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Case No. 12-10694

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

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

UNITED STATES OF AMERICA,

Appellee-Plaintiff,

v.

RICHARD SCRUSHY,

Appellant-Defendant.

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

BRIEF OF APPELLANT RICHARD M. SCRUSHY __________________________________________________________________

Arthur W. Leach James K. Jenkins Suite 225 MALOY JENKINS PARKER 5780 Windward Parkway 900 Arapahoe Avenue Alpharetta, Georgia 30005 Boulder, Colorado 80302 404-786-6443 303-443-9048 Leslie V. Moore Suite 204 5148 Caldwell Mill Road Birmingham, Alabama 35244 205-403-9116

Case: 12-10694 Date Filed: 04/09/2012 Page: 1 of 70

USA v. Scrushy Case No. 12-10694

Certificate of Interested Persons And Corporate Disclosure Statement

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

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

Honorable Charles S. Coody, United States Magistrate Judge

Louis V. Franklin, Sr., Acting United States Attorney

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

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

James K. Jenkins, Attorney for Richard Scrushy

Arthur W. Leach, Attorney for Richard Scrushy

Leslie V. Moore, Attorney for Richard Scrushy

Richard C. Pilger, Department of Justice, Public Integrity Section

John Alexander Romano, Department of Justice, Appellate Section

Don Eugene Siegelman, Co-Defendant in trial court

Peter L. Sissman, Attorney for Don Siegelman

Morgan Stanley (symbol MS)

Patty Merkamp Stemler, Department of Justice, Appellate Section

UBS AG (symbol UBS)

C-1 of 1


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Statement Regarding Oral Argument

Appellant Richard Scrushy respectfully requests oral argument. This case

involves the denial of a motion to recuse based on ex parte meetings between the

trial judge and members of the United States Marshals Service and the Postal

Inspector where there is no full disclosure on the record of the basis for

disqualification. During the second ex parte meeting, the court was informed of the

results of an investigation concluding that documents central to a motion then

pending before the court were not authentic. This appeal also presents issues

relating to the scope of discovery in a motion for new trial based on newly

discovered evidence and the denial of an evidentiary hearing on the motion for new

trial. These latter two issues arise in the context of an extensive evidentiary

showing (including 73 exhibits) as to documents, e-mails and investigative reports

that are likely to exist and are in the exclusive custody of the Government. Oral

argument would enable counsel to assist the Court in identifying the portions of the

record that are important to these determinations, as well as assist the Court in

determining if the court below applied the correct legal standards in determining

these motions.


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Table of Contents

Certificate of Interested Persons and Corporate Disclosure Statement …… C-1 of 1 Statement Regarding Oral Argument……………………………………………... i Table of Contents ………………………………………………………………… ii Table of Citations ………………………………………………………………... iv Statement of Jurisdiction ……………………………………………………….. vii Statement of the Issues ………………………………………………………....... 1 Course of Proceedings …………………………………………………………… 2 Statement of Facts ……………………………………………………………….. 3 Standards of Review ……………………………………………………………... 7 Summary of the Argument ………………………………………………………. 8 Argument and Citations of Authority …………………………………………… 10 I. THE DENIAL OF SCRUSHY’S MOTION TO RECUSE BASED ON THE DISTRICT JUDGE’S PARTICIPATION IN TWO EX PARTE MEETINGS WAS ERROR BECAUSE THERE WAS NO FULL DISCLOSURE ON THE RECORD OF THE BASIS FOR DISQUALIFICATION AND THE COURT APPLIED A SUBJECTIVE STANDARD RATHER THAN THE REQUIRED OBJECTIVE STANDARD ……………… 10 A. THIS COURT SHOULD REMAND FOR A COMPLETE DETERMINATION OF THE FACTS RELATING TO THE EX PARTE MEETINGS BECAUSE THERE WAS NO FULL DISCLOSURE ON THE RECORD OF THE FACTUAL BASIS FOR DISQUALIFICATION……………………………………………… 12


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B. BY CONCLUDING THAT THE TRIAL COURT WAS NOT ACTUALLY AFFECTED BY WHAT WAS SAID IN THE EX PARTE MEETINGS THE COURT BELOW FAILED TO APPLY THE REQUISITE OBJECTIVE STANDARD IN DETERMINING THE RECUSAL MOTION……………………………………………… 19

II. THE COURT ABUSED ITS DISCRETION IN DENYING ALL DISCOVERY REQUESTS BASED ON A FACIALLY INCOMPLETE IN CAMERA INSPECTION, APPLICATION OF AN INCORRECT LEGAL STANDARD, AND FAILURE TO CONSIDER KEY PORTIONS OF SCRUSHY’S EVIDENTIARY SHOWING ……………………………..... 28 A. THE MAGISTRATE’S REPRENTATIONS OF THE MATERIALS EXAMINED IN HIS IN CAMERA REVIEW ARE NOT SUPPORTED BY THE RECORD ………………………….. 29 B. THE MAGISTRATE APPLIED AN INCORRECT LEGAL STANDARD IN DENYING THE MOTIONS FOR DISCOVERY……. 34 C. THE COURT FAILED TO CONSIDER KEY SHOWINGS THAT THERE WAS A FIRM EVIDENTIARY BASIS TO BELIEVE THAT EVIDENCE THAT WOULD ENABLE SCRUSHY TO PROVE HIS CLAIMS LIKELY EXISTS ……………. 41 III. THE DENIAL OF SCRUSHY’S MOTION FOR NEW TRIAL WITHOUT CONDUCTING AN EVIDENTIARY HEARING WAS AN ABUSE OF DISCRETION ………………………………………………. 47 Conclusion …………………………………………………………………….. 58 Certificate of Compliance ……………………………………………………… 60 Certificate of Service …………………………………………………………… 61


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Table of Citations

Cases Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) ………... 17 Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) ……………………… 19 Easley v. University of Michigan Bd. of Regents, 853 F.2d 1351 (6th Cir. 1988) …………………………………………………………… 17 Harris v. Nelson, 394 U.S. 286 (1969) ……………………………………......... 28 Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969) ……………………………….. 38 Mattox v. United States, 146 U.S. 140 (1892) ………………………………… 56 Neder v. United States, 527 U.S. 1 (1999) …………………………………….. 53 Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir. 1988)………………... 7, 25 Pekar v. United States, 315 F.2d 319 (5th Cir. 1963) ………………………….. 56 Price Bros. Co. v. Philadelphia Gear Corp., 629 F.2d 444 (6th Cir. 1980) …… 17 Remmer v. United States, 347 U.S. 227 (1954)…………………………………. 56 Scrushy v. United States, 130 S.Ct. 3541 (2010) ………………………………… 2 Skilling v. United States, 130 S.Ct. 2896 (2010) ………………………………... 2 United States v. Adams, 785 F.2d 917 (11th Cir. 1986) ………………………... 16 United States v. Armstrong, 517 U.S. 456 (1996) …………………………... 34, 50 United States v. Betner, 489 F.2d 116 (5th Cir. 1974) ………………………….. 56 United States v. Campa, 459 F.3d 1121 (11th Cir. 2006) (en banc) …………… 50


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United States v. Espinosa-Hernandez, 918 F.2d 911

(11th Cir. 1990) … ……………………………………………. 7, 29, 36, 46 United States v. Frazier, 387 F.3d 1224 (11th Cir. 2004) (en banc) …………. 7, 47 United States v. Gordon, 817 F.2d 1538 (11th Cir. 1987) ……………… 36, 49, 51 United States v. Kelly, 888 F.2d 732 (11th Cir. 1989) …………………………… 7 United States v. Meinster, 488 F.Supp. 1342 (S.D. Fla. 1980) …………………. 16 United States v. Patti, 337 F.3d 1317 (11th Cir. 20030 ……...... 7, 8, 16, 19, 20, 24 United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B 1981) …………………. 16 United States v. Potashnick, 609 F.2d 1101

(5th Cir. 1980) ………………………………………… 8, 17, 20, 25, 26, 27 United States v. Rhymes, 196 F.3d 207 (4th Cir. 1999) ………………………… 17 United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009)

(“Siegelman I”) …………………………………………………. 2, 5, 24, 56 United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011)

(“Siegelman II”) …………………………………………………… 3, 6, 56 United States v. Simms, 385 F.3d 1347 (11th Cir. 2004) ………………………. 16 United States v. Slocum, 708 F.2d 587 (11th Cir. 1983) …………………….. 8, 47 United States v. State of Alabama, 828 F.2d 1532 (11th Cir. 1987) …………. 7, 17 United States v. Velarde, 485 F.3d 553 (10th Cir. 2007) ….. 7, 9, 28, 29, 34, 37, 39 Young v. U.S. ex rel. Vuitton et Fils, 481 U.S. 787 (1987) ……………………… 52


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Statutes and Rules 28 U.S.C. § 144 …………………………………………………………………. 17 28 U.S.C. § 455(a) ……………………………………………10, 17, 23, 25, 26, 27 28 U.S.C. § 455(b)(1) ………………………………………. 10, 18, 23, 24, 26, 27 28 U.S.C. § 455(b)(5)(iv) ……………………………………………….. 10, 24, 26 28 U.S.C. § 455(e) ………………………………………………………………. 16 28 U.S.C. § 1291………………………………………………………………… vii Fed. R. Evid. 403 ………………………………………………………………... 37 Fed. R. Evid. 608(b) …………………………………………………………….. 37


vii

Statement of Jurisdiction

This appeal is from the orders of the district court denying Appellant’s

motion for recusal (Doc. 1024), the district court’s order (Doc. 1078) affirming the

magistrate judge’s denial of discovery on Appellant’s motion for new trial (Doc.

1070), and the district court’s January 30, 2012 denial of Appellant’s motion for

new trial based on newly discovered evidence without a hearing. Doc. 1072.

Appellant Scrushy timely filed his notice of appeal on February 6, 2012. Doc. 1080.

This Court has jurisdiction pursuant to 28 U.S.C. § 1291, which gives the courts of

appeals jurisdiction over all final decisions of the district courts of the United

States.


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Statement of the Issues

I. Should this Court remand Appellant’s recusal motion based on the district

judge’s participation in two ex parte meetings because there was no full disclosure

on the record of the factual basis for disqualification and the court applied a

subjective standard in determining recusal instead of the required objective

standard?

II. Did the district court abuse its discretion by denying all requests for discovery

in support of Appellant’s motion for new trial by relying on a facially incomplete

in camera review, application of an incorrect legal standard, and failure to consider

key portions of Appellant’s showing that the evidence sought likely exists?

III. Did the district court abuse its discretion by denying Appellant’s motion for

new trial without conducting an evidentiary hearing?


2

Course of Proceedings

In June 2006, Appellant Richard Scrushy and co-defendant former governor

of Alabama Don Siegelman were convicted of federal funds bribery, honest

services mail fraud and bribery. Docs. 437, 438.

Scrushy moved for a new trial based on evidence of jury misconduct. Doc.

467. It was denied after an evidentiary hearing. Doc. 518. Scrushy filed a motion

for reconsideration based on newly discovered evidence of misconduct (Doc. 519),

which was denied without an evidentiary hearing. Doc. 611.

On June 28, 2007, the court sentenced Scrushy to 82 months in prison. Doc.

627. This Court affirmed on March 6, 2009. United States v. Siegelman, 561 F. 3d

1215 (11th Cir. 2009) (“Siegelman I”).

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

discovered evidence. Doc. 953. Scrushy also filed a motion to recuse the trial judge

based on an ex parte meeting between the judge and Government investigators

(Doc. 954), and motions for discovery. Docs. 955, 985. This Court assigned the

case to Judge Robert Hinkle of the Northern District of Florida.

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

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

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

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


3

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

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

On June 29, 2011, Judge Hinkle filed his order denying Scrushy’s recusal

motion. Doc. 1024. On January 18, 2012, the magistrate judge denied Scrushy’s

motions for discovery. Doc. 1070. On January 24, 2012, the district court denied

Scrushy’s motion for new trial without a hearing (Doc. 1072), and upheld the

discovery denial on February 1, 2012. Doc. 1078.

On January 30, 2012, Scrushy was re-sentenced to serve 70 months in prison.

Doc. 1075. Scrushy filed his notice of appeal to this Court on February 6, 2012.

Doc. 1080.

Appellant Scrushy has been incarcerated since June 28, 2007.

Statement of Facts

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

evidence of jury misconduct contained in anonymously sent copies of what

appeared to be e-mails between jurors on the case, and asked for leave to interview

the jurors or subpoena computer records. Doc. 467. The court held an evidentiary

hearing in which the court asked each juror about exposure to extrinsic evidence,

but never asked about the e-mails. Doc. 1024 at 4-5. On December 13, 2006, the

court denied the motion for new trial in a lengthy opinion (Doc. 518), finding that


4

there was limited exposure to extrinsic information but that it did not affect the

fairness of the trial or warrant further inquiry. Doc. 1024 at 5.

On December 20, 2006, someone anonymously mailed copies of more

e-mails, not only to defense counsel and Scrushy, but to co-workers of two jurors.

Id. These e-mails mentioned an exchange of “articles” and “links.” Co-workers

reported this to the jurors; one juror reported it to the United States Marshal; one

reported it to the court. Id. at 6. The Marshal notified Chief Judge Fuller and the

Acting U.S. Attorney, who asked the United States Postal Inspection Service to

investigate, and assigned the matter to an Assistant United States Attorney not

involved in this case. Defense counsel was not notified. Id. at 6-7.

On December 28, 2006, Scrushy filed a motion to reconsider the court’s

December 13, 2006 order. Id.; Doc. 519. Copies of an additional e-mail arrived in

February of 2007, and the record supplemented. Doc. 532.

In April of 2007, while Scrushy’s motion to reconsider based on the

additional e-mails was still pending, and without Scrushy’s or counsel’s knowledge,

a deputy marshal and/or postal inspector briefed Chief Judge Fuller on the

investigation of the e-mails. Doc. 1024 at 7. This ex parte meeting was not

revealed to Scrushy until July 8, 2008 (after Scrushy filed his initial brief in this

Court), when the Chief of the Appellate Section in the Department of Justice

informed counsel in a letter (“DOJ Letter”), which stated in part:


5

While the investigation was ongoing, in early April 2007, well after the second evidentiary hearing on November 17, 2006, representatives of the United States Marshals Service apprised Chief Judge Fuller that the Postal Inspectors were investigating the receipt of purported emails by co-workers of the two jurors and had concluded that the purported emails were not authentic, but that the Postal Inspectors had not yet determined who had sent copies of the emails to the co-workers.

Doc. 954-1 at 2-3.

On June 22, 2007, some two months after the April 2007 ex parte meeting,

Chief Judge Fuller denied Scrushy’s motion to reconsider based on the additional

e-mails, concluding that no further investigation was necessary and that the

additional e-mails were “merely cumulative and impeaching.” Doc. 611 at 3, 12-13.

This Court denied Scrushy’s direct appeal in March of 2009. It rejected

Scrushy’s arguments concerning jury misconduct and the sufficiency of the trial

court’s investigation of misconduct, and denied Scrushy’s motion to authorize

subpoenas or appoint a special master. Siegelman I, 561 F.3d 1215. Shortly

thereafter, Scrushy filed an extensive motion for new trial based on newly

discovered evidence, raising five separate claims. Doc. 953. Scrushy also filed a

motion to recuse Chief Judge Fuller based on the April 2007 ex parte meeting. Doc.

954. Additionally, Scrushy filed specific discovery requests relating to each of his

five claims. Docs. 955, 985.

In May of 2010, Chief Judge Fuller entered an order referring the recusal

motion to another judge. Doc. 1006. This order included two statements


6

summarizing his memory of two ex parte meetings concerning the e-mails. Doc.

1006 at 3. This Court assigned the case to Judge Hinkle for disposition. Doc. 1007.

After the Supreme Court vacated this Court’s original decision, this Court

reversed two of Scrushy’s convictions and remanded for resentencing. Siegelman

II, 640 F.3d 1159. Judge Hinkle then entered an order denying Scrushy’s recusal

motion without conducting any inquiry into the facts surrounding the ex parte

meetings. Judge Hinkle reasoned that this Court’s denial of Scrushy’s jury

misconduct claim resolved the recusal issue, and concluded that even though Chief

Judge Fuller had been exposed to extrinsic information, the information was

unrelated to Scrushy’s pending motion, and he was unaffected by the information.

Doc. 1024 at 29.

After recusal was denied, the court denied Scrushy’s discovery requests

(Doc. 1070), and Chief Judge Fuller denied the new trial motion without an

evidentiary hearing. Doc. 1072.

Scrushy brings this appeal from the denial of these motions.


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Standards of Review

I. This Court reviews recusal decisions under an abuse of discretion standard.

United States v. Kelly, 888 F. 732, 745 (11th Cir. 1989). The standard for

determination of a § 455(a) motion is “whether an objective, disinterested, lay

observer fully informed of the facts underlying the grounds on which recusal was

sought would entertain a significant doubt about the judge’s impartiality.” Parker v.

Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988). Recusal under 28 U.S.C.

§ 455(b) is mandatory because the potential for conflicts of interest are readily

apparent. United States v. Patti, 337 F.3d 1317, 1320 (11th Cir. 2003). Recusal is

to be determined under an objective standard. Id. at 1321-23. A clear error of

judgment or application of the wrong legal standard constitutes an abuse of

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

banc). Any doubts about recusal should be resolved in favor of disqualification.

Kelly, 888 F.2d at 745 (citing United States v. State of Alabama, 828 F.2d 1532,

1540 (11th Cir. 1987)).

II. A denial of discovery on a new trial motion is reviewed for abuse of

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

The standard for granting discovery is whether “there is a firm evidentiary basis for

believing such evidence likely exists.” United States v. Velarde, 485 F.3d 553, 561

(10th Cir. 2007).


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III. Denial of an evidentiary hearing on a motion for new trial is reviewed

under an abuse of discretion standard. United States v. Slocum, 708 F.2d 587, 600

(11th Cir. 1983).

Summary of the Argument

The court below abused its discretion by denying Scrushy’s motion to recuse

for two reasons. Scrushy’s motion was based on two ex parte meetings with Chief

Judge Fuller in which a deputy marshal and/or a postal inspector informed the

court that copies of e-mails between jurors were forgeries. The authenticity of

those e-mails was a material fact in Scrushy’s motion for reconsideration of his

jury misconduct claim which was pending before Chief Judge Fuller. Judge

Hinkle’s reliance on a brief summary of the ex parte meeting provided fifteen

months after the meeting by the Department of Justice and Chief Judge Fuller’s

brief recitation of his memory of the meeting provided three years later deprived

Scrushy of “a full disclosure on the record of the basis for disqualification.” Patti,

337 F.3d at 1322 n.6. Further, by finding that Chief Judge Fuller was not actually

affected by the ex parte disclosure, Judge Hinkle employed an impermissible

subjective standard in determining the recusal motion. This is contrary to the

objective standard applicable to all disqualification issues. Patti, 337 F.3d at 1321.

See also United States v. Potashnick, 609 F.2d 1101, 1113 (5th Cir. 1980).


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The magistrate judge abused his discretion in denying all of Scrushy’s

discovery requests. First, the denial relied in large part on the magistrate’s claim

that there was an in camera inspection of “all documents that would be responsive

to defendant’s discovery requests.” Doc. 1070 at 1. However, the record shows that

the described in camera inspection could not have occurred, since it did not

include any materials relating to four of Scrushy’s five grounds for new trial.

Second, the magistrate applied an incorrect legal standard by requiring Scrushy to

show that he would ultimately prevail in his new trial motion as a prerequisite to

granting discovery, rather than the applicable standard of whether there was a

“firm evidentiary basis for believing such evidence likely exists.” Velarde, 485

F.3d at 561. Third, the discovery order addressed only parts of Scrushy’s evidence,

and ignored Scrushy’s substantial evidentiary basis that the evidence sought in

discovery likely exists.

The court below abused its discretion in denying an evidentiary hearing on

Scrushy’s motion for new trial by: applying the wrong legal standard in requiring

Scrushy to prove that he would ultimately prevail on his motion; improperly

finding waiver as to his selective prosecution claim; ignoring binding Supreme

Court authority as to structural error; requiring Scrushy to prove prejudice without

first providing discovery or an evidentiary hearing; and by failing to address one of

Scrushy’s five new trial claims.


10

Argument and Citations of Authority

I. THE DENIAL OF SCRUSHY’S MOTION TO RECUSE BASED ON THE DISTRICT JUDGE’S PARTICIPATION IN TWO EX PARTE MEETINGS WAS ERROR BECAUSE THERE WAS NO FULL DISCLOSURE ON THE RECORD OF THE BASIS FOR DISQUALIFICATION AND THE COURT APPLIED A SUBJECTIVE STANDARD RATHER THAN THE REQUIRED OBJECTIVE STANDARD. Scrushy’s recusal motion (Doc. 954), was based on Chief Judge Fuller’s

participation in an ex parte discussion in which a deputy marshal and/or a postal

inspector informed him that the e-mails that were the focus of Defendant’s then-

pending motion for reconsideration based on jury misconduct were not authentic.

Doc. 954-1. Chief Judge Fuller concluded that another judge should decide the

recusal request. Doc. 1006 at 5. This Court designated District Judge Hinkle. Doc.

1007. Judge Hinkle, without a hearing, denied Scrushy’s motion to recuse as

“unfounded.” Doc. 1024 at 38. Scrushy’s motion for new trial was subsequently

denied by Chief Judge Fuller, also without a hearing. Doc. 1072.

Scrushy argued that recusal was required under 28 U.S.C. §§ 455(b)(1) and

(b)(5)(iv) because Chief Judge Fuller had “personal knowledge of disputed

evidentiary facts” and because he was “likely to be a material witness” as to the

new trial motion. Doc. 954 at 4-7. Scrushy argued that recusal was also required

under 28 U.S.C § 455(a) because the court’s “impartiality might reasonably be

questioned.” Doc. 954 at 7-9.


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The fundamental flaws in Judge Hinkle’s order are two-fold. First, neither

Judge Hinkle, nor Scrushy’s attorneys, nor this Court in considering Scrushy’s

appeal, know what occurred in the ex parte meetings. The only information as to

what occurred is found in a letter by the Chief of the Criminal Division’s Appellate

Section of DOJ, which revealed for the first time the ex parte meeting that

occurred fifteen months before (Doc. 954-1), and the statements contained in Chief

Judge Fuller’s order filed three years after the ex parte meetings. Doc. 1006 at 3.

While Judge Hinkle has concluded that “what was said in the April 2007 meeting

does not matter; it is not a disputed issue,” (Doc. 1024 at 36), Scrushy respectfully

disagrees. When there is an admitted ex parte discussion in which a Government

agent discusses a material fact to a motion then pending before that judge, there

must first and foremost be a complete determination of what the communication

was. The determination of those facts cannot be delegated to the Government or

the judge who participated in the meetings.

Second, a review of Judge Hinkle’s order demonstrates that the court

employed an impermissible subjective standard in ruling on Scrushy’s recusal

motion – concluding that since Chief Judge Fuller said that he did not consider the

authenticity of the questioned e-mails and that “here the judge has shown

impeccable demeanor and has given not a hint of personal reaction to the


12

information he received,” (Doc. 1024 at 34), there was no prejudice to Scrushy

from the ex parte discussion.

A. THIS COURT SHOULD REMAND FOR A COMPLETE DETERMINATION OF THE FACTS RELATING TO THE EX PARTE MEETINGS BECAUSE THERE WAS NO FULL DISCLOSURE ON THE RECORD OF THE FACTUAL BASIS FOR DISQUALIFICATION.

When Scrushy filed his motion to recuse, the only available facts as to any

ex parte meetings were found in what was revealed in the DOJ Letter. Doc. 954-1.

Judge Hinkle found that prior to that time, neither the prosecutors in this case nor

Chief Judge Fuller had revealed the occurrence to Scrushy or counsel. Doc. 1024 at

7-9.

While the DOJ Letter clearly advised that an ex parte meeting occurred “in

early April 2007,” (Doc. 954-1 at 2), and that “representatives of the United States

Marshals Service apprised Chief Judge Fuller that the Postal Inspectors were

investigating the receipt of purported emails by co-workers of the two jurors and

had concluded that the purported emails were not authentic,…” the letter did not

contain any information concerning an earlier ex parte meeting, who was present at

either meeting, what was said by any of the participants, or whether any reports of

interviews or other materials were shown to the judge. The letter was clearly

prepared to simultaneously stake out the Government’s position in the appeal then

pending (and already briefed by Scrushy) before this Court:


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The information does not alter the government’s conclusion that the purported e-mails appended to defendant Scrushy’s Motion to Reconsider provided no basis for the district court to reconsider its December 12, 2006 order denying the defense motion for new trial, or to grant a new trial based on newly discovered evidence.

Id. at 3.

The only other factual information in the record is contained in Chief Judge

Fuller’s May 2010 order, which concluded that Scrushy’s recusal motion should be

referred to another judge. Doc. 1006. This order revealed two ex parte meetings:

According to the Court’s memory of these events, the U.S. Marshals’ staff apprised the Court of the receipt of the purported e-mails by the jurors’ co-workers, and the Court directed the U.S. Marshal to investigate any attempt to influence, coerce, or intimidate a federal juror. * * * According to the Court’s recollection, in April 2007, representatives of the U.S. Marshals Service and the U.S. Postal Inspection Service briefed the Court on the on-going investigation, during which a postal inspector volunteered to the Court that his preliminary conclusion was that the alleged juror e-mails were not authentic.

Doc. 1006 at 3.

In his June 26, 2009 motion to recuse, Scrushy summarized the unanswered

questions about the ex parte meeting, noting that it was not even clear if there were

other unrevealed ex parte communications. Scrushy argued that without complete

disclosure of the facts, the record would be left in the hands of the Government and

any revelations the court might later make. Docs. 954 at 3; 5 n.1; 970 at 6.


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Nonetheless, Judge Hinkle concluded that there was no need to determine

what was said in the ex parte meetings. The opinion repeatedly relies on the DOJ

Letter and Chief Judge Fuller’s order as the only facts on which to base his

conclusion that although “extrinsic information came to the judge for reasons

unrelated to a pending motion, […] the judge decided the motion based on the

record properly before him, ignoring the extrinsic information.” Doc. 1024 at 29.

Similarly, Judge Hinkle concluded, “[H]ere the judge has shown impeccable

demeanor and has given not a hint of any personal reaction to the information

received.” Id. at 34. Notwithstanding the conflicts between the DOJ Letter and

Chief Judge Fuller’s version as to the first ex parte meeting and the question of

who initially directed that an investigation into the e-mails commence, Judge

Hinkle relies on only Chief Judge Fuller’s version of the purpose of the

investigation in reaching the important conclusion that the Government initiated

the investigation into the e-mails “not for the purpose of supporting the

government in the Siegelman and Scrushy case but for the purpose of determining

whether a new crime had been committed and, if so, who committed it.” Id. at 22.

The problem with this is simple. Because there was no full disclosure of the

factual basis for recusal and there is no transcript of the ex parte discussion (Doc.

1024 at 36), the only facts available are those that were provided by the DOJ and

Chief Judge Fuller. Scrushy does not have to ascribe any bad faith on the part of


15

the Government or Chief Judge Fuller in order to have access to all the facts

concerning ex parte meetings that occurred and that admittedly included discussion

of a key fact material to the determination of a motion then pending before that

judge. It is fair to say that the only sources relied on by Judge Hinkle in

determining what happened at the meetings have substantial interests in the

outcome of any inquiry into those meetings. Again, this is not to ascribe any

wrong-doing or bad faith; it is simply a fact that the only information comes from

interested parties in the form of conclusory statements written well after the events.

As it stands now, neither Judge Hinkle, nor Appellant Scrushy, nor this

Court in reviewing this decision as yet know what was said at those meetings. Or

who attended the meetings aside from Chief Judge Fuller.1 Or what was shown to

the judge. 2 Or who made the decision to order an investigation into the e-mails.3

Or even if these were the only ex parte meetings.4

1 Compare Doc. 954-1 at 2-3 with Doc. 1006 at 3 (contradiction as to which agencies were at April 2007 ex parte). Neither version provided any names. 2 The DOJ Letter states: “[t]he Postal Inspector also compared the purported emails to test emails sent from and received by Juror 40’s email account.” Id. at 2. 3 Compare Doc. 954-1 at 2 with Doc 1006 at 3 (Acting U.S. Attorney Franklin or Chief Judge Fuller). 4 The DOJ Letter does not even indicate that this was the only ex parte meeting, containing only a carefully worded “I am not aware of” non-denial denial. Doc. 954-1. Nor does Chief Judge Fuller. Doc. 1006 at 3.


16

Fundamental fairness requires that before a determination as to whether or

not recusal is required, there must be a complete and fair determination of what

occurred. A party may enter into a waiver of a ground for recusal under § 455(a).

However, “waiver may be accepted provided it is preceded by a full disclosure on

the record of the basis for disqualification.” 28 U.S.C. § 455(e). See Patti, 337 F.3d

at 1322 n.6. It would seem that no court, either at the trial level or the appellate

level, should act without “a full disclosure on the record of the basis for

disqualification.”

Counsel can find no cases where there was no transcript of the ex parte

discussions and the moving party requested that the facts be fully explored where

the district court determined the recusal motion only on the basis of the brief

representation by the Government and the judge involved in the ex parte

proceedings. Each of the three cases relied on by Judge Hinkle at pages 29-35 of

his opinion involved ex parte proceedings that were transcribed and provided to

opposing counsel. United States v. Simms, 385 F.3d 1347, 1352 (11th Cir. 2004);

United States v. Adams, 785 F.2d 917, 919 (11th Cir. 1986); and United States v.

Phillips, 664 F.2d 971, 1001 n.33 (5th Cir. Unit B 1981), see also United States v.

Meinster, 488 F.Supp. 1342, 1349 (S.D. Fla. 1980).

Where there is no “full disclosure on the record of the basis for

disqualification,” this Court has remanded for a hearing to determine those facts.


17

For instance, in State of Alabama, the district judge denied a recusal motion under

28 U.S.C. §§ 144 and 455. This Court remanded for an evidentiary hearing before

another judge who “held a hearing and received evidence in the matter.” 828 F.2d

at 1539. Based on that record this Court reviewed the subsequent order denying

recusal and reversed. Id. at 1546. In Potashnick, 609 F.2d 1101, the Fifth Circuit

remanded the case “for the limited purpose of determining whether [the district

judge] was disqualified to hear the case.” Id. at 1106.5 A different district judge

heard the motion and found no reasonable basis for disqualification. The Court

reversed. Id. at 1106-07. See also Price Bros. Co. v. Philadelphia Gear Corp., 629

F.2d 444, 447 (6th Cir. 1980) (remanding recusal motion for evidentiary hearing

and holding, “The present state of the record raises many questions that must be

answered prior to any further consideration of the other issues raised on this

appeal”), after remand, 649 F.2d 416; and Easley v. University of Michigan Bd. of

Regents, 853 F.2d 1351, 1358 (6th Cir. 1988) (limited remand for evidentiary

hearing to determine facts relating to recusal).

Scrushy’s motion suggested that his recusal request should be handled as the

trial court did in very similar circumstances in United States v. Rhymes, 196 F.3d

207 (4th Cir. 1999). Doc. 954 at 6-7. In Rhymes, the prosecutor received notice

5 See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopting all decision of the Fifth Circuit rendered before October 1, 1981 as binding precedent).


18

after trial accusing a witness of violating the sequestration rule. The prosecutor

directed his agent to investigate. When the prosecutor notified the trial judge in an

ex parte conversation, the judge directed him to notify the defense. The prosecutor

notified the defense, detailing the results of the investigation and providing copies

of the agent’s reports. The trial judge “recused himself pursuant to 28 U.S.C.

§ 455(b)(1) due to his personal knowledge of evidentiary facts placed in dispute by

appellants’ motions.” Another judge presided over an evidentiary hearing at which

the trial judge testified in a telephone conference call. 196 F.3d at 215. The referral

judge denied the motions for new trial, and the Fourth Circuit subsequently

affirmed. Id. at 216, 218.

That, however, did not occur here. Without a “full disclosure on the record

of the basis for disqualification,” it was inappropriate to deny Scrushy’s motion to

recuse. This Court should, at a minimum, order a limited remand with instructions

that an evidentiary hearing be conducted to determine what happened in the ex

parte meetings, as well as whether or not there were any other ex parte meetings.


19

B. BY CONCLUDING THAT THE TRIAL COURT DID NOT CONSIDER WHAT WAS SAID IN THE EX PARTE MEETINGS THE COURT BELOW FAILED TO APPLY THE REQUISITE OBJECTIVE STANDARD IN DETERMING THE RECUSAL MOTION.

As this Court set out in Patti, 28 U.S.C § 455 creates two primary reasons

for recusal:

A judge should recuse himself under § 455(a) when there is an appearance of impropriety. See id. § 455(a)…. The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible. Thus, the standard of review for a § 455(a) motion is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality, and any doubts must be resolved in favor of recusal.

337 F.3d at 1321 (internal quotations and citations omitted). And:

[A] judge should recuse himself under § 455(b) when any of the specific circumstances set forth in that subsection exist, which show the fact of partiality. 28 U.S.C. § 455(b)(1)-(5)…. Recusal under this subsection is mandatory, because the potential for conflicts of interest are readily apparent.

337 F.3d at 1321 (internal quotations and citations omitted). In Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009), the

Supreme Court emphasized that recusal requires an objective inquiry:

The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules…. In lieu of exclusive reliance on that personal inquiry, or appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias.


20

129 S.Ct. at 2263 (citation omitted).

This Court’s holding in Patti likewise requires that recusal be determined by

objective standards rather than an inquiry to determine if actual bias exists. 337

F.3d at 1321-23. See also Potashnick 609 F.2d at 1113 (recusal required under

§ 455(b)(5)(iii) because of the judge’s relative’s financial interest in his former law

partnership, despite finding that the judge’s “financial interest was not actually

affected by the outcome of the case”).

Judge Hinkle’s order hinges on his determination that Chief Judge Fuller

was not actually affected by the ex parte discussion of a factual matter material to

Scrushy’s pending motion. The underpinnings of that conclusion consist of, first,

Chief Judge Fuller’s representation that he was not affected by the information

revealed in the April 2007 ex parte meeting and, second, that this Court effectively

ruled on Chief Judge Fuller’s ex parte exposure on direct appeal by rejecting

Scrushy’s claim of jury misconduct. Doc. 1024 at 18-19

Judge Hinkle repeatedly concluded in his opinion, “In any event, the answer

is again that the judge did not consider what was said in the April 2007 meeting in

any way.” Doc. 1024 at 37. This conclusion turns, in the first instance, on Judge

Hinkle’s belief that Chief Judge Fuller assumed that the e-mails were authentic and,

hence, the information in the ex parte meeting that the e-mails were forgeries could

not have affected Judge Fuller’s decision.


21

In his order referring the recusal motion, Chief Judge Fuller stated that, “On

June 22, 2007, the Court, again assuming that the e-mails were authentic, denied

Scrushy’s motion to reconsider.” Doc 1006 at 2. An examination of the June 2007

order (Doc. 611), reveals that it never indicates that Chief Judge Fuller assumed

that all the e-mails were authentic. While Chief Judge Fuller goes to great length in

footnote 9 of the order to clarify that he assumed that the first group of e-mails

were authentic when the court first rejected Scrushy’s claims of jury misconduct in

its December 13, 2006 order, there is no such indication as to the additional e-

mails (Docs. 519-1, 2; 532-1), which were both the subject matter of Scrushy’s

motion to reconsider and the ex parte information that they were forgeries. Doc.

611 at 4 n.9, 10. 6

To the extent that Judge Hinkle’s conclusion that Chief Judge Fuller “did not

consider what was said in the 2007 meeting,” (Doc. 1024 at 37), is based on his

belief that the judge assumed the e-mails were authentic in ruling on Scrushy’s

reconsideration motion, the evidence is not there, and cannot be divorced from

Chief Judge Fuller’s subjective assessment in 2010 of what he considered in ruling

on the motion to reconsider in 2007. This conclusion does not rest on the objective

assessment required under § 455. It turns on the question of whether or not Chief

6 In fact, Scrushy had told Chief Judge Fuller in his motion, “[i]f the e-mails are found not to be authentic, then the matter of the e-mails is effectively put to rest,….” Doc. 519 at 11.


22

Judge Fuller’s decision was actually affected by the information in the ex parte

meeting. These considerations are inimical to the principle that recusal under § 455

must be determined on the basis of an objective inquiry rather than a subjective

determination of whether the judge was actually biased.

The other underpinning of Judge Hinkle’s decision is his conclusion that this

Court’s decision on direct appeal rejecting Scrushy’s claims of jury misconduct

foreclosed any claim that Chief Judge Fuller should be disqualified. Judge Hinkle

reasons that this Court “squarely rejected the defendants’ position that the district

court should have granted a new trial or at least conducted or authorized a broader

investigation,” (Doc. 1024 at 18-19), and that Judge Hinkle would reach the same

conclusion:

In light of the Eleventh Circuit’s decision on appeal and the analysis set out above, what was said in the April 2007 meeting does not matter; it is not a disputed issue. The judge properly decided all issues presented after the meeting, and will properly decide all further issues, without considering what was said in the April 2007 meeting in any way. End of story.

Id. at 36. There are multiple problems with this conclusion. First, neither Judge Hinkle

when he decided the recusal motion, nor this Court when it decided Scrushy’s

direct appeal, knew what was said in the ex parte meetings, whether the

investigators shared any materials with Chief Judge Fuller, or even if there were

other, still undisclosed ex parte meetings. All that was available at the time of


23

Scrushy’s direct appeal was the DOJ Letter. All that was available to Judge Hinkle

was the same letter and Chief Judge Fuller’s statement in his order referring the

recusal motion. How can an objective assessment of whether recusal is required

under §§ 455(a) or (b) be made without a full disclosure of what occurred in the ex

parte meetings?

Second, Judge Hinkle’s order states that, “Mr. Scrushy’s reply brief fully

addressed the April 2007 meeting, the appellate section chief’s letter reporting it to

the defense, and the failure of the court or the government to report it earlier.” Doc.

1024 at 10. Scrushy’s opening brief in this Court did not discuss the DOJ Letter

because his counsel was unaware of the ex parte meeting until after Scrushy filed

his initial brief. Scrushy’s reply brief used the DOJ Letter exclusively to rebut the

Government’s argument that no investigation of the jurors’ e-mails should occur.

Reply Brief of Richard M. Scrushy, 2007 WL 5613997 at 25-27. Due to the

Government’s unilateral decision to withhold any notice of the ex parte meeting

until after Scrushy filed his initial brief on direct appeal, the issue of recusal could

not have been raised before the district court, and was not before this Court on

direct appeal. This Court was reviewing only the question of whether Chief Judge

Fuller abused his discretion in denying Scrushy’s motion for new trial and motion

for reconsideration based on jury misconduct, failure to conduct a full investigation,

and Scrushy’s request for subpoenas. Siegelman I, 561 F.3d at 1236-1243 & n.26.


24

Judge Hinkle’s order also fails to fully address Scrushy’s claim that recusal

is required under § 455(b)(1) because Chief Judge Fuller has “personal knowledge

of disputed evidentiary facts,” and under § 455(b)(5)(iv) because Chief Judge

Fuller is “likely to be a material witness” on Scrushy’s motion for new trial. Doc.

954 at 5. Judge Hinkle’s order recognizes that Scrushy’s motion for new trial

raised a claim of judicial misconduct based on Chief Judge Fuller’s ex parte

meeting in April of 2007. Doc. 1024 at 11.

However, in denying Scrushy’s motion, Judge Hinkle limited his discussion

to the question of whether Chief Judge Fuller would be a material witness to what

was said at the April 2007 meeting. Under the objective standard applicable to a

determination of recusal under § 455(b), the only questions are whether or not

Chief Judge Fuller has personal knowledge of material facts and/or was likely to be

a material witness at the hearing on the motion for new trial. Once it is determined

that one or more of the circumstance set out in subsection (b) exists, recusal is

mandatory because “once it has been established that one of the enumerated

circumstances exists, there can be no dispute about the propriety of recusal.” Patti,

337 F.3d at 1321. Judge Hinkle’s failure to determine whether Chief Judge Fuller

has knowledge of material facts and/or would be a witness at the new trial motion

was clear error.


25

Finally, Judge Hinkle’s order fails to adequately address Scrushy’s claim

that recusal was required under § 455(a). The correct standard is an objective one:

“whether an objective, disinterested, lay observer fully informed of the facts

underlying the grounds on which recusal was sought would entertain a significant

doubt about the judge’s impartiality.” Parker, 855 F.2d at 1524. See also

Potashnick, 609 F.2d at 1111 (language in § 455(a) “sets up an objective

standard”). Judge Hinkle’s order addresses the appearance of impartiality question

only in passing, and in the same paragraph in which he rejected Scrushy’s claims

under § 455(b), concluding, “The judge properly decided all issues presented after

the meeting, and will properly decide all further issues, without considering what

was said in the April 2007 meeting in any way. End of story.” Doc. 1024 at 36.

First, since there was no evidentiary hearing, it is impossible to conclude

that Judge Hinkle properly applied the required test set out by this Court in Parker.

There is no way to consider if an objective, lay observer would “entertain a

significant doubt”, because we simply do not have the facts necessary to be “fully

informed of the facts underlying the ground on which recusal was sought.” Parker

at 1524.

Second, Judge Hinkle’s conclusion that Chief Judge Fuller “will properly

decide all further issues” is based on what? It is Judge Hinkle’s opinion of whether

he was actually affected by the ex parte information.


26

Third, Judge Hinkle’s failure to determine the facts and failure to apply the

requisite objective standard turns the true intent of § 455(a) on its head. As Circuit

Judge Fay wrote in Potashnick:

This overriding concern with appearances, which also pervades the Code of Judicial Conduct and the ABA Code of Professional Responsibility, stems from the recognized need for an unimpeachable judicial system in which the public has unwavering confidence…. Because 28 U.S.C. 455(a) focuses on the appearance of impartiality, as opposed to the existence in fact of any bias or prejudice, a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street. Use of the word “might” was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.

609 F.2d at 1111.

The uniform recognition of the need for an objective determination of the

grounds for recusal under either § 455(a) or (b) is well founded, as illustrated by

the opinion here in question. Instead of applying the objective tests required by the

statute and case law, Judge Hinkle’s opinion posits that trial judges “routinely

receive extrinsic information” (1024 at 26), and “[n]or should it come as a shock

that the information will sometimes be relevant to an issue in a case.” Id. at 28. The

opinion continues, “These situations arise with some frequency. When they do, the

judge considers the evidence in the pending proceeding and ignores the extrinsic


27

information that came to the judge from a different source. Chief Judge Fuller did

that here. The record contains not a hint to the contrary.” Id. at 28.

Judge Hinkle may be right. But that is not the question, nor is it the

procedure by which these difficult questions of recusal are required to be decided.

Factual information that was central to the determination of a motion then pending

before Chief Judge Fuller was provided to him by agents of the Government

without Scrushy’s or counsel’s knowledge. Scrushy had no opportunity to contest

or rebut that information. As Judge Hinkle recognizes, “Our adversary system of

justice knows no more fundamental principle.” Id. at 26. That this event occurred,

and that we still do not have a full picture of what occurred, does not adequately

protect “the integrity and dignity of the judicial process from any hint or

appearance of bias.” Potashnick, 609 F.2d at 1111. Nor does it insure that

Scrushy’s motion for new trial was properly determined by a judge who should

have been disqualified.

At a minimum, this Court should order a limited remand to determine all of

the facts concerning the ex parte meetings and whether recusal is required under §

455(a) or (b) under the appropriate objective legal standards required by law.


28

II. THE COURT ABUSED ITS DISCRETION IN DENYING ALL DISCOVERY REQUESTS BASED ON A FACIALLY INCOMPLETE IN CAMERA REVIEW, APPLICATION OF AN INCORRECT LEGAL STANDARD, AND FAILURE TO CONSIDER KEY PORTIONS OF SCRUSHY’S EVIDENTIARY SHOWING. Along with his motion for new trial Scrushy filed a motion for discovery.

Doc. 955. Scrushy made requests for specific documents and information

concerning each of the five grounds that he alleged as a basis for a new trial. Id. at

3- 8, ¶¶ 1-23.

The district court referred the discovery motions to a magistrate judge. Doc.

1027. The magistrate entered orders requiring production of documents and

records for an in camera review. Docs. 1040, 1042, 1048. After an in camera

review, the materials were sealed and filed in the record. Doc. 1087. The

magistrate entered an order denying all discovery. Doc. 1070. Scrushy filed a

timely appeal to the district court (Doc. 1077), which summarily affirmed the next

day. Doc. 1078.

In Harris v. Nelson, 394 U.S. 286 (1969), the Supreme Court held in the

analogous context of discovery in a habeas corpus proceeding that “where specific

allegations before the court show reason to believe that the petitioner may, if the

facts are fully developed, be able to demonstrate that he is confined illegally and is

therefore entitled to relief, it is the duty of the court to provide the necessary

facilities and procedures for an adequate inquiry.” In Velarde, 485 F.3d 553, a


29

case relied on by the magistrate (Doc. 1070 at 2-3), the court held that the district

court erred in refusing to allow discovery before denying a motion for new trial,

holding that the standard for granting discovery should be whether “there is a firm

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

Espinosa-Hernandez, 918 F.2d 911 (holding court should not have denied motion

for new trial without first according discovery and an evidentiary hearing). A

denial of discovery in this context is reviewed for abuse of discretion. Id.

The discovery order should be reversed and Scrushy’s motion for new trial

remanded with instructions to fashion “discovery mechanisms suitable to the case

before it,” Velarde, 485 F.3d at 560, so that Scrushy can have access to documents

and witnesses in exclusive Government control and have a fair opportunity to

prove the allegations in his motion. The discovery denial was an abuse of

discretion for three reasons.

A. THE MAGISTRATE’S REPRESENTATIONS OF THE MATERIALS EXAMINED IN HIS IN CAMERA REVIEW ARE NOT SUPPORTED BY THE RECORD.

Scrushy’s motion contained specific discovery requests relating to each of

five issues on which Scrushy’s new trial motion sought relief. Doc. 955. The

discovery requests relating to Scrushy’s selective prosecution claim were set out in

¶¶ 1-7. Requests relating to Scrushy’s claim of judicial misconduct were set out in

¶¶ 8-15. Discovery requests relating to the failure of U.S. Attorney Leura Canary


30

to honor her recusal were set out in ¶¶ 16-17. 7 Requests as to prosecutorial

misconduct (improper contacts with jurors) were set out at ¶ 18 (Doc. 955 at 6),

and requests as to prosecutorial misconduct (Brady/Giglio/Napue) were set out in

¶¶ 19-23. The requests listed specific reports, documents, e-mails, notes and

memoranda and showed they were likely to exist in relation to each discrete issue.

Deliberately or not, the magistrate’s order denying all discovery requests

creates the erroneous impression that the magistrate ordered that documents

relating to all of Scrushy’s discovery requests be produced, and the magistrate

reviewed the relevant documents and found nothing that supported Scrushy’s

claims.

At the very outset of his order, the magistrate states:

[T]he court ordered the United States to produce for an in camera review all documents that would be responsive to defendant’s discovery requests. The court has carefully and thoroughly reviewed all material provided by the United States. The material does not further the defendant’s claims, does not contain exculpatory material, and contains nothing justifying an evidentiary hearing.

Doc. 1070 at 1-2 (emphasis added).

7 The magistrate noted that the correct term should be “disqualification” rather than recusal. Scrushy agrees, but chose to employ the term “recusal” so that it accurately reflects the record as it was used in Canary’s announcement of her disqualification. Doc. 953-30.


31

As to Scrushy’s requests pertaining to his selective prosecution claim, the

magistrate found:

The court has thoroughly reviewed in camera the documents that Scrushy seeks [fn.: The Office of Special Counsel report and the Conyers report are now both publically available to the defense]. They do not support his hypothesis that other evidence exists to support his claim, nor is there anything in the material provided by the United States that is contrary to the evidence already in the hands of the defense.

Doc. 1070 at 11.

As to requests pertaining to the U.S. Attorney recusal claim, specifically as

to e-mails written or received by the U.S. Attorney that would prove her continued

involvement in this prosecution, the magistrate found:

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

Doc. 1070 at 19-20 (emphasis added).

The magistrate entered two orders requiring production of materials for an in

camera review. The first was for production of a notebook kept by Nick Bailey

during his witness preparation. Doc. 1040. The second order required the


32

Government to produce all materials related to interviews of Nick Bailey. Doc.

1042, clarified in Doc. 1048. The magistrate’s statements and implications that his

in camera review included materials other than those encompassed in his two

orders (Docs. 1040, 1042), are not supported by the record. The in camera review

plainly did not include any materials relating to four of Scrushy’s five claims for a

new trial.

The magistrate’s representations as to the discovery requests relating to the

e-mails to or from U.S. Attorney Canary are at odds with the record. The wording

of the order denying discovery as to these e-mails states that he “laboriously

reviewed the documents provided to it by the government related to his issue.” Doc.

1070 at 19. The magistrate’s finding that “there is no evidence to support the

defendant’s supposition ‘that other e-mails’ exist,’” id. at 20 (emphasis in original),

clearly implies that the in camera review included the e-mails specifically

requested by Scrushy in his discovery motion. However, since the Government

was never ordered to produce any materials relating to the U.S. Attorney’s failure

to honor her recusal, it is not surprising that the in camera review would find no

such e-mails.

These findings are further undercut by the supplemental showing that

Scrushy made in support of his motion for discovery. Doc. 1000. Scrushy cited to a

summary judgment motion filed by the U.S. Attorney’s office in a Freedom of


33

Information Act proceeding.8 A declaration attached to the summary judgment

motion by Middle District of Alabama First Assistant Sandra Stewart shows that

documents relating to the recusal of the U.S. Attorney not only exist, but had also

been indexed. These materials include the entire file of the then-First Assistant and

a CD containing “all the captured electronic records from U.S. Attorney Canary’s

computer system.” Doc. 1000-2.9 At the time the magistrate found that no such

documents existed, he was on notice that documents relevant to this issue had been

gathered and indexed in the D.C. District Court proceeding.10

The magistrate’s findings as to Scrushy’s selective prosecution issue also

relied in significant part on the magistrate’s findings based on his in camera review

and also appear to have misstated the materials reviewed. Doc. 1070 at 11.

The materials actually reviewed by the magistrate are a part of the sealed

record in this case. Docs. 1049, 1058, 1086. These sealed materials should

8 John Aaron v. U.S. Department of Justice, U.S. District Court for the District of Columbia, Case No. 1:09-cv-00831. A copy of the motion for summary judgment was attached to Scrushy’s motion to supplement. (Doc. 1000-1), as was Stewart’s declaration. Document 1000-2. 9 Based on the search terms used, it is unlikely that the electronic search would have captured all e-mails showing Canary’s later involvement in the case. But the filing definitively shows that all of Canary’s “computer, network drive and email” not only still existed, but could be searched. Doc. 1000-2 at 3. 10 It is noteworthy that in the FOIA proceeding, the Government opposed production by invoking FOIA Act Exemption 7(A), claiming production would “interfere with the government’s ability to defend against” Scrushy’s pending new trial motion in his criminal case. Doc. 1000-1 at 19-23.


34

confirm that none of the materials relate to Scrushy’s discovery requests save those

pertaining to the interviews and preparation of the testimony of Government

witness Nick Bailey.

The magistrate’s findings denying Scrushy’s numerous and specific

discovery requests based on his in camera review have no support in the record.

For this reason alone, the order denying discovery should be reversed and

remanded to the district court with instructions, at a minimum, to conduct a

meaningful in camera review of the materials actually sought by Scrushy’s

discovery requests.

B. THE MAGISTRATE APPLIED AN INCORRECT LEGAL STANDARD IN DENYING THE MOTIONS FOR DISCOVERY.

As the Supreme Court held in Harris v. Nelson, 394 U.S. at 300, “where

specific allegations before the court show reason to believe that a petitioner may, if

the facts are fully developed, be able to demonstrate” that he is entitled to relief, “it

is the duty of the court to provide the necessary facilities and procedures for an

adequate inquiry.” The applicable standard in determining whether to grant

discovery is whether “there is a firm evidentiary basis for believing such evidence

likely exists.” Velarde, 485 F.3d at 561.

The magistrate judge failed to apply this standard in his determination of

Scrushy’s discovery requests. In regard to Scrushy’s selective prosecution claim,

the magistrate instead quoted from United States v. Armstrong, 517 U.S. 456, 468,


35

(1996) for the proposition that “[t]he standard for obtaining discovery on this claim

is especially rigorous.” Doc. 1070 at 5. The magistrate omitted the language

describing the actual standard to be applied:

However, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The Courts of Appeals “require some evidence tending to show the existence of the essential elements of the defense,” discriminatory effect and discriminatory intent.

Id. (citations omitted).

Under Armstrong, in order to establish a selective prosecution claim, a

defendant must make “a credible showing of different treatment of similarly

situated persons.” Doc. 1070 at 5. The magistrate denied Scrushy’s discovery

request because “Scrushy fails to identify anyone who committed bribery but was

not prosecuted.” Id. at 8. The magistrate ignored Scrushy’s discovery requests for

documents relating to investigations of illegal donations to Republican candidates

by the U.S. Attorney and Alabama Attorney General. Docs. 955 at 4, 13; 985 at 2-

3. The magistrate also ignored Scrushy’s allegations and documentation

concerning six named individuals who were large contributors to the campaigns of

Governor Riley (the Republican candidate who defeated Democrat Siegelman)

who were subsequently appointed to key positions or whose businesses were

beneficiaries of a pledge of $50 million by the State of Alabama. Doc. 953 at 10-11,

¶ 16.


36

The magistrate was applying a standard other than the correct “firm

evidentiary basis for believing such evidence likely exists,” standard. As this

Court has held, the real question is whether “discovery might lead” or whether

discovery “might also enlighten the District Court…” Espinosa-Hernandez, 918

F.2d at 913, 914. See United States v. Gordon, 817 F.2d 1538, 1540 (11th Cir.

1987), vacated in part on other grounds, 856 F.2d 1312, in which this Court

concluded:

Thus, Gordon is entitled to an evidentiary hearing on the selective prosecution claim so that the full facts may be known. Gordon is entitled to discovery of the relevant Government documents relating to the local voting fraud cases the Government has prosecuted and any voting fraud complaints which they have decided not to pursue.

See also Armstrong, 517 U.S. at 468 (holding that “[i]f discovery is ordered, the

Government must assemble from its own files documents which might corroborate

or refute defendant’s claim.”).

The magistrate also relied on his conclusion that this claim failed because

Scrushy could not show that this evidence was newly discovered. Doc. 1070 at 8.

Whether this evidence was newly discovered is addressed infra, Issue III. The

magistrate made the same error that caused this Court to reverse the trial court for

failing to grant discovery in Espinosa-Hernandez. There, the court denied

discovery in support of a new trial motion based on a determination “that the

newly discovered evidence would be purely impeaching, and in any event, unlikely


37

to lead to a different outcome at trial.” 918 F.2d at 913. This Court reversed and

remanded for discovery and an evidentiary hearing on the new trial motion,

holding that “[t]he District Court was premature in concluding that the newly

discovered evidence would merely be impeaching and that this evidence would be

unlikely to lead to an acquittal on retrial,” id. (footnote omitted), and, “[i]t is thus

too soon to declare out of hand that the new evidence will not require a new trial.”

Id. at 914. In Velarde, the Tenth Circuit reversed the denial of a new trial motion

based on the trial court’s determination that suppressed evidence of a victim’s false

allegations in two other instances would be inadmissible under F.R.Evid. 608(b)

and 403. The Tenth Circuit concluded that an evidentiary hearing or discovery

should occur first, holding: “When determining whether to conduct discovery,

however, the issue cannot be what the defense has already proved, but what the

defense might reasonably be able to prove if discovery is conducted.” 485 F.3d at

561.

As to discovery on Scrushy’s second claim, judicial misconduct based on the

ex parte meetings with Chief Judge Fuller, the magistrate concluded that since

Scrushy cannot prevail in light of Judge Hinkle’s analysis of the recusal issue, he is

not entitled to any of his discovery requests asking for documents, names of

participants, investigatory files (to determine the purpose of the Postal Inspector’s

investigation), or even whether there were additional unrevealed ex parte meetings.


38

Doc. 1070 at 12-14. Discovery requests found in Doc. 955 at 4-5, ¶¶ 8-15. This

determination is likewise premature, especially in light of the fact that the only

information available as to the ex parte meetings is that which the Government and

Chief Judge Fuller have chosen to reveal.

The magistrate also concluded that Scrushy should be denied discovery on

this claim because “Scrushy does not identify any prejudice that he has allegedly

suffered.” Doc. 1070 at 14. First, it is unclear how Scrushy is supposed to be able

to demonstrate prejudice when the only things he knows about the admitted ex

parte meetings are found in the DOJ Letter and Chief Judge Fuller’s order. Aside

from the fact that once an ex parte meeting is shown to have occurred, the

government has a heavy burden of proof to show that there was no prejudice,

Haller v. Robbins, 409 F.2d 857, 860 (1st Cir. 1969), it is clear that the magistrate

is applying a far different standard in determining Scrushy’s right to discovery on

this claim than is required by the case law.

In denying Scrushy’s requests as to his claim based on U.S. Attorney recusal,

the magistrate again fails to apply the correct standard. The magistrate improperly

places the burden on Scrushy to show that he was prejudiced before he is entitled

to discovery: “There is no evidence that the ‘wall’ erected between the United

States Attorney and the prosecution team was breached in any significant or

material matter.” Doc. 1070 at 16-17. “[Scrushy] provides the court with no


39

credible evidence that the United States Attorney directed, managed, influenced or

controlled any aspect of the prosecution of the case.” Id. at 18. And: “Scrushy has

not demonstrated that he was deprived of a fair trial by her actions.” Id. at 19.

Scrushy’s discovery motion specifically requested either production or an in

camera review of any documents or writings, specifically including any e-mails,

either to or from the U.S. Attorney “that touches in any way on any aspect of the

investigation or prosecution of Defendants Scrushy or Siegelman or any post

conviction proceedings in that case.” Doc. 955 at 5, ¶¶ 16-17. Whether Scrushy

can or even needs to demonstrate prejudice is an issue for a later day. Whether

Scrushy is entitled to production or a meaningful in camera review of the relevant

documents and e-mails must be determined on the correct standard of “whether

there is a firm evidentiary basis for believing such evidence likely exists,” Velarde,

485 F.3d at 561.

The magistrate did not apply the correct standard as to Scrushy’s fourth

claim (prosecutorial misconduct based on improper contacts between the U.S.

Attorney’s office and the jury) because the magistrate failed to even acknowledge

these discovery requests. Scrushy’s motion requested all documents (specifically

including e-mails) of any kind “touching in any way on any member of the trial

jury in the instant case (or speculating on any contacts to, from or with said jurors),

as well as any knowledge or information concerning any contacts with or by


40

jurors….” Doc. 955 at 6, ¶ 18. While the magistrate seemed to acknowledge that

Scrushy’s motion contained “two discrete inquiries” relating to prosecutorial

misconduct, the order mischaracterized both as relating to Government witness

Nick Bailey. Doc. 1070 at 4 n.2. The only substantive discussion relating to any

claims of prosecutorial misconduct relate to Bailey. Id. at 20-26. While the

magistrate’s order notes that “Scrushy also complains that the United States

engaged in misconduct by failing to report ‘improper’ contacts with jurors and

participating in ex parte conversations with Chief Judge Fuller,” the magistrate

concluded that “[t]hese issues have been addressed and based on the law of the

case doctrine, [are] not properly before the court now.” Id. at 20 n.11. Scrushy’s

discovery request relating to improper jury contacts is not addressed in the order.

The magistrate’s order denying Scrushy’s entire discovery request is replete

with considerations that are far removed from the legal standard a court is required

to apply. It is not a question of whether a defendant can demonstrate that he was

prejudiced or denied a fair trial, or that he can rebut the claims and denials of the

Government without having access to documents and other evidence in the

Government’s exclusive control, or whether the defendant will ultimately prevail

in any of his new trial claims. The only question is whether “there is a firm

evidentiary basis for believing such evidence likely exists.” Velarde, 485 F.3d at

561. If there is, as Scrushy shows below, then discovery should be granted.


41

C. THE COURT FAILED TO CONSIDER KEY SHOWINGS THAT THERE WAS A FIRM EVIDENTIARY BASIS TO BELIEVE THAT EVIDENCE THAT WOULD ENABLE SCRUSHY TO PROVE HIS CLAIMS LIKELY EXISTS.

The magistrate compounded his error by selectively considering and

rejecting some of Scrushy’s showings, often making credibility decisions between

conflicting versions by accepting at face value all Government assertions, while at

the same time repeatedly ignoring Scrushy’s evidentiary showing that the evidence

sought in discovery likely exists.

In regard to Scrushy’s selective prosecution claim, the magistrate concluded

that discovery should be denied because “Scrushy fails to identify anyone who

committed bribery but was not prosecuted.” Doc. 1070 at 8. This finding is simply

wrong. The magistrate ignored Scrushy’s showings as three individuals who made

large campaign contributions to the campaign of Siegelman’s Republican rival in

gubernatorial campaigns. Scrushy’s showing included documents relating to the

campaign contributions by the named individuals, as well their subsequent

appointment to state positions, including the board appointment that Scrushy was

prosecuted for. Doc. 953 at 10-11, ¶¶ 16 a-c. Scrushy also attached exhibits

documenting campaign contributions to Governor Riley in 2005 by three

individuals and a biotechnology PAC totaling $745,000, followed by a pledge of

$50 million in state funds to the establishment of the Hudson-Alpha Institute for

Biotechnology. Id. at ¶¶ 16-e.


42

Scrushy cited the comments in the 2008 Report of the Judiciary Committee

(“Conyers Report”):

It is difficult to assess whether Mr. Young’s assertions regarding Republicans were investigated or fairly evaluated without access to prosecution files and personnel, and the existing public record, and in particular the many statements on the subject by Acting U.S. Attorney Franklin, can only be described as confusing…. The issue of potential selective prosecution remains of significant concern.

Doc. 953-2 at 16. In regard to Scrushy’s showing as to his judicial misconduct claim, the

magistrate adopted Judge Hinkle’s order finding that Chief Judge Fuller’s recusal

was not required and concluded that no discovery would be allowed. Doc. 1070 at

12-14. That conclusion goes to the ultimate question in the new trial motion –

whether or not any misconduct occurred – without authorizing discovery under the

applicable standard in order to give Scrushy a fair opportunity to prove his claim.

Scrushy made eight specific requests for discovery as to this claim. Doc. 955 at 4-5,

¶¶ 8-15.

Scrushy’s showing that this evidence likely exists was unrebutted. The DOJ

Letter and Chief Judge Fuller’s May 2010 order show that at least two ex parte

meetings occurred, and that the subject matter included a discussion that the juror

e-mails were not authentic. Id. Scrushy lists numerous documents that likely exist,

including: a transcript of this, and any other ex parte meetings; any reports of


43

interviews and investigations conducted by the Postal Inspector 11; any documents

or writings obtained by the Postal Inspector 12; any reports or memos generated by

the Marshal; the names the participants in the meetings with Chief Judge Fuller;

any memos, documents or e-mails reflecting this or any other ex parte meetings;

and any documentation relating to the decision to investigate the jurors’ complaints

and the scope of that investigation.13 Most of these documents and writings are

certain to exist in Government files in light of the events that occurred and the

descriptions provided by the DOJ Letter.

As to the failure of the U.S. Attorney to honor her recusal, the magistrate

dismissed out of hand Scrushy’s showing that the evidence sought by discovery is

likely to exist, by belittling the content of U.S. Attorney’s e-mails produced by a

whistleblower and by concluding that no other e-mails exist based on an in camera

review of documents that could not have possibly occurred. Doc. 1070 at 14-20.

Scrushy’s request for discovery on this issue included any documents or e-mails

from U.S. Attorney Canary to any member of the prosecution team that touched in

11 The DOJ letter states that Juror 7 and 40 and at least one co-worker of juror 7 were interviewed. Doc. 954-1. 12 The DOJ letter states the Postal Inspector used the computers of the jurors to generate sample e-mails. Doc. 954-1. 13 Judge Hinkle’s order denying recusal makes an important factual determination as to the purpose and scope of the investigation by relying solely on Chief Judge Fuller’s conclusory representation. Doc. 1006 at 22, 29.


44

any way on any aspect of the investigation or prosecution of Siegelman or Scrushy

and any documents or e-mails to U.S. Attorney Canary having anything to do with

the investigation or prosecution. Doc. 955 at 5-6, ¶¶ 16-17.

Scrushy submitted a copy of one e-mail in which U.S. Attorney Canary,

post-recusal, suggested litigation strategy (Doc. 953-36); another that forwarded

materials of interest to the prosecution team (Doc. 953-37); and one involving

funding and personnel decisions relating to the prosecution team. Doc. 953-38.

Scrushy also submitted a letter of a former paralegal involved in the case sent to

Attorney General Holder stating that: “Mrs. Canary maintained direct

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

monitored the case through members of the prosecution team and [First Assistant

U.S. Attorney] Watson.” Doc. 953-39 at 3.

It is not a question of whether the e-mails Scrushy was able to obtain via a

whistleblower definitively prove that Canary “directed, managed, influenced or

controlled” the prosecution, as the magistrate required. Doc, 1070 at 18. The only

question is whether or not Scrushy showed that documents, especially other

e-mails showing the scope and details of Canary’s involvement likely exist. As set

our supra, Issue II-A, Canary’s e-mails have been preserved and many were

indexed in the D.C. District Court proceeding.


45

In support of his discovery requests relating to his fourth claim

(prosecutorial misconduct based on improper contacts between the U.S. Attorney’s

office and the jury during trial) (Doc. 955 at 6, ¶ 18), Scrushy provided evidence

obtained from the Conyers Committee Report that there were e-mails during trial

discussing information during trial from inside the jury room, including an e-mail

from First Assistant U.S. Attorney Watson stating: “I just saw [F.B.I Special

Agent] Keith [Baker]. The jurors kept sending out messages through the marshals.

A couple of them wanted to know if he was married.” Doc. 953-43. Another e-mail

to First Assistant Watson: “Yeah, that’s what [Government paralegal] Vallie

[Byrdsong] said. He said one girl was a gymnast and they called her ‘Flipper’

because she apparently did back flips to entertain the jurors. Flipper was very

interested in Keith.” Id. Scrushy submitted additional evidence of improper post-

conviction contacts between Juror 40 and the prosecution team. Docs. 953-39 at 5;

Doc. 953-42.

The magistrate judge did not address this discovery request or Scrushy’s

evidence that additional evidence likely exists. In light of the unguarded and

unambiguous discussion of jurors’ contacts that appear in the e-mails and the

additional evidence submitted, it is likely that additional e-mails exist. At a

minimum, the magistrate should have conducted an in camera inspection of all

relevant e-mails to determine if further evidence of such improper contacts exists.


46

Conclusion

The magistrate abused his discretion by denying every discovery request that

Scrushy made, almost all of which is in the exclusive control of the Government.

The magistrate mistakenly misrepresented the scope and materials subjected to his

in camera review; failed to apply the appropriate legal standard to determine the

availability of discovery; and ignored most of Scrushy’s evidentiary showing that

the materials he sought likely existed. As this Court recognized in Espinosa-

Hernandez, 918 F.2d at 913-14, the question is whether discovery “might lead” to

proof of a defendant’s new trial claim. As the court in Velarde emphasized:

“When determining whether to conduct discovery, the issue cannot be what the

defense has already proved, but what the defense might reasonably be able to

prove if discovery is conducted.” 485 F.3d at 561. Scrushy’s evidentiary showing

was detailed, well documented and substantial. His discovery requests were

specifically targeted and carefully linked to his showing that the evidence sought

was likely to exist. This Court should remand his case to the district court with

directions to grant discovery so that Scrushy can obtain the necessary facts for a

fair hearing on his motion for new trial.


47

III. THE DENIAL OF SCRUSHY’S MOTION FOR NEW TRIAL WITHOUT CONDUCTING AN EVIDENTIARY HEARING WAS AN ABUSE OF DISCRETION. After recusal was denied, Chief Judge Fuller denied Scrushy’s motion for

new trial without conducting an evidentiary hearing. Doc. 1072. Denial of an

evidentiary hearing on a motion for new trial is reviewed under an abuse of

discretion standard. Slocum, 708 F.2d at 600. A clear error of judgment or

application of the wrong legal standard constitutes an abuse of discretion. Frazier,

387 F.3d at 1259.

The district court denied Scrushy’s selective prosecution claim without

granting him discovery or an evidentiary hearing based on the court’s

determination that: Scrushy waived the claim by failing to raise it pretrial; Scrushy

failed to point to any comparators who were not prosecuted; and Scrushy failed to

show selective prosecution would have had a bearing on the jury’s determination

of factual guilt. Doc. 1072 at 4-11.

In finding waiver, the court relied on testimony by Siegelman’s prior lawyer

and a letter by Scrushy’s lawyer that tended to show political interference in the

decision to prosecute, both of which related events prior to indictment. Id. at 6-8.

The court also relied on a pretrial letter of Siegelman’s attorney and a campaign

letter of Siegelman claiming that a public opinion survey showed 67% of voters


48

believed that “the investigation if Don Siegelman [was] politically motivated.” Id.

at 8. The court concluded, “The foregoing reveals that Scrushy was confronted

with possible indications of selective prosecution well before trial and that

Siegelman was arguing his selective prosecution defense to the public.” Id.

(emphasis added).

First, this finding ignores the limited nature of the information available to

Scrushy pretrial. The evidence as to political involvement in the bringing of

charges and scuttling a plea agreement would fail to meet the discriminatory effect

prong of a selective prosecution claim. An opinion poll commissioned by a

political campaign showing the public believed that the investigation was political

justifiably would have been rejected as reliable evidence of selective prosecution.

Counsel for Scrushy did not have a good faith basis to file a selective prosecution

claim prior to trial.

At the same time, the court ignored the substantial evidence of selective

prosecution that became available well after trial, evidence that could not have

been discovered earlier through the exercise of due diligence. A key event was the

investigation of allegations of selective prosecution in the Siegelman and other

cases by the House Committee of the Judiciary, resulting in the April 17, 2008

release of the Report of Majority Staff, “Allegations of Selective Prosecution in

Our Federal Criminal Justice System.” Doc. 953-2. This report detailed


49

considerable evidence that the prosecution in this case was politically motivated,

including the testimony and affidavit of Republican attorney Jill Simpson

concerning conversations indicating that: Republican consultant Bill Canary

(husband of U.S. Attorney Leura Canary) had been told that Karl Rove in the

White House had contacted DOJ’s Department of Public Integrity (which

prosecuted this case along with the U.S. Attorney’s office) about initiating this

prosecution; that the case would be brought in the Middle District of Alabama,

where Leura Canary was the U.S. Attorney; and that the case would be assigned to

Chief Judge Fuller. Doc. 953-2 at 9-10, 13.14 Also not available to Scrushy prior to

his conviction was a statistical study published in February 2007 showing that the

Bush administration’s investigations of Democrats were “highly disproportionate”

and that there was “less than one chance in 10,000” that the over-representation of

Democrats was by chance, concluding that selective prosecution of Democrats

must have occurred. Id. at 2-3. See Gordon, 817 F.2d at 1540 (remanding for

discovery of Government records and evidentiary hearing on defendant’s claim of

selective prosecution based in part on defendant’s showing of pattern that

Government targeted majority black counties for voter fraud prosecutions).

14 The Government’s response attacked the credibility of Jill Simpson by citing to testimony of other individuals (including Bill Canary) who disputed Simpson’s testimony and declarations of prosecutors containing denials of selective prosecution. Doc. 975 at 15-16. There was no testimony concerning this issue at trial, so this evidence at most created a conflict that could only be resolved by a credibility determination after hearing the conflicting testimony.


50

Scrushy did not waive his selective prosecution claim by failing to file it until

evidence of a facially sufficient claim was available.

The court also pointed to Scrushy’s supposed failure to allege the existence

of comparators who were similarly situated but not prosecuted. Doc. 1072. The

district court, as did the magistrate, failed to recognize that Scrushy’s motion set

out a number of comparators who had made significant contributions to the

campaign of Republican Bob Riley and who were rewarded with appointments and

state financial support after his election as governor. Docs. 953 at 10-11, ¶ 16. The

court’s finding that there were no comparators alleged is contrary to the record.

Finally, the court held that Scrushy cannot even raise a claim of selective

prosecution because he failed to show that the claim would have affected the jury’s

verdict. Doc. 1072 at 11. This is not the law of this Circuit. United States v.

Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc) (“Newly discovered

evidence need not relate to the issue of guilt or innocence to justify a new trial, ‘but

may be probative of another issue of law.’” Id. at 1151 (citation omitted)).

Scrushy’s selective prosecution claim was not waived, and his motion and

accompanying evidence in 31 exhibits (Docs. 953-2 through 953-6; 981-1 through

981-6), set out more than the requisite “‘some evidence tending to show the

existence of the essential elements of the defense,’ discriminatory effect and

discriminatory intent.” Armstrong, 517 U.S. at 468. The evidence relating to


51

selective prosecution has not previously been before the district judge, so the court

cannot make a determination based on its knowledge of the case from trial or other

proceedings. The denial of Scrushy’s claim without an evidentiary hearing and

without permitting discovery was an abuse of discretion. This Court should order

discovery and an evidentiary hearing on this claim, “so that the full facts may be

known.” Gordon, 817 F.2d at 1540.

Scrushy’s allegation of judicial misconduct (relating to the ex parte meetings

between the judge and investigators and failure to reveal them to the defense), was

set out in his new trial motion. Doc. 953 at 11-15, ¶¶ 18-28. The court relied on

Judge Hinkle’s denial of Scrushy’s recusal motion, and the law of the case doctrine.

Doc. 1072 at 11-14. Scrushy’s analysis of Judge Hinkle’s decision is set out in

some detail supra, Issue I. The unresolved problem is that, notwithstanding Judge

Hinkle’s order, no one except the participants of the ex parte meeting and

Government prosecutors know what occurred in that ex parte meeting. Any

analysis of judicial misconduct or prejudice to Scrushy is impossible without a full

determination of what Chief Judge Fuller was exposed to in that meeting. The

order finds that “[t]he specific facts of the meeting are well-documented….” Id. at

11-12. The facts are well-documented only if the limited revelations in the DOJ

Letter (Doc. 954-1), and the brief recitation of Chief Judge Fuller over three years

after the event (Doc. 1006), constitute “full documentation” of the event. The only


52

two sources of the information have significant interests in limiting the information

concerning that event. Without some sort of evidentiary hearing as to what

occurred and what Chief Judge Fuller was exposed to (and a determination if other

unrevealed ex parte meetings occurred), it is impossible to determine whether there

was any misconduct (especially as to the purpose of the investigation and the

subsequent failure to reveal the ex parte communication to the defense) or whether

Scrushy was prejudiced in the determination of his then-pending motion.

The court’s reliance on the law of the case doctrine is equally misplaced.

Judge Hinkle’s order denying Scrushy’s recusal is not the same issue as Scrushy’s

allegation of judicial misconduct. And this Court’s ruling on direct appeal

affirming the district court’s denial of Scrushy’s jury misconduct motion did not

determine – either explicitly or implicitly – Scrushy’s judicial misconduct claim,

nor his argument for recusal.

Scrushy’s third claim was that he was deprived of his constitutional right to

a disinterested prosecutor by the failure of U.S. Attorney Canary to honor her

publicly announced recusal. This claim is set out in Scrushy’s motion and related

exhibits. Docs. 953 at 15-20, ¶¶ 29-41; 953-29 through 39; 1000-1, 2. In denying

this claim the court relied on its determination it is not structural error, and that

Scrushy had shown no prejudice. Doc. 1072 at 15-17. First, the court’s conclusion

depends on its analysis that the 1987 decision of the Supreme Court in Young v.


53

U.S. ex rel. Vuitton et Fils, 481 U.S. 787, 809-810 (1987), is no longer good law,

and is distinguishable from this case. That the facts may not be the same is of no

moment. Young holds that a defendant has a right to a disinterested prosecutor, and

that the institutional interests in even-handed prosecution are such that its denial is

one of those errors “so fundamental and pervasive that they require reversal

without regard to the facts and circumstances of a particular case.” Id. Second, the

Supreme Court has not overruled Young. The district court relies on the Court’s

failure to cite Young in Neder v. United States, 527 U.S. 1, 8 (1999), when it listed

structural errors it had previously recognized. The question presented in Neder was

the parameters of harmless error analysis applied to a failure to instruct the jury on

an offense element, not structural error. At most, this implies that the Court may

reach a different result as to structural error when presented with a claim on that

basis. It has yet to do so, and Young was binding authority that the district court

failed to follow.

The district court also relied on Scrushy’s failure to point to any “prejudice

that he has suffered as a result of Canary’s limited involvement in this case.” Doc.

1072 at 17. This conclusion is based on the magistrate’s incorrect finding that

there are no e-mails proving the scope of Canary’s involvement in this case. The

three e-mails that the whistleblower produced showed that Canary continued to be

involved in the prosecution of this case notwithstanding her putative recusal. Doc.


54

953-36 through 953-38. While these may not demonstrate prejudice to Scrushy –

assuming that prejudice must be shown – it is clear that the district court’s

conclusion rests on the magistrate’s finding that his in camera review showed that

there were no other e-mails, an in camera review that could not have occurred. See

Issue II-A, supra. The evidence necessary to prove Scrushy’s claim has not been

reviewed in camera, and Scrushy has been denied discovery of these critical

e-mails that are in the exclusive control of the Government. Even assuming that

Scrushy must demonstrate prejudice to ultimately prevail on this issue, until

Scrushy has a fair determination of the nature of the evidence in the Government’s

possession, his motion cannot be denied based on the failure to show prejudice.

The e-mails of U.S. Attorney Canary provided by the whistleblower from

her office, in addition to the statements of both the whistleblower and Government

witness Nick Bailey (including statements that Canary closely monitored the case

through her First Assistant and that Canary was involved in writing press releases

on the case) (Docs. 953-39 at 3, 6; 953-63 at ¶ 6), demonstrate that Canary was

actively involved in the prosecution after her publicly announced recusal. What

remains to be determined is the true scope of Canary’s involvement. The denial of

Scrushy’s motion on this ground without discovery and without an evidentiary

hearing precludes any determination of this issue, and was a clear abuse of

discretion.


55

The court’s rejection of Scrushy’s claim of prosecutorial misconduct based

on jury misconduct is without any basis. Scrushy set out this claim in his new trial

motion and accompanying exhibits. Docs. 953 at 20-25, ¶¶ 42-50; 953-35 at 2;

953-39 at 5; 953-41, 42, 43. These included e-mails in which personnel involved

with the prosecution of this case discussed during trial the fact that “jurors kept

sending out messages through the marshals” regarding “a couple” of jurors’

interest in F.B.I Special Agent Keith Baker (who sat at counsel table), and that one

juror was called “Flipper” because she “apparently did back flips to entertain the

jurors,” who was “very interested in Keith.” Doc 953-43. 15 Scrushy also

submitted evidence of post-trial contacts between U.S. Attorney’s office personnel

and Juror 40, one contact in connection with her testimony in the jury misconduct

hearing (Docs. 953-35 at 3-6; 953-39 at 5; 953-42), despite Local Rule 47.1

forbidding any such contact without court permission, and an explicit order

forbidding “any contact” with the jurors, served on all parties at the conclusion of

trial. Doc. 255. These contacts were never reported to the court or to defense

counsel. Scrushy also complained of the Government’s participation in the ex parte

15 The Government submitted various declarations which claimed certain discussions about jurors’ inquiries were the result of a practical joke. Docs. 975 at 26; 975-1; 975-10; 975-13. The reply and declarations do not address the e-mails between the whistleblower and First Assistant Watson, nor the references to statements by Government paralegal Vallie Byrdsong (also mentioned in the e-mails). At most, these declarations create a conflict in the evidence that the court could resolve based on his knowledge from trial.


56

meetings with Chief Judge Fuller and its concealment of this meeting from the

defense for fifteen months. Doc. 953 at 25, ¶¶ 48-49.

The district court inexplicably rejected Scrushy’s claim based on its

conclusion that: “These claims have been exhaustively addressed by this court,

Judge Hinkle and the Eleventh Circuit.” Doc. 1072 at 17. The court did not

discuss the claims relating to improper jury contacts in either of its two orders

addressing jury misconduct. Docs. 518 & 611. Nor did the district court touch on

this issue in any of the twelve questions that it asked the jurors during the

evidentiary hearing on the prior jury misconduct motions. Siegelman II, 640 F.3d

at 1190. Nor did Judge Hinkle address this claim anywhere in his order. Doc. 1024.

Nor did this Court address this claim in either of its opinions. Siegelman I, 561

F.3d 1215; Siegelman II, 640 F.3d 1159.

Scrushy’s claim based on improper contacts with the jury has not been

properly ruled on by the district court. As set out in Scrushy’s motion (Doc. 953 at

58-61), any such contacts with jurors are not only “absolutely forbidden,” Mattox v.

United States, 146 U.S. 140, 150 (1892), but are “deemed presumptively

prejudicial,” and the “burden rests heavily upon the Government to establish …

that such contact with the juror was harmless to the defendant.” Remmer v. United

States, 347 U.S. 227, 229 (1954). See also Pekar v. United States, 315 F.2d 319,

322 (5th Cir. 1963) and United States v. Betner, 489 F.2d 116, 118 (5th Cir. 1974)


57

(new trials granted based on improper contacts between U.S. Attorney’s office

personnel even though contacts were not related to the case on trial). Here, the

denial of Scrushy’s claim, discovery requests and an evidentiary hearing on the

basis of the court’s mistaken belief that this issue had already been addressed was a

clear abuse of discretion.

Scrushy’s final claim was based on prosecutorial misconduct in relation to

the testimony of Government witnesses Nick Bailey and Loree Skelton. Doc. 953

at 26-39, ¶¶ 51-74. The district court addressed both these claims and found

Scrushy’s evidence was insufficient to show any misconduct. Doc. 1072 at 17-30.

The magistrate ordered “all documents related to Nick Bailey” produced by the

Government and the magistrate’s in camera review of these documents found no

documents supporting Scrushy’s claims relating to Bailey. In contrast to the

court’s findings on Scrushy’s first four claims, the district court heard the

testimony of both Bailey and Skelton, and was in a position to make a

determination as to this issue without an evidentiary hearing. In light of the

magistrate’s representation as to his in camera review of Bailey-related documents

and the current state of the record, Scrushy does not contend at this time that the

district court abused its discretion in denying this claim.16

16 Since further unrevealed information may be uncovered through discovery or an evidentiary hearing, Scrushy does not waive this claim in his new trial motion.


58

The district court abused its discretion by denying each of Scrushy’s first

four claims without permitting discovery or conducting an evidentiary hearing.

Scrushy’s extensive showing in support of each of these claims, as well as

Scrushy’s analysis of the applicable law demonstrates that Scrushy set forth more

than adequate grounds for each claim. Each of the claims involve matters as to

which the Government has exclusive control over almost all of the evidence and

without access to meaningful discovery or an evidentiary hearing where

Government witnesses and records can be subpoenaed, Scrushy will be unable to

meet his ultimate burden in proving these claims. In such circumstances, the denial

of Scrushy’s new trial motion without granting him discovery or an evidentiary

hearing was a clear abuse of discretion.

Conclusion

For all of the foregoing reasons, Scrushy respectfully submits that this Court

should: (1) remand his motion to recuse to District Judge Hinkle with instructions

to authorize appropriate discovery and conduct an evidentiary hearing or, in the

alternative, order the disqualification of Chief Judge Fuller based on the current

record; and (2) remand his motion for new trial as to Scrushy’s first four claims

with instructions to authorize appropriate discovery, conduct a proper in camera

review of all documents and materials not produced in discovery, and conduct an

evidentiary hearing.


59

Respectfully submitted,

James K. Jenkins MALOY JENKINS PARKER 900 Arapahoe Avenue Boulder, Colorado 80302 303-443-9048 Arthur W. Leach Suite 225 5780 Windward Parkway Alpharetta, Georgia 30005 404-786-6443 /s/Leslie V. Moore Leslie V. Moore Suite 204 5148 Caldwell Mill Road Birmingham, Alabama 35244 205-403-9116 Attorneys for Appellant Richard Scrushy


60

Certificate of Compliance

Counsel certifies that this Brief of Appellant complies with the type-volume

limitation of Fed. R. App. P. Rule 32(a)(7)(B). This brief contains 13,959 words

based on the word count supplied by Microsoft Word for Mac 2011. This brief is

typed in proportionally spaced 14 point Times New Roman font.


61

Certificate of Service

I hereby certify that I duly served a copy of Appellant Richard Scrushy’s

Initial Brief on opposing counsel by filing same with the Eleventh Circuit Clerk of

Court using the CM/ECF filing system which will notify all counsel of record and

by sending a true and correct copy of same by the U.S. Postal Service to:

John Alexander Romano Patty Merkamp Stemler United States Department of Justice Criminal Division, Appellate Section PO Box 0899 Washington, D.C. 20044-0899 Louis V. Franklin, Sr. United States Attorney’s Office PO Box 197 Montgomery, Alabama 36104 Richard C. Pilger Department of Justice

Criminal Division, Public Integrity Section 10th & Constitution Avenue Washington, D.C. 20530 This 9th day of April, 2012. /s/Leslie V. Moore Leslie V. Moore Attorney for Appellant


case no. 12-10694 - al.commedia.al.com/wire/other/scrushy brief to 11th circuit.pdf ·...

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