The Cheating of Don Siegelman, Part I

We recently introduced our series of posts about the U.S. 11th Circuit Court of Appeals and its unlawful ruling on the Don Siegelman case. Now it's time to dive into the details. Here is part 1 of "The Cheating of Don Siegelman."

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The U.S. 11th Circuit Court of Appeals cheated former Alabama Governor Don Siegelman in multiple ways. The most glaring example involves the statute of limitations, so we will start there.

It's undisputed that the government was tardy in bringing bribery charges against Siegelman and codefendant Richard Scrushy.

All of the activity that constituted the alleged bribery took place in summer 1999. But the government's original indictment was dated May 17, 2005. That's almost one full year past the five-year statute of limitations.

Even if Siegelman and Scrushy had committed the worst sort of bribery--and the facts and the law show that they didn't commit bribery at all--the government missed the boat by a long shot.

So how did prosecutors get away with this? First, they crafted a vague indictment that made it unclear when the alleged events took place. And U.S. District Judge Mark Fuller denied Siegelman's motion for a bill of particulars, which would have forced the prosecution to provide specifics.

That probably was the first clear sign that the fix was in on this case.

More importantly, prosecutors argued that Siegelman did not raise the limitations issue in the proper way, that he essentially waived that defense. Both the trial and appellate courts have agreed with the government.

But they are wrong. And here is why.

The 11th Circuit based its finding on two cases, neither of which is applicable to the Siegelman case.

One is United States v. Ramirez, 324 F.3d 1225 (11th Cir. 2003). Ramirez involved a limitations defense raised by way of a post-trial Rule 29 motion, the same method Siegelman's attorneys used. And the defense was rejected, as it was in the Siegelman case.

But here is where the cases differ: In Ramirez, the court found "when a statute of limitations defense is clear on the face of the indictment and requires no further development of facts at trial, a defendant waives his right to raise that defense by failing to raise it in a pretrial motion.”

Ramirez does not apply to the Siegelman case because the limitations defense was NOT clear on the face of the indictment. In fact, the indictment in the Siegelman case said the alleged crimes took place “[f]rom on or about July 19, 1999, and continuing through on or about May 23, 2000 . . .”

On its face, the indictment was unclear. It cites a first date that is way outside the statute of limitations and cites a second date that is inside the limitations period--barely. Fuller did not force the government to make the indictment clear, so Ramirez does not apply.

Of course, if Fuller had forced prosecutors to present a clear indictment, the case would have been over with an acquittal for Siegelman and Scrushy. And the judge certainly didn't want that. So he cheated them.

The 11th Circuit also cited United States v. Najjar, 283 F.3d 1306, 1308 (11th Cir. 2002) for its proposition that “the statute of limitations is a matter of defense that must be asserted at trial by the defendant and that failure to do so results in a waiver." The 11th Circuit says, "Other circuits agree," and proceeds to cite a number of other cases.

But the appellate panel got it wrong. The question in Najjar was this: Can a limitations defense be waived in a plea agreement? The Siegelman case had nothing to do with a plea agreement. Najjar does not address the same issues that are raised on the Siegelman appeal. As lawyers like to say, the two cases are not "apposite."

Other cases cited by the 11th Circuit involve instances where a limitations defense was raised for the first time on appeal. It's undisputed that raising such a defense for the first time on appeal is improper. But Siegelman did not do that.

He raised the defense in a post-trial Rule 29 motion, which the 11th Circuit has found is proper. In fact, those very circumstances were present in Phillips v. U.S., 843 F.2d 438, 441-43 (11th Cir. 1988). In Phillips, a motion was filed after trial, and the 11th Circuit ordered a judgment of acquittal based on the statute of limitations.

The Phillips court stated the following:

Statutes of limitations, both criminal and civil, are to be liberally interpreted in favor of repose. United States v. Marion, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468, 480 n. 14 (1971); United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055, 1059 (1968); United States v. Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932). In the criminal law area, such an interpretation protects the defendants' right to be free from defending against overly stale criminal charges. As the Supreme Court observed in Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156, 161 (1970):

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.

On the Siegelman appeal, the 11th Circuit completely reversed itself, failing to follow its own precedent in Phillips.

And it butchered two fundamental legal concepts:

(1) Siegelman and Scrushy had to defend themselves against allegations that had become so obscure that the prosecution couldn't provide any specificity on the dates involved.

(2) The prosecution was lazy and tardy in its investigation--and federal judges let them get away with it.

How nuts is the 11th Circuit's finding?

Imagine that you are charged in your town with jaywalking, which has a one-year statute of limitations. You get to court and find that the prosecution's complaint doesn't say when you jaywalked, it doesn't say where you jaywalked, it doesn't say who witnessed you jaywalking.

You tell the judge, "How am I supposed to defend myself against this?" The judge says, "I don't know, but you're going to have to. Good luck."

That's essentially what Don Siegelman and Richard Scrushy faced. The prosecution failed in its duty at every step. And both trial and appellate judges let them get away with it.

This is scary stuff, folks. And there is more to come.

(To be continued)