that tended to show political interference in the
decision to prosecute, both of which related events prior to indictment. Id. at 6-8.
The court also relied on a pretrial letter of Siegelman’s attorney and a campaign
letter of Siegelman claiming that a public opinion survey showed 67% of voters
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believed that “the investigation if Don Siegelman [was] politically motivated.” Id.
at 8. The court concluded, “The foregoing reveals that Scrushy was confronted
with possible indications of selective prosecution well before trial and that
Siegelman was arguing his selective prosecution defense to the public.” Id.
(emphasis added).
First, this finding ignores the limited nature of the information available to
Scrushy pretrial. The evidence as to political involvement in the bringing of
charges and scuttling a plea agreement would fail to meet the discriminatory effect
prong of a selective prosecution claim. An opinion poll commissioned by a
political campaign showing the public believed that the investigation was political
justifiably would have been rejected as reliable evidence of selective prosecution.
Counsel for Scrushy did not have a good faith basis to file a selective prosecution
claim prior to trial.
At the same time, the court ignored the substantial evidence of selective
prosecution that became available well after trial, evidence that could not have
been discovered earlier through the exercise of due diligence. A key event was the
investigation of allegations of selective prosecution in the Siegelman and other
cases by the House Committee of the Judiciary, resulting in the April 17, 2008
release of the Report of Majority Staff, “Allegations of Selective Prosecution in
Our Federal Criminal Justice System.” Doc. 953-2. This report detailed
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considerable evidence that the prosecution in this case was politically motivated,
including the testimony and affidavit of Republican attorney Jill Simpson
concerning conversations indicating that: Republican consultant Bill Canary
(husband of U.S. Attorney Leura Canary) had been told that Karl Rove in the
White House had contacted DOJ’s Department of Public Integrity (which
prosecuted this case along with the U.S. Attorney’s office) about initiating this
prosecution; that the case would be brought in the Middle District of Alabama,
where Leura Canary was the U.S. Attorney; and that the case would be assigned to
Chief Judge Fuller. Doc. 953-2 at 9-10, 13.14 Also not available to Scrushy prior to
his conviction was a statistical study published in February 2007 showing that the
Bush administration’s investigations of Democrats were “highly disproportionate”
and that there was “less than one chance in 10,000” that the over-representation of
Democrats was by chance, concluding that selective prosecution of Democrats
must have occurred. Id. at 2-3. See Gordon, 817 F.2d at 1540 (remanding for
discovery of Government records and evidentiary hearing on defendant’s claim of
selective prosecution based in part on defendant’s showing of pattern that
Government targeted majority black counties for voter fraud prosecutions).
14 The Government’s response attacked the credibility of Jill Simpson by citing to testimony of other individuals (including Bill Canary) who disputed Simpson’s testimony and declarations of prosecutors containing denials of selective prosecution. Doc. 975 at 15-16. There was no testimony concerning this issue at trial, so this evidence at most created a conflict that could only be resolved by a credibility determination after hearing the conflicting testimony.
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Scrushy did not waive his selective prosecution claim by failing to file it until
evidence of a facially sufficient claim was available.
The court also pointed to Scrushy’s supposed failure to allege the existence
of comparators who were similarly situated but not prosecuted. Doc. 1072. The
district court, as did the magistrate, failed to recognize that Scrushy’s motion set
out a number of comparators who had made significant contributions to the
campaign of Republican Bob Riley and who were rewarded with appointments and
state financial support after his election as governor. Docs. 953 at 10-11, ¶ 16. The
court’s finding that there were no comparators alleged is contrary to the record.
Finally, the court held that Scrushy cannot even raise a claim of selective
prosecution because he failed to show that the claim would have affected the jury’s
verdict. Doc. 1072 at 11. This is not the law of this Circuit. United States v.
Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc) (“Newly discovered
evidence need not relate to the issue of guilt or innocence to justify a new trial, ‘but
may be probative of another issue of law.’” Id. at 1151 (citation omitted)).
Scrushy’s selective prosecution claim was not waived, and his motion and
accompanying evidence in 31 exhibits (Docs. 953-2 through 953-6; 981-1 through
981-6), set out more than the requisite “‘some evidence tending to show the
existence of the essential elements of the defense,’ discriminatory effect and
discriminatory intent.” Armstrong, 517 U.S. at 468. The evidence relating to
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selective prosecution has not previously been before the district judge, so the court
cannot make a determination based on its knowledge of the case from trial or other
proceedings. The denial of Scrushy’s claim without an evidentiary hearing and
without permitting discovery was an abuse of discretion. This Court should order
discovery and an evidentiary hearing on this claim, “so that the full facts may be
known.” Gordon, 817 F.2d at 1540.
Scrushy’s allegation of judicial misconduct (relating to the ex parte meetings
between the judge and investigators and failure to reveal them to the defense), was
set out in his new trial motion. Doc. 953 at 11-15, ¶¶ 18-28. The court relied on
Judge Hinkle’s denial of Scrushy’s recusal motion, and the law of the case doctrine.
Doc. 1072 at 11-14. Scrushy’s analysis of Judge Hinkle’s decision is set out in
some detail supra, Issue I. The unresolved problem is that, notwithstanding Judge
Hinkle’s order, no one except the participants of the ex parte meeting and
Government prosecutors know what occurred in that ex parte meeting. Any
analysis of judicial misconduct or prejudice to Scrushy is impossible without a full
determination of what Chief Judge Fuller was exposed to in that meeting. The
order finds that “[t]he specific facts of the meeting are well-documented….” Id. at
11-12. The facts are well-documented only if the limited revelations in the DOJ
Letter (Doc. 954-1), and the brief recitation of Chief Judge Fuller over three years
after the event (Doc. 1006), constitute “full documentation” of the event. The only
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two sources of the information have significant interests in limiting the information
concerning that event. Without some sort of evidentiary hearing as to what
occurred and what Chief Judge Fuller was exposed to (and a determination if other
unrevealed ex parte meetings occurred), it is impossible to determine whether there
was any misconduct (especially as to the purpose of the investigation and the
subsequent failure to reveal the ex parte communication to the defense) or whether
Scrushy was prejudiced in the determination of his then-pending motion.
The court’s reliance on the law of the case doctrine is equally misplaced.
Judge Hinkle’s order denying Scrushy’s recusal is not the same issue as Scrushy’s
allegation of judicial misconduct. And this Court’s ruling on direct appeal
affirming the district court’s denial of Scrushy’s jury misconduct motion did not
determine – either explicitly or implicitly – Scrushy’s judicial misconduct claim,
nor his argument for recusal.
Scrushy’s third claim was that he was deprived of his constitutional right to
a disinterested prosecutor by the failure of U.S. Attorney Canary to honor her
publicly announced recusal. This claim is set out in Scrushy’s motion and related
exhibits. Docs. 953 at 15-20, ¶¶ 29-41; 953-29 through 39; 1000-1, 2. In denying
this claim the court relied on its determination it is not structural error, and that
Scrushy had shown no prejudice. Doc. 1072 at 15-17. First, the court’s conclusion
depends on its analysis that the 1987 decision of the Supreme Court in Young v.
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U.S. ex rel. Vuitton et Fils, 481 U.S. 787, 809-810 (1987), is no longer good law,
and is distinguishable from this case. That the facts may not be the same is of no
moment. Young holds that a defendant has a right to a disinterested prosecutor, and
that the institutional interests in even-handed prosecution are such that its denial is
one of those errors “so fundamental and pervasive that they require reversal
without regard to the facts and circumstances of a particular case.” Id. Second, the
Supreme Court has not overruled Young. The district court relies on the Court’s
failure to cite Young in Neder v. United States, 527 U.S. 1, 8 (1999), when it listed
structural errors it had previously recognized. The question presented in Neder was
the parameters of harmless error analysis applied to a failure to instruct the jury on
an offense element, not structural error. At most, this implies that the Court may
reach a different result as to structural error when presented with a claim on that
basis. It has yet to do so, and Young was binding authority that the district court
failed to follow.
The district court also relied on Scrushy’s failure to point to any “prejudice
that he has suffered as a result of Canary’s limited involvement in this case.” Doc.
1072 at 17. This conclusion is based on the magistrate’s incorrect finding that
there are no e-mails proving the scope of Canary’s involvement in this case. The
three e-mails that the whistleblower produced showed that Canary continued to be
involved in the prosecution of this case notwithstanding her putative recusal. Doc.
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953-36 through 953-38. While these may not demonstrate prejudice to Scrushy –
assuming that prejudice must be shown – it is clear that the district court’s
conclusion rests on the magistrate’s finding that his in camera review showed that
there were no other e-mails, an in camera review that could not have occurred. See
Issue II-A, supra. The evidence necessary to prove Scrushy’s claim has not been
reviewed in camera, and Scrushy has been denied discovery of these critical
e-mails that are in the exclusive control of the Government. Even assuming that
Scrushy must demonstrate prejudice to ultimately prevail on this issue, until
Scrushy has a fair determination of the nature of the evidence in the Government’s
possession, his motion cannot be denied based on the failure to show prejudice.
The e-mails of U.S. Attorney Canary provided by the whistleblower from
her office, in addition to the statements of both the whistleblower and Government
witness Nick Bailey (including statements that Canary closely monitored the case
through her First Assistant and that Canary was involved in writing press releases
on the case) (Docs. 953-39 at 3, 6; 953-63 at ¶ 6), demonstrate that Canary was
actively involved in the prosecution after her publicly announced recusal. What
remains to be determined is the true scope of Canary’s involvement. The denial of
Scrushy’s motion on this ground without discovery and without an evidentiary
hearing precludes any determination of this issue, and was a clear abuse of
discretion.
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The court’s rejection of Scrushy’s claim of prosecutorial misconduct based
on jury misconduct is without any basis. Scrushy set out this claim in his new trial
motion and accompanying exhibits. Docs. 953 at 20-25, ¶¶ 42-50; 953-35 at 2;
953-39 at 5; 953-41, 42, 43. These included e-mails in which personnel involved
with the prosecution of this case discussed during trial the fact that “jurors kept
sending out messages through the marshals” regarding “a couple” of jurors’
interest in F.B.I Special Agent Keith Baker (who sat at counsel table), and that one
juror was called “Flipper” because she “apparently did back flips to entertain the
jurors,” who was “very interested in Keith.” Doc 953-43. 15 Scrushy also
submitted evidence of post-trial contacts between U.S. Attorney’s office personnel
and Juror 40, one contact in connection with her testimony in the jury misconduct
hearing (Docs. 953-35 at 3-6; 953-39 at 5; 953-42), despite Local Rule 47.1
forbidding any such contact without court permission, and an explicit order
forbidding “any contact” with the jurors, served on all parties at the conclusion of
trial. Doc. 255. These contacts were never reported to the court or to defense
counsel. Scrushy also complained of the Government’s participation in the ex parte
15 The Government submitted various declarations which claimed certain discussions about jurors’ inquiries were the result of a practical joke. Docs. 975 at 26; 975-1; 975-10; 975-13. The reply and declarations do not address the e-mails between the whistleblower and First Assistant Watson, nor the references to statements by Government paralegal Vallie Byrdsong (also mentioned in the e-mails). At most, these declarations create a conflict in the evidence that the court could resolve based on his knowledge from trial.
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meetings with Chief Judge Fuller and its concealment of this meeting from the
defense for fifteen months. Doc. 953 at 25, ¶¶ 48-49.
The district court inexplicably rejected Scrushy’s claim based on its
conclusion that: “These claims have been exhaustively addressed by this court,
Judge Hinkle and the Eleventh Circuit.” Doc. 1072 at 17. The court did not
discuss the claims relating to improper jury contacts in either of its two orders
addressing jury misconduct. Docs. 518 & 611. Nor did the district court touch on
this issue in any of the twelve questions that it asked the jurors during the
evidentiary hearing on the prior jury misconduct motions. Siegelman II, 640 F.3d
at 1190. Nor did Judge Hinkle address this claim anywhere in his order. Doc. 1024.
Nor did this Court address this claim in either of its opinions. Siegelman I, 561
F.3d 1215; Siegelman II, 640 F.3d 1159.
Scrushy’s claim based on improper contacts with the jury has not been
properly ruled on by the district court. As set out in Scrushy’s motion (Doc. 953 at
58-61), any such contacts with jurors are not only “absolutely forbidden,” Mattox v.
United States, 146 U.S. 140, 150 (1892), but are “deemed presumptively
prejudicial,” and the “burden rests heavily upon the Government to establish …
that such contact with the juror was harmless to the defendant.” Remmer v. United
States, 347 U.S. 227, 229 (1954). See also Pekar v. United States, 315 F.2d 319,
322 (5th Cir. 1963) and United States v. Betner, 489 F.2d 116, 118 (5th Cir. 1974)
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(new trials granted based on improper contacts between U.S. Attorney’s office
personnel even though contacts were not related to the case on trial). Here, the
denial of Scrushy’s claim, discovery requests and an evidentiary hearing on the
basis of the court’s mistaken belief that this issue had already been addressed was a
clear abuse of discretion.
Scrushy’s final claim was based on prosecutorial misconduct in relation to
the testimony of Government witnesses Nick Bailey and Loree Skelton. Doc. 953
at 26-39, ¶¶ 51-74. The district court addressed both these claims and found
Scrushy’s evidence was insufficient to show any misconduct. Doc. 1072 at 17-30.
The magistrate ordered “all documents related to Nick Bailey” produced by the
Government and the magistrate’s in camera review of these documents found no
documents supporting Scrushy’s claims relating to Bailey. In contrast to the
court’s findings on Scrushy’s first four claims, the district court heard the
testimony of both Bailey and Skelton, and was in a position to make a
determination as to this issue without an evidentiary hearing. In light of the
magistrate’s representation as to his in camera review of Bailey-related documents
and the current state of the record, Scrushy does not contend at this time that the
district court abused its discretion in denying this claim.16
16 Since further unrevealed information may be uncovered through discovery or an evidentiary hearing, Scrushy does not waive this claim in his new trial motion.
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The district court abused its discretion by denying each of Scrushy’s first
four claims without permitting discovery or conducting an evidentiary hearing.
Scrushy’s extensive showing in support of each of these claims, as well as
Scrushy’s analysis of the applicable law demonstrates that Scrushy set forth more
than adequate grounds for each claim. Each of the claims involve matters as to
which the Government has exclusive control over almost all of the evidence and
without access to meaningful discovery or an evidentiary hearing where
Government witnesses and records can be subpoenaed, Scrushy will be unable to
meet his ultimate burden in proving these claims. In such circumstances, the denial
of Scrushy’s new trial motion without granting him discovery or an evidentiary
hearing was a clear abuse of discretion.
Conclusion
For all of the foregoing reasons, Scrushy respectfully submits that this Court
should: (1) remand his motion to recuse to District Judge Hinkle with instructions
to authorize appropriate discovery and conduct an evidentiary hearing or, in the
alternative, order the disqualification of Chief Judge Fuller based on the current
record; and (2) remand his motion for new trial as to Scrushy’s first four claims
with instructions to authorize appropriate discovery, conduct a proper in camera
review of all documents and materials not produced in discovery, and conduct an
evidentiary hearing.
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Respectfully submitted,
James K. Jenkins MALOY JENKINS PARKER 900 Arapahoe Avenue Boulder, Colorado 80302 303-443-9048 Arthur W. Leach Suite 225 5780 Windward Parkway Alpharetta, Georgia 30005 404-786-6443 /s/Leslie V. Moore Leslie V. Moore Suite 204 5148 Caldwell Mill Road Birmingham, Alabama 35244 205-403-9116 Attorneys for Appellant Richard Scrushy
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Certificate of Compliance
Counsel certifies that this Brief of Appellant complies with the type-volume
limitation of Fed. R. App. P. Rule 32(a)(7)(B). This brief contains 13,959 words
based on the word count supplied by Microsoft Word for Mac 2011. This brief is
typed in proportionally spaced 14 point Times New Roman font.
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Certificate of Service
I hereby certify that I duly served a copy of Appellant Richard Scrushy’s
Initial Brief on opposing counsel by filing same with the Eleventh Circuit Clerk of
Court using the CM/ECF filing system which will notify all counsel of record and
by sending a true and correct copy of same by the U.S. Postal Service to:
John Alexander Romano Patty Merkamp Stemler United States Department of Justice Criminal Division, Appellate Section PO Box 0899 Washington, D.C. 20044-0899 Louis V. Franklin, Sr. United States Attorney’s Office PO Box 197 Montgomery, Alabama 36104 Richard C. Pilger Department of Justice
Criminal Division, Public Integrity Section 10th & Constitution Avenue Washington, D.C. 20530 This 9th day of April, 2012. /s/Leslie V. Moore Leslie V. Moore Attorney for Appellant
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