Read Richard Scrushy's Motion for Rehearing

Case No. 12-10694

District Court Case No. 2:05-CR-119-MEF

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee-Plaintiff,

v.

RICHARD SCRUSHY,

Appellant-Defendant.

On Appeal from the United States District Court for the Middle District of Alabama

PETITION FOR REHEARING EN BANC __________________________________________________________________

Arthur W. Leach James K. Jenkins Suite 225 MALOY JENKINS PARKER 5780 Windward Parkway 900 Arapahoe Avenue Alpharetta, Georgia 30005 Boulder, Colorado 80302 404-786-6443 303-443-9048 Leslie V. Moore Suite 204 5184 Caldwell Mill Road Birmingham, Alabama 35244 205-790-1062

Case: 12-10694 Date Filed: 08/02/2013 Page: 1 of 62

USA v. Scrushy Case No. 12-10694

Certificate of Interested Persons

And Corporate Disclosure Statement

Pursuant to Eleventh Circuit Rule 26.1-1, Appellant Richard M. Scrushy

certifies that the following persons have an interest in the outcome of this case:

Coody, Charles S., United States Magistrate Judge

Fega, Stephen, former Assistant United States Attorney

Franklin, Louis V., Acting United States Attorney

Fuller, Mark E., District Judge, Middle District of Alabama

Hinkle, Robert L., District Judge, Northern District of Florida

Jenkins, James K., Attorney for Richard Scrushy

Leach, Arthur W., Attorney for Richard Scrushy

Morgan Stanley (symbol MS)

Moore, Leslie V., Attorney for Richard Scrushy

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

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

Siegelman, Don Eugene, Co-Defendant in trial court

Sissman, Peter L., Attorney for Don Siegelman

Stemler, Patty Merkamp, Department of Justice, Criminal Division

UBS AG (symbol UBS)

C-1 of 1


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Statement of Counsel

I express a belief, based on a reasoned and studied professional judgment,

that the panel decision affirming the denial of Defendant’s motion to recuse based

on the District Judge’s participation in an ex parte meeting in which the central

factual element in a motion then pending before the judge was discussed, with no

full disclosure of the full basis for disqualification, is contrary to the following

decisions of the Supreme Court of the United States and the precedents of this

Circuit and that consideration by the full Court is necessary to secure and maintain

uniformity of decisions in this Court:

Caperton v. A.T. Massey Coal Co., Inc., 526 U.S. 868 (2009); and

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

I express a belief, based on a reasoned and studied professional judgment,

that this appeal involves two questions of exceptional importance. First, the denial

of recusal in the circumstances presented here without any fair determination of

what occurred in the ex parte meeting and what information was conveyed

concerning a motion then pending before the court does not adequately protect the

integrity and dignity of the judicial process from any hint of bias. A proper

objective determination of the recusal issue on the basis of the actual facts

presented is crucial to protect the integrity and dignity of the judicial process,

which is an issue of paramount and exceptional importance.


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Second, the affirmance of the denial of discovery of communications to and

from the recused United States Attorney on the basis of the Magistrate Judge’s

misleading representation that these communications were reviewed in camera and

discovery denied based on the conclusion that no such communications existed is a

question of exceptional importance because it mistakenly validates an important

ruling affecting Defendant’s right to a new trial on the basis of a court’s

misleading representation of the record in the case and raises substantial doubt as

to the integrity of the judicial process in this matter.


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Table of Contents

Certificate of Interested Persons and Corporate Disclosure Statement ……….. C-1

Statement of Counsel …………………………………………………………….. i

Table of Contents ……………………………………………………………….. iii

Table of Citations ………………………………………………………………... iv

Statement of the Issues Meriting En Banc Consideration ………………………. 1

Course of Proceedings and Disposition ………………………………………….. 2

Statement of Facts ……………………………………………………………….. 3

Argument and Citations of Authority …………………………………………….. 6

I. THE PANEL DECISION ON RECUSAL CONFLICTS WITH BINDING SUPREME COURT AND CIRCUIT PRECEDENT, AND PRESENTS AN ISSUE OF EXCEPTIONAL IMPORTANCE AS TO RECUSAL BASED ON A DISTRICT JUDGE’S EX PARTE MEETING CONCERNING THE CENTRAL FACTUAL ELEMENT IN A PENDING MOTION ……………....... 6 II. THE DENIAL OF SCRUSHY’S DISCOVERY REQUEST IS AN ISSUE OF EXCEPTIONAL IMPORTANCE BECAUSE IT IS BASED ON THE PANEL’S ACCEPTANCE OF THE MAGISTRATE JUDGE’S MISLEADING REPRESENTATION OF THE DOCUMENTS REVIEWED IN CAMERA …….12 Conclusion ………………………………………………………………………. 15 Certificate of Service ……………………………………………………………. 16 Opinion of the Court Sought to be Reheard …………………………… Addendum


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Table of Citations

Cases

Caperton v. A.T. Massey Coal Co., Inc., 526 U.S. 868 (2009) …………… i, 10, 11 Scrushy v. United States, 130 S.Ct. 3541 (2010) ………………………………… 2 Skilling v. United States, 130 S.Ct. 2896 (2010) …………………………………. 2 United States v. Ayarza-Garcia, 819 F.2d 1043 (11th Cir. 1987) ………………... 7

United States v. Barshov, 733 F.2d 842 (11th Cir. 1984) ………………………… 7 United States v. Frazier, 387 F.3d 1224 (11th Cir. 2004) (en banc) …………11, 15 United States v. Patti, 337 F.3d 1317 (11th Cir. 2003) …………………… i, 10, 11 United States v. Potashnick, 609 F.2d 1101 (5th Cir. 1980) ……………………. 10 United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009) (Siegelman I) …… 2, 5 United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011) (Siegelman II)………3 Statutes 28 U.S.C.§ 455 ………………………………………………………………… 9


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Statement of the Issues Meriting En Banc Consideration

I. Does the panel opinion affirming the denial of recusal based on the

District Judge’s participation in an ex parte meeting in which he was informed by

federal investigators that they had determined that purported e-mails between

deliberating jurors that showed exposure to prejudicial extrinsic information were

forgeries, a fact that was central to the determination of a pending motion for new

trial, without a full disclosure on the record of the factual basis for recusal, and the

application of a subjective standard in determining recusal rather than the objective

standard mandated by decisions of the Supreme Court and this Court merit en banc

consideration?

II. Does the affirmance of the denial of discovery of communications to and

from the recused United States Attorney in order to determine if she violated her

recusal merit en banc consideration, where the denial of discovery was based on a

determination in an in camera review that no such documents existed, the record

demonstrates that the requested communications were never produced for the in

camera review, and the Magistrate Judge’s order misleadingly represented the

scope of documents that were produced and reviewed?


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Course of Proceedings and Disposition

Appellant Richard Scrushy and former Alabama Governor Don Siegelman

were convicted of federal funds bribery, honest services mail fraud and conspiracy

in June 2006. Op. at 2.

Scrushy moved for a new trial based on evidence of jury misconduct, which

was denied after an evidentiary hearing. Op. at 4, 8-9. Scrushy filed a motion for

reconsideration and new trial based on newly discovered evidence of jury

misconduct, which was denied without an evidentiary hearing. Id. at 10-12.

Scrushy was sentenced to 82 months in prison. Op. at 12. This Court

affirmed on March 6, 2009. United States v. Siegelman, 561 F.3d 1215 (11th Cir.

2009) (Siegelman I).

On June 26, 2009, Scrushy filed a motion for new trial based on newly

discovered evidence. Scrushy also filed a motion to recuse based on an ex parte

meeting between the District Judge and Government investigators, and motions for

discovery. Op. at 17, 23-26.

In June 2010, the Supreme Court granted certiorari, vacated this Court’s

decision and remanded for further consideration in light of Skilling v. United States,

130 S.Ct. 2896 (2010). Scrushy v. United States, 130 S.Ct. 3541 (2010). On May

10, 2011, this Court reversed Scrushy’s convictions on two counts, affirmed his


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remaining convictions, and remanded for re-sentencing. United States v. Siegelman,

640 F.3d 1159 (11th Cir. 2011) (Siegelman II).

This Court had previously assigned District Judge Hinkle to rule on

Scrushy’s recusal motion. Shortly after the decision in Siegelman II, Judge Hinkle

filed an order denying Scrushy’s recusal motion. Op. at 20-22. The Magistrate

Judge denied Scrushy’s motions for discovery, which Judge Fuller upheld, and

then denied Scrushy’s motion for new trial without a hearing. Op. at 26-27.

Scrushy was re-sentenced to serve 70 months in prison. Doc. 1075. Scrushy

appealed to this Court, which affirmed on July 15, 2013. United States v. Scrushy,

-- F.3d. -- (11th Cir. 2013). Scrushy has been released from prison and is

completing his term of special parole.

Statement of Facts

After his conviction in 2006, Scrushy moved for a new trial based on

evidence of jury misconduct contained in anonymously mailed copies of what

appeared to be e-mails between jurors on the case. Op. at 4-6. The court held an

evidentiary hearing and asked each juror about exposure to extrinsic evidence, but

never asked about the e-mails. Id. at 8. The court denied the motion in a written

opinion on December 13, 2006, finding that there was limited exposure to extrinsic

information (the unredacted superseding indictment and the court’s website


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concerning the foreperson’s role), but that it did not affect the fairness of the trial.

Id. at 8-9.

A week later, anonymously mailed copies of two additional e-mails were

sent to counsel and co-workers of two jurors. In contrast to the first set of e-mails,

these e-mails expressly mentioned accessing information on the Internet during

deliberations, with references to “links” and “articles.” Op. at 9-10 & n.9. Scrushy

filed a motion reconsideration or new trial. Id. at 10-11.

Co-workers reported the mailings to the two jurors, who reported it to Judge

Fuller and the U.S. Marshal. Judge Fuller directed the Marshal to investigate, and

the Acting U.S. Attorney directed the U.S. Postal Service to investigate. Scrushy

and his lawyers were not informed of these events. Op. at 9-10.

An additional juror e-mail arrived in February 2007. It showed further

communication between the two jurors, additional Internet searches, and that the

extrinsic information affected deliberations. Op. at 10-11 & n. 12.

In April 2007, while Scrushy’s motions were still pending before Judge

Fuller, a deputy marshal and/or postal inspector met with Judge Fuller and briefed

him on the investigation of the e-mails. Judge Fuller was told that the investigators

had concluded that the e-mails were not authentic. Scrushy’s counsel was not

informed of this meeting. Op. at 11. On June 22, 2007, Judge Fuller denied


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Scrushy’s motions, concluding that the new e-mails were “merely cumulative and

impeaching.” He then sentenced Scrushy to 82 months imprisonment. Id. at 12.

This Court affirmed. Siegelman I, 561 F.3d 1215. After the Supreme

remanded, this Court reversed two counts and remanded for sentencing. Siegelman

II, 640 F.3d 1159.

District Judge Hinkle, who had previously been appointed by this Court,

entered an order denying Scrushy’s recusal motion. Op. at 21-22. The Magistrate

Judge then denied Scrushy’s requests for discovery on his new trial motion,

including his request for communications between the U.S. Attorney and the trial

team subsequent to her recusal from the case. This request was denied based on the

Magistrate Judge’s statement that he had “laboriously reviewed the documents” in

camera and found that “there are no documents.” Doc. 1070 at 19-20. The orders

requiring production of documents show that the Government was never ordered to

produce the U.S. Attorney communications. Docs. 1040, 1042, 1048. District

Judge Fuller affirmed the denial of discovery and denied Scrushy’s new trial

motion without an evidentiary hearing. Docs. 1072, 1078.

Scrushy appealed the denials of his motions to recuse, discovery and motion

for new trial to this Court. A panel of this Court upheld the rulings and affirmed on

July 15, 2013. Op. at 3.


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Argument and Citations of Authority

I. THE PANEL DECISION ON RECUSAL CONFLICTS WITH BINDING SUPREME COURT AND CIRCUIT PRECEDENT, AND PRESENTS AN ISSUE OF EXCEPTIONAL IMPORTANCE AS TO RECUSAL BASED ON A DISTRICT JUDGE’S EX PARTE MEETING CONCERNING THE CENTRAL FACTUAL ELEMENT IN A PENDING MOTION. The linchpin of the panel’s opinion affirming the denial of recusal is that the

information communicated to Judge Fuller by Government investigators in the ex

parte meeting (that the e-mails, which were central to Scrushy’s pending motion,

were forgeries) could not have harmed Scrushy because Judge Fuller assumed the

authenticity of the e-mails when he denied the motions. Op. at 21-22. The panel

reasoned that the ex parte meeting had no effect because “Judge Fuller resolved the

authenticity issue in Scrushy’s favor by assuming that the emails were not forged,

but, instead, were authentic.” Op. at 22. The problem is that, other than Judge

Fuller’s naked statement that he made such an assumption, this assumption of

authenticity is not supported by the record

An objective assessment of the content of the three e-mails demonstrates

beyond cavil that, if authentic, they undeniably show that at least two jurors (one

of whom was the foreperson) were actively researching on the Internet matters

pertaining to the case they were deliberating. The first (from Juror 40 to Juror 7) at

10:09 p.m. on June 25, 2006, included the words: “did not understand ur thoughts

on statute but received links.” Doc. 519-1. The second (also from Juror 40 to Juror


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7) at 10:41 p.m. said in part: “articles usent were outstanding! gov and pastor up

s - - t creek…. they missed before, but we won’t …” Doc. 519-2.1 The third (from

Juror 7 to Juror 40) at 10:47 p.m. that same night, said: “great information for our

friends % of prosecution increases dramatically Could not find that when I surfed it.

Gov/Pastor GONE …” Doc. 532-1.

Any judge that assumed these e-mails were authentic would necessarily have

concluded that: at least two jurors, Jurors 7 and 40, had been exposed to extrinsic

evidence that they obtained from the Internet; that the information was pertinent to

the case the jurors were then deliberating; and that the information was not only

prejudicial, but that it affected deliberations.2 Upon a “colorable showing” of such

exposure, Circuit precedent mandates that the court investigate. United States v.

Barshov, 733 F.2d 842, 851 (11th Cir. 1984); United States v. Ayarza-Garcia, 819

F.2d 1043, 1051 (11th Cir. 1987).

Yet that did not occur here, because Judge Fuller denied the motion without

a hearing (shortly after he was exposed to the ex parte information at issue here),

1 Defendant Siegelman was the former Governor of Alabama. Defendant Scrushy was widely known as an ordained minister after his departure from HealthSouth. Both Siegelman and Scrushy had previously been acquitted on federal indictments in the Northern District of Alabama in unrelated but widely-publicized trials. 2 Even the Government acknowledged that: “[t]he purported emails suggested that one or more jurors was improperly exposed to extraneous information and outside influence during the trial, including the jury deliberations.” Letter of Chief of Appellate Section of the Criminal Division of Department of Justice, July 8, 2008. Doc. 954-1 at 1.


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based on his determination that the three e-mails were “merely cumulative and

impeaching” of the e-mails that were the subject matter of the previous motion

which had previously been denied. Doc. 611 at 13. 3 Such a conclusion cannot be

reconciled with any assumption of authenticity. 4 Since there was no inquiry into

these three e-mails, there was never any determination of whether the e-mails were

authentic, the content and scope of the extrinsic information, and whether

additional jurors were exposed, and, if so, whether Scrushy was prejudiced.

Nonetheless, in the same order denying Scrushy’s motion, Judge Fuller

stated that he had assumed the authenticity of the e-mails. Doc. 611 at 4 n.9. Judge

Hinkle, in deciding Scrushy’s recusal motion, relied on his uncritical acceptance of

Judge Fuller’s representation that he assumed the e-mails were authentic. Doc.

1024 at 29. The panel of this Court also accepted, without examination, Judge

Fuller’s assertion, holding that:

Scrushy ignores the fact that Judge Fuller assumed the authenticity of the three e-mails in denying his December 28, 2006 motion for reconsideration based on the emails. Put plainly, he resolved the disputed factual issue in Scrushy’s favor and against the federal prosecutor. It

3 Judge Fuller’s reference to the e-mails as “impeaching” is noteworthy because, as Judge Hinkle acknowledged, if the e-mails were authentic, they would support an inference that these two jurors gave false testimony when they testified on November 17, 2006 that they were not exposed to any extrinsic information other than the jurors’ manual and the unredacted superseding indictment. Doc. 1024 at 17. 4 Of further note is the fact that notwithstanding the repeated reliance on the “fact” of assumed authenticity, both Judge Fuller and Judge Hinkle nonetheless questioned the authenticity of the e-mails. Doc. 611 at 4 n.9 (Judge Fuller: “odd irregularities”); Doc. 1024 at 5-6 (Judge Hinkle: “amateurish fakes”).


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would defy common sense to conclude that a disinterested lay observer would doubt Judge Fuller’s impartiality – that the observer would think that Judge Fuller, in resolving the issue in Scrushy’s favor, was somehow partial to Scrushy’s adversary, the federal prosecutor, and thus would likely be partial in deciding Scrushy’s motion for a new trial.

Op. at 30.5

The acceptance of Judge Fuller’s assertion that he assumed the e-mails were

authentic is the linchpin of the panel opinion. When that lynchpin is removed, the

analysis – and the outcome – of the recusal request is radically altered.

In this case, Judge Fuller was exposed to the investigators’ conclusion that

the e-mails were forged; he did not notify Scrushy’s lawyers of that event nor give

Scrushy an opportunity to rebut that finding; and then ruled on the merits of

Scrushy’s motions by denying them. Scrushy did not learn of the ex parte meeting

until July of 2008 (after his opening brief in his first direct appeal had been filed),

when the Department of Justice notified him that they had just learned of it. It is

apparent that neither Judge Fuller nor the U.S. Attorney intended to ever reveal the

ex parte meeting.

5 The panel opinion also appears to implicitly endorse Judge Hinkle’s analysis that this issue is foreclosed by the finding in Siegelman I that Judge Fuller did not err in failing to conduct further inquiry. Op. at 30. However, the panel misunderstands that what is at issue here is not Judge Fuller’s conduct in denying the motion for reconsideration based on the three additional e-mails, but whether or not Judge Fuller’s participation in the ex parte meeting and his failure to notify counsel of his exposure to the investigative conclusion, created an appearance of impropriety such as to require recusal under 28 U.S.C. § 455(a).


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It is these facts that should now be analyzed to determine whether “there is

an appearance of impropriety” under the correct standard of “whether an objective,

disinterested, lay observer fully informed of the facts … would entertain a

significant doubt about the judge’s impartiality.” United States v. Patti, 377 F.3d

1317, 1321 (11th Cir. 2003). See also United States v. Potashnick, 609 F.2d 1101,

1111 (5th Cir. 1980). This Court should make that assessment, for the first time,

and without reliance on the unsupported conclusion that Judge Fuller assumed the

authenticity of the three e-mails. Nothing less will protect “the recognized need for

an unimpeachable judicial system in which the public has unwavering confidence.”

Id.

An additional problem with the denial of recusal in this case is that, because

there was no transcript of the ex parte meeting and Judge Hinkle refused to

conduct a hearing to determine what occurred at the meeting, Judge Hinkle failed

to apply the objective standard in determining recusal as required by Caperton v.

A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009). See also Patti, 337 F.3d at 1321.

It is difficult to see how Judge Hinkle could apply an objective standard to

what occurred in an ex parte meeting where the only facts are those that Judge

Fuller and the Department of Justice chose to reveal years after the event in

question. Instead, Judge Hinkle relied on his conclusion that what happened in the

ex parte meeting did not matter because what happened in the meeting was not a


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disputed matter, since Judge Fuller stated that he assumed the e-mails were

authentic. Accepting Judge Fuller’s representation that he assumed authenticity –

especially in the absence of any other evidence – is the ultimate subjective standard.

As a consequence, Judge Hinkle concluded, “The judge properly decided all issues

presented after the meeting, and will properly decide all further issues, without

considering what was said in the April 2007 meeting in any way. End of story.”

Doc. 1024 at 36. Judge Hinkle likewise concluded that trial judges “routinely

receive extrinsic information.” And:

These situations arise with some frequency. When they do, the judge considers the evidence in the pending proceeding and ignores the extrinsic information that came to the judge from a different source. Chief Judge Fuller did that here. The record contains not a hint to the contrary.

Id. at 28.

None of these conclusions, including the statement of Judge Fuller as to

what he assumed, can be squared with the requirement that recusal issues be

determined under an objective standard as required by Massey Coal, Patti, and

numerous other binding decisions. Nor can Judge Hinkle have applied the correct,

objective, legal standard when we still do not know what actually transpired in the

ex parte meeting, other than the post hoc explanations of Judge Fuller and the

Department of Justice.


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Application of the wrong legal standard constitutes an abuse of discretion.

United States v. Frazier, 387 F.3d 1224, 1259 (11th Cir. 2004) (en banc). The

panel’s finding that Judge Hinkle did not abuse his discretion in denying Scrushy’s

recusal motion (Op. at 30), is in conflict with the decisions of the Supreme Court

and this Court, and rehearing en banc should be granted for this additional reason.

II. THE DENIAL OF SCRUSHY’S DISCOVERY REQUEST IS AN ISSUE OF EXCEPTIONAL IMPORTANCE BECAUSE IT IS BASED ON THE PANEL’S ACCEPTANCE OF THE MAGISTRATE JUDGE’S MISLEADING REPRESENTATION OF THE DOCUMENTS REVIEWED IN CAMERA. At the time he filed his motion for new trial, Scrushy filed a motion for

discovery of documents in the Government’s possession. Docs. 955, 985. Included

in the specifics were requests for any writings (specifically including e-mails) by

or from U.S. Attorney Canary to or from any member of the trial team that touched

in any way on the investigation, prosecution or post conviction proceedings in this

case. Op. at 25. This request was related to Scrushy’s ground for new trial based

on his allegation that U.S. Attorney Canary failed to honor her recusal from the

case (her husband was a paid political consultant to Defendant Siegelman’s

opponent in the governor’s race) by continuing to be actively involved in the case.

In support of his showing that further e-mails showing continued involvement were

likely to exist, Scrushy submitted three e-mails between Canary and the trial team

that were provided to a congressional committee by a former employee of


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Canary’s office, as well as an affidavit by the Government’s chief witness, who

spent considerable time with the trial team during trial preparation. Doc. 955 at 14.

The Magistrate Judge denied all discovery. In regard to any e-mails written

or received by U.S. Attorney Canary, the Magistrate Judge stated:

The problem with this contention is that it is rank speculation, and simply wrong speculation at that…. In addition, the court has laboriously reviewed the documents provided to it by the government related to this issue. This is not a case in which there is any conflicting evidence. In this case, there is no evidence to support the defendant’s supposition that “other emails exist.” There is nothing in the material provided to the court that is contrary to the evidence already in Scrushy’s possession. This is not a matter of withholding any documents; there are no documents. Accordingly, the defendant’s motion for discovery on this issue will be denied.

Doc. 1070 at 19-20 (emphasis added). On appeal, the panel of this Court

concluded:

In affirming the District Court’s denial of Scrushy’s motion for a new trial, we also affirm, without discussion, the court’s rejection of Scrushy’s objection to the Magistrate Judge’s refusal to permit discovery of the documents the Government had produced in camera and his denial of an evidentiary hearing regarding the documents’ contents.

Op. at 28 n.27 (emphasis added).

The problem with the panel’s opinion is its reliance on the Magistrate

Judge’s order that misleadingly fostered the conclusion that he had ordered, and

the Government had produced, the e-mails between the U.S. Attorney and the trial

team that Scrushy had requested in his discovery, reviewed them in camera, and


14

determined that they did not exist. However, the record shows that the Magistrate

Judge never ordered the Government to produce any materials relating to this issue.

There were only two orders for production (and one clarification). The first was for

the production of a notebook kept by Government witness Nick Bailey during

witness preparation. Doc. 1040. The second order was for the Government to

produce all material related to interviews of Nick Bailey. Doc. 1042, clarified in

Doc. 1048. There were no other orders to produce, and the Government’s notices

of what it produced to the Magistrate Judge are consistent with these two orders.

Docs. 1051, 1065.

While the Magistrate Judge’s order referred to “the documents provided to it

… related to this issue,” 6 the order speaks of the Court’s “laborious review[ ]”

and unambiguously states, “This is not a matter of withholding any documents;

there are no documents.” Doc. at 20. Since the Magistrate Judge did not order the

Government to produce any of the requested documents, it is not surprising that his

in camera review found no such documents.

This was not a legitimate basis to deny Scrushy’s discovery requests for

these documents. That the panel was misled by the Magistrate Judge’s order is not

6 Obviously, Scrushy was not seeking the limited and completely unrelated documents that the Government produced for in camera inspection in response to the Magistrate Judge’s orders; Scrushy was seeking the documents in the Government’s possession that he specified in his discovery motion, i.e., the post-recusal communications to and from U.S. Attorney Canary concerning this case.


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surprising. But it is an oversight that should be corrected in order to protect the

integrity of the judicial process in this matter. Scrushy’s access to communications

that likely exist and that would prove he is entitled to a new trial7 should not be

determined based on such a glaring misinterpretation of the record.8

Conclusion

For all the foregoing reasons, Richard Scrushy respectfully submits that this

Court should grant rehearing en banc in this case.

Respectfully submitted, /s/ James K. Jenkins Arthur W. Leach James K. Jenkins Suite 225 MALOY JENKINS PARKER 5780 Windward Parkway 900 Arapahoe Avenue Alpharetta, Georgia 30005 Boulder, Colorado 80302 404-786-6443 303-443-9048 Leslie V. Moore Attorneys for Appellant 5184 Caldwell Mill Road, Suite 204 Richard Scrushy Birmingham, Alabama 35244 7 In a later section of the panel opinion, the Court concludes on the basis of the three e-mails that were provided to a congressional committee by a former employee of the U.S. Attorney’s office, that “Canary’s limited involvement in [Scrushy’s] case did not deprive Scrushy of a disinterested prosecutor.” Op. at 39. The panel’s conclusion based on the limited evidence available to Scrushy without discovery is understandable. However, that is not the issue. The issue is whether, based on his showing, Scrushy was entitled to discovery of any such documents, including e-mails, that would show the true extent of Canary’s involvement in the case after her recusal. Should other e-mails exist, as the three e-mails already produced strongly suggest, that show that Canary’s involvement was as extensive as Scrushy’s witnesses state, then Scrushy would be entitled to a new trial on this ground. 8 Additionally, as set out in Scrushy’s Brief at 34-40, the Magistrate Judge clearly applied the wrong legal standard in denying discovery. This was, contrary to the panel’s finding, a clear abuse of discretion. Frazier, 387 F.3d at 1259.


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Certificate of Service

I hereby certify that I uploaded an electronic copy of this Petition for

Rehearing En Banc on the Court’s website on August 2, 2013 and duly served a

copy of Appellant Richard Scrushy’s Initial Brief on opposing counsel by sending

true and correct copies of same by the U.S. Postal Service to:

John Alexander Romano United States Department of Justice Criminal Division, Appellate Section PO Box 0899 Washington, D.C. 20044-0899 This 2nd day of August, 2013. /s/ James K. Jenkins James K. Jenkins Attorney for Appellant


[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 12-10694

________________________

D.C. Docket No. 2:05-cr-00119-MEF-CSC-4 UNITED STATES OF AMERICA, Plaintiff - Appellee,

versus RICHARD SCRUSHY, Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Alabama

________________________

(July 15, 2013) Before TJOFLAT and COX, Circuit Judges, and BOWEN,∗ District Judge.

TJOFLAT, Circuit Judge:

∗ Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District of Georgia, sitting by designation.

Case: 12-10694 Date Filed: 07/15/2013 Page: 1 of 40 Case: 12-10694 Date Filed: 08/02/2013 Page: 23 of 62

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On June 29, 2006, a Middle District of Alabama jury found Don Eugene

Siegelman, a former Governor of Alabama, and Richard Scrushy, the founder and

former Chief Executive Officer of HealthSouth Corporation, a major hospital

corporation with operations throughout Alabama, guilty of federal funds bribery, in

violation of 18 U.S.C. § 666(a)(1)(B); honest services mail fraud, in violation of 18

U.S.C. §§ 1341 and 1346; and conspiracy to commit the latter offenses, in

violation of 18 U.S.C. § 371.1 We affirmed Scrushy’s convictions and sentence

and all but two of Siegelman’s convictions in United States v. Siegelman

(Siegelman I), 561 F.3d 1215 (11th Cir. 2009). After it decided Skilling v. United

States, 561 U.S. ---, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010), the United States

Supreme Court granted Scrushy and Siegelman’s petition for writ of certiorari and

remanded their cases to this court for reconsideration in light of Skilling. On

remand, we reversed two of Scrushy’s §§ 1341 and 1346 convictions and

remanded his case to the District Court for resentencing. United States v.

Siegelman (Siegelman II), 640 F.3d 1159 (11th Cir. 2011). On January 25, 2012,

1 Siegelman was also convicted of obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3).


3

the court sentenced Scrushy to concurrent sentences totaling 70 months’

imprisonment.2

Scrushy now appeals the District Court’s judgment. The focus of his appeal

is the District Court’s denial of his motion for new trial filed on June 26, 2009,

while Siegelman I was before the Supreme Court on certiorari, and the denial of

his motion to recuse the trial judge, then Chief Judge Fuller,3 filed the same day.

We find no abuse of discretion in the challenged rulings and therefore affirm.

This case has had a convoluted history. To place the two rulings at issue

here in context, it is necessary that we trace what transpired between the return of

the jury’s verdicts on June 29, 2006, and Scrushy’s resentencing on January 25,

2012. In part I, we briefly describe the conduct that gave rise to Scrushy’s

convictions and recount the events that took place prior to the District Court’s

issuance of the rulings before us. In part II, we describe those rulings. Part III

addresses Scrushy’s arguments that the rulings constituted an abuse of discretion.

Part IV concludes.

I.

2 The court sentenced Siegelman to concurrent prison terms of 60 months on the § 371 conspiracy count and 70 months on the § 666(a)(1)(B) and §§ 1341 and 1346 substantive counts.

3 Judge Mark E. Fuller’s term as Chief Judge expired in 2011. For convenience, we refer to him as Judge Fuller.


4

Scrushy and Siegelman’s 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 honest services mail fraud convictions were based on

the same bribery allegations, but also the allegation that Scrushy used the board

seat he obtained from Siegelman to further HealthSouth’s interests.

A.

On September 29, 2006, following their convictions, Scrushy and Siegelman

jointly moved the District Court for a new trial pursuant to Federal Rule of

Criminal Procedure 33, asserting that they were denied a fair trial because of jury

exposure to extrinsic evidence, jury misconduct, and news media coverage of the

case.4 The extrinsic evidence consisted of an unredacted copy of the second

superseding indictment (on which the jury based its verdicts) obtained from the

Middle District of Alabama courts’ website and information from the same website

describing the role of the jury foreperson. Juror #5, whose “affidavits” of August 9

and September 1, 2006, were attached to the defendants’ motion, described the

extrinsic evidence as including “Internet stuff and information” some of the jurors

4 This is the only post-verdict motion the defendants filed jointly. Except as otherwise indicated, they separately and simultaneously thereafter filed essentially identical motions throughout the post-verdict litigation of the case.


5

“brought in,” which was discussed along with the evidence in the case after the

jury retired to deliberate its verdicts.5

The juror misconduct purportedly occurred when “at least three jurors

engaged in one-on-one deliberations outside the presence of other jurors and, in

doing so, discussed extrinsic evidence.” Record, vol. I, no. 467, at 2–3. Defense

counsel supported this allegation by attaching to their motion copies of four emails

three jurors purportedly either sent to other jurors or received from other jurors

during the trial.6 These emails were mailed anonymously to defense counsel

5 The jury retired to deliberate its verdicts on June 15, 2006, and returned its verdicts on June 29, 2006. The above quotations were taken from Juror #5’s August 9 affidavit. That affidavit also stated that he regretted finding the defendants guilty. He attributed the verdicts to the pressure the jury was under. “The judge practically threatened us. He said that he was appointed for a lifetime to be a judge so he has all the time in the world. He said he had no problem holding us until next Fourth of July or however long it takes to reach a verdict.” Mot. for New Trial Ex. 8, at 1, September 29, 2006, ECF No. 467-10. Also attached to the motion for a new trial were the affidavits of Juror #5’s wife and their pastor, Stephen Hudson. The wife said that Juror #5 “told [her] that things were not handled right . . . from internet communications among the jury to the pressure and intimidation from the Judge.” Mot. for New Trial Ex. 7, September 29, 2006, ECF No. 467-9. Hudson said that he had noticed “a drastic change” in Juror #5 since the conclusion of the trial. Mot. for New Trial Ex. 6, September 29, 2006, ECF No. 467-8. 6 Defense counsel received copies of these emails by mail in an envelope postmarked September 5, 2006. The identity of the party who mailed the emails was not revealed. Scrushy refers to the jurors by letter in his motion for new trial; the court refers to the jurors by number. We refer to the sender and recipient of the email first by Scrushy’s designation, then by the District Court’s designation. The first email, Exhibit 10, was sent by Juror B (Juror #40) to Juror C (Juror #7) on May 29, 2006, at 10:41 p.m. It stated, “. . . need to talk . . . . . !?” Mot. for New Trial Ex. 10, September 29, 2006, ECF No. 467-12. The second email, Exhibit 11, was sent from Juror B (Juror #40) to Juror C (Juror #7) on May 29, 2006, at 11:38 p.m. It stated, “I agree some of the kounts r confusing 2 our friends. Chek txt 30/38 still off trac.” Mot. for New Trial Ex. 11, September 29, 2006, ECF No. 467-13. The third email, Exhibit 12, was sent from Juror D (it


6

following the trial. On October 10, 2006, Scrushy’s counsel received a fifth email,

again from an anonymous person by mail.7

Judge Fuller held a hearing on the motion for a new trial on October 31. He

scheduled the hearing for the purpose of ascertaining the origin and authenticity of

Juror #5’s affidavits and determining whether defense counsel had violated Local

Rule 47.1 of the Local Rules for the United States District Court for the Middle

District of Alabama for Civil and Criminal Cases, which forbids contacting a juror

for the purpose of inquiring into a jury verdict.8 Siegelman’s counsel said that he

was unclear from the email address whether this email was sent by a juror) to Juror B (Juror #40) on June 25, 2006, at 11:28 p.m. It stated, “penalty 2 severe . . . . still unclear on couple of counts against pastor & gov.” Mot. for New Trial Ex. 12, September 29, 2006, ECF No. 467-14. The fourth email, Exhibit 13, was sent from Juror B (Juror #40) to Juror D (same address from third email) on June 25, 2006, at 11:48 p.m. It stated, “. . . stay focused . . . . remember what judge said . . . . have plans for 4th . . . . right?” Mot. for New Trial Ex. 13, September 29, 2006, ECF No. 467-15. It is unclear whether any of the eight juror emails cited in this opinion were sent in response to an email received by the juror.

7 This email was purportedly sent from Juror B (Juror #40) to Juror E (it was unclear from the email address whether this email was sent by a juror) on June 25, 2006, at 11:31 p.m. It stated, “proud of you . . . other 6 kounts most important c.u.n..am.” Mot. for Expedited Consideration of an Order to Require Preservation of Evidence Ex. 15, October 11, 2006, ECF No. 472-1. Scrushy’s counsel submitted the email to the District Court with a request that the court enter an order preserving the evidence.

8 Local Rule 47.1, Juror Information, Questionnaires and Contact, states, in subpart (b), Attorneys, parties, anyone in their employ, or anyone acting for them or on their behalf shall not, without filing a formal motion therefor with the Court and securing the Court’s permission, initiate any form of contact for the purpose of interrogating jurors or alternate jurors in civil or criminal cases, in any manner, in an attempt to determine what the jurors thought about any aspect of the case or evidence, the basis for any verdict rendered or to secure other information concerning the deliberations of the jury or any member thereof.


7

obtained Juror #5’s affidavits this way: Juror #5’s pastor, Stephen Hudson,

consulted a Birmingham, Alabama, pastor, Charles Winston, about Juror #5’s

difficulty after the trial coming to terms with his vote to find Scrushy and

Siegelman guilty. Winston and Juror #5 subsequently had a conversation in which

Juror # 5 described what transpired during jury deliberations. Winston prepared a

document styled “Affidavit” for execution before a notary public. The body of the

document consisted of questions Winston posed to Juror #5 and Juror #5’s

answers. The words were Winston’s because Juror #5 did not read well. Juror #5

signed the document on August 9, 2006, but not before a notary. Winston then

gave the document to his wife, Debra Bennett Winston, a lawyer, who noticed that

Juror #5 had not signed the affidavit before a notary.

On a date between August 9 and September 1, 2006, Debra Winston met

with one or more of Siegelman’s lawyers and shared the information her husband

had obtained from Juror #5. On September 1, she prepared an affidavit for Juror

#5’s execution. He signed it before a notary. Like the August 9 affidavit, the

September 1 affidavit is in question and answer form, with Juror #5 answering the

questions Debra Winston asked him. The answers closely resemble the answers he

provided in the August 9 affidavit. At some point between September 1 and

September 29, when the motion for a new trial was filed, Debra Winston gave the

affidavits to Siegelman’s counsel.


8

After hearing the testimony of the Winstons, Juror #5, his wife, and Hudson,

and considering Siegelman’s attorney’s representation concerning his acquisition

of Juror #5’s affidavits, Judge Fuller concluded that the evidence was insufficient

to establish a Local Rule 47.1 violation and that the defendants had made a

“colorable showing of extrinsic influence on the jury sufficient to warrant a further

inquiry.” Judge Fuller scheduled a hearing for November 17, 2006, so he could

question the jurors.

At the November 17 hearing, Judge Fuller asked each juror whether, during

the jury’s deliberations, he or she had been exposed to or considered “extrinsic

information.” He explained that the extrinsic information consisted of the

unredacted superseding indictment and the court’s website information about the

foreperson’s role, but he did not mention the five emails. Most of the jurors

recalled hearing about the unredacted superseding indictment and the information

about the foreperson’s role; several jurors also recalled that, during the trial, they

had been exposed inadvertently to some media coverage of the case.

On December 13, 2006, Judge Fuller denied the motion for a new trial. As

to the allegations of juror exposure to the extrinsic information, he found that even

though there was credible evidence that jurors had been exposed to the unredacted

second superseding indictment, information about the role of the foreperson, and

media coverage of the case, the exposure to the extrinsic information was harmless


9

beyond a reasonable doubt. United States v. Siegelman, 467 F. Supp. 2d 1253,

1278 (M.D. Ala. 2006). As for the allegations of juror misconduct, Judge Fuller

assumed that the five emails depicted by Scrushy as being sent by jurors to other

jurors were authentic, but he nonetheless found that the exchange of the emails was

not “of the sort into which this [c]ourt can or should directly inquire by

interrogating jurors, nor is it in this [c]ourt’s view grounds for granting a new

trial.” Id. at 1280.

B.

On December 21 and 22, 2006, two more emails surfaced. These emails,

purportedly sent by one of the jurors to another juror, indicated that jurors may

have deliberated improperly.9 Copies of the emails were mailed anonymously to

defense counsel and to co-workers of the two jurors in envelopes postmarked

December 20, 2006. The emails referenced “links” and “articles,” indicating that

9 Both emails, Exhibits 23 and 24, were sent from Juror B (Juror #40) to Juror C (Juror #7) on June 25, 2006. Exhibit 23, sent at 10:09 p.m., stated, “. . . judge really helping w/jurors . . . still having difficulties with # 30 . . . any ideas??? keeping pushing on ur side. did not understand ur thoughts on statute but received links.” Mot. for Recons. Ex. 23, December 28, 2006, ECF No. 519-1. Exhibit 24, sent at 10:41 p.m., stated,

I can’t see anything we miss’d. u? articles u sent outstanding! gov & pastor up s--t creek. good thing no one likes them anyway. all public officials r scum; especially this 1. pastor is reall a piece of work . . . they missed before, but we won’t . . . also, keepworking on 30 . . . will update u on other meeting. Mot. for Recons. Ex. 24, December 28, 2006, ECF No. 519-2.


10

the jurors had considered extrinsic information on the merits of the case. The co-

workers gave the two jurors the emails they had received; one of the jurors

reported receiving the emails to the U.S. Marshals Service (the “Marshals”), and

the other reported the event to the court.10 The Marshals then informed Judge

Fuller of the emails because he presided over the trial of the case and was the

Middle District of Alabama’s chief judge. Judge Fuller asked the Marshals to

investigate the matter. The Marshals, in turn, went to the acting U.S. Attorney,

who asked the U.S. Postal Inspection Service (the “Postal Service”) to join in the

investigation.11 The acting U.S. Attorney, Louis Franklin, assigned an Assistant

U.S. Attorney to oversee the investigation. Scrushy and his lawyers were not

informed of these events.

On December 28, 2006, about a week after the two additional emails came

to light, Scrushy moved the court to reconsider its order denying his motion for a

new trial or, in the alternative, to grant him a new trial based on newly discovered

evidence. Scrushy argued that the two new emails, if authentic, showed that jurors

had conducted far more extensive Internet research than previously admitted and

that the information they found was “not only damning to Defendant Scrushy, but

10 The record does not indicate whether the juror went to the court’s clerk’s office or directly to Judge Fuller.

11 Since the U.S. Mails were involved, the Postal Service was the federal law enforcement agency with jurisdiction to investigate the matter.


11

that it appears to be related to the prior high-profile trial of Defendant Scrushy on

other criminal charges, where he was acquitted of all charges.” Record, vol. II, no.

519, at 9. Scrushy asked the court to summon the jurors to court for further

questioning.

On February 21, 2007, Scrushy and his lawyer each received through the

mail from an anonymous sender an email purportedly sent by the juror who

received the two emails contained in the envelope postmarked December 20, 2006,

to the juror who purportedly sent the two emails.12 On February 26, 2007, Scrushy

filed a motion to supplement his motion for reconsideration, attaching the email as

an exhibit.

In early April 2007, while the alternative motions were pending, the

Marshals met with Judge Fuller and told him that the Postal Service had concluded

that the two emails the jurors’ co-workers had received on December 21 and 22

were not authentic but that they had not determined who sent them.13 Scrushy and

his lawyers were unaware of the meeting. On June 22, 2007, Judge Fuller denied

Scrushy’s motion for reconsideration. He also denied Scrushy’s alternative motion

12 Juror C (Juror #7) purportedly sent the email to Juror B (Juror #40) on June 25, 2006, at 10:47 p.m. It stated, “Great info 4 r friends. % of prosecution increases dramatically. Could not find that when I surfed it. Gov/Pastor GONE.” Mot. to Supplement Previously Filed Mot. to Recons. Ex. 26, February 26, 2007, ECF No. 532-1.

13 It does not appear that the email Scrushy attached to his February 26, 2007, motion to supplement was given to the Marshals and the Postal Service.


12

for a new trial. As he had done with the five emails presented with the defendants’

September 29, 2006, motion for a new trial, he treated the emails contained in the

envelopes marked December 20, 2006, and the email Scrushy and his lawyer

received on February 21, 2007 (“the three emails”) as authentic and concluded that

they were merely “cumulative” of the five emails that had surfaced earlier.

Moreover, on November 17, 2006, the jurors had already testified under oath about

their possible contact with extraneous information, and the questions put to them at

that time had been sufficiently broad to satisfy the requirements of law. United

States v. Siegelman, 2007 WL 1821291, at *5 (M.D. Ala. June 22, 2007).

Six days after denying Scrushy’s alternative motions, the District Court

sentenced the defendants. The court sentenced Siegelman to prison for terms

totaling eighty-eight months and Scrushy to terms totaling eighty-two months.

C.

Scrushy and Siegelman appealed their convictions and sentences on July 11,

2007. In addition to challenging the sufficiency of the evidence to convict, they

challenged the District Court’s denial of their joint motion for a new trial (on

December 13, 2006) and its denial of their motions for reconsideration (on June 22,

2007). At the time they filed their notices of appeal, they were still unaware of the

April 2007 meeting between Judge Fuller and the Marshals. Their attorneys

became aware of the meeting, however, when they received a letter, dated July 8,


13

2008, from the chief of the Appellate Section of the Criminal Division of the U. S.

Department of Justice. The letter explained that, while preparing its answer brief

in response to Scrushy’s opening brief, the Government had become aware of the

meeting, and the investigation that led to it, and that defense counsel were being

notified of the same out of an “abundance of caution.” Record, vol. III, no. 954-1,

at 4. The letter stated the following:

On or about December 21, 2006, at least five co-workers of Jurors 7 and 40 received in the United States mail at their places of employment copies of purported emails identical to the ones appended to defendant Scrushy’s Motion to Reconsider filed on December 28, 2006. Like the envelopes received by defense counsel, the envelopes did not bear a return address, were postmarked December 20, 2006, and were sent from Montgomery, Alabama. After the recipients showed the purported emails and envelopes to Jurors 7 and 40, the jurors notified the United States Marshals Service. (Juror 7 initially reported the mailings to the court, but the court referred him to the Marshals Service.) The Marshals Service brought the mailings to the attention of Acting United States Attorney Louis Franklin, who asked the Postal Inspectors to attempt to determine who had sent the letters to the jurors’ co-workers. Shortly thereafter, Mr. Franklin transferred oversight of the investigation to an attorney in his office who was not involved in the prosecution of defendants. Over the next several weeks, a Postal Inspector interviewed Jurors 7 and 40 and some of the co-workers who had received in the United States mail copies of the purported emails. The Postal Inspector also compared the purported emails to test emails sent from and received by Juror 40’s email account. Based on a comparison of the emails and information obtained from the jurors and their co-workers, including information from a co-worker of Juror 7 who monitored Juror 7’s emails during trial and did not see any incoming emails from Juror 40, the Postal Inspector concluded that the purported emails were not authentic and had been forged. Although the Postal Inspector subsequently submitted the stamped envelopes and


14

purported emails for forensic examination, the results were inconclusive. He closed his investigation on September 10, 2007. No charges were brought. [I]n early April 2007, . . . representatives of the United States Marshals Service apprised Chief Judge Fuller that the Postal Inspectors were investigating the receipt of purported emails by co-workers of the two jurors and had concluded that the purported emails were not authentic, but that the Postal Inspectors had not determined who had sent copies of the emails to the co-workers. The Marshals who spoke to Chief Judge Fuller have advised us that the Chief Judge did not solicit this report.

Record, vol. III, no. 954-1, at 3–4 (emphasis added).

After receiving this letter, Scrushy moved this court to appoint a special

master pursuant to Federal Rule of Appellate Procedure 48 to investigate the

authenticity of the three emails.14 Then, in his reply brief (filed in response to the

Government’s answer brief), he argued that this court should remand the case to

the District Court for an evidentiary hearing, so that the Marshals could state under

oath, subject to cross-examination, what they said to Judge Fuller at their April

2007 meeting.15 He also argued that contrary to what Judge Fuller stated in the

14 Siegelman did not also move the court for the appointment of a special master. 15 Ordinarily, as a prudential rule, this court does not consider issues an appellant raises

initially in his reply brief. See, e.g., United States v. Levy, 379 F.3d 1241, 1242 (11th Cir. 2004). Because Scrushy was not informed of the Marshals meeting with Judge Fuller until he received the July 8, 2008, letter from the Department of Justice, the Siegelman I panel did not invoke the prudential rule and, instead, considered and ruled on the meeting issue although sub silentio.


15

June 22, 2007, order denying his motion for reconsideration, Judge Fuller had not

assumed the authenticity of the three emails. 16

D.

This court decided Siegelman I on March 6, 2009. In affirming Scrushy’s

convictions and sentences, and Siegelman’s convictions in part,17 the panel found

no abuse of discretion in the District Court’s denial of the motion for a new trial on

December 13, 2006, and the motion for reconsideration on June 22, 2007.

Addressing the December 13 decision, the panel agreed with the District

Court that the jurors’ exposure to the extrinsic information—the unredacted second

superceding indictment and the information about the role of the jury foreperson—

and the news media coverage of the case was harmless. As for the five emails

supposedly sent by jurors to other jurors either before or during the jury’s

deliberation,18 the panel rejected the argument that the emails evidenced “that there

was both premature jury deliberations and deliberation by fewer than all the jurors

in this case, and that this improper deliberation denied the defendants of their Sixth

16 Siegelman’s reply brief contained the same arguments. 17 Siegelman’s convictions on two counts of honest services mail fraud were reversed,

his sentences were vacated, and his case was remanded for resentencing. Siegelman I, 561 F.3d at 1245.

18 As indicated supra, there were eight emails in all: five surfaced prior to the District Court’s November 17, 2006, hearing; two surfaced on December 21–22, 2006; and one surfaced on February 21, 2007. Two of the emails were sent on May 29, 2006, before the jury retired to deliberate its verdicts on June 15, 2006; the other six were sent on June 25, 2006, during the deliberation.


16

Amendment right to an impartial jury.” Siegelman I, 561 F.3d at 1240. The panel

did so because all that the emails indicated was that the jurors might have

deliberated prematurely and thus contrary to the court’s instructions. Whether two

or more jurors actually deliberated prematurely—prior to June 15, 2006, when the

jury retired to deliberate—and did so in a way that effectively denied the

defendants their right to a trial by jury could not be determined unless the court

examined the jurors under oath. The court had “serious reservations” about the

authenticity of the five emails. It assumed, however, that they were authentic and

concluded that “the law barred it from questioning the jurors about their

deliberations, or about the emails purporting to suggest that the jurors deliberated

improperly.” Id. at 1242. The court drew the same conclusion about the three

emails that surfaced after it issued its December 13 decision. It assumed the emails

were authentic and then held that it would be inappropriate to summon the jurors to

the courthouse a second time to subject them to further inquiry. The panel agreed,

and therefore denied Scrushy’s motion for the appointment of a special master to

determine the authenticity of the three emails. Siegelman I, 561 F.3d at 1237 n.

26.

E.

After the decision in Siegelman I issued, the Supreme Court decided Skilling

v. United States, 561 U.S. ---, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010), in which


17

it held that the honest services mail fraud statutes were only intended to reach

schemes involving bribery or kickbacks. The Court vacated Siegelman I on June

29, 2010, and remanded the case for consideration in light of Skilling. On remand,

this court reversed Scrushy’s convictions on two of the honest services mail fraud

counts because they were based on a self-dealing theory of honest services fraud

that could no longer support a conviction after Skilling. United States v.

Siegelman (Siegelman II), 640 F.3d 1159, 1177 (11th Cir. 2011). The part of the

Siegelman I decision addressing the alleged juror misconduct remained unchanged.

On January 25, 2012, on receipt of this court’s mandate, Judge Fuller

resentenced Scrushy.

II.

The motions at issue in this appeal—Scrushy’s motions for a new trial and

for the recusal of Judge Fuller—were filed on June 26, 2009, after Siegelman I was

decided and before the Supreme Court issued its decision on June 24, 2010.19 The

motion for a new trial was filed pursuant to Federal Rule of Criminal Procedure

33(b)(1), which requires that a motion for a new trial based on newly discovered

19 Siegelman moved the court to allow him to join in Scrushy’s motion to recuse on October 7, 2009. Judge Fuller entered an order granting his request on October 15, 2009.


18

evidence be filed within three years after the jury returns its verdict of guilty.20

Scrushy sought a new trial on six grounds,21 five of which are before the court in

this appeal: (1) his was a “selective prosecution” in violation of the equal

protection component of the Fifth Amendment Due Process Clause; (2) the three

emails dealt with in Judge Fuller’s June 22, 2007, order denying his motion for

reconsideration (of the December 13, 2006, decision denying a new trial) were

authentic and evidenced that jurors prematurely and improperly deliberated and

therefore denied his right to a trial before an impartial jury; (3) Judge Fuller, in

meeting ex parte with the Marshals, “violat[ed] . . . the Code of Conduct for United

States Judges, and deprived [Scrushy] of his Sixth Amendment Right to effective

assistance of counsel and his Fifth Amendment right to due process”22; (4) U.S.

20 As indicated supra, the jury returned its verdicts against Scrushy (and Siegelman) on June 29, 2006.

21 Scrushy’s motion explicitly asserted five grounds. Parsing the motion, we read it to assert six grounds.

22 Scrushy alleged that to determine the full extent of the prejudice he suffered, it will be necessary for Defendant to have access to investigative reports and interviews of the Postal Inspectors (identities unknown to Defendant), and a transcript of the ex parte meeting between the Marshals and the Chief Judge (if one exists) or, if no transcript exists, the testimony of the U.S. Marshals (identities unknown) and the testimony of Chief Judge Fuller. Defendant also submits that he should be provided with testimony or affidavits necessary to determine if other ex parte meetings occurred with the Chief Judge, and if so, either the transcripts of such meetings or, in the alternative, the testimony of all participants in any such meetings or communications.


19

Attorney Leura Canary’s failure to adhere to her unilateral decision to recuse

deprived him of a disinterested prosecutor;23 and (5) the prosecution effectively

denied Scrushy an impartial jury in failing to inform him of juror infatuation with

the FBI’s case agent.

The motion for recusal asserted two grounds. First, 28 U.S.C. § 455(a) 24

required Judge Fuller to recuse because an objective disinterested lay observer,

knowing that he had met with the Marshals ex parte, would entertain significant

doubt as to his impartiality. Second, 28 U.S.C. § 455(b)25 required Judge Fuller to

recuse because, in meeting with the Marshals, he acquired personal knowledge of

Record, vol. II, no. 953, at 15.

23 Canary voluntarily recused on May 16, 2002, while the case against Siegelman and Scrushy was under investigation, after Siegelman’s lawyer wrote to the U.S. Deputy Attorney General requesting her disqualification. Counsel’s request was based on an allegation of conflict of interest because Canary’s husband, William J. Canary, was a paid consultant for political campaigns of Republican opponents of Siegelman. Louis Franklin Sr. was appointed acting U.S. Attorney for the case in January 2003, after the retirement of Charles Niven, who became acting U. S. Attorney following Canary’s recusal.

24 Section 455(a) of Title 28 of the United States Code reads: (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in

any proceeding in which his impartiality might reasonably be questioned. 25 Section 455(b) of Title 28 of the United States Code provides in relevant part: (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge

of disputed evidentiary facts concerning the proceeding; . . . (5) He or his spouse, or a person within the third degree of relationship to either of them,

or the spouse of such a person: (iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.


20

disputed evidentiary facts and was likely to be a material witness in the

proceeding.

We turn first to the District Court’s handling of the motion to recuse, then to

the motion for a new trial.

A.

Judge Fuller asked the Chief Judge of the Eleventh Circuit to appoint a judge

to hear and decide the motion to recuse, and the Chief Judge appointed Judge

Robert Hinkle of the Northern District of Florida. Judge Hinkle denied the motion

in an order entered on June 29, 2011. He did so after a thorough study of the

record—from the commencement of the case through this court’s decision in

Siegelman II and the filing of the motions to recuse and for a new trial on June 26,

2009. We turn first to Judge Hinkle’s conclusion that the record established no

basis for recusal under § 455(a).

1.

After the Marshals informed Judge Fuller of the emails co-workers of two

jurors had received in the mail, he asked the Marshals to investigate the matter.26

26 Shortly thereafter, on December 28, 2006, Scrushy moved the District Court to reconsider its December 13, 2006, order denying his motion for a new trial and attached to the motion copies of the two emails.


21

The Marshals immediately contacted the acting U.S. Attorney, who asked the

Postal Service join in the investigation.

Three and a half months later, in April 2007, the Marshals met with Judge

Fuller ex parte and told him that the Postal Service had determined that the emails

were not authentic but was unable to identify the person who sent them. Scrushy

contends that Judge Fuller’s ex parte meeting with the Marshals, standing alone,

rendered his impartiality questionable as a matter of law.

Judge Hinkle found nothing improper about Judge Fuller’s meeting with the

Marshals ex parte and no cause for recusal under § 455(a). What transpired in this

case—the Marshals informing the trial judge that one or more jurors may have

engaged in conduct contemptuous of the court’s instructions to the jury—is not an

infrequent occurrence in the district courts. And Judge Fuller handled it in much

the same manner most district judges would—even where, as here, the case was

still ongoing before the judge. After reviewing the law of the Eleventh Circuit

counseling what a district judge should do on receiving extrinsic information

relating to a pending case, its parties, or its witnesses, Judge Hinkle concluded that

Judge Fuller’s meeting with the Marshals to receive the report of their

investigation did not automatically disqualify him from continuing with the case.

In sum, the ex parte meeting with the Marshals for such purpose would not lead an


22

objective disinterested lay observer to entertain significant doubt about the judge’s

impartiality.

2.

Scrushy contended that Judge Fuller had to recuse under § 455(b) because

he acquired from the Marshals personal knowledge about a disputed evidentiary

fact—the authenticity of the three emails—underlying the second ground of the

motion for a new trial pending before him. The problem with this contention, as

Judge Hinkle saw it, was that Judge Fuller resolved the authenticity issue in

Scrushy’s favor by assuming that the emails were not forged, but, instead, were

authentic. Judge Fuller did not have to recuse because, in the words of § 455(b),

he did not have “personal knowledge of disputed evidentiary facts” concerning the

proceeding, nor was he likely to be a “material witness.” See 28 U.S.C. § 455(b).

Judge Hinkle also noted, correctly, that the Siegelman II decision had foreclosed

this ground of recusal.

B.

With Judge Hinkle having disposed of the recusal issues, Judge Fuller turned

to Scrushy’s motion for a new trial. Scrushy insisted that the court could not rule

on his motion without affording him an opportunity to engage in the discovery he

said he needed to establish the grounds of his motion. Scrushy represented that the

necessary discovery was in the hands of the Government. He therefore moved the


23

court to require the Government to produce the following documents and

information as relating to grounds (1), (3), (4), and (5) of his motion for a new

trial.

I. Requests Relating to Issue [1] (Selective Prosecution)

1. The Prosecution Memorandum from the U.S. Attorney’s Office for the Middle District of Alabama to both the Public Integrity Section and the Organized Crime and Racketeering Section (“OCRS”), including all updates and amendments to either document.

2. Case Map analysis showing progression of the investigation. 3. All reports, notes, memoranda, documents, e-mails and writings of

any kind relating to the decision in or about 2004 to “take a fresh look at the case from top to bottom.”

4. All reports, notes, memoranda, documents, e-mails and writings of any kind touching upon the investigation of Defendants Scrushy or Siegelman by, to, or from: Alberto Gonzalez (Attorney General or Legal Counsel to the President); Karl Rove (Special Assistant to the President); Noel Hillman (Chief, Public Integrity Section); William M. Welch II (Chief, Public Integrity Section); Brenda Morris (Principal Deputy Chief, Public Integrity Section); Andrew Lourie (Acting Chief, Public Integrity Section); Richard Pilger (Attorney, Public Integrity Section); and personnel in OCRS.

5. All reports, notes, memoranda, documents, e-mails and writings of any kind in the possession of the Office of Professional Responsibility and the Executive Office for the United States Attorneys and/or the Department of Justice itself which contain any evidence of any kind which support the conclusion that the decision to investigate and/or prosecute either Defendant Siegelman or Defendant Scrushy was based on political considerations or political pressure of any kind, or support the conclusion that Defendants were victims of selective prosecution.

6. All reports, notes, memoranda, documents, e-mails and writings of any kind relating in any way to the investigation of or decision not to investigate the allegations of illegal campaign contributions arranged by Lanny Young to either Senator Jeff Sessions or then-Attorney General Bill Pryor.


24

7. All reports, notes, memoranda, documents, e-mails and writings of any kind relating to the decision to reject the negotiated plea arrangement relating to Defendant Scrushy. II. Requests Relating to Issue [3] (Ex Parte Meeting Between

Judge and Government

1. All reports of interviews, investigative reports, notes, memoranda, documents, e-mails or writings of any kind which were generated or obtained by the Postal Inspectors in the course of that agency’s investigation of the copies of e-mails mailed to co-workers of Jurors 7 and 40.

2. All reports, notes, memoranda, documents, e-mails and writings of any kind by the U.S. Attorney’s Office (a) requesting, directing or authorizing the above investigation by the Postal Inspectors; or (b) seeking authorization from Chief Judge Fuller to interview jurors in the instant case or to reveal jurors’ names.

3. All reports, notes, memoranda, documents, e-mails and writings of any kind that were shown or provided to Chief Judge Fuller relating to the above investigation by the Postal Inspectors.

4. All reports, notes, memoranda, documents, e-mails, transcripts, and writings of any kind reflecting the ex parte meeting between Chief Judge Fuller and the U.S. Marshals in or about April 2007 concerning the above investigation by the Postal Inspectors.

5. The names and contact information for all individuals who were present or knew of the ex parte meeting described in the preceding paragraph.

6. All transcripts, reports, notes, memoranda, documents, e-mails and writings of any kind reflecting any additional ex parte meetings between Chief Judge Fuller and any current or former federal or state employee relating in any way to the prosecution of Defendants Scrushy or Siegelman, or post-trial proceedings related to this case.

7. Any documents that the Appellate Section of the Department of Justice relied on or reviewed which contributed or influenced in any way to its decision to issue the July 8, 2008, letter by Patty Merkamp Stemler, Chief of the Appellate Section, Department of Justice, and any e-mails, memoranda or documents of any kind reflecting the decision-making process to issue that letter.


25

8. All reports, notes, memoranda, documents, e-mails and writings of any kind in the possession of the Government reflecting any follow-up investigations, inquiries or interviews concerning the April 2007 ex parte meeting between the U.S. Marshals and Chief Judge Fuller. III. Requests Relating to Issue [4] (U.S. Attorney Recusal)

1. All reports, notes, memoranda, documents, e-mails and writings of any kind by or from U.S. Attorney Leura Canary on or after May 16, 2002 to any lawyer, law enforcement agent, paralegal or other employee or contract employee or former employee of the U.S. Attorney’s Office for the Middle District of Alabama, the Department of Justice, or the Alabama Attorney General’s Office that touches in any way on any aspect of the investigation or prosecution of Defendants Scrushy or Siegelman or any post conviction proceedings in that case.

2. All reports, notes, memoranda, documents, e-mails and writings of any kind from any lawyer, law enforcement agent, paralegal or other employee or contract employee or former employee of the U.S. Attorney’s Office for the Middle District of Alabama, the Department of Justice, or the Alabama Attorney General’s office on or after May 16, 2002, written or provided to U.S. Attorney Leura Canary that touches in any way on any aspect of the investigation or prosecution of Defendants Scrushy and Siegelman or any post conviction proceedings in that case. IV. Requests relating to Issue [5] (Prosecutorial Misconduct)

1. All e-mails, memoranda or documents of any kind to or from any

lawyer, law enforcement agent, paralegal or other employee or contract employee or former employee of the U.S. Attorney’s Office, the Department of Justice, or the Alabama Attorney General’s office touching in any way on any member of the trial jury in the instant case (or speculating on any contacts to, from or with said jurors), as well as any knowledge or information concerning any contacts with or by jurors or speculation that such contacts may or did occur which has not been reduced to writing, along with the name and contact information of any individual having such knowledge or information.


26

Record, vol. III, no. 955, at 3–6.

Judge Fuller referred Scrushy’s motion for production to a Magistrate Judge

for a report and recommendation on whether any of the requested discovery was

needed to decide any of the grounds for a new trial and thus should be made

available to Scrushy’s counsel. The Magistrate Judge ordered the Government to

produce the discovery in camera. The Government complied. After examining the

discovery, he concluded that none of it supported any of Scrushy’s grounds for a

new trial. He therefore denied Scrushy’s motion for discovery.

Scrushy appealed the Magistrate Judge’s discovery decision to the District

Court, arguing that the Magistrate Judge erred in concluding that the discovery

provided no support for his motion for a new trial. Judge Fuller rejected Scrushy’s

argument and denied his motion. Without saying so explicitly, the Magistrate

Judge, and thus Judge Fuller, found Scrushy’s grounds for a new trial facially

insufficient as a matter of law.

In subsequently ruling on the merits of Scrushy’s motion for new trial, Judge

Fuller expressly found no merit in grounds (1), (4), and (5), and by implication

found no merit in ground (2). As for ground (3)—that Judge Fuller violated the

Codes of Judicial Conduct and denied Scrushy his Sixth Amendment right to

counsel and due process of law in meeting ex parte with the Marshals—Judge

Fuller relied in large part on Judge Hinkle’s order denying the motion to recuse.


27

He concluded that “the arguments before Judge Hinkle on the motion to recuse are

identical to those presently before this Court. For the reasons stated, including the

depth of Judge Hinkle’s analysis and the soundness of his conclusions, the Court

finds no reason to revisit issues that have already been decided.” United States v.

Scrushy, 2012 WL 204159, at *7 (M.D. Ala. Jan. 24, 2012).

III.

As we indicated at the outset, this appeal focuses on the District Court’s

disposition of two motions Scrushy filed on June 26, 2009, a motion to recuse

Judge Fuller and a motion for a new trial. We review for abuse of discretion a

district court’s denial of a motion to recuse, In re Walker, 532 F.3d 1304, 1308

(11th Cir. 2008) (citing Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000),

and a motion for a new trial, United States v. Hernandez, 433 F.3d 1328, 1332

(11th Cir. 2005) (citing Butcher v. United States, 368 F.3d 1290, 1297 (11th Cir.

2004)). “A district court abuses its discretion when it misapplies the law in

reaching its decision or bases its decision on findings of fact that are clearly

erroneous.” Goodman-Gable-Gould Co. v. Tiara Condominium Ass'n, Inc., 595

F.3d 1203, 1210 (11th Cir. 2010) (quoting Arce v. Garcia, 434 F.3d 1254, 1260

(11th Cir. 2006).


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28

We find no abuse of discretion in Judge Hinkle’s handling of the motion to

recuse or in Judge Fuller’s handling of the motion for new trial. We consider in

sequence the denial of the two motions.27

A.

A party may move for the recusal of a judge under 28 U.S.C. § 455. The

statute sets out two situations in which recusal is required. Section (a) provides

that recusal is necessary where a judge’s impartiality may reasonably be

questioned. 28 U.S.C. § 455(a) (2006) (“Any justice, judge, or magistrate judge of

the United States shall disqualify himself in any proceeding in which his

impartiality might reasonably be questioned.”). The standard of review 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.” United States v. Patti, 337 F.3d 1317, 1321

(11th Cir. 2003) (quoting Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th

Cir. 1988)). The standard is thus an objective one, “designed to promote the

public’s confidence in the impartiality and integrity of the judicial process.” In re

27 In affirming the District Court’s denial of Scrushy’s motion for a new trial, we also affirm, without discussion, the court’s rejection of Scrushy’s objection to the Magistrate Judge’s refusal to permit discovery of the documents the Government had produced in camera and his denial of an evidentiary hearing regarding the documents’ contents.


29

Evergreen Sec., Ltd., 570 F.3d 1257, 1263 (11th Cir. 2009) (quoting Davis v.

Jones, 506 F.3d 1325, 1332 n.12 (11th Cir. 2007)).

Section (b) lists several circumstances requiring recusal, including “[w]here

[the judge] has a personal bias or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts concerning the proceeding,” 28 U.S.C. §

455(b)(1), and where the judge is “likely to be a material witness in the

proceeding,” 28 U.S.C. § 455(b)(5)(iv). In those circumstances, partiality is

conclusively presumed, making recusal mandatory because “the potential for

conflicts of interest are readily apparent.” Patti, 337 F.3d at 1321 (quoting Murray

v. Scott, 253 F.3d 1308, 1312 (11th Cir. 2001)).

Scrushy’s motion sought Judge Fuller’s recusal from hearing the pending

motion for new trial for two reasons: (1) § 455(a) required Judge Fuller to step

down because he met ex parte with the Marshals about a factual issue created by

the second ground of his motion for a new trial—whether the three emails were

authentic—and therefore cast doubt on his impartiality, and (2) § 455(b) required

recusal because, at the meeting, Judge Fuller learned that the Postal Service had

concluded that the emails were not authentic and thus acquired personal knowledge

of a disputed evidentiary fact central to that second ground. Judge Fuller would be

a material witness in the adjudication of that ground.


30

Scrushy contends that Judge Hinkle abused his discretion in failing to

uphold these two grounds. We are not persuaded. As for ground (1), Scrushy

ignores the fact that Judge Fuller assumed the authenticity of the three emails in

denying his December 28, 2006, motion for reconsideration based on the emails.

Put plainly, he resolved the disputed factual issue in Scrushy’s favor and against

the federal prosecutor. It would defy common sense to conclude that a

disinterested lay observer would doubt Judge Fuller’s impartiality—that the

observer would think that Judge Fuller, in resolving the issue in Scrushy’s favor,

was somehow partial to Scrushy’s adversary, the federal prosecutor, and thus

would likely be partial in deciding Scrushy’s motion for a new trial.

As for ground (2), Judge Fuller disregarded any knowledge gained in the ex

parte meeting with the Marshals and assumed what Scrushy urged him to find, that

the emails were authentic. Because he resolved the factual dispute in Scrushy’s

favor—and Siegleman I accepted that resolution in affirming his denial of

Scrushy’s motion for reconsideration—the authenticity of the emails was no

longer at issue, and Judge Fuller was not likely to be a material witness in any

proceeding.

Having found no abuse of discretion in Judge Hinkle’s denial of Scrushy’s

motion to recuse, we turn to Judge Fuller’s denial of Scrushy’s motion for a new

trial.


31

B.

Rule 33 provides that motions for a new trial based on newly discovered

evidence must be filed within three years of the verdict. Fed. R. Crim. P.

33(b)(1).28 “Motions for a new trial . . . 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). “Newly discovered evidence need not relate

directly to the issue of guilt or innocence to justify a new trial, but may be

probative of another issue of law.” Id. (internal quotation marks and citations

omitted). Questions regarding the “fairness or impartiality of a jury” may be

grounds for a new trial based on newly discovered evidence, id., as may evidence

that would “afford reasonable grounds to question . . . the integrity of the verdict.”

United States v. Williams, 613 F.2d 573, 575 (5th Cir. 1980).29

To obtain a new trial under Rule 33(b)(1), “a movant must satisfy four

elements: (1) the evidence must be newly discovered and have been unknown to

the defendant at the time of trial; (2) the evidence must be material, and not merely

cumulative or impeaching; (3) the evidence must be such that it would probably

28 Motions for a new trial based on any other grounds must be filed within fourteen days of the verdict. Fed. R. Crim. P. 33(b)(2).

29 In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.


32

produce an acquittal; and (4) the failure to learn of such evidence must be due to

no lack of due diligence on the part of the defendant.” United States v. Espinosa-

Hernandez, 918 F.2d 911, 913 n.5 (11th Cir. 1990).

As indicated, supra, five of the six grounds Scrushy relied on in seeking a

new trial are before us in this appeal. We review them in order, starting with his

claim that he was subjected to selective prosecution in violation of his Fifth

Amendment right to the equal protection of the law.30

1.

The Fifth Amendment’s Due Process Clause has an equal protection

component akin to the Equal Protection Clause of the Fourteenth Amendment. See

Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S. Ct. 693, 694–695, 98 L. Ed. 884

(1954). It prohibits the federal government from denying to any person in the

United States the equal protection of the laws. Scrushy seeks the vacation of his

convictions, and perhaps a judgment of acquittal, on the ground that the

Government denied him equal protection in prosecuting him for the crimes

contained in the second superseding indictment.

30 Scrushy argues that Judge Fuller abused his discretion in denying his motion for a new trial without an evidentiary hearing. An evidentiary hearing was not required because the record contained all the evidence needed to dispose of each of the grounds asserted as a basis for a new trial.


33

Scrushy was indicted because he contributed $500,000 to an issue-advocacy

campaign supported by then-Governor Siegelman and, in return, received an

appointment to Alabama’s Certificate of Need Review Board. His prosecution was

selective, he says, because other similarly situated people made campaign

donations and received gubernatorial appointments but were not prosecuted.

Scrushy’s selective prosecution claim fails for two reasons. First, a claim of

selective prosecution is not the proper subject of a Rule 33(b)(1) motion for a new

trial. Selective prosecution has “no bearing on the determination of factual guilt.”

United States v. Jones, 52 F.3d 924, 927 (11th Cir. 1995) (citing United States v.

Jennings, 991 F.2d 725, 730 (11th Cir. 1993)). Whether the decision to prosecute

Scrushy was motivated by improper reasons has no bearing on the integrity of the

trial or the verdict and is therefore not the proper subject of a Rule 33(b)(1)

motion.

Second, a claim of selective prosecution alleges a defect in the institution of

prosecution under Federal Rule of Criminal Procedure 12(b)(3)(A).31 See Jones,

52 F.3d at 927. Rule 12(b) requires that the defense be raised by pretrial motion.

Id. at 927 n.5. If the defendant fails to raise the defense before trial, he waives the

31 Federal Rule of Criminal Procedure 12(b)(3)(A) provides: (b) Pretrial Motions. (3) Motions That Must Be Made Before Trial. The following must be raised before trial: (A) a motion alleging a defect in the instituting the prosecution.


34

defense. Id.; Fed. R. Crim. Pro. 12(e).32 Waiver may be excused, though, if the

defendant shows cause for his delay in presenting the defense. Fed. R. Crim. Pro.

12(e).

Scrushy did not raise his selective prosecution defense prior to trial, as

required by Rule 12(b). Instead, he waited until June 26, 2009, to raise it, in his

motion for a new trial. The delay should be excused, he says, because his

attorneys “did not have a good faith basis to file a selective prosecution claim prior

to trial.” Appellant’s Initial Brief at 48. It was not until June 2009 that they

acquired evidence to support the claim.

Scrushy relies in large part on two investigations into allegations of

politically motivated prosecutions that were ongoing when counsel filed the

motion for a new trial, one by the House of Representatives Committee on the

Judiciary, another by the Department of Justice Office of Professional

Responsibility. Although, as Judge Fuller noted, “many of the more detailed

factual allegations recited by the [Committee on the Judiciary] report . . . could not

have been known to Scrushy prior to trial, the materials provided to the Committee

32 When United States v. Jones, 52 F.3d 924 (11th Cir. 1995), was decided, the waiver provision was contained in Federal Rule of Criminal Procedure 12(f). The waiver provision is now contained in Federal Rule of Criminal Procedure 12(e), which provides:

(e) Waiver of a Defense, Objection, or Request. A party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. For good cause, the court may grant relief from waiver.


35

on the Judiciary . . . coupled with the evidentiary attachments to Scrushy’s motion,

show that Scrushy had knowledge of, and co-defendant Siegelman was claiming . .

. selective prosecution . . . as early as three years prior to the commencement of

trial in this case.” United States v. Scrushy, 2012 WL 204159, at *3 (M.D. Ala.

Jan. 24, 2012). Scrushy’s excuse for the delay in presenting his claim of selective

prosecution is feeble at best. Judge Fuller acted well within his discretion in

rejecting ground (1) of Scrushy’s motion for a new trial.

2.

On December 28, 2006, Scrushy moved the District Court to reconsider its

December 13, 2006, order denying his motion for a new trial or, alternatively,

grant a new trial based on newly discovered evidence. The newly discovered

evidence consisted of the two juror emails defense counsel and the jurors’ co-

workers had received in envelopes postmarked December 20, 2006. Scrushy

added to this evidence the juror email he and his counsel received on February 21,

2007. Judge Fuller denied both motions on June 22, 2007, and this court affirmed

his rulings in Siegelman I.

Ground (2) of Scrushy’s June 26, 2009, motion for a new trial is the same

ground Scrushy advanced in his December 28, 2006, motion for a new trial.

Ground (2) is foreclosed for two reasons: (1) the three emails do not constitute


36

newly discovered evidence; and (2) the law of the case doctrine bars its

relitigation.

3.

Although newly discovered evidence of judicial misconduct could,

depending on the circumstances, give rise to a motion for new trial under Rule 33,

Scrushy fails to explain why the misconduct he describes in ground (3)—Judge

Fuller’s ex parte meeting with the Marshals—amounted to one of those

circumstances requiring a new trial. The why is apparently this: the meeting took

place without advance notice to defense counsel about the meeting, its purpose,

and counsel’s right to be present. This, according to Scrushy, denied him of his

Sixth Amendment right to counsel and his Fifth Amendment due process right to

fair notice.

Judge Hinkle, in entertaining Scrushy’s motion to recuse, was aware of

Scrushy’s claim that Judge Fuller met with the Marshals ex parte in derogation of

his Fifth and Sixth Amendment rights. Implicit in Judge Hinkle’s finding that

Judge Fuller conducted himself appropriately—just as any district judge would

under similar circumstances—in meeting with the Marshals as he did is the notion

that his conduct did not infringe any of Scrushy’s rights as a litigant before the

court. We have affirmed Judge Hinkle’s decision, and we conclude that his ruling

effectively disposes of ground (3) of Scrushy’s motion for a new trial.


37

4.

Scrushy’s fourth ground, that U.S. Attorney Leura Canary failed to abide by

her decision to recuse and thereby deprived Scrushy of his right to a disinterested

prosecutor, is devoid of merit. U.S. Attorney Canary recused while Scrushy and

Siegelman were being investigated, after Siegelman’s attorney wrote to the Deputy

Attorney General and the Director of the Executive Office for the United States

Attorneys requesting her disqualification. Acting U.S. Attorney Louis Franklin

was appointed to oversee the case.

As evidence of Canary’s continued involvement in the case, Scrushy offered

emails and statements provided by a whistleblower in the U.S. Attorney’s office,

Tamarah Grimes, indicating that Canary had kept up with the case and contributed

to litigation strategy. One email, in which Canary forwarded an email sent by

Siegelman’s campaign to supporters, said:

Heaven only knows how I got on this email list. Y’all need to read because he refers to a “survey” which allegedly shows that 67% of Alabamians believe the investigation of him to be politically motivated. (Perhaps grounds not to let him discuss court activities in the media?) He also admits to making “bad” hires in his last administration. Also, it shows that it was sent last Thursday night, though I didn’t receive it until late Friday. Leura.

Record, vol. II, no. 953, at 18. In a second email, Canary forwarded a letter to the

editor claiming that the grand jury in the Siegelman investigation seemed to be

convening in response to Siegelman’s political campaign. A third email, sent by

an Assistant U.S. Attorney, discusses Grimes’s assignment to the case and says,


38

“Leura and Louis both liked the concept.” Record, vol. II, no. 953, at 19. Grimes

also stated in a letter to Attorney General Eric Holder that “Mrs. Canary publically

[sic] stated that she had maintained a ‘firewall’ between herself and The Big Case.

In reality, there was no ‘firewall.’ Mrs. Canary maintained direct communication

with the prosecution team, directed some action in the case, and monitored the case

through members of the prosecution team and [assistant U.S. Attorney] Mrs.

Watson.” Record, vol. II, no. 953, at 19.

Scrushy frames his claim about Canary’s limited involvement with his case

as a deprivation of a disinterested prosecutor. Scrushy relies on the Supreme

Court’s decision in Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.

Ct. 2124, 95 L. Ed. 2d 740 (1987), which held that appointment of an interested

prosecutor was a structural defect requiring reversal of a conviction without a

showing of prejudice. As the District Court pointed out, however, in Young,

counsel for a party that was the beneficiary of a court order was the same counsel

appointed to prosecute in a contempt action alleging violation of that order. Such a

clear conflict of interest does not exist in this case. Canary recused herself

voluntarily before Scrushy was indicted, even though the Department of Justice

had found that no actual conflicts of interest existed. Another prosecutor, Assistant

U. S. Attorney Louis Franklin, was appointed to oversee the case. Scrushy makes

no allegation that Franklin had any conflict of interest. Moreover, there is no


39

evidence that Canary’s emails influenced any decisions made by the U.S.

Attorney’s office in prosecuting Scrushy. Canary’s limited involvement in his case

did not deprive Scrushy of a disinterested prosecutor. In fine, Judge Fuller did not

abuse his discretion in rejecting ground (4) of Scrushy’s motion.

5.

Finally, in ground (5), Scrushy claims the prosecution engaged in

misconduct in failing to inform him of a juror’s infatuation with an FBI agent. His

claim is based on emails sent between Assistant U.S. Attorney Patricia Watson and

Grimes, the whistleblower, indicating that jurors sent messages through the

Marshals expressing romantic interest in the FBI Special Agent who sat at or near

the prosecution table during the trial. Watson wrote, “I just saw Keith [the FBI

Special Agent] in the hall. The jurors kept sending out messages through the

marshals. A couple of them wanted to know if he was married.” Record, vol. II,

no. 953, at 22. Grimes wrote back, “Yeah, that’s what Vallie [another member of

the prosecution] said. He said one girl was a gymnast and they called her

‘Flipper,’ because she apparently did back flips to entertain the jurors. Flipper was

very interested in Keith.” Record, vol. II, no. 953, at 22. Scrushy argues that the

prosecution’s failure to disclose the jurors’ romantic interest in the FBI Special

Agent was prosecutorial misconduct because the communication “raises a real

possibility of bias having infected the jury.” Record, vol. II, no. 953, at 60.


40

Although evidence that goes to prosecutorial misconduct or the impartiality

of the jury may be the proper subject of a motion for new trial based on newly

discovered evidence, this claim fails on the merits. 33 The evidence—that jurors

had a romantic interest in the FBI agent and expressed that interest in notes sent

through the Marshals—is not material; nor would it be likely to produce an

acquittal on retrial. The assertion that a mere expression of attraction would infect

the jury’s decision with bias strains credulity. It was not misconduct for the

prosecution to fail to disclose this contact to the defense. Even if the contact

should have been disclosed, the failure to do so was harmless. Judge Fuller did not

abuse his discretion in rejecting ground (5).

IV.

For the reasons we have advanced in Part III, supra, the judgment of the

District Court is

AFFIRMED.

33 Judge Fuller’s opinion appears to presume that the juror contacts forming the basis of the claim are the jurors’ emails that were addressed in the first motion for new trial and motion for reconsideration: “These claims have been exhaustively addressed by this court, Judge Hinkle, and the Eleventh Circuit.” Record, vol. IV, no. 1072, at 17. Although Scrushy’s claim involves different juror contacts that have not yet been considered, we find the claim frivolous and therefore see no need to remand the issue for determination by the District Court.


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