in the united states court of appeals for the …media.al.com/wire/other/department of justice brief...

IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

APPEAL NO. 12-10694

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

RICHARD M. SCRUSHY,Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF ALABAMA

BRIEF FOR THE UNITED STATES AS APPELLEE

LOUIS V. FRANKLIN, SR. LANNY A. BREUERActing United States Attorney Assistant Attorney GeneralMiddle District of Alabama

JOHN D. BURETTAActing Deputy Assistant Attorney General

RICHARD C. PILGERDirector, Election Crimes BranchPublic Integrity Section

PATTY MERKAMP STEMLER, Chief JOHN-ALEX ROMANO, Attorney

Appellate Section, Criminal DivisionU.S. Department of Justice950 Pennsylvania Ave, NW, Rm. 1264Washington, DC 20530Tel. 202-353-0249

Case: 12-10694 Date Filed: 06/18/2012 Page: 1 of 82

United States v. Richard M. Scrushy, Appeal No. 12-10694

CERTIFICATE OF INTERESTED PERSONSAND CORPORATE DISCLOSURE STATEMENT

In compliance with Fed. R. App. P. 26.1 and 11th Cir. R. 26.1-1

and 26.1-3, the undersigned hereby certifies that the following persons and/or

entities have an interest in the outcome of this case:

Coody, Charles S., U.S. Magistrate Judge

Feaga, Stephen, former Assistant U.S. Attorney

Franklin, Louis V., Acting U.S. Attorney

Fuller, Mark E., U.S. District Judge

Hinkle, Robert L., U.S. District Judge

Jenkins, James K., Attorney for Richard Scrushy

Leach, Arthur W., Attorney for Richard Scrushy

Moore, Leslie V., Attorney for Richard Scrushy

Perrine, J.B., former Assistant U.S. Attorney

Pilger, Richard C., Department of Justice, Criminal Division

Romano, John-Alex, Department of Justice, Criminal Division

Siegelman, Don Eugene, Co-defendant

Sissman, Peter L., Attorney for Don Siegelman

C-1 of 2


Morgan Stanley (symbol MS)

Stemler, Patty Merkamp, Department of Justice, Criminal Division

UBS AG (symbol UBS)

/s/ John-Alex Romano_______________________John-Alex Romano

C-2 of 2


STATEMENT REGARDING ORAL ARGUMENT

Defendant Richard Scrushy appeals various post-conviction rulings related

to his motion for a new trial based on newly discovered evidence. The record on

appeal is voluminous. We agree with Scrushy that oral argument may assist this

Court in resolving the issues on appeal and respectfully request that oral argument

be heard.

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TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED PERSONSAND CORPORATE DISCLOSURE STATEMENT.. . . . . . . . . . . . . . . . C-1

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . i

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. Course of the Proceedings And Disposition Below.. . . . . . . . . . . . . . 2

II. Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Scrushy Bribes Siegelman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. The District Court Denies Defendants’ First New-Trial Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. This Court Affirms The Denial Of Defendants’ First New-Trial Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. The District Court Denies Scrushy’s Second New-Trial Motion And Related Motions For Discovery And Recusal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. Standards of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

-ii-


ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING SCRUSHY’S RECUSAL MOTION.. . . . . . . . . . . . . . . . . . 13

A. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Judge Hinkle Did Not Abuse His Discretion In Denying Scrushy’s Recusal Motion.. . . . . . . . . . . . . . . . . . . . . . . . . 16

1. Chief Judge Fuller’s Impartiality Could Not Reasonably Be Questioned. . . . . . . . . . . . . . . . . . . . . . . . 16

2. Chief Judge Fuller Did Not Have Personal Knowledge Of Disputed Evidentiary Facts And Was Not Likely To Be AMaterial Witness In The New-Trial Proceeding. . . . . . . . . . . 20

3. Scrushy’s Arguments Lack Merit.. . . . . . . . . . . . . . . . . . . . . . 22

C. Any Error Was Harmless.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

II. THE DENIAL OF SCRUSHY’S MOTIONS FOR A NEW TRIALAND DISCOVERY WAS NOT AN ABUSE OF DISCRETION.. . . . . . . 27

A. Selective Prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

1. Background.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

2. Scrushy Was Not Entitled To Discovery Or An Evidentiary Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . 31

B. Judicial Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

1. Background.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

2. Scrushy Was Not Entitled To DiscoveryOr An Evidentiary Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . 42

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C. The U.S. Attorney’s Recusal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

1. Background.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

2. Scrushy Was Not Entitled To Discovery Or An Evidentiary Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . 49

D. Improper Jury Contacts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

1. Background.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

2. Scrushy Was Not Entitled To DiscoveryOr An Evidentiary Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . 58

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

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TABLE OF AUTHORITIES

FEDERAL CASES

Buckley v. Fitzsimmons,509 U.S. 259, 113 S. Ct. 2606 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Dick v. Scroggy,882 F.2d 192 (6th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Easley v. University of Michigan Board of Regents,853 F.3d 1351 (6th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Eberhart v. United States,546 U.S. 12, 126 S. Ct. 403 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

In re Bell South Corp.,334 F.3d 941 (11th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

In re Brooks,383 F.3d 1036 (D.C. Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-24

In re Evergreen Sec., Ltd.,570 F.3d 1257 (11th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 24

Liljeberg v. Health Services Acquisition Corp.,486 U.S. 847, 108 S. Ct. 2194 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . 25,26

Liteky v. United States,510 U.S. 540, 114 S. Ct. 1147 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Neder v. United States,527 U.S. 1, 119 S. Ct. 1827 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

*Parker v. Connors Steel Co.,855 F.2d 1510 (11th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . 16,24,25,26,56

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Person v. Miller,854 F.2d 656 (4th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Price Brothers Co. v. Philadelphia Gear Corp.,629 F.2d 444 (6th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

R.B. Potashnick v. Port City Construction Co.,609 F.2d 1101 (5th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Rehberg v. Paulk,611 F.3d 828 (11th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Remmer v. United States,347 U.S. 227, 74 S. Ct. 450 (1954).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Rushen v. Spain,464 U.S. 114 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Skilling v. United States,130 S. Ct. 2896 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Stein v. Reynolds Securities, Inc.,667 F.2d 33 (11th Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Adams,785 F.2d 917 (11th Cir. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,21,43

United States v. Alabama,828 F.2d 1532 (11th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Amadeo,487 F.3d 823 (11th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

*United States v. Armstrong,517 U.S. 456, 116 S. Ct. 1480 (1996).. . . . . . . . . . . . . . . . . . . 31,34,35,36,37

United States v. Bass,536 U.S. 862, 122 S. Ct. 2389 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

-vi-


United States v. Campa,459 F.3d 1121 (11th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,32

United States v. Dahlstrom,180 F.3d 677 (5th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

United States v. Espinosa-Hernandez,918 F.2d 911 (11th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,39

United States v. Gordon,817 F.2d 1538 (11th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

United States v. Huber,404 F.3d 1047 (8th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Huntress,956 F.2d 1309 (5th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Jackson,430 F.2d 1113 (9th Cir. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Jennings,991 F.2d 725 (11th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

United States v. Jernigan,341 F.3d 1273 (11th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,30

United States v. Jones,52 F.3d 924 (11th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31,32

United States v. Jordan,429 F.3d 1032 (11th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

United States v. Jordan,635 F.3d 1181 (11th Cir.), cert. denied, 132 S. Ct. 356 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35,37

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United States v. Kelly,888 F.2d 732 (11th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Lafeyette,983 F.2d 1102 (D.C. Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42,60

United States v. Lee,68 F.3d 1267 (11th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Lilly,983 F.2d 300 (1st Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49,54

United States v. Lorenzo,995 F.2d 1448 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

United States v. Moten,582 F.2d 654 (2d Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

United States v. Nava-Salazar,30 F.3d 788 (7th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

United States v. Patti,337 F.3d 1317 (11th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

*United States v. Phillips,664 F.2d 971 (5th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Rhymes,196 F.3d 207 (4th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Schlei,122 F.3d 944 (11th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Siegelman,561 F.3d 1215 (11th Cir. 2009) (“Siegelman I”),cert. denied, 130 S. Ct. 3541 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,9

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*United States v. Siegelman,640 F.3d 1159 (11th Cir. 2011) (“Siegelman II”), cert. denied, 2012 WL 359471 (2012). . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Simms,385 F.3d 1347 (11th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,43

United States v. Smith,231 F.3d 800 (11th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

United States v. Smith,424 F.3d 992 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

United States v. Spuza,194 Fed. App’x 671, 674 (11th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Sweat,555 F.3d 1364 (11th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Swindall,971 F.2d 1531 (11th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Thompson,422 F.3d 1285 (11th Cir 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,32,49

*United States v. Velarde,485 F.3d 553 (10th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . 28,29,39,53,54

United States v. Wallach,935 F.2d 445 (2d Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

United States v. Williams,613 F.2d 573 (5th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

United States v. Young,39 F.3d 1561 (11th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21,22

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Washington v. Recuenco,548 U.S. 212, 126 S. Ct. 2546 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Webber v. Scott,390 F.3d 1169 (10th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,57

Wright v. United States,732 F.2d 1048 (2d Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

*Young v. United States ex rel. Vuitton Et Fils S.A.,481 U.S. 787, 107 S. Ct. 2124 (1987).. . . . . . . . . . . . . . . . . . . . . 49,50,52,56

FEDERAL STATUTES & RULES

18 U.S.C. § 666. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 1341. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 1346. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 3231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 371. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 455(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,15

28 U.S.C. § 455(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

28 U.S.C. § 455(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,21

28 U.S.C. § 455(b)(5)(iv). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,21

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. App. P. 48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Fed. R. Crim. P. 12(b)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Fed. R. Crim. P. 12(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Fed. R. Crim. P. 33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fed. R. Crim. P. 33(b)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,27

Fed. R. Crim. P. 33(b)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Freedom of Information Act, 5 U.S.C. § 552. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

MISCELLANEOUS

11th Cir. No. 07-13163, Scrushy Reply Br.,2007 WL 5613997.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,20

11th Cir. No. 07-13163, Scrushy Rule 48 Mot. (docketed 7/21/08). . . . . . . . . 8,20

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TABLE OF RECORD REFERENCES

Brief Page Nos. Document Docket No.

2 Redacted Jury Verdict (Siegelman) 437

2 Redacted Jury Verdict (Scrushy) 438

4 Defendants’ Motion for a New Trial 467

5, 17 Memorandum Opinion and Order(denying new-trial motion)

518

5, 6 Motion to Reconsider Order DenyingNew Trial

519

17 Purported Juror E-mail (June 25, 2006 10:09 pm)

519-1

17 Purported Juror E-mail (June 25, 2006 10:41 pm)

519-2

6 Scrushy’s Motion to SupplementPreviously Filed Motion to Reconsider

532

2, 7, 19, 23 Memorandum Opinion and Order(denying motions to reconsider)

611

2 Judgment 627

3, 9, 10, 27, 29, 36,38, 41, 42, 46, 57,58, 60, 61

Motion for a New Trial 953

33, 38 Conyers Report 953-2

33, 34 Affidavit of Arthur W. Leach 953-8

45 David Cromwell Johnson Letter (Mar. 25, 2002)

953-29

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46 Press Release, U.S. Attorney Canary(May 16, 2002)

953-30

54-55 Complaint, John Aaron v. U.S.Department of Justice, Case No. 1:09-cv-00831 (D.D.C.)

953-34

33, 48 E-Mail from U.S. Attorney Canary(Sept. 19, 2005)

953-36

51 E-Mail from U.S. Attorney Canary(Sept. 27, 2005)

953-37

50 E-Mail from Patricia Watson toStephen Doyle (Apr. 6, 2005)

953-38

53, 61 Tamarah Grimes Letter to AttorneyGeneral Holder (June 1, 2009)

953-39

61 News Article, Montgomery Advertiser(July 13, 2008)

953-42

58 Chain of Emails Between TamarahGrimes and AUSA Patricia Watson(June 15, 2006)

953-43

53 Declaration of Nick Bailey 953-63

10, 13 Motion for Recusal 954

6, 7, 8, 43, 44 DOJ Letter (July 8, 2008) 954-1

10 Motion for Discovery 955

59 Government Response to Motions for aNew Trial

975

59 Declaration of Keith Baker 975-1

46 Declaration of Stephen P. Feaga 975-2

39, 46, 50, 53, 60,61

Declaration of Louis V. Franklin, Sr. 975-4

39, 50 Declaration of Stuart M. Goldberg 975-6

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39, 50 Declaration of Andrew C. Lourie 975-9

46 Declaration of Richard C. Pilger 975-11

46 Declaration of James. B. Perrine 975-12

61 Declaration of Debbie Shaw 975-13

38 Transcript of Interview of Karl Rove byU.S. House of Representatives,Committee on the Judiciary

975-15

39, 50 Reply to Government Response toMotion for New Trial

981

55 FOIA Request of John Aaron(Feb. 6, 2006)

983-2(page 3)

10 Second Motion for Discovery 985

55 Declaration of Sandra Stewart 1000-2

6, 7, 8, 13, 14, 23,43

Order on Referral of Recusal Motion 1006

1, 3, 10, 14-17, 21,22, 24, 25, 42, 44

Order Denying Motion for Recusal 1024

57 Government Motion to Supplement Record with Publicly AvailableMaterial

1037

38 Affidavit of Terry Butts 1037-1

38 Affidavit of Matthew Lembke 1037-2

38 Affidavit of Robert R. Riley, Jr. 1037-3

57 Letter to the President from AssociateSpecial Counsel William E. Reukauf(Sept. 29, 2009)

1037-4

57, 59, 60 Summary of OSC Report ofInvestigation

1037-5

-xiv-


57 Letter to Scott J. Bloch, U.S. Office ofSpecial Counsel, from David Margolis,Associate Deputy Attorney General(Sept. 29, 2008)

1037-6

57, 59 OSC Report of Investigation 1037-7

57 Letter to William Reukauf, ActingSpecial Counsel, from David Margolis,Acting Deputy Attorney General (Feb.9, 2009)

1037-11

57, 59 Supplement to OSC Report ofInvestigation (without attachments)

1037-12

10, 40 Order to Produce Documents InCamera

1042

3, 10, 30, 34, 35, 40, 41, 47, 48, 50,51, 53, 54, 58, 60

Order Denying Motions for Discovery 1070

1, 3, 10, 30, 32, 37, 41, 48, 58

Memorandum Opinion and OrderDenying Second New-Trial Motion

1072

3 Amended Judgment 1075

1, 3,10 Order Overruling Objections toMagistrate Judge’s Order DenyingDiscovery

1078

1 Notice of Appeal 1080

34, 47, 50, 51, 53 Transcript of Hearing on DiscoveryMotions (Nov. 2, 2011)

1086

-xv-


JURISDICTION

This is an appeal of post-conviction rulings in a criminal case. On June 29,

2011, District Judge Robert L. Hinkle (sitting by designation) denied defendant

Richard Scrushy’s motion to recuse then-Chief Judge Mark Fuller from

considering his new-trial motion. Doc. 1024. On January 24, 2012, Judge Fuller

denied Scrushy’s motion for a new trial and, on February 1, 2012, he denied

Scrushy’s appeal of the magistrate judge’s order denying discovery on his new-

trial claims. Docs. 1072, 1078. Scrushy timely filed a notice of appeal. Doc.

1080. The district court had jurisdiction under 18 U.S.C. § 3231. This Court has

jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

1. Whether Judge Hinkle abused his discretion by denying Scrushy’s

motion to recuse then-Chief Judge Fuller from proceedings related to his motion

for a new trial.

2. Whether the denial of Scrushy’s motion for a new trial without discovery

or an evidentiary hearing was an abuse of discretion.

-1-


STATEMENT OF THE CASE

I. Course of the Proceedings And Disposition Below

On June 29, 2006, a jury convicted Scrushy and Don Siegelman of federal

funds bribery, in violation of 18 U.S.C. § 666; conspiracy, in violation of 18

U.S.C. § 371; and four counts of honest-services mail fraud, in violation of 18

U.S.C. §§ 1341, 1346. The jury also convicted Siegelman of obstructing justice.

Docs. 437, 438.

On December 13, 2006, the district court denied defendants’ first motion for

a new trial. Doc. 518. On June 22, 2007, the court denied their motions for

reconsideration. Doc. 611. The court thereafter sentenced Scrushy to 82 months’

imprisonment, to be followed by three years of supervised release, and ordered

him to pay a $150,000 fine and $267,000 in restitution. Doc. 627.

On March 6, 2009, this Court affirmed Scrushy’s convictions and affirmed

all but two of Siegelman’s convictions. United States v. Siegelman, 561 F.3d 1215

(11th Cir. 2009) (“Siegelman I”). On June 29, 2010, the Supreme Court granted

defendants’ certiorari petitions, vacated the judgment, and remanded the case for

consideration under the intervening decision in Skilling v. United States, 130 S.

Ct. 2896 (2010). 130 S. Ct. at 3541-42. On remand, this Court vacated Scrushy’s

and Siegelman’s convictions on two honest-services counts, but affirmed their

-2-


remaining convictions. United States v. Siegelman, 640 F.3d 1159 (11th Cir.

2011) (“Siegelman II”), cert. denied, 2012 WL 359471, 396536 (2012). The

district court resentenced Scrushy to 70 months’ imprisonment and re-imposed the

previous term of supervised release, fine, and restitution award. Doc. 1075.

After Siegelman I, Scrushy filed a motion for a new trial based on newly

discovered evidence (Doc. 953), motions for discovery (Docs. 955, 985), and a

motion to recuse the district judge (Doc. 954). At then-Chief Judge Fuller’s

request, Scrushy’s recusal motion was assigned to a different judge, who denied it.

Doc. 1024. A magistrate judge largely denied Scrushy’s discovery motions. Doc.

1070. Judge Fuller overruled Scrushy’s objections to that ruling, Doc. 1078, and

also denied his new-trial motion, Doc. 1072.1

II. Statement of Facts

A. Scrushy Bribes Siegelman.

Scrushy was the chief executive officer (“CEO”) of HealthSouth

Corporation, a major hospital corporation in Alabama, and Siegelman was the

governor of Alabama. Siegelman II, 640 F.3d at 1164. Defendants formed,

Siegelman filed new-trial and discovery motions almost identical to1

Scrushy’s but, as of the filing of this brief, the district court has not ruled on them. After Siegelman II, in accordance with each defendant’s request, this Court stayedits mandate as to Siegelman but not Scrushy. 11th Cir. No. 07-13163, DocketEntries dated 6/10/11 and 12/1/11. On June 15, 2012, the Court issued themandate as to Siegelman.

-3-


executed, and concealed an agreement whereby then-CEO Scrushy paid then-

Governor Siegelman $500,000, in the form of donations to an issue-referendum

campaign supported by Siegelman, in exchange for Siegelman’s appointment of

Scrushy to a state board that was important to HealthSouth’s operations. Id. at

1165-68, 1172. Siegelman used the bribe money to pay down campaign debt for

which he was personally liable as a guarantor. Id. at 1165, 1167.

B. The District Court Denies Defendants’ First New-Trial Motion.

In September 2006, Scrushy and Siegelman moved for a new trial under

Fed. R. Crim. P. 33 based on alleged juror misconduct. Doc. 467. Defendants

relied in part on purported juror emails received by Scrushy and defense counsel

from an anonymous source. Id. at 8-10. The purported emails allegedly were

exchanged between Jurors 7 and 40, and between Juror 40 and possibly two other

jurors; defendants maintained that, if authentic, they showed that some jurors were

communicating about the case outside formal deliberations and may have

considered information about applicable penalties. Id. at 11-12. Defendants2

requested a sweeping investigation of juror conduct. Id. at 13-15.

The district court held two evidentiary hearings on defendants’ new-trial

motion, including one where it examined each juror about the jury’s exposure to

The page numbers cited for district court documents are those assigned by2

the district court’s docketing system.

-4-


outside influences and extraneous information. Doc. 518 at 20-27. On December

13, 2006, the district court denied the new-trial motion. The court found that the

jurors had been exposed to limited extraneous information which posed no

reasonable possibility of prejudice to defendants. Id. at 26-31, 44-50. The court

also denied defendants’ claim that the jury had deliberated prematurely and with

fewer than all members present. Id. at 50-55. The court had “serious concerns”

about the basis for the claim, given the anonymous source of the purported juror

emails, but concluded that Federal Rule of Evidence 606(b) barred it from

questioning jurors about matters unrelated to extraneous information and outside

influences. Id. at 51-52. The court assumed the juror emails were authentic, but

found that they showed only limited premature deliberations or deliberation by

fewer than all twelve jurors and did not prejudice defendants. Id. at 53-54.

One week later, Scrushy and defense counsel received two more purported

juror emails, also mailed anonymously, which defendants submitted to the district

court in support of motions to reconsider. Doc. 519; Docket Entry 520. The

purported emails appeared to have been sent from Juror 40 to Juror 7 during jury

deliberations; defendants maintained the emails showed that jurors had been

exposed to information from the internet and that Jurors 7 and 40 were biased.

-5-


Doc. 519 at 4-8. Defendants renewed their request for investigation. Id. at 4, 8,

19; see also Doc. 532 (receipt of third supplemental email).

Also around December 21, 2006, at least five co-workers of Jurors 7 and 40

received copies of the same purported emails submitted in support of Scrushy’s

motion to reconsider. Doc. 954-1 at 3. The co-workers informed the jurors, who

reported the matter to the U.S. Marshals Service. Id. The Marshals Service

informed the presiding judge in this case, then-Chief Judge Fuller, who “directed

the U.S. Marshal to investigate any attempt to influence, coerce, or intimidate a

federal juror.” Doc. 1006 at 3. The Marshals Service then contacted Acting U.S.3

Attorney (“USA”) Louis Franklin, one of the trial prosecutors; Franklin asked the

Postal Inspection Service to investigate who sent the letters to the jurors’ co-

workers and transferred oversight of that investigation to an Assistant U.S.

Attorney (“AUSA”) not involved in this prosecution. Doc. 954-1 at 3.

A Postal Inspector interviewed Jurors 7 and 40 and some of their co-

workers. Doc. 954-1 at 3. A co-worker who had monitored Juror 7’s email during

trial reported not having seen any incoming emails from Juror 40. Id. The Postal

Inspector also compared the purported emails to test emails sent to and from Juror

40’s email account and submitted the purported emails for forensic examination,

Judge Fuller was Chief Judge of the Middle District of Alabama between3

2004 and 2011.

-6-


the results of which were inconclusive. Id. The investigation was closed in

September 2007; no charges were brought. Id.

In early April 2007, while defendants’ motions to reconsider were pending,

representatives from the Marshals Service and Postal Inspection Service briefed

Chief Judge Fuller on the status of the investigation. Doc. 954-1 at 3-4; Doc. 1006

at 3. A Postal Inspector volunteered his preliminary conclusion that the purported

emails were not authentic but indicated they had not yet determined who sent

copies to the jurors’ co-workers. Doc. 954-1 at 4; Doc. 1006 at 3. No prosecutor

attended the April 2007 meeting, and no prosecutor had any contact with Chief

Judge Fuller concerning the Postal Inspectors’ investigation. Id.4

Over two months later, the district court denied defendants’ motions to

reconsider. Doc. 611. The court noted irregularities in the purported emails, but

stated that “[w]hatever concerns or doubts the Court has about those documents, it

has not influenced its ruling on the matters before it.” Id. at 4 n.9. The court did

not address, and defendants and defense counsel were not then aware of, the

investigation into the material received by co-workers of Jurors 7 and 40.

The government subsequently learned of the April 2007 meeting between4

law enforcement and Chief Judge Fuller. Doc. 954-1 at 4.

-7-


C. This Court Affirms The Denial Of Defendants’ First New-TrialMotion.

On direct appeal, defendants challenged the district court’s denial of their

motion for a new trial. The Appellate Section of the Criminal Division had

primary responsibility for handling the appeal. In preparing its response brief, the

government focused on the investigation of the anonymous mailings to jurors’ co-

workers. On July 8, 2008, in a letter signed by Appellate Section Chief Patty

Merkamp Stemler (the “DOJ letter”), the government disclosed to the defense the

existence of the investigation and the April 2007 meeting between Chief Judge

Fuller and the Marshals Service and Postal Inspection Service. Doc. 954-1. Ten5

days later, citing the DOJ letter, Scrushy filed a motion pursuant to Fed. R. App. P.

48 for appointment of a special master to investigate the source and authenticity of

the purported juror emails. 11th Cir. No. 07-13163, Rule 48 Mot. (docketed

7/21/08. In his reply brief, Scrushy also addressed the April 2007 meeting, the

DOJ letter, and the fact that the government and the district court did not report

the meeting earlier. 2007 WL 5613997, Scrushy Reply Br. at 25-27, 30-32.

The DOJ letter states that only representatives from the U.S. Marshals5

Service met with Chief Judge Fuller in April 2007. Doc. 954-1 at 3-4. As nofederal prosecutor attended the meeting, we defer to Judge Fuller’s recollectionthat Postal Inspectors also attended. Doc. 1006 at 3.

-8-


This Court denied Scrushy’s appeal of his new-trial claim. Siegelman I, 561

F.3d at 1236-43; Siegelman II, 640 F.3d at 1181-87. The Court explained that6

“[d]istrict courts are subject to very stringent limitations on their authority to

question jurors, and to use one or more juror’s testimony to impeach the verdict of

all.” Siegelman II, 640 F.3d at 1185. Except with regard to extraneous

information or outside influences, Rule 606(b) precludes a juror from testifying

about deliberations, thereby “protect[ing] jurors from postverdict investigation and

[] protect[ing] the verdict from endless attack.” Id. at 1186. The Court concluded

that the district court did not abuse its discretion in deciding that thepurported emails, assuming they are authentic, do not entitledefendants to a new trial. The district court applied the relevantfactors to the email evidence and was well within its discretion toconclude that they did not demonstrate premature deliberation ordeliberation with fewer than all jury members sufficient to arise to aconstitutional violation.

Id. at 1187; see also id. at 1186 n.37. The Court also denied Scrushy’s motion for

appointment of a special master. Id. at 1181 n.29.

D. The District Court Denies Scrushy’s Second New-Trial Motion AndRelated Motions For Discovery And Recusal.

Three years after the verdict, Scrushy filed a motion for a new trial under

Fed. R. Crim. P. 33(b)(1), which governs new-trial motions based on newly

discovered evidence. Doc. 953. Scrushy alleged that: (1) he was the victim of

The Court’s analysis in Siegelman I and Siegelman II is identical.6

-9-


selective prosecution; (2) the district court committed misconduct by having ex

parte communications with the government about the investigation into the

purported juror emails; (3) U.S. Attorney (“USA”) Leura Canary failed to honor

her self-imposed recusal from this prosecution; (4) prosecutors engaged in

misconduct by having improper contacts with jurors; and (5) prosecutors failed to

disclose exculpatory and impeaching evidence and failed to correct false testimony

at trial. Id. at 2-80. Scrushy requested an evidentiary hearing, id. at 80-83, and

moved for discovery, Docs. 955, 985. Scrushy also moved to recuse then-Chief

Judge Fuller from considering his motions. Doc. 954.

Except for an order requiring the government to produce documents related

to Scrushy’s fifth claim for in camera review, Doc. 1042, Scrushy’s motions were

denied in their entirety. Docs. 1024, 1070, 1072, 1078. We describe those rulings

and provide background on Scrushy’s new-trial claims in relevant sections of the

Argument.

III. Standards of Review

The Court reviews the denial of a recusal motion for an abuse of discretion.

United States v. Amadeo, 487 F.3d 823, 828 (11th Cir. 2007).

The abuse-of-discretion standard likewise applies to this Court’s review of

the denial of Scrushy’s new-trial motion without an evidentiary hearing, see

-10-


United States v. Sweat, 555 F.3d 1364, 1368 (11th Cir. 2009), and the denial of

Scrushy’s motion for discovery, see United States v. Espinosa-Hernandez, 918

F.2d 911, 913 (11th Cir. 1990).

SUMMARY OF ARGUMENT

I. Judge Hinkle did not abuse his discretion by denying Scrushy’s motion to

recuse then-Chief Judge Fuller from proceedings on Scrushy’s second new-trial

motion. Chief Judge Fuller’s ex parte communications with law enforcement did

not create an appearance of partiality under 28 U.S.C. § 455(a) because the

communications concerned a potentially criminal attempt to harass jurors, the

judge assumed the purported emails underlying defendants’ juror misconduct

claim were authentic when denying their first new-trial motion and motions to

reconsider, and this Court affirmed his rulings. Similarly, Chief Judge Fuller did

not have “personal knowledge of disputed evidentiary facts” that were necessary

to resolve Scrushy’s claim of improper ex parte communications, 28 U.S.C.

§ 455(b)(1), and he was not “likely to be a material witness,” id. § (b)(5)(iv),

because his assumption that the purported juror emails were authentic rendered the

substance of the ex parte communications immaterial.

II. The decisions denying Scrushy’s second new-trial motion and related

motions for discovery were not an abuse of discretion. Three of Scrushy’s new-

-11-


trial claims are not the proper subject of a motion under Rule 33(b)(1), and all four

claims that he raises on appeal suffer from other defects.

A. Scrushy waived his selective-prosecution claim by not raising it before

trial. On the merits, Scrushy did not satisfy his burden of bringing forth some

evidence of discriminatory effect and discriminatory motive necessary to obtain

discovery, and there was no factual dispute that required resolution before the

district court could rule on his claim.

B. Scrushy’s claim that Chief Judge Fuller had improper ex parte

communications with law enforcement about the anonymous mailings to jurors’

co-workers was barred by the district court’s and this Court’s previous rejection of

defendants’ claim of juror misconduct. In any event, Scrushy was not entitled to

discovery or a new trial on his claim because the record is clear that Chief Judge

Fuller committed no misconduct and the communications did not prejudice

Scrushy.

C. Scrushy failed to support his claim that he was denied a disinterested

prosecutor. The materials on which he relied show only that, after her recusal,

then-USA Canary had fleeting involvement in the case on non-substantive matters.

That involvement affords no basis for discovery, an evidentiary hearing, or a new

trial.

-12-


D. The district court’s inquiry into juror misconduct in connection with the

first new-trial motion largely disposes of Scrushy’s speculative claim of improper

contacts between jurors and the government. To the extent it does not, Scrushy’s

allegations provided no basis for relief.

ARGUMENT

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION INDENYING SCRUSHY’S RECUSAL MOTION.

Scrushy’s motion to recuse then-Chief Judge Fuller was based on the April

2007 meeting in which the judge learned the Postal Inspectors’ preliminary

conclusion that the purported juror emails sent to co-workers of Jurors 7 and 40

were not authentic. Doc. 954 at 4-10. Scrushy’s challenge to Judge Hinkle’s

denial of his motion is highly flawed.

A. Background

In asking this Court to refer Scrushy’s recusal motion to another judge,

Chief Judge Fuller set forth his recollection of facts related to defendants’

allegation of improper ex parte communications:

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 thejurors’ co-workers, and the Court directed the U.S. Marshal toinvestigate any attempt to influence, coerce, or intimidate a federaljuror.

. . .

-13-


According to the Court’s recollection, in April 2007, representativesof the U.S. Marshals Service and the U.S. Postal Inspection Servicebriefed the Court on the on-going investigation, during which a postalinspector volunteered to the Court that his preliminary conclusionwas that the alleged juror e-mails were not authentic.

Doc. 1006 at 3.

Judge Hinkle denied Scrushy’s recusal motion. Doc. 1024. Judge Hinkle

reviewed the purported juror emails forming the basis of defendants’ first new-

trial motion, Doc. 1024 at 14-18, emphasizing that, on appeal, 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” into juror

conduct, id. at 18-19.

Judge Hinkle found that Acting USA Franklin acted appropriately in

directing that an investigation be undertaken into the purported emails

anonymously mailed to the jurors’ co-workers, as those mailings evidenced a

possibly criminal “effort to harass or intimidate the juror[s].” Doc. 1024 at 21-22.

Likewise, the Postal Inspectors “had every right to investigate” – “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. Judge Hinkle found nothing unusual in the fact that

the Marshals Service would report juror harassment to the district court or that the

-14-


court would request an investigation. Id. at 23-24. Judge Hinkle recognized that

defendants’ “motion for reconsideration was pending and the emails were at the

heart of the motion.” Id. at 25. Although “[i]t plainly would have been better had

these communications with the judge not occurred,” Judge Hinkle found “not a

hint of bad faith in any of this.” Id.

Judge Hinkle explained that district judges “routinely” receive extrinsic

information about a case from other sources. Doc. 1024 at 26. “When this occurs,

the judge must decide the issue without considering the extrinsic information in

any way.” Id. at 27. “Chief Judge Fuller did that here”; despite “express[ing]

doubt about the authenticity of the emails,” he “said his doubt was not a factor in

the decision to deny relief” on defendants’ claim of juror misconduct. Id. at 28-

29. Judge Hinkle concluded that, under these circumstances and in light of circuit

law, “the judge’s receipt of the extrinsic information entitles the defendants to

neither a new trial nor recusal of the judge.” Id. at 29-35.

Until then, Judge Hinkle had been addressing recusal based on the alleged

appearance of partiality, noting that this standard is an objective one. Doc. 1024 at

35-36 (citing 28 U.S.C. § 455(a)). He then rejected defendants’ arguments that

recusal was required under a theory that Chief Judge Fuller had personal

knowledge of disputed evidentiary facts related to the second new-trial motion or

-15-


that he would be a material witness. Id. at 36 (citing 28 U.S.C. §§ 455(b)(1),

(b)(5)(iv)). Because Chief Judge Fuller set aside extrinsic information about the

purported juror emails when denying the motion to reconsider, and because this

Court affirmed his decision, “what was said in the April 2007 meeting does not

matter; it is not a disputed issue.” Id.

B. Judge Hinkle Did Not Abuse His Discretion In Denying Scrushy’sRecusal Motion.

1. Chief Judge Fuller’s Impartiality Could Not Reasonably Be Questioned.

Section 455(a) provides that a “judge . . . shall disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.” Section

455(a) establishes an objective standard. Liteky v. United States, 510 U.S. 540,

548, 114 S. Ct. 1147, 1154 (1994). “The test 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);

accord In re Evergreen Sec., Ltd., 570 F.3d 1257, 1263 (11th Cir. 2009). The

abuse-of-discretion standard under which recusal decisions are reviewed “allow[s]

a range of choice for the district court, so long as that choice does not constitute a

-16-


clear error of judgment.” United States v. Kelly, 888 F.2d 732, 745 (11th Cir.

1989).

Judge Hinkle did not commit a clear error of judgment in concluding that an

objective observer, informed of Chief Judge Fuller’s communications with law

enforcement, would not reasonably question his impartiality. Those

communications concerned serious conduct. See United States v. Adams, 785 F.2d

917, 920 (11th Cir. 1986) (noting that “in some situations the trial judge may find

an ex parte conference necessary”). The apparent purpose of the anonymous

mailings to the jurors’ co-workers was to harass Jurors 7 and 40 and possibly to

obstruct justice. They occurred one month after the jurors had testified that they

had been exposed only to limited extraneous information and just one week after

the district court denied defendants’ first new-trial motion. Doc. 518 at 1-2, 22-

31. The purported juror emails contained references to extrinsic material. Docs.

519-1, 519-2. The anonymous mailer surely sought to discredit the testimony of

Jurors 7 and 40 or to exact payback for their guilty verdict. Either scenario

presented troubling conduct of which the Judge Fuller needed to be aware, in his

capacity as both presiding judge and chief judge of the district. Doc. 1024 at 24.

And as Judge Hinkle found, it was certainly permissible for the judge to refer a

possible crime to law enforcement for investigation. Id.

-17-


This case is similar to United States v. Phillips, 664 F.2d 971 (5th Cir.

1981) (Unit B), superseded by rule on other grounds, United States v. Huntress,

956 F.2d 1309 (5th Cir. 1992). In Phillips, government attorneys (separate from 7

the trial prosecutors) briefed the trial judge ex parte on three occasions about the

defendants’ plots to flee the country, to intimidate and “eliminate” witnesses, and

to kill the judge. Id. at 1000-01. In one meeting, government attorneys told the

court about their investigation into obstruction of justice, and the trial judge told

them they could continue the investigation. Id. at 1001, 1003 n.41. The court held

that the district judge was not required to recuse himself, based on an appearance

of partiality or actual bias (id. at 1001), because the ex parte meetings had been

proper; the information “enable[d] the judge to perform his continuing duty to

conduct an orderly trial and to take appropriate measures designed to protect the

participants therein,” and the information was “highly relevant to the court’s

determination on bond revocation.” Id. at 1003. The court found that the judge

was not “impermissibly involved in the government’s investigation . . . and did not

direct the investigation.” Id. Similarly, here, the information concerning the

See Stein v. Reynolds Securities, Inc., 667 F2d 33, 34 (11th Cir. 1982)7

(adopting as binding precedent all prior decisions of Unit B of the former FifthCircuit).

-18-


Postal Inspectors’ investigation was relevant to Chief Judge Fuller’s oversight of

proceedings in his courtroom and to the administration of justice in the Middle

District of Alabama; he was not involved in and did not direct the Postal

Inspectors’ investigation. See also United States v. Jackson, 430 F.2d 1113, 1115

(9th Cir. 1970) (disqualification not required where prosecutor informed judge ex

parte of threats to witnesses, leading the judge to revoke the defendants’ bonds).

To be sure, defendants’ motions for reconsideration were pending when the

Marshals Service initially met with Chief Judge Fuller and when the Postal

Inspectors later volunteered their preliminary views on the emails’ authenticity.

But Chief Judge Fuller not only set aside that information when he ruled on

defendants’ motions, he assumed arguendo that the purported emails were

authentic. Doc. 611 at 4 n.9. He thus gave defendants every benefit of the doubt

concerning that material. See In re Adbox, Inc., 243 Fed. App’x 420, 421 (9th Cir.

2007) (unpublished) (ex parte communications did not necessitate recusal under

§ 455(a) because they related to procedural matters and did not affect rulings).

Critically, this Court affirmed Chief Judge Fuller’s analysis in its entirety,

“conclud[ing] . . . that the district court did not abuse its discretion in deciding that

the purported emails, assuming they are authentic, do not entitle defendants to a

new trial.” Siegelman II, 640 F.3d at 1187 (emphasis added). Scrushy minimizes

-19-


the significance of that decision, Br. 23, but this Court plainly knew that, in April

2007, Chief Judge Fuller had been advised of the Postal Inspectors’ preliminary

conclusion about the authenticity of the second group of emails; Scrushy relied on

that information when trying to rebut the government’s argument that a sweeping

investigation of jurors was unnecessary, 2007 WL 5613997, Scrushy Reply Br.

25-27, and in moving this Court to appoint a special master to investigate the

purported juror emails, 11th Cir. No. 07-13163, Rule 48 Mot. 4-6, 9-10 (docketed

7/21/08). If this Court had found Chief Judge Fuller’s assumption of authenticity

disingenuous, or found that the emails, if authentic, actually required a new trial, it

would not have affirmed his decision.

Because Chief Judge Fuller set aside the extraneous information about the

purported juror emails in a manner that bolstered Scrushy’s claim of juror

misconduct, and because this Court affirmed his ruling, the judge’s impartiality

could not be reasonably questioned. At the very least, Judge Hinkle committed no

clear error of judgment in so concluding.

2. Chief Judge Fuller Did Not Have Personal Knowledge Of Disputed Evidentiary Facts And Was Not Likely To Be AMaterial Witness In The New-Trial Proceeding.

For similar reasons, Judge Hinkle committed no clear error of judgment in

denying recusal under § 455(b). Chief Judge Fuller did not have “personal

-20-


knowledge of disputed evidentiary facts concerning” Scrushy’s second new-trial

motion, 28 U.S.C. § 455(b)(1), and he was not “likely to be a material witness in

the proceeding” on that motion, id. § 455(b)(5)(iv).

Scrushy was entitled to relief on his substantive claim of ex parte

communications only if the communications, assuming they were improper,

prejudiced him. See Rushen v. Spain, 464 U.S. 114, 118-19 (1983) (holding that

an unrecorded ex parte conversation between a trial judge and juror is reviewed

for harmless error); United States v. Swindall, 971 F.2d 1531, 1550 (11th Cir.

1992) (“[T]he ex parte conference did not affect the fairness of the rest of the trial

and thus cannot be grounds for reversal of the remaining counts.”); United States

v. Simms, 385 F.3d 1347, 1352-53 (11th Cir. 2004) (finding no error in ex parte

discussions between prosecutors and district court where defendant suffered no

prejudice); Adams, 785 F.2d at 921 (holding ex parte communications raising an

appearance of impropriety did not give rise to reversible error because defendant

was not prejudiced by them). The communications here could not have prejudiced

Scrushy because Chief Judge Fuller’s assumption that the purported juror emails

were authentic benefitted Scrushy and rendered irrelevant “what was said in the

April 2007 meeting.” Doc. 1024 at 36. Therefore, Judge Hinkle did not abuse his

discretion by denying recusal under § 455(b). See United States v. Young, 39 F.3d

-21-


1561, 1570 (11th Cir. 1994) (“failure to recuse constitutes reversible error only

where the conflict of interest is readily apparent and the risk of impartiality is

substantial”).

3. Scrushy’s Arguments Lack Merit.

a. Scrushy faults Judge Hinkle for not making a “complete determination of

the facts relating to the ex parte meetings.” Br. 12-18. But that inquiry was

unnecessary because, again, Chief Judge Fuller “did not consider what was said in

the April 2007 meeting in any way.” Doc. 1024 at 37. As Judge Hinkle put it,

“[h]ad there been a court reporter, we would know precisely what didn’t matter.

But it still wouldn’t matter.” Id.

The recusal cases cited by Scrushy (Br. 17) involving evidentiary hearings

are inapposite. Three of them did not involve ex parte communications, let alone

a judge who set aside the ex parte information. See United States v. Alabama, 828

F.2d 1532, 1539, 1546 (11th Cir. 1987); R.B. Potashnick v. Port City Constr. Co.,

609 F.2d 1101, 1106 (5th Cir. 1980); Easley v. University of Michigan Bd. of

Regents, 853 F.3d 1351, 1358 (6th Cir. 1988). In the fourth case, Price Bros. Co.

v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th Cir. 1980), a hearing was

necessary to determine facts concerning a pre-trial visit by the judge’s law clerk to

the plaintiff’s manufacturing plant. Id. at 445-47. But the purpose of that visit

-22-


apparently was to gather and consider extraneous evidence about the merits of the

case – the antithesis of what Chief Judge Fuller did here. 8

Scrushy’s related assertion (Br. 21) that Chief Judge Fuller did not actually

assume the authenticity of the emails under investigation by the Postal Inspectors

is wrong. See Siegelman II, 640 F.3d at 1187. In denying reconsideration, Chief

Judge Fuller discussed his assumption of authenticity with respect to the first

group of emails, and then went on to state: “the Court has not based any ruling on

a finding that these emails are not authentic” and “[w]hatever concerns or doubts

the Court has about these documents, it has not influenced its ruling on the matters

before it.” Doc. 611 at 4 n.9 (emphasis added). Chief Judge Fuller was plainly

referring to every juror email and every ruling related to the juror misconduct

claim. Further, when requesting in 2010 that another judge resolve defendants’

recusal motion, Chief Judge Fuller reiterated that he “assum[ed] that the e-mails

were authentic” when he “denied Scrushy’s motion to reconsider.” Doc. 1006 at

2. The record is more than sufficient to show that he set aside the extraneous

information learned at the April 2007 meeting with law enforcement. See In re

Brooks, 383 F.3d 1036, 1038, 1043-44 (D.C. Cir. 2004) (finding “no reason for

Scrushy also cites United States v. Rhymes, 196 F.3d 207 (4th Cir. 1999),8

Br. 17-18, but recusal was not at issue on appeal because the judge had recusedhimself. 196 F.3d at 215, 217.

-23-


not accepting the judge’s unequivocal response” that he did not acquire

substantive information during ex parte meetings, and denying mandamus petition

seeking recusal or related discovery).

b. Scrushy’s contention (Br. 19-25) that the district court failed to apply an

objective standard of recusal is equally flawed.

Judge Hinkle did not apply a subjective standard under § 455(a). Rather, he

expressly recognized that § 455(a) requires recusal if the judge’s “impartiality

might reasonably be questioned,” Doc. 1024 at 35, referenced “cases holding that

the governing standard is objective,” id. at 36, and analyzed recusal from a

“reasonable person” standpoint, id. at 21-22, 39. Contrary to Scrushy’s argument,

Judge Hinkle’s consideration of “whether or not Chief Judge Fuller’s decision was

actually affected by the information in the ex parte meeting” (Br. 21-22) is entirely

consistent with § 455(a)’s objective standard, which looks to the perspective of a

“disinterested, lay observer fully informed of the facts underlying” the recusal

request. Parker, 855 F.2d at 1524; accord Evergreen Sec., Ltd., 570 F.3d at 1263.

The relevant fact here was that Chief Judge Fuller gave defendants the benefit of

the doubt by assuming the purported juror emails were authentic. Judge Hinkle

applied the correct standard and reached the correct conclusion.

-24-


Scrushy also argues, erroneously, that an objective standard applies to

recusal under § 455(b). Br. 19-20. “[Section] 455(b) is stricter than § 455(a) and

is concerned with situations that may involve actual bias rather than § 455(a)’s

concern with the public’s perception of the judicial process. Parker, 855 F.2d at

1527. Section 455(b) “establishe[s] a per se rule requiring automatic

disqualification in any case in which any of the enumerated circumstances is

present,” In re BellSouth Corp., 334 F.3d 941, 969 (11th Cir. 2003), not where a

“reasonable” person would find an enumerated circumstance present. Scrushy’s

own case (Br. 20) explains that, in contrast to § 455(a)’s objective standard, “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.”

United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (emphasis added); see

also id. at 1321-22. Judge Hinkle correctly applied that standard. See Doc. 1024

at 36. Scrushy’s recusal claim lacks merit.

C. Any Error Was Harmless.

An erroneous denial of recusal under § 455(a) or § 455(b) is reviewable for

harmless error. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,

862, 108 S. Ct. 2194, 2203-04 (1988); Parker, 855 F.2d at 1525-28. In deciding

whether to vacate a decision, a court must “consider the risk of injustice to the

-25-


parties in the particular case, the risk that the denial of relief will produce injustice

in other cases, and the risk of undermining the public’s confidence in the judicial

process.” Liljeberg, 486 U.S. at 864, 108 S. Ct. at 2205.

A finding of harmlessness poses no risk of injustice to the parties in this

case and no risk of undermining public confidence in the judicial system because,

as discussed infra, the decisions denying the motions for a new trial and for

discovery were correct. See Parker, 855 F.2d at 1526-27 (concluding that

vacating a correct decision would itself “create an injustice” and would cause “the

public [to] lose faith in our system of justice”). And while this Court will review

those decisions for an abuse of discretion, Scrushy’s new-trial claims lack merit

for many procedural and legal reasons; this Court “is in as good a position to

determine the merits of [the new-trial and discovery motions] as was the district

court.” Parker, 855 F.2d at 1526. Nor would failing to vacate the new-trial and

discovery rulings here pose a risk of injustice in future cases, as the facts relevant

to the recusal issue are unique and not likely to recur. Any error in the denial of

Scrushy’s recusal motion was harmless.

-26-


II. THE DENIAL OF SCRUSHY’S MOTIONS FOR A NEW TRIAL ANDDISCOVERY WAS NOT AN ABUSE OF DISCRETION.

Scrushy contends (Br. 28-58) that the magistrate judge and the district court

abused their discretion, respectively, in denying discovery and a new trial as to his

claims alleging selective prosecution, judicial misconduct, USA Canary’s failure

to honor her recusal, and improper contacts between the prosecution and jurors.

Significantly, Scrushy does not contend that, on this record, he is entitled to a new

trial as to those claims; he seeks only discovery and an evidentiary hearing.

Br. 58. And Scrushy does not challenge the rulings on his new-trial claim alleging

prosecutorial misconduct related to witness testimony. Br. 57.

Scrushy filed his second new-trial motion under Fed. R. Crim. P. 33(b)(1),

based on alleged newly discovered evidence. Doc. 953 at 1-2. Such motions 9

“are highly disfavored in the Eleventh Circuit and should be granted only with

great caution.” United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en

banc) (quotation marks and citation omitted). The movant must establish that:

(1) the evidence was discovered after trial, (2) the failure of thedefendant to discover the evidence was not due to a lack of diligence,(3) the evidence is not merely cumulative or impeaching, (4) the

The seven (now fourteen) day period for seeking a new trial based on “any9

reason other than newly discovered evidence,” Fed. R. Crim. P. 33(b)(2), had longsince expired. That deadline is “rigid.” Eberhart v. United States, 546 U.S. 12,13, 126 S. Ct. 403 (2005).

-27-


evidence is material to issues before the court, and (5) the evidence issuch that a new trial would probably produce a different result.

United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quotation marks

and citation omitted); accord United States v. Thompson, 422 F.3d 1285, 1294

(11th Cir 2005). Failure to satisfy any element is fatal to the motion. See United

States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995).

A district court has ample discretion to forego an evidentiary hearing on a

new-trial motion, as “the acumen gained by a trial judge over the course of the

proceedings” makes the judge “well qualified to rule on the basis of affidavits.”

United States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997) (quotation marks and

citation omitted). The purpose of an evidentiary hearing on a Rule 33 motion is to

resolve conflicting evidence. United States v. Velarde, 485 F.3d 553, 559 (10th

Cir. 2007). A hearing is unnecessary, therefore, if the record concerning a claim is

complete or if the claim may be adjudicated without additional evidence. See id.

at 559-60.

Discovery on a new-trial motion is likewise warranted only in a “rare case.”

Velarde, 485 F.3d at 560. The defendant must “show[] that further investigation

under the court’s subpoena power very likely would lead to the discovery of []

evidence” warranting an evidentiary hearing. Id. There must be a “firm

evidentiary basis for believing such evidence likely exists.” Id. at 561.

-28-


Scrushy’s new-trial claims can be readily resolved on the present record,

and he failed to show that discovery would likely lead to evidence warranting a

new trial or an evidentiary hearing. The denial of Scrushy’s claims without

discovery or an evidentiary hearing was not an abuse of discretion.

A. Selective Prosecution

1. Background

Scrushy claimed for the first time in his second new-trial motion that he was

the victim of selective prosecution in violation of his Fifth Amendment right to

equal protection. Doc. 953 at 2-11, 40-46. Scrushy’s theory was that the

government initiated the prosecution of him and Siegelman for political reasons,

namely, to ensure that Siegelman, a Democrat, would not be elected governor in

2006 (Bob Riley, a Republican who defeated Siegelman in the 2002 gubernatorial

election, ran for and won re-election in 2006). Id. at 2, 43. Scrushy alleged that

this case was “part of an orchestrated effort by the Bush Administration to

eliminate or cripple Democratic candidates or their supporters.” Id. at 42.

Scrushy cited, inter alia, a 2008 report on selective prosecution by the Majority

Staff of the U.S. House of Representatives Committee on the Judiciary (the

“Conyers Report”) and an ongoing investigation by the Justice Department’s

Office of Professional Responsibility (“OPR”). Id. at 3-4.

-29-


Magistrate Judge Coody denied Scrushy’s request for discovery. Doc. 1070

at 4-12. He concluded that: (1) Scrushy failed to show that other individuals had

engaged in similar acts of bribery but were not prosecuted, id. at 5-8;

(2) defendants had knowledge of a possible selective-prosecution claim before

trial, but failed to show they had exercised diligence in trying to discover

supporting evidence, id. at 9-11; and (3) documents produced by the government

for in camera review did not point to the need for discovery, id. at 11.

The district court denied Scrushy’s claim for similar reasons. Doc. 1072 at

4-11. The court found that Scrushy waived his claim by not asserting it in a

pretrial motion to dismiss. Id. at 4-8. The court also concluded, on the merits, that

Scrushy had not “point[ed] to any other comparators who engaged in acts of

bribery against whom the evidence of guilt was as strong or stronger than that

against him but were not prosecuted for those acts.” Id. at 9-10. Finally, citing the

absence of evidence that any selective prosecution prejudiced the jury, the court

concluded that Scrushy could not establish that “a new trial would probably

produce a different result.” Id. at 11 (quoting Jernigan, 341 F.3d at 1287).

-30-


2. Scrushy Was Not Entitled To Discovery Or An EvidentiaryHearing.

A defendant who alleges that he was prosecuted based on an impermissible

or arbitrary classification bears a “demanding” burden. United States v.

Armstrong, 517 U.S. 456, 463, 116 S. Ct. 1480, 1486 (1996). “In order to dispel

the presumption that a prosecutor has not violated equal protection, a criminal

defendant must present clear evidence to the contrary.” Id. at 465, 116 S. Ct. at

1486 (quotation marks and citation omitted). Thus, he “must demonstrate that the

federal prosecutorial policy had a discriminatory effect and that it was motivated

by a discriminatory purpose.” Id. at 465, 116 S. Ct. at 1487 (quotation marks and

citation omitted).

a. Scrushy’s selective-prosecution claim fails on two procedural grounds,

either one of which rendered discovery or an evidentiary hearing unnecessary.

First, selective prosecution is not the proper subject of a new-trial motion

under Rule 33(b)(1), because the issue “has no bearing on the determination of

factual guilt.” United States v. Jones, 52 F.3d 924, 927 (11th Cir. 1995); see

United States v. Spuza, 194 Fed. App’x 671, 674 (11th Cir. 2006) (unpublished)

(“a Rule 33 motion filed more than seven days after the verdict may only address

newly discovered evidence showing actual innocence, not constitutional

violations”). It is true that, in this Circuit, “[n]ewly discovered evidence need not

-31-


relate directly to the issue of guilt or innocence to justify a new trial” and “may be

probative of” issues of law, such as “the existence of a Brady violation” or

“questions regarding the fairness or impartiality of a jury.” Campa, 459 F.3d at

1151 (emphasis added) (quotation marks and citation omitted). But in view of the

requirement that a new trial would probably produce a different result, see

Thompson, 422 F.3d at 1294, the district court correctly observed that the newly

discovered evidence “must, in some non-attenuated and material way, impugn the

reliability of the jury’s verdict.” Doc. 1072 at 3; see United States v. Williams,

613 F.2d 573, 574-75 (5th Cir. 1980) (observing that newly discovered evidence

usually “goes directly to proof of guilt or innocence,” but considering claim of ex

parte contact with juror during trial to determine whether contact “impugned the

integrity of the jury’s verdict”). Evidence of alleged selective prosecution does

not do that because the defense is for the judge, not the jury, to decide, see Jones,

52 F.3d at 927, and the jury is presumed to follow its instructions to consider

“only the law as delivered to it by the [district] [c]ourt and the evidence submitted

to it,” Doc. 1072 at 11; accord Siegelman II, 640 F.3d at 1184. Scrushy resists

that analysis (Br. 50) but cites no case holding that a selective-prosecution claim

was properly raised in a new-trial motion based on newly discovered evidence.

Scrushy’s claim is not procedurally viable under Rule 33(b)(1).

-32-


Second, because a selective-prosecution claim alleges a defect in the

institution of the prosecution, it must be raised before trial under Fed. R. Crim. P.

12(b)(3); if not, the claim is waived under Rule 12(e). United States v. Jennings,

991 F.2d 725, 729-30 (11th Cir. 1993); accord, e.g., United States v. Huber, 404

F.3d 1047, 1054 (8th Cir. 2005). By waiting until three years after the verdict to

assert his claim, Scrushy clearly waived it.

Scrushy’s waiver cannot be excused for good cause. See Fed. R. Crim. P.

12(e). As of 2005, if not earlier, Siegelman was publicly claiming that the

investigation into his activities was politically motivated. See Doc. 953-36

(Siegelman campaign letter received by USA Canary in September 2005);

Doc. 953–2 at 12-13 (Conyers Report summarizing testimony by Siegelman’s

prior attorney that, in early 2005, investigation of Siegelman became more focused

and aggressive at the apparent direction of Washington). Statements by Scrushy’s

own attorney, Arthur Leach, show that Scrushy knew the basis for a possible

selective-prosecution claim before trial. Doc. 953-8. Leach alleged in an affidavit

that, on April 6, 2006, he met with Andrew Lourie, then-head of the Justice

Department’s Public Integrity Section, and the two discussed an arrangement,

supported by the prosecution team, to have the case against Scrushy resolved short

of trial. Id. ¶¶ 16, 18. After the meeting, Leach was hopeful that the deal would

-33-


go through, but Lourie informed him that it had been rejected by high-level

Department officials, above the level of Assistant Attorney General. Id. ¶¶ 18,

20. Leach was “completely puzzled” by this response because he “could not

imagine a decision like this rising to that level of the Department of Justice.”

Id. ¶ 20. Given Siegelman’s public allegations of a political investigation, this

allegation of high-level involvement in the case put Scrushy on notice of a

possible selective-prosecution claim. See Doc. 1086 at 53 (magistrate judge

commenting, “it seems to me that there was plenty of evidence to suggest the

possibility of selective prosecution that existed well before trial and that it was

recognized before trial”).

Nevertheless, Scrushy contends (Br. 48-49) that he lacked a good-faith basis

for bringing his claim before trial because it was only after trial, with the issuance

of the Conyers Report and a “statistical study,” that “substantial evidence” of

selective prosecution came to light. That argument lacks merit. If a selective-

prosecution claim is “well founded,” it is not “an insuperable task to prove that

persons of other [classifications] were being treated differently.” Armstrong, 517

U.S. at 470, 116 S. Ct. at 1489. As the magistrate judge found, attorney Leach

opted not to file a pretrial motion for strategic reasons – so that he would not be

“procedurally barred by ‘the law of the case[]’ if he lost on the issue.” Doc. 1070

-34-


at 11-12 & n.5; see Doc. 1086 at 53 (hearing transcript). Because Scrushy had

pretrial notice of a possible selective-prosecution claim but failed to bring it, the

district court did not abuse its discretion in concluding that Scrushy waived his

claim.10

b. Even if Scrushy’s belated claim warranted consideration on the merits,

Scrushy was not entitled to discovery or an evidentiary hearing.

“The justifications for a rigorous standard for the elements of a selective-

prosecution claim [] require a correspondingly rigorous standard for discovery in

aid of such a claim.” Armstrong, 517 U.S. at 468, 116 S. Ct. at 1488. The

defendant “must provide some evidence tending to show the existence of the

essential elements of the defense,” i.e., discriminatory effect and discriminatory

motive. Id. Similarly, to obtain an evidentiary hearing, “the defendant must

present facts sufficient to create a reasonable doubt about the constitutionality of

the prosecution.” United States v. Jordan, 635 F.3d 1181, 1188 (11th Cir.), cert.

denied, 132 S. Ct. 356 (2011) (quotation marks and citation omitted).

Alternatively, as the magistrate judge concluded, Scrushy “has made no10

showing that he exercised any diligence in attempting to discover any additionalevidence of selective prosecution prior to trial.” Doc. 1070 at 11.

-35-


As to discriminatory effect, Scrushy failed to make “a credible showing of

different treatment of similarly situated persons.” Armstrong, 517 U.S. at 470, 116

S. Ct. at 1489. A “similarly situated” person is

one who engaged in the same type of conduct, which means that thecomparator committed the same basic crime in substantially the samemanner as the defendant – so that any prosecution of that individualwould have the same deterrence value and would be related in thesame way to the Government’s enforcement priorities andenforcement plan – and against whom the evidence was as strong orstronger than that against the defendant.

United States v. Smith, 231 F.3d 800, 810 (11th Cir. 2000). Scrushy provided no

evidence that an individual who bribed a sitting governor was not prosecuted, let

alone evidence that the briber was the CEO of a large corporation or that the bribe

took the form of a large campaign contribution. See Siegelman II, 640 F.3d at

1165-67. Scrushy’s motion largely relied on irrelevant materials purporting to

show only that other Democratic officials or supporters were prosecuted for

alleged political reasons. See Doc. 953 at 8-9.

Scrushy contends that the magistrate judge and district court ignored the

fact that his motion “set out a number of comparators who had made significant

contributions to the campaign of Republican Bob Riley who were rewarded with

appointments and state financial support after his election as governor.” Br. 50

(citing Doc. 953 at 10-11); accord Br. 35, 41. But again, Scrushy presented no

-36-


evidence tending to show that those comparators had engaged in bribery. By

contrast, here, the jury found that Scrushy agreed to pay Siegelman $500,000 in

exchange for a seat on a state board, and did so based on powerful evidence that

included, inter alia, the testimony of Siegelman’s closest associate (Nick Bailey)

and HealthSouth’s former Chief Financial Officer (Mike Martin) and evidence that

both defendants concealed their corrupt dealings. Siegelman II, 640 F.3d at 1166-

68, 1172; see also id. at 1172 (rejecting sufficiency challenge to the quid pro quo

evidence). The district court accordingly found that this prosecution had great

deterrence value and reflected a high enforcement priority. Doc. 1072 at 10 n.5.

Scrushy’s failure to present evidence that similarly-situated persons were not

prosecuted doomed his discovery request and underlying claim. See United States

v. Bass, 536 U.S. 862, 863-64, 122 S. Ct. 2389 (2002) (per curiam) (summarily

reversing grant of discovery because nationwide statistics “s[aid] nothing about

charges brought against similarly situated defendants”); Armstrong, 517 U.S. at

470, 116 S. Ct. at 1489 (defendants not entitled to discovery because they “failed

to identify individuals who were not black and could have been prosecuted for the

offenses for which respondents were charged, but were not so prosecuted”);

Jordan, 635 F.3d at 1188-89 (upholding denial of discovery and evidentiary

-37-


hearing because statistics relied on by defendant were not probative of “similarly

situated” inquiry of discriminatory effect test).11

It was unnecessary for the magistrate judge and district court to address

discriminatory motive, but Scrushy’s showing on that essential element was also

deficient. Scrushy relied, and continues to rely (Br. 48-49), on information in the

Conyers Report concerning Jill Simpson, a Republican attorney in Alabama who

alleged she had conversations with Republican operatives revealing a high-level

effort, spearheaded by White House official Karl Rove, to prosecute Siegelman for

political reasons. Doc. 953 at 5-6. Simpson’s account was not credible. The

Conyers Report itself notes that her allegations were denied in affidavits submitted

by all of the individuals concerned – including one of Scrushy’s own trial

attorneys (Terry Butts) – though the Report goes on to question the denials. Doc.

953-2 at 10-11 & n.64; see Docs. 1037-1, 1037-2, 1037-3 (affidavits of Terry

Butts, Matthew Lembke, and Robert Riley). Karl Rove subsequently testified

before the House Judiciary Committee that he never spoke to anyone at the Justice

Department about the Siegelman prosecution, and that he was not aware of any

Scrushy contends (Br. 35) that the magistrate judge ignored his request11

for documents concerning investigations of illegal donations to Republicancandidates, but any such materials were irrelevant to his selective-prosecutionclaim; Scrushy and Siegelman were not charged with making or receiving illegaldonations, but with bribery – a core corruption offense.

-38-


such communications by anyone else in the White House. Doc. 975-15 at 81-82,

85-86, 94-95. And, three career prosecutors involved in deciding whether to

pursue the Siegelman prosecution unequivocally denied having been pressured or

directed for political reasons, and stated that decisions were made based on the

evidence and relevant principles of federal prosecution. Doc. 975-4 ¶ 5; Doc. 975-

6 ¶¶ 3-4; Doc. 975-9 ¶¶ 3-4. 12

In short, Scrushy did not come close to meeting the rigorous threshold

required for discovery or an evidentiary hearing on either element of his selective-

prosecution claim.

c. The discovery cases upon which Scrushy relies (Br. 36-67) are

inapposite. Two of them did not involve a selective-prosecution claim and

presented unusual circumstances. See Velarde, 485 F.3d at 560-61 (sex abuse case

in which defense presented affidavit from individual alleging he told agent before

trial that minor victim had lied to school officials about being improperly touched

by teacher; results of school’s investigation could not be obtained without court

order); Espinosa-Hernandez, 918 F.2d at 913-14 (case agent made false statements

Scrushy faulted the government below for not submitting a statement12

from Noel Hillman, Chief of the Public Integrity Section between 2003 and 2006. Doc. 981 at 12-13. But Hillman became a U.S. district judge. See id. at 13. Thestatement by Stuart Goldberg – who, as Principal Deputy Chief, helped supervisethe Siegelman case with Hillman – was probative of the lack of politicalintervention. Doc. 975-6.

-39-


to grand jury and in affidavit for criminal complaint; agent was also under

investigation for helping an incarcerated informant escape, which was potentially

relevant to defendant’s claim of an informant’s unavailability). And, in United

States v. Gordon, 817 F.2d 1538 (11th Cir. 1987), a pre-Armstrong case, the court

held that the defendant had presented direct and circumstantial evidence sufficient

to warrant an evidentiary hearing and discovery on his selective-prosecution

defense. Id. at 1540-41. But unlike in Gordon, Scrushy failed to present any

relevant evidence of discriminatory effect and discriminatory intent, and his claim

suffers from two procedural defects.

d. Magistrate Judge Coody ordered the government to produce for in

camera inspection a broad category of documents related to Scrushy’s claim of

prosecutorial misconduct in connection with witness Nick Bailey. See Doc. 1042.

The documents produced by the government included documents reflecting its

core deliberations in this prosecution. Contrary to Scrushy’s argument (Br. 29-

34), the produced documents did not exclusively concern Scrushy’s claim about

Bailey; some of the documents also contained information bearing on Scrushy’s

other new-trial claims, including OPR’s report of its investigation into alleged

selective prosecution (and other alleged misconduct) in this case and internal

Department documents discussing the charging decision and evidence. Judge

-40-


Coody found that the documents did not support Scrushy’s selective-prosecution

claim or “his hypothesis that other evidence exists to support his claim.” Doc.

1070 at 1, 11. This Court’s review of those documents, we submit, will support

that conclusion. The decisions denying Scrushy’s discovery request and selective-

prosecution claim were not an abuse of discretion.

B. Judicial Misconduct

1. Background

Scrushy contended that Chief Judge Fuller’s ex parte communications with

law enforcement concerning the anonymous mailings to the co-workers of jurors

violated his Fifth Amendment right to due process and his Sixth Amendment right

to counsel. Doc. 953 at 11-15, 47-52. The magistrate judge denied Scrushy’s

request for discovery based on: (1) this Court’s determination that further

investigation into the matter was not warranted, Doc. 1070 at 13 (citing Siegelman

II, 640 F.3d at 1186-87), and (2) Judge Hinkle’s ruling that Chief Judge Fuller’s

“‘receipt of extrinsic evidence entitled the defendants to neither a new trial nor

recusal of the judge,’” id. (quoting Doc. 1024 at 29). The judge concluded that

law-of-the-case principles barred relitigation of the matter. Id. at 13-14. The

district court denied Scrushy’s ex parte claim on the merits for the same reasons.

Doc. 1072 at 11-14.

-41-



a. Scrushy’s claim was not the proper subject of a Rule 33(b)(1) motion.

Because the alleged misconduct occurred over six months after trial, it does not

bear on Scrushy’s innocence or the integrity of the jury’s verdict. See United

States v. Lafeyette, 983 F.2d 1102, 1105 (D.C. Cir. 1993) (“In general, to justify a

new trial, “newly discovered evidence” must have been in existence at the time of

trial. Events and transactions occurring after the trial obviously could not have

been the subject of testimony at trial.”); see also pp. 31-32, supra. This Court may

affirm the rulings below for that reason alone. See Campa, 529 F.3d at 998.

b. In any event, relief was unwarranted based on the law-of-the-case

doctrine, which “bars relitigation of issues that were decided, either explicitly or

by necessary implication, in an earlier appeal of the same case. United States v.

Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005). The theory of Scrushy’s claim is

that Chief Judge Fuller’s communications with law enforcement violated his rights

in connection with the juror misconduct claim asserted in his first new-trial

motion. Doc. 953 at 51-52. This Court implicitly rejected that argument in

Siegelman II. The Court would not have denied Scrushy’s request for an

investigation into the purported juror emails or affirmed the denial of his first new-

trial motion, Siegelman II, 640 F.3d at 1181 n.29, 1187, if it believed that Chief

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Judge Fuller’s communications with law enforcement were potentially relevant to

Scrushy’s juror misconduct claim. See Doc. 1024 at 19 (recusal decision).

Even if the law-of-the-case doctrine is inapplicable, the record plainly

shows that Scrushy’s judicial misconduct claim is devoid of merit. Chief Judge

Fuller acted appropriately. No federal prosecutor, let alone one involved in this

prosecution, was present for either one of his meetings with law enforcement. See

Doc. 1006 at 3; Doc. 954-1 at 3-4. The ex parte communications were necessary

to protect an investigation into possibly criminal conduct related to proceedings in

this case. See Simms, 385 F.3d at 1352 (“Ex parte communications are . . .

justified in order to protect a continuing criminal investigation and the safety of

persons placed at risk by those investigations.”); Adams, 785 F.2d at 920 (“in

some situations the trial judge may find an ex parte conference necessary”); cf.

United States v. Nava-Salazar, 30 F.3d 788, 801 (7th Cir. 1994) (finding no error

in ex parte submission that was necessary to protect an ongoing investigation and

complied with Rule 16(d)(1)). That is particularly so because the evidence

indicated that jurors had been harassed shortly after testifying at a public hearing.

See United States v. Moten, 582 F.2d 654, 664 (2d Cir. 1978) (“[T]he proper

functioning of the jury system requires that the courts protect jurors from being

harassed and beset by the defeated party in an effort to secure from them evidence

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of facts which might establish misconduct sufficient to set aside a verdict.”)

(quotation marks and citation omitted). The Postal Inspectors

had been unable to determine who sent the copies [of purportedemails to the jurors’ co-workers] and thus apparently had exoneratednobody. A law enforcement officer ordinarily does not report thestatus of a criminal investigation to a person with a motive to committhe crime. Nor does a chief judge who learns of the investigation.

Doc. 1024 at 37. Chief Judge Fuller committed no misconduct. 13

Moreover, the record conclusively establishes that the alleged judicial

misconduct did not prejudice Scrushy. See p. 21, supra (citing cases establishing

prejudice requirement in connection with ex parte claim). The ex parte

communications and related investigation occurred after trial (and after the

evidentiary hearing on the first new-trial motion). Cf. Remmer v. United States,

347 U.S. 227, 229, 74 S. Ct. 450, 451 (1954) (finding that any private

communication or contact with a juror during trial about a matter pending before

the juror is presumptively prejudicial). To the extent those communications

implicated some of the same purported emails underlying the juror misconduct

claim in defendants’ first new-trial motion, Chief Judge Fuller assumed that the

Scrushy contends (Br. 52) that, without an evidentiary hearing, the13

purpose of the investigation and the reason for not revealing it to the defensecannot be known. But Chief Judge Fuller had no reason to misrepresent the natureof the investigation, and his recollection was consistent with the DOJ letter. SeeDoc. 954-1 at 3.

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emails were authentic when he denied Scrushy’s motion for reconsideration. See

Siegelman II, 640 F.3d at 1187. Thus, regardless of what information law

enforcement communicated to Chief Judge Fuller, the record supporting Scrushy’s

motion for reconsideration could not have been better from his standpoint.

Scrushy fails to articulate how he possibly could have been prejudiced by the ex

parte communications. See Br. 42, 51-52.

Because Chief Judge Fuller acted appropriately in communicating with law

enforcement about evidence of juror harassment, and because those

communications did not prejudice Scrushy, the decisions denying discovery and

Scrushy’s underlying claim of judicial misconduct were not an abuse of discretion.

C. The U.S. Attorney’s Recusal

1. Background

a. On March 25, 2002, Siegelman’s attorney sent a letter to the Deputy

Attorney General and to the Executive Office of U.S. Attorneys (“EOUSA”)

requesting that USA Canary be removed from any role in the investigation of then-

Governor Siegelman and his administration based on her alleged “financial,

personal, and political conflicts of interest.” Doc. 953-29 at 2. USA Canary’s

husband, William Canary, was a Republican political consultant. Id. at 4.

Siegelman’s attorney alleged that Bill Canary’s consulting work for a Republican

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seeking to oppose Siegelman in the 2002 election (Steve Windom) and for then-

state Attorney General William Pryor, as well as his political ties to eventual

Governor Bob Riley, created conflicts of interest for USA Canary. Id. at 4-6.

On May 16, 2002, USA Canary announced that, while the Department of

Justice had “advised [her] that no actual conflicts of interest exist[ed],” she was

recusing herself from the Siegelman investigation “out of an abundance of

caution.” Doc. 953-30 at 2-3. From that point forward, interim Acting USA

Charles Niven and, after Niven’s retirement, Acting USA Louis Franklin led the

team that investigated and prosecuted defendants, which included career

prosecutors from the U.S. Attorney’s Office (“USAO”) and the Public Integrity

Section. Doc. 975-2 ¶ 1; Doc. 975-4 ¶ 3; Doc. 975-11 ¶ 1; Doc. 975-12 ¶ 1.

In his second new-trial motion, Scrushy alleged that USA Canary failed to

honor her recusal, thereby depriving him of his “entitlement” to a disinterested

prosecutor. Doc. 953 at 53-58. Scrushy contended that internal emails of the

USAO and a letter to the Attorney General by Tamarah Grimes, a paralegal in the

USAO who alleged various forms of government misconduct, showed that USA

Canary had participated in the prosecution of defendants. Doc. 953 at 55-57. At

oral argument on the discovery motions, defendants also claimed that documents

obtained from an investigation by the Office of Special Counsel (“OSC”) into

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Grimes’s misconduct allegations showed USA Canary’s participation in funding

requests related to the case. Doc. 1086 at 14-15, 19, 24-25.

b. In denying Scrushy’s motions for discovery, Magistrate Judge Coody

rejected Scrushy’s argument that the denial of a disinterested prosecutor is a

structural error requiring automatic reversal. Doc. 1070 at 14-16. He then found

that USA Canary “recused herself from this matter and was screened from the

prosecution of this case.” Id. at 16. Although “several emails indicated Canary’s

interest in the case, there [wa]s no evidence that these messages in any way

influenced or directed any actions taken by the Acting United States Attorney or

other prosecutors in this case.” Id. at 17. Most of the documents upon which

Scrushy relied were from 2005, after the decision to prosecute Scrushy had been

made. Id. at 17-18. Judge Coody found that, during this time, USA Canary’s

involvement “was limited to narrow funding issues and personnel matters,” and

that this minimal involvement showed not “that she was involved in the

prosecution of this case but rather that the conduct of the case had an impact on

the other business of the office.” Id. at 18-19.

The exception was a September 19, 2005 email that Canary sent to the

prosecution team, in which she forwarded an unsolicited campaign email from

Siegelman reporting that a majority of Alabamians purportedly viewed the

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investigation of him to be politically motivated; Canary raised the possibility of

seeking an order limiting Siegelman’s ability to discuss the case in the media.

Doc. 953-36. As to that email, Judge Coody found that “prosecutors did not seek

a ‘gag’ order and took no action on Canary’s suggestion.” Doc. 1070 at 17.

Magistrate Judge Coody found that Scrushy “point[ed] to no prejudice he

suffered as a result of Canary’s communications” and provided no “credible

evidence” that she had “directed, managed, influenced or controlled any aspect of

the prosecution of the case.” Doc. 1070 at 18. The judge rejected as “rank

speculation” Scrushy’s contention that other emails existed showing Canary’s

substantive participation in the case. Id. at 19. Judge Coody also stated that his in

camera review of documents provided by the government revealed “no evidence

to support the defendant’s supposition that ‘other emails’ exist.” Id. at 19-20.

c. The district court likewise concluded that the denial of a disinterested

prosecutor is not structural error but rather should be reviewed for harmless error.

Doc. 1072 at 15-17. The court ruled that Scrushy’s failure to allege any prejudice

he “suffered as a result of Canary’s limited involvement in this case . . . doom[ed]

his claim . . . .” Id. at 17.

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a. Scrushy’s claim that former USA Canary had a conflict of interest and

failed to honor her recusal was not the proper subject of a Rule 33(b)(1) motion.

It neither relates to Scrushy’s innocence nor impugns the integrity of the jury’s

guilty verdict. See pp. 31-32, supra. As with the allegation of selective

prosecution, USA Canary’s alleged involvement in this case is not a relevant

consideration for the jury. Scrushy’s “newly discovered evidence,” therefore, is

not such that a new trial would probably produce a different result. See

Thompson, 422 F.3d at 1294. This Court should affirm for that reason alone.

b. In any event, Scrushy failed to provide evidence supporting his requests

for discovery or an evidentiary hearing.

Scrushy did not assert below that Canary’s alleged failure to honor her

recusal violated the Constitution; rather, he based his claim on the Supreme

Court’s exercise of its supervisory powers in Young v. United States ex rel. Vuitton

Et Fils S.A., 481 U.S. 787, 107 S. Ct. 2124 (1987). See Doc. 953 at 53-54; see

also United States v. Lilly, 983 F.2d 300, 310 & n.18 (1st Cir. 1992) (discussing

high threshold for finding that prosecutor’s conflict violates due process). The

Court in Young held that counsel for a private party that is the beneficiary of a

court order may not be appointed as a prosecutor in a criminal contempt action for

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a violation of that order. 481 U.S. at 809, 107 S. Ct. at 2138; see also Wright v.

United States, 732 F.2d 1048, 1056 (2d Cir. 1984) (a prosecutor is not

disinterested if he is under the influence of someone with “an axe to grind against

the defendant”). The Court clarified, however, that while counsel for the

interested party may not “be in control of the prosecution,” such counsel may

“assist[] a disinterested prosecutor in pursuing the contempt action.” Young, 481

U.S. at 806 n.17, 107 S. Ct. at 2137 n.17.

Assuming arguendo that USA Canary had a conflict of interest, she was not

involved in this case to a degree that denied Scrushy a disinterested prosecutor. 14

Acting USA Franklin and former supervising attorneys in the Public Integrity

Section stated, without qualification, that USA Canary did not have any role in the

case after her recusal. Doc. 975-4 ¶ 3; Doc. 975-6 ¶ 2; Doc. 975-9 ¶ 2. The15

materials relied on by Scrushy show, at most, that USA Canary: (1) approved

staffing the case with paralegal Grimes in 2005, see Doc. 953-38; (2) provided

input and support for certain funding matters related to the case, see Doc. 1070 at

The magistrate judge and district court did not decide whether USA14

Canary actually had a conflict of interest. Her minimal involvement in the caselikewise renders it unnecessary for this Court to do so.

Scrushy criticized the government for not submitting a statement from15

USA Canary, Doc. 981 at 25, but the government explained its belief thatstatements from the prosecutors who actually had supervised the case would bemore helpful to the court than one from USA Canary, Doc. 1086 at 48.

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17; Doc. 1086 at 14-19, 24-25; and (3) twice forwarded unsolicited material from

Siegelman’s campaign to the prosecution team, suggesting once that the material

might provide a basis for seeking a gag order, see Docs. 953-36, 953-37.

Scrushy’s materials do not suggest that Canary controlled, managed, or

influenced the prosecution of defendants. Her peripheral involvement in

personnel and funding matters was ancillary to her management responsibilities

for the entire USAO, as the resources used to prosecute this case invariably

impacted the personnel and funding available for her Office to pursue other cases.

See Doc. 1070 at 18-19. USA Canary performed no substantive work on the case

and never assumed the role of advocate by, for example, examining witnesses

before the grand jury, arguing motions before the district court, or participating in

the trial. By analogy to civil suits for damages, she performed no core

prosecutorial functions triggering the doctrine of absolute immunity. See Buckley

v. Fitzsimmons, 509 U.S. 259, 270, 113 S. Ct. 2606, 2614 (1993) (prosecutors’

activities that are “intimately associated with the judicial phase of the criminal

process” trigger absolute immunity) (quotation marks and citation omitted);

Rehberg v. Paulk, 611 F.3d 828, 837-38 (11th Cir. 2010) (explaining that “[a]

prosecutor enjoys absolute immunity from allegations stemming from the

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prosecutor’s function as an advocate,” which includes “initiating a prosecution

and [] presenting the State’s case”) (quotation marks and citation omitted).

USA Canary did not even provide the assistance permissible for an

interested prosecutor under Young, 481 U.S. at 806 n.17, 107 S. Ct. at 2137 n.17.

See United States v. Dahlstrom, 180 F.3d 677, 682-83 (5th Cir. 1999) (finding no

violation where SEC attorney who handled civil action against defendant assisted

criminal prosecution of defendant for securities law violations, because USAO

initiated and retained control over prosecution); Person v. Miller, 854 F.2d 656,

663-64 (4th Cir. 1988) (finding no reversible error where private counsel in

underlying civil litigation assisted criminal contempt prosecution, and even

initiated prosecution and handled most of the trial, because USAO assumed and

retained control over prosecution). In this case, the “critical prosecutorial

decisions” – e.g., “whether to prosecute, what targets of prosecution to select,

what investigative powers to utilize, what sanctions to seek, plea bargains to

strike, or immunities to grant” – were made by disinterested prosecutors. Person,

854 F.2d at 664. And while USA Canary once made the ill-advised suggestion of

potentially seeking a “gag” order against Siegelman, it is undisputed that the team

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never sought such an order and that it ignored the materials she forwarded. Doc.

975-4 ¶ 3. 16

Scrushy also cites (Br. 54) the opinions of Grimes and cooperating witness

Nick Bailey that USA Canary directed action, or was kept informed of

developments, in the case, see Doc. 953-39 at 3; Doc. 953-63 ¶ 6, but those

opinions were unspecific and purely speculative. And as Magistrate Judge Coody

found, “Grimes was a disgruntled employee” who “did not “ha[ve] a great deal of

credibility.” Doc. 1086 at 35; see id. at 36 (“If you read [Grimes’s] unsworn

declaration, it makes it sound like there were hundreds of E-mails and yet there’s

only two that I’ve seen.”).

Because Scrushy brought forth nothing to suggest that USA Canary

controlled or influenced the prosecution, he did not satisfy his burden of showing

that “further investigation under the court’s subpoena power very likely would

lead to the discovery of” evidence warranting a new trial or an evidentiary hearing.

Velarde, 485 F.3d at 560. Nor did Scrushy “make an adequate threshold showing

Scrushy cites the broad category of documents he sought in discovery, Br.16

39, 43-44, as if the scope of that request were proper. Discovery cannot be used as“a mere fishing expedition based on the defendant’s mere hopes of finding[relevant] evidence.” Velarde, 485 F.3d at 561. Magistrate Judge Coodyappropriately held Scrushy to his burden of providing some “credible evidencethat the United States Attorney directed, managed, influenced or controlled anyaspect of the prosecution of the case” in deciding whether to authorize discovery. Doc. 1070 at 18.

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that material facts are in genuine doubt or dispute” such as to warrant an

evidentiary hearing. Lilly, 983 F.2d at 310. Given Scrushy’s failure of proof, the

magistrate judge and district court did not commit clear errors of judgment by

denying discovery and his substantive claim.

c. Magistrate Judge Coody’s in camera review of documents confirms the

absence of error. Scrushy erroneously contends (Br. 32) that Judge Coody could

not have reviewed documents relevant to his claim because he only ordered the

government to produce documents concerning witness Bailey. But many of the

produced documents were also relevant to Scrushy’s failure-to-honor-recusal

claim, including the report of OPR’s investigation (which covered the failure-to-

honor-recusal allegation) and internal documents at the charging and trial stages

(which showed no involvement by Canary). Judge Coody’s determination that the

reviewed documents do not “support the defendant’s supposition that ‘other emails

exist,’” Doc. 1070 at 20, was well founded and confirms that this is not a “rare

case” where discovery is warranted. Velarde, 485 F.3d at 560.

d. Scrushy is wrong to rely on a civil action filed against the Department of

Justice in connection with a private individual’s request under the Freedom of

Information Act (“FOIA”), 5 U.S.C. § 552, for documents related to Canary’s

recusal. Br. 32-33 & n.9; see generally Doc. 953-34 (complaint in John Aaron v.

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U.S. Department of Justice, Case No. 1:09-cv-00831 (D.D.C.)). The FOIA is a

document disclosure statute, not a criminal discovery statute. Scrushy contends

that the Department’s withholding of documents responsive to the FOIA request

“shows that documents relating to the recusal of the U.S. Attorney not only exist,

but had also been indexed.” Br. 33. But the FOIA request mainly targeted

documents related to the recusal decision, not whether USA Canary was involved

in the case afterwards. Doc. 983-2 at 3. Scrushy assumes that some withheld

documents related to Canary’s post-recusal involvement, but the government

declaration upon which he relies (Br. 33) describes the documents that were

searched for and retrieved in terms of the recusal decision itself. Doc. 1000-2 ¶¶

5-7, 9, 11-13. And even if any withheld documents somehow related to Canary’s17

post-recusal involvement, they would not show that she controlled or influenced

this prosecution because the record indicates she did not.

On July 15, 2011, the district court in the FOIA case granted in part the17

government’s summary judgment motion. For the most part, the court found thegovernment’s document search adequate and concluded that its documentwithholdings were justified. Aaron v. United States, Case No. 1:09-cv-00831(D.D.C.) (Document 35). On May 18, 2012, the court granted in part thegovernment’s second motion for summary judgment, denied the remainder asmoot, and entered final judgment. Id. (Document 49). Concurrently with thisbrief, the government is filing a motion for this Court to take judicial notice ofthose decisions.

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e. The absence of prejudice from USA Canary’s minimal participation in

this case provides another basis for rejecting Scrushy’s claim. Scrushy’s

contention (Br. 52-53) that the denial of the right to a disinterested prosecutor is

structural error lacks merit. Although a plurality of the Court in Young concluded

that appointment of counsel for an interested private party as a contempt

prosecutor is not subject to harmless-error review, 481 U.S. at 809-14, 107 S. Ct.

at 2138-41, Young is distinguishable here, as USA Canary was not specifically

appointed to this case and did not represent a private stakeholder. Moreover, the

Supreme Court has not cited a prosecutor’s conflict of interest when listing the

limited structural errors that trigger automatic reversal. See Washington v.

Recuenco, 548 U.S. 212, 218-19 & n.2, 126 S. Ct. 2546, 2551 & n.2 (2006);

Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1991). A judge’s

failure to recuse himself, even under 28 U.S.C. § 455(b), can be harmless error.

See Parker, 855 F.2d at 1525-28. A prosecutor’s conflict of interest should not

and does not trigger automatic reversal. See United States v. Lorenzo, 995 F.2d

1448, 1453 (9th Cir. 1993) (claim that prosecutor had appearance of conflict of

interest requires showing of prejudice); Dick v. Scroggy, 882 F.2d 192, 196-97

(6th Cir. 1989) (same); see also Webber v. Scott, 390 F.3d 1169, 1175-77 (10th

Cir. 2004) (on collateral review, finding harmless the alleged error in child

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advocate’s involvement in prosecution); United States v. Wallach, 935 F.2d 445,

460 (2d Cir. 1991) (finding no due process violation where defendants did not

point to prosecutorial bias or prejudice).

Scrushy received a fair trial before an impartial judge and jury, and his

convictions are supported by strong evidence of guilt. See Webber, 390 F.3d at

1176-77. The magistrate judge and district court did not abuse their discretion in

denying relief based on Scrushy’s failure to show prejudice from USA Canary’s

minimal involvement in the case.

D. Improper Jury Contacts

1. Background

Scrushy alleged in his second new-trial motion that one or more jurors

communicated ex parte with the government on three occasions during and after

trial. Doc. 953 at 58-61. Scrushy’s claim was largely based on allegations made18

by former USAO paralegal Grimes, see id. at 21-23, who made the same

allegations (and others) in a complaint filed with OSC. See Doc. 1037-5 at 2-3.

Following a thorough investigation, OSC determined that Grimes’s claims lacked

merit. Docs. 1037 at 3, 1037-4, 1037-5, 1037-6, 1037-7, 1037-11, 1037-12.

Scrushy also attributed misconduct to the prosecution team from law18

enforcement’s ex parte communications with the district court, Doc. 953 at 61-63,but that claim overlapped with his judicial misconduct claim.

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The district court concluded that the law-of-the-case doctrine barred

Scrushy’s new-trial claim of improper jury contacts because previous rulings by

the district court and this Court “exhaustively addressed” it. Doc. 1072 at 17. The

magistrate judge denied discovery for the same reason. Doc. 1070 at 20 n.11.


The district court and magistrate judge did not abuse their discretion in

denying relief on Scrushy’s claim of improper jury contacts.

a. Scrushy’s principal allegation was that, during trial, jurors sent out

messages through the Marshals asking if a member of the prosecution team was

married. Doc. 953 at 22, 60. Scrushy supported that allegation with emails dated

June 15, 2006, between Grimes and former First Assistant United States Attorney

(“FAUSA”) Patricia Watson in which they gossiped about a juror’s interest in

“Keith” – FBI case agent Keith Baker. Doc. 953-43.

The district court and magistrate judge correctly concluded that the law of

the case – i.e., the rulings on defendants’ juror misconduct claim from their first

new-trial motion – barred Scrushy’s claim. During an evidentiary hearing, the

district court asked each juror twelve questions designed to reveal the nature and

extent of any extraneous information or outside influences to which the jury was

possibly exposed. Siegelman II, 640 F.3d at 1182, 1190-91. Those questions

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would have elicited information about improper contacts during trial between

jurors and the prosecution team, if they had occurred. See id. at 1190-91

(reproducing questions). But the jurors’ testimony indicated only that the jury had

been exposed to limited extraneous information (and not subjected to any outside

influences); the district court found that exposure harmless beyond a reasonable

doubt, and this Court affirmed its ruling. Id. at 1182-85.

Moreover, OSC found that no external contacts occurred between jurors and

prosecution team members during the trial. Doc. 1037-5 at 4-6; Doc. 1037-7 at

12-20; Doc. 1037-12 at 18. That finding was based on an exhaustive

investigation, which included interviews of Grimes, FAUSA Watson, prosecution

team members, Agent Baker, court personnel, and the Marshals charged with jury

security during trial. Doc. 1037-7 at 8-10; Doc. 1037-12 at 6-7. 19

The OSC investigation revealed that, at most, one juror may have

commented to another juror about the attractiveness of an FBI agent and court

personnel may have overheard the comment. Doc. 1037-5 at 6; accord Doc. 1037-

7 at 20. That type of internal communication did not “demonstrate any type of

bias, or any juror’s opinion as to the guilt or innocence of the defendants.” Doc.

Grimes did not purport to have first-hand knowledge of the fictitious19

contacts. As the government explained, the gossip in the Grimes-Watson emailsgrew out of a joke that the jury administrator played on Agent Baker. Doc. 975 at26-28; see Doc. 975-1; Doc. 1037-12 at 12-18.

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1037-5 at 6. Nor did it give rise to a presumption of prejudice under Remmer, 347

U.S. at 229, 74 S. Ct. at 451. See United States v. Smith, 424 F.3d 992, 1011-13

(9th Cir. 2005) (district court did not abuse its discretion in denying evidentiary

hearing where juror sent post-trial letter expressing interest in agent who testified;

“[i]t is unlikely that any trial goes by without one juror finding one witness

attractive”). Though not relied upon by the district court, OSC’s investigation

confirms that Scrushy’s claim of improper juror contacts during trial has no factual

grounding. 20

b. Although the district court’s and magistrate judge’s reasoning does not

appear to cover Scrushy’s remaining allegations, the Court may quickly dispose of

them because both alleged contacts occurred after trial. See Lafeyette, 983 F.2d at

1105. They also have no credible support in the record. Scrushy contended that a

juror’s post-verdict attempt to talk to prosecutors about going to law school was

improper, Doc. 953 at 23-24, 60, but no misconduct occurred. During a brief

phone conversation with that juror, the prosecutors did not discuss the case or ask

about jury deliberations. Doc. 975-4 ¶ 14. No prosecutor met with the juror. Id.

It is not clear whether the magistrate judge relied on the OSC report and20

underlying materials. The judge’s statement that it had reviewed documents incamera, Doc. 1070 at 1, may have encompassed the OSC materials, even thoughthe government filed them on the public docket, Doc. 1037.

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And far from concealing the brief phone conversation, one prosecutor spoke

publicly about it. Doc. 953-42.

Scrushy’s third allegation relied on another fabrication of Grimes – that “in

the fall of 2007” she heard Acting USA Franklin state that his legal assistant,

Debbie Shaw, had spoken with a juror, “whom he described ‘as just a kid . . . she

is afraid she is going to get in trouble.’” Doc. 953-39 at 5. Scrushy assumed a

contact occurred and that it was improper. Doc. 953 at 23. But Grimes’s account

was internally inconsistent because she also asserted that the overheard

conversation occurred “immediately prior to a hearing on juror misconduct.” Doc.

953-39 at 5. That hearing occurred in November 2006, well before the alleged

2007 conversation. Grimes’s tale was simply false. Both participants in the

alleged conversation – Franklin and Shaw – attested that it never occurred. Doc.

975-4 ¶ 16; Doc. 975-13 ¶ 3.

Scrushy has not established a firm evidentiary basis to support his claim of

improper contacts with jurors, or the need for an evidentiary hearing. The Court

should affirm the denial of relief.

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CONCLUSION

The denial of Scrushy’s motions for a new trial, discovery, and recusal

should be affirmed.

Respectfully submitted,

LOUIS V. FRANKLIN, SR. LANNY A. BREUERActing United States Attorney Assistant Attorney GeneralMiddle District of Alabama

JOHN D. BURETTAActing Deputy Assistant Attorney General

RICHARD C. PILGERDirector, Election Crimes BranchPublic Integrity Section

PATTY MERKAMP STEMLER Chief, Appellate Section

/s/ John-Alex Romano_______________________________JOHN-ALEX ROMANOAppellate Section, Criminal DivisionU.S. Department of Justice950 Pennsylvania Ave, NW, Rm. 1264Washington, DC 20530Tel. [email protected]

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mailto:[email protected]

CERTIFICATE OF COMPLIANCE

I hereby certify that:

1. The foregoing Brief for the United States complies with the volumelimitation of Fed. R. App. P. 32(a)(7)(B) because the brief contains 13,995 words.

2. This brief complies with the typeface requirements of Fed. R. App. P.32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it hasbeen prepared in proportionally spaced font using WordPerfect X4 in Times NewRoman 14-point font.

/s/ John-Alex Romano JOHN-ALEX ROMANO Appellate Section, Criminal DivisionU.S. Department of Justice950 Pennsylvania Ave, NW, Rm. 1264Washington, DC 20530Tel. [email protected]

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CERTIFICATE OF SERVICE

I hereby certify that, on June 18, 2012, I electronically filed the foregoingBrief with the Clerk of the Court for the U.S. Court of Appeals for the EleventhCircuit using the CM/ECF system, which will send notification of such filing tothe following counsel for defendant-appellant Scrushy, who are registeredCM/ECF users:

James K. JenkinsMALOY JENKINS PARKER900 Arapahoe AvenueBoulder, CO 80302

Leslie V. Moore5148 Caldwell Mill Road, Suite 204Birmingham, AL 35244

The following counsel, who is not a registered CM/ECF user, has beenserved with a copy of the foregoing Brief via First Class mail:

Arthur W. Leach5780 Windward Parkway, Suite 225Alpharetta, GA 30005

/s/ John-Alex Romano_______________________JOHN-ALEX ROMANOAppellate Section, Criminal DivisionU.S. Department of Justice950 Pennsylvania Ave, NW, Rm. 1264Washington, DC 20530Tel. [email protected]

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