I know the public gets sick of lawyers and our filings and our appeals. I don’t. Because when you are a criminal defense lawyer, your job is to be dogged and relentless. We don’t give up. We exhaust every possibility. This is not commercial litigation. Our clients face losing their freedom, not a few cents on share price. The Richard Scrushy case is a good example of this relentless lawyering: it took a while, but his lawyers ultimately ended up reducing his term by a year.
In June 2006, Richard Scrushy was convicted of bribery, honest services mail fraud and conspiracy. Mr. Scrushy is the founder and former CEO of HealthSouth Corporation, a large Alabama-based hospital company. The basic allegation was that Mr. Scrushy paid Don Siegelman, the former Alabama governor, $500,000 to appoint Mr. Scrushy to the state Certificate of Need Review Board (bribery) and that Mr. Scrushy then used his position on the Board to advance HealthSouth’s interests (honest services).
On July 15, 2013 (yes, seven years later), the Eleventh Circuit affirmed the lower court’s 70-month sentence. But, how the Eleventh Circuit ended up deciding this appeal a full seven years after Mr. Scrushy’s conviction is a saga itself. Here’s the opinion.
How Did We Get Here?
The Eleventh Circuit rather mildly described the case as having a “convoluted history.” It wasn’t lying.
After the jury found Mr. Scrushy and Mr. Siegelman guilty in 2006, they moved for a new trial, claiming jury misconduct based on jurors’ exposure to extrinsic information. The motion was ultimately denied and Mr. Scrushy was sentenced to 82 months in prison.
Mr. Scrushy appealed and the Eleventh Circuit affirmed his conviction in 2009. After the Skilling decision in 2010, however, the lower court on remand reversed his honest services convictions. Mr. Scrushy also filed a motion to recuse the lower court judge, claiming that he had not disclosed ex parte meetings that Judge Fuller had held with members of the U.S. Marshals about the supposed juror misconduct. A different district court judge denied the motion for recusal.
In the end, Judge Fuller denied Mr. Scrushy’s motion for additional discovery on the jury misconduct issue, denied his motion for a new trial and disagreed that the judge had violated his Sixth Amendment right by meeting with the U.S. Marshals (in part based on the denial of the motion for recusal). He was sentenced to 70 months in prison.
What’s At Stake Here?
This Eleventh Circuit heard this appeal of the denial of Mr. Scrushy’s motion for recusal and motion for a new trial. If he had prevailed, Mr. Scrushy could have gone back to retry the case—minus the honest services fraud. Given that the underlying conduct occurred over ten years ago, it may have helped the defense to force the government to try the case again, find its witnesses and try to get them to remember what happened.
The Eleventh Circuit’s affirmance is not a surprise. The denial of Mr. Scrushy’s motion to recuse was reviewed under an abuse of discretion standard. The court concluded that although Judge Fuller had met with the Marshals, he ultimately decided the issue related to that meeting “in Scrushy’s favor and against the federal prosecutor.” Plus, the judge had “disregarded” the information he learned in the meeting with the Marshals. As a result,
it would deny common sense to conclude that a disinterested lay observer would doubt Judge Fuller’s impartiality.
As to the denial of a new trial, Mr. Scrushy had to meet the demanding standard in Rule 33 based on discovery of new evidence. Such motions are “highly disfavored.” The court reviewed the several grounds for a new trial that Mr. Scrushy raised on appeal and rejected each of them. For example:
- Mr. Scrushy’s selective prosecution claim failed because it cannot be part of a Rule 33 motion and must be raised by pretrial motion. It was not raised then and was therefore waived.
- His motion for a new trial based on the discovery of new evidence about juror misconduct was rejected because the evidence he cited was not new and because the issue had already been decided and was therefore barred by the law-of-the-case doctrine.
- Mr. Scrushy made a motion for a new trial based on Judge Fuller’s meeting with the Marshals. This argument was rejected because, the court reasoned, the lower court knew of this meeting when it originally denied the motion for recusal. The evidence, therefore, is not “newly discovered.”
- Mr. Scrushy argued that the government improperly failed to disclose that a juror was “infatuated” with an FBI agent based on a few messages sent by jurors through the Marshals. The court rejected this argument because the messages were not “material” and “the failure to [disclose] was harmless” and would not “be likely to produce an acquittal on retrial.”
In the End
It is, of course, possible that Mr. Scrushy might appeal the Eleventh Circuit’s decision. But it is extremely unlikely the Supreme Court would take the appeal, given that it is so fact-intensive.
So, this may be the end of the road for Mr. Scrushy. Taking twelve months off a sentence may not sound like a lot when it leaves 70 months, but consider how much happens in your life in a year. So, congratulations to the Scrushy legal team. This one may not have been a victory but you have done well by your client in the long run.