Just a few hours ago the 11th Circuit Court of Appeals sitting here in Atlanta affirmed most, but not all, of the convictions in the long-running saga of US v. Don Siegelman and Richard Scrushy.
Don Siegelman was the Governor of Alabama. Richard Scrushy was the founder and Chief Executive Officer of HealthSouth. The case stemmed from allegations that Governor Siegelman placed Scrushy and others on a State Board in return for a $500,000 payment. The government charged them with a series of crimes relating to alleged public corruption. Specifically, Siegelman and Scrushy were alleged to have violated 18 U.S.C. §666(a)(1)(B), the law that prohibits bribery involving organizations that receive federal funds. The government also charged the defendants with “honest services” mail fraud, and conspiracy to commit same. Finally, Governor Siegelman was charged with obstruction of justice.
While the case was on appeal, the Supreme Court issued the well-known decision in US v. Skilling, a ruling that restricts the scope of the federal “honest services” branch of mail and wire fraud. Each defendant contended that Skilling changed the landscape, and that their convictions must be reversed. Likewise after the verdicts, the defendants uncovered what appeared to be troubling evidence of juror misconduct and exposure to extrajudicial materials.
A Panel of the Eleventh Circuit affirmed most of the fraud convictions and rejected the claims of juror misconduct. Along the way, the Panel made a few observations that are noteworthy for future cases.
For the charges alleging violations of §666, the Panel held that while there likely must be a quid pro quo between the bribery payor and the recipient, and that while there must be an explicit agreement that the recipient do something in exchange for the bribe, such an explicit agreement need not be express. In other words, the government does not need an email or a recorded conversation between the payor and recipient in order to get a §666 conviction.
The Panel affirmed some, but not all, of the post-Skilling “honest services” fraud convictions. Recall that Skilling restricted the honest services theory to traditional bribery/kickback schemes. Here, because the indictment alleged just such a scheme for many of the counts, the Panel affirmed the convictions on these charges. However, two charges alleged that Scrushy did not bribe anyone, but instead engaged in “self-dealing.” The Panel reversed these convictions based on insufficient evidence that either defendant committed these crimes.
Perhaps some of the most sensational aspects of this case have been the post-verdict revelations of possible juror misconduct. Defendants uncovered evidence that the jurors had been exposed to certain extrajudicial information. Furthermore, their legal teams received anonymous emails indicating that some of the jurors began deliberating before it was time to do so, had made up their minds long before the evidence was closed, and that some other jurors did not even participate in the deliberations.
The Panel rejected all the juror misconduct claims. First, the Eleventh Circuit held that the sort of extrajudicial information to which this jury was exposed was innocuous to the point where it did not affect the case. Second, the panel resorted to the rule that courts will rarely, if ever, intrude on a jury’s deliberations. Because of this reluctance, the Panel held that the anonymous emails were insufficient to result in a new trial.
This has been a sensational case, with law and politics colliding. I have a feeling it’s not over yet.