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Monday, January 7, 2008

Fuller Makes Siegelman's Case for Him

Former Alabama Governor Don Siegelman probably thought U.S. District Judge Mark Fuller never would do him a favor. But Fuller has inadvertently done just that.

The point of Fuller's recent 30-page memorandum opinion was supposed to be that Siegelman should remain in federal prison pending appeal. But the opinion does just the opposite. In fact, Fuller actually makes Siegelman's case for him--showing that, under the law and the facts, Siegelman must be released from prison pending appeal.

How could a federal judge, someone you assume to be rather intelligent, make such a gaffe? My only explanation is this: People who are attempting to cover up wrongdoing are prone to step in doo-doo. And if you actually read Fuller's opinion with a somewhat critical eye, it becomes clear that the judge has stepped in doo-doo big time with this one.

And that makes me think he is doing his darnedest to cover up a sham of a prosecution.

With two recent posts, we have shown that Fuller's own memo proves that Siegelman, by law, should be released from prison pending appeal. And it's not even a close call.

Fuller worked up a 30-page memo in an apparent effort to make this look like a complicated matter. Well, it isn't. All you need to do is read roughly three pages of his opinion, conduct some quick legal research and . . . presto, you see that Judge Mark Fuller is blowing some serious smoke.

Here's an easy way to sum it up:

* The key question is: Does the appeal raise a substantial question of law or fact that, if found in the defendant's favor, would result in reversal or an order for a new trial.

* Fuller's own words show there is a substantial question of law on both key charges--federal-funds bribery and honest-services mail fraud.

* On bribery, Fuller indicates there is some question whether 11th Circuit law requires a quid pro quo, a "something-for-something" arrangement, in order to have a conviction. And as we have shown from a 2007 case--U.S. v. McCarter, 219 Fed. Appx. 921--there is no question about it. The language in McCarter is clear: "To prove a defendant is guilty of bribery, the government must prove there was a quid pro quo--a specific intent to give or receive something of value in exchange for an official act." And McCarter is based on a 1999 U.S. Supreme Court decision, so its grounded in pretty solid stuff. So there you have it: The judge's own words show there is a question of law that should be decided in Siegelman's favor. Score: Siegelman 1, Fuller 0.

* On honest-services mail fraud, Fuller indicates that he has no clue what he is talking about. He states that there is some question whether a quid pro quo is required for a mail-fraud conviction. And as we have shown, a quid pro quo has nothing to do with mail fraud. It is not remotely an element of the crime. Once again, the judge's own words show there is a question of law that should be decided in Siegelman's favor. Score: Siegelman 2, Fuller 0.

* As for questions of fact, all facts are in question because there is no transcript of the case--and there won't be one for at least another two months. Fuller spends almost 16 pages of his memo reciting his version of facts in the case. But those are not facts, in a legal sense, at all. And one can only wonder what dark crevice he pulled them from. Score: Siegelman 3, Fuller 0.

I would say Siegelman is pitching a shut out, and Fuller is toast.

Does this mean the 11th Circuit Court of Appeals will be releasing Siegelman from prison any moment? Of course not. That court is made up of judges, and the whole point of this blog is to show that judges often are the last people you want to trust with the law. And for all I know, the 11th Circuit might consist of justices whose respect for the law may be no greater than Fuller's.

But if the law still means anything in the Age of Rove--and that's a mighty big if--Don Siegelman should be out of prison pretty darn soon.

Mark Fuller's own words prove it.


Anonymous said...

Well, I don't have a dog in this fight, but you got the law all wrong.

The Fuller opinion mentions no requirment of an "express" or "explicit" quid pro quo. These are legally signifigant terms, as they implicate a direct verbal or written bribe.

Had you bothered to go on with your quote from the unpublished McArter opinion, you would have noticed this language:

"The government need not present evidence of a direct agreement to exchange official action for money; instead, bribery may be proven through inferences drawn from the circumstantial evidence."

In other words, McArty does not require an "express" or "explicit" quid pro quo, which is consistent with Fuller's opinion.

legalschnauzer said...

I don't have a dog in the fight either, and I didn't get the law wrong.

Not sure what you are saying in the second paragraph, but on p. 28 of his memorandum, Fuller does use the term "explicit quid pro quo."

I've read the entire McCarter opinion, and the Sun-Diamond case on which it is based. I didn't get into the material you reference in your fourth parapgraph because those are issues of evidence, how the government can prove its case.

But Fuller's memorandum, and my posts, are dealing with issues of law. And the law is this: A quid pro quo is required, one that shows "specific intent."

Fuller skirts this issue and tries to get into the evidence requirements. But he doesn't even have the fundamental law correct. He claims he "sufficiently apprised" the jury on the quid pro quo requirement. But he offers no proof of what his jury instruction actually was. All we have is his word. But since we have no proof of his instruction, and no transcript is available, there is a substantial question of law-- and Siegelman, by law, must be released pending appeal.

Your last paragraph is incorrect. McCarter does require a quid pro quo, showing "specific intent," and that is not consistent with Fuller's opinion.

You don't mention honest-services mail fraud, which Fuller butchered completely. That has nothing to do with quid pro quo, and he indicates that it does.

Anonymous said...

what I meant in paragraph 2 is that fuller states that there is no requirment to prove express or implied quid pro quo. this is correct as far as Macarty goes, based on the language I previously quoted you.

those issues of evidence you reference go to the heart of the matter. the former gov argued that the bribery charge was not proven because there was no direct evidence of a quid pro quo. however, the law does not require direct evidence, merely proof of circumstances giving rise to an inference that a quid pro quo occurred.

obviously, there can be no bribery without a quid pro quo, but it need not be proven by direct evidence.

my last paragraph above is correct, I assume you misread it. McArty does not require an EXPRESS or EXPLICIT quid pro quo, rather, specific intent to bribe can be shown by circumstantial evidence,which is consistent with fuller's opinion.

legalschnauzer said...

I think we're just going to have to disagree on this one. You're putting words in Fuller's mouth that aren't there. First of all, he doesn't even cite McCarter or any of its progeny. I'm not sure the case he cites is a sect. 666 bribery case, which is the statute involved in Siegelman. Secondly, you go into the evidence citations in McCarter, but Fuller does not. You and I are both flying a bit blind because we don't have a transcript or Siegelman's motion. (At least I don't). You make references to what Siegelman argued, but I don't know how you know that. I would like to see Siegelman's motion. I suspect they cited more than the one case that Fuller mentioned. Your statement about a quid pro quo "obviously" being required for bribery is not correct. In the Paul Minor case in MS, the judge's jury instructions did not require a quid pro quo of any kind, per the government's arguments. As a result, three men are wrongfully in prison. Would be interesting to see the transcript and discover what the government argued in the Siegelman case. Wouldn't be surprised if it was similar to what was argued in the Minor case. You and I aren't going to agree, but in my view, you are reading a lot into the Fuller opinion that isn't there. Read literally, it leaves huge questions of fact and law, upon which Siegelman should be released. You might want to read Scott Horton's post today at No Comment, Harper's.org. Will give you an idea of what a Columbia University law professor and several of his legal colleagues think of the Fuller memo.