Allegations of juror’s misconduct during deliberations fails to win a new trial for Defendant convicted of bribing Alabama Governor

In U.S. v. Scrushy, the Defendant and his codefendant Siegelman, the former Governor of Alabama, were found guilty following a trial of federal criminal crime of bribery and for the honest services mail fraud statute, 18 U.S.C. 1341 and 1346. The bribery conviction arose from allegations that Scrushy gave $500,000 to his codefendant Siegelman, in exchange for his appointment to a statewide board in Alabama and that Scrushy used his seat on the board to further the interests of the Health South Corporation, a hospital corporation in Alabama of which Scrushy was Chief Executive officer. These white collar criminal convictions had previously been affirmed by the 11th Circuit but the Supreme Court granted a writ of certiorari following its decision in Skilling v. United States, where the Supreme Court held that honest services mail fraud statutes were only intended to reach schemes involving bribery or kickbacks. On remand honest services mail fraud counts were reversed in light of Skilling. Following Scrushy’s resentencing, he took this appeal raising the denial of motions for new trial based trial, pursuant to Rule 33(b)(1) based on newly discovered evidence and the denial of a motion to recuse the trial court judge.

The Defendant had moved to recuse the trial judge after it was learned that emails from jurors were sent to the Marshals who brought them to the attention of the trial judge. The judge asked the Marshals to investigate, which then turned to the U.S. Attorney who enlisted the U.S. Postal Inspection Service. The Postal service concluded the emails were not authentic. The Defendant had not been advised about any of this. The Defendant argued that the trial judge should have stepped down because he met exparte with the Marshals about a factual issue and that he heard the Postal Inspectors express their belief the emails were not authentic. By acquiring personal knowledge of a disputed evidentiary fact, he could be a material witness on that issue. The 11th Circuit rejected these arguments, mainly because the judge actually ruled in the Defendant’s favor by finding the emails were in fact authentic and there could be no doubt that the judge was impartial.

Next, the Defendant claimed he was subjected to selective prosecution in violation of the Fifth Amendment right to equal protection. Specifically he claimed that his prosecution was selective because other similarly situated people made campaign donations and received gubernatorial appointments but were not prosecuted. The 11th Circuit denied this claim because: (1) a claim of selective prosecution is not the proper subject of a Rule 33(b)(1) motion for new trial and (2) the motion should have been raised as a pretrial motion.

Third, Scrushy claimed that he should have received a new trial because the jurors’ emails stated that they had access to extrinsic information about the case, including an unredacted copy of the indictment and information from the court website about the role of a jury foreperson, and that there had been contact between the jurors prior to deliberations. The court decided that these issues had been the subject of a prior panel’s decision Siegelman I and were therefore not newly discovered evidence. The law of the case doctrine bars relitigation.

Fourth, the Defendant claimed that U.S. Attorney Canary’s failure to abide by her decision to recuse herself deprived him of his right to be prosecuted by a disinterested prosecutor. After the U.S. Attorney recused herself from the case and an acting U.S. Attorney was appointed to oversee the case, Canary continued to offer litigation strategy, according to emails submitted by the Defendant. The court rejected this claim because the Defendant could not show that Canary’s emails influenced the decisions made by the U.S. Attorney’s office in prosecuting the Defendant. Furthermore, the acting U.S. Attorney had no conflict of interest in prosecuting the Defendant.

Finally, the defendant claimed that the prosecution engaged in misconduct by failing to inform the Defendant of a juror’s infatuation with an F.B.I. agent who sat at the prosecution’s table during trial. The juror sent messages through the Marshals expressing a romantic interest in the agent. In denying the challenge, the Court found that the evidence is not “material,” as required by Rule 33, nor would the evidence be likely to produce an acquittal. “The assertion that a mere expression of attraction would infect the jury’s decision with bias strains credulity.”