U.S. v. SIEGELMAN
561 F.3d 1215 (2009)
UNITED STATES of America, Plaintiff-Appellee,
v.
Don Eugene SIEGELMAN, Richard Scrushy, Defendants-Appellants.
No. 07-13163.
United States Court of Appeals, Eleventh Circuit.
March 6, 2009.
Arthur W. Leach, Atlanta, GA, Vincent F. Kilborn, III, Mobile, AL, Hiram Chester Eastland, Jr., Eastland Law Offices, PLLC, Greenwood, MS, G. Robert Blakey, Notre Dame, IN, David Allen McDonald, Kilborn, Roebuck & McDonald, Mobile, AL, James K. Jenkins, Maloy & Jenkins, Atlanta, GA, Leslie V. Moore, Moore & Associates, Birmingham, AL, Bruce Rogow, Cynthia E. Gunther, Bruce S. Rogow, P.A., Fort Lauderdale, FL, Sam Heldman, Gardner Firm, Washington, DC, for Defendants-Appellants.
John Alex Romano, U.S. DOJ, Crim. Div., Washington, DC, Louis V. Franklin, Sr., James B. Perrine, Stephen P. Feaga, Montgomery, AL, for Plaintiff-Appellee.
David A. Sifre, Stroock & Stroock & Lavan, LLP, New York, NY, for Amicus Curiae.
Before EDMONDSON, Chief Judge, and TJOFLAT and HILL, Circuit Judges.
PER CURIAM:
Don Eugene Siegelman is the former Governor of Alabama. Richard Scrushy is the founder and former Chief Executive Officer of HealthSouth Corporation, a major hospital corporation with operations throughout Alabama. The defendants were convicted of federal funds bribery, in violation of 18 U.S.C. § 666(a)(1)(B), and five counts of honest services mail fraud and conspiracy, in violation of 18 U.S.C. §§ 1341, 1346, and 18 U.S.C. § 371. Siegelman was also convicted of obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3).
The defendants' bribery convictions were based on allegations that they made and executed a corrupt agreement whereby Scrushy gave Siegelman $500,000 in exchange for Siegelman's appointing him to Alabama's Certificate of Need Review Board (the "CON" Board). The honest services mail fraud convictions incorporated the same bribery allegations, but also alleged that Scrushy used the CON Board seat obtained from Siegelman to further HealthSouth's interests. Siegelman's obstruction of justice conviction is based on allegations that he corruptly influenced another to create a series of sham check transactions to cover up a "pay-to-play" payment to him.1 This is an extraordinary case. It involves allegations of corruption at the highest levels of Alabama state government. Its resolution has strained the resources of both Alabama and the federal government.
But it has arrived in this court with the "sword and buckler" of a jury verdict. The yeoman's work of our judicial system is done by a single judge and a jury. Twelve ordinary citizens of Alabama are asked to sit through long days of often tedious and obscure testimony and pore over countless documents to decide what happened, and, having done so, to apply to these facts the law as the judge has explained it to them. And they do. Often at great personal sacrifice. Though the popular culture sometimes asserts otherwise, the virtue of our jury system is that it most often gets it right. This is the great achievement of our system of justice. The jury's verdict commands the respect of this court, and that verdict must be sustained if there is substantial evidence to support it. Glasser v. United States,315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Furthermore, to the extent that the jury's verdict rests upon their evaluations of the credibility of individual witnesses, and the reasonable inferences to be drawn from that testimony, we owe deference to those decisions. In our system, the jury decides what the facts are, by listening to the witnesses and making judgments about whom to believe. This they have done, and, though invited to do so,2 we shall not substitute our judgment for theirs. This is not to say that the judgment below is inviolable. Our duty as an appellate
court is to answer properly presented questions from the parties in the case as to whether the law was correctly interpreted and applied by the district court. Juries apply the law as the judge instructs them, and the defendants' lawyers assert that there were errors in those instructions. Defendants also contend that there were other legal mistakes committed during the course of this trial. With this in mind, we have reviewed the claims of legal error in the proceedings below, and our opinion as to their merit follows. First, however, we recount the facts as the jury found them.3
1. The obstruction of justice allegations involved conduct unrelated to the Siegelman-Scrushy bribery, mail fraud and conspiracy charges.
2. The defendants assert that this is a case in which we owe no deference to the jury's findings of fact, but we disagree.
3. Where the jury need not have found a particular fact to be established in order to reach their verdict, we indicate who testified to that fact.
4. There was another personal guarantor, but each was individually liable.
5. Three of the nine seats on the Board are reserved for health care industry providers.
6. Bailey told the FBI that Scrushy gave the check to Siegelman in a meeting on July 14, 1999, but testified at trial that he did not remember exactly when the meeting was.
7. Seven other Board members were appointed that day.
8. HealthSouth's political contributions coordinator testified that she did not know about the donation until she read about it in the newspaper. The Foundation's fundraising director testified that he was not present when Scrushy gave Siegelman either of the checks.
9. The superseding indictment replaced an earlier version of the indictment.
10. The federal funds bribery statute criminalizes the taking of a bribe by an official of a state agency that receives over $10,000 in federal funds annually. 18 U.S.C. § 666. Honest services mail fraud criminalizes the mailing of a letter in connection with a scheme to defraud a state agency of an official's honest services in the performance of his official duties. 18 U.S.C. §§ 1341 and 1346.
11. Siegelman and Scrushy were denied bond pending appeal, but a panel of this court subsequently released Siegelman pending resolution of this appeal.
12. Although the conspiracy and mail fraud counts alleged a broader scheme for Scrushy to self-deal once on the Board, these counts also incorporated the allegations of an agreement between Siegelman and Scrushy to exchange money for the seat on the Board.
13. Arguably, the potential negative impact of these statutes on issue-advocacy campaigns is even more dangerous than it is to candidate-election campaigns. Issue-advocacy campaigns are a fundamental right in a free and democratic society and contributions to them do not financially benefit the individual politician in the same way that a candidate-election campaign contribution does. Defendants assert, and we do not know otherwise, that this is the first case to be based upon issue-advocacy campaign contributions.
14. We acknowledge, as the defendants point out, that several district courts, in unpublished opinions, have extended the McCormick rationale to the bribery and honest service statutes. The government points to no contrary authority, relying instead on inapposite authority not involving campaign contributions.
15. The Latin means "something for something," Black's Law Dictionary 1282 (8th ed.2004).
16. Nor is this court's prior holding in United States v. Davis,30 F.3d 108 (11th Cir.1994), to the contrary. In Davis, we acknowledged that, after McCormick, "an explicit promise by a public official to act or not act is an essential element of Hobbs Act extortion, and the defendant is entitled to a reasonably clear jury instruction to that effect." Id. at 108. We reversed Davis' conviction not only because his jury did not receive a reasonably clear instruction, but because the court in that case "informed the jury that `a specific quid pro quo is not always necessary for a public official to be guilty of extortion.'" Id. 17. Because the conduct charged in the conspiracy and honest services mail fraud counts incorporates the conduct alleged in the federal funds bribery counts, on which the jury was instructed to find a quid pro quo, any failure to adequately instruct the jury on a quid pro quo requirement for the conspiracy and honest services counts was harmless. See Cupp v. Naughten,414 U.S. 141, 148-48, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) (jury instructions must be evaluated as a whole). 18. Counts 6 and 7 charge Mail Fraud in connection with the mailings of the letters appointing (Count 6) and reappointing (Count 7) Thom Carman as Scrushy's replacement on the CON Board in connection with the bribery scheme.
19. This suggestion as to the evidence that would be sufficient is asserted in Siegelman's brief.
20. Defense counsel also recognized this fact. Scrushy's counsel said to Bailey on cross-examination, "I'm talking about your testimony that there was some exchange of official action for the payments that Mr. Scrushy gave, all right."
21. There was testimony that all other contributions to the Foundation were similarly not reported, but the jury was free to choose the reasonable inference that the failure to report the licit contributions was to conceal the illicit ones.
22. Scrushy does not make this argument.
23. There was testimony that Adams had never written a CON Board application, and that his work was substandard.
24. Section 1512(b)(3) provides in pertinent part:
Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—
. . .
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . .
25. Indeed, the "bill of sale" for the motorcycle, prepared by the attorneys, was introduced at this trial. Similarly, Bailey had also delivered the "loan re-payment" check for $10,503.39 to Young in the office of Young's lawyer.
26. Scrushy has moved this court to appoint a special master under Fed. R.App. R. 48 to investigate the matter. The request is denied.
27. In the first of these hearing, the court considered the affidavit of Juror 5 to determine whether it established sufficient reason to conduct further inquiry, concluding that it did.
28. Of course, the district court's findings of facts supporting its legal conclusion are reviewed only for clear error. United States v. Cuthel,903 F.2d 1381, 1383 (11th Cir.1990). 29. All decisions of the Fifth Circuit prior to October 1, 1981, when this court was established, have been adopted as decisions of this court. Bonner v. Prichard,661 F.2d 1206, 1209 (11th Cir.1981). 30. Ronda recognized that there has been some inconsistency in our application of Remmer, but, as in Ronda, we decline to consider this issue because it has no bearing on the outcome. 455 F.3d at 1299 n. 36.
31. These questions are attached as Exhibit "A" to this opinion.
32. The government had charged both in each count, thereby permitting each to be convicted twice for the same offense.
33. For example, we permit logically inconsistent jury verdicts as to different counts, and even as to different co-defendants. We permit jury nullification. We do not inquire whether a verdict is the result of compromise, mistake or even carelessness.
34. The only exception to the rule is to permit the sort of examination of jurors conducted by the district court in this case to determine whether the jury considered extrinsic information to the defendant's prejudice, as discussed in the immediately preceding portion of this opinion. The district court found as a matter of fact that it had "no doubt whatsoever that the documents purporting to be juror emails on which the Defendants rely are wholly unrelated to any evidence of jury exposure to extraneous information or outside influence." We conclude that this finding of fact is not clearly erroneous. In addition, we see no abuse of discretion in the way the district court dealt with the three other emails called to its attention after the evidentiary hearings.
35. Defendants urged the court to obtain information regarding the emails from the jurors' internet providers but provided the court with no legal authority in support of this "unusual and intrusive investigation of jurors." In view of the law governing postverdict investigation of jurors, the court denied the request.
36. Scrushy argues that because he was convicted on all counts against him, that the verdict was not split as to him. The law, however, is to the contrary. See United States v. Baker,432 F.3d 1189, 1237 (11th Cir.2005) (a split verdict is one in which the jury finds "guilt as to some defendants or charges but not as to others"). 37. Defendants moved just before oral argument for permission to file supplemental information regarding juror misconduct. At oral argument, the government represented to the court that its investigation into that misconduct did not involve the allegations of juror misconduct at issue in this appeal. For this reason, we shall deny the motion.
38. The government argues persuasively that, even if there was error here, it was harmless as the departure did not affect Siegelman's ultimate sentence. As we need not, we do not reach this argument.