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Tuesday, August 28, 2012

An Overpowering Stench of Corruption Emanates From U.S. Eleventh Circuit On Siegelman Appeal

U.S. Eleventh Circuit in Atlanta

Reports on corruption in the handling of the Don Siegelman case have tended to focus on the trial court, especially Judge Mark Fuller and prosecutors in the Middle District of Alabama.

But our review of one critical issue in the Siegelman case shows that the U.S. Eleventh Circuit Court of Appeals in Atlanta botched its ruling in such an outrageous fashion that it almost had to be intentional. The Eleventh Circuit includes 17 judges (seven on senior status) and covers three states--Alabama, Georgia, and Florida. The circuit's decision to uphold bribery convictions against Siegelman and codefendant Richard Scrushy--contrary to well-settled law--hints at the kind of dark conspiracy that probably meets the definition of organized crime.

How serious is this? The Siegelman case, by law, could not go to a jury--much less result in convictions. And yet, Scrushy already has served a six-year federal prison sentence, and Siegelman is due back in federal custody by September 11.

What is the one issue that should have doomed the prosecution's case before it ever reached a jury? It was the statute of limitations, and the facts and the law, show the case against Siegelman and Scrushy was brought almost one full year too late. So regardless of what one thinks about the testimony of key government witness Nick Bailey, the shaky jury instructions, the questionable juror behavior, the weak evidence on a quid pro quo ("something for something") agreement, and the myriad conflicts involving the judge and U.S. attorney . . . none of that should have been a factor.

Evidence at trial showed that the alleged acts constituting bribery took place in summer 1999, and the original indictment was issued in May 2005. That's almost six full years, even though the statute of limitations is five years. Failure to initiate the case within the applicable statute of limitations, under the law, is an absolute bar to a successful prosecution.

But Fuller denied a defense request for a bill or particulars that would have shown the statute of limitations problem before testimony even started--and the judge allowed the case to go to a jury when the facts established at trial, plus black-letter law, showed that could not happen. Gee, I can't imagine why Siegelman supporters--not to mention more than 100 former state attorneys general--have contended the former governor got a raw deal.

The Eleventh Circuit compounded the problem by claiming defense lawyers had waived the statute-of-limitations defense because they failed to raise it in a proper manner. But Eleventh Circuit precedent shows this ruling was incorrect--and every judge in the Atlanta-based circuit has to know it. My guess is that pretty much all criminal-defense lawyers in the Deep South, and around the country, also know the ruling is incorrect. But they are sitting quietly as Siegelman prepares to return to prison for being railroaded in a prosecution that was barred by the statute of limitations.

All of this might sound complicated, but it boils down to one relatively simple case. It is styled Phillips v. U.S. 843 F. 2d 438 (11th Cir., 1988), and it shows the Siegelman defense team properly raised the statute of limitations defense and did not waive it. This is case law that has been in place for almost a quarter of a century, so it's hard to imagine how the Eleventh Circuit could "accidentally" get it wrong.

This also raises questions about the U.S. Supreme Court's motives in failing to hear the Siegelman case. It hints that the nation's highest court was in on a scheme to ensure that at least a thread of the Siegelman convictions were left hanging. Imagine the embarrassment for the nation's judiciary if it was shown that appellate judges, who hold lifetime positions, could not even rule correctly on the simplest procedural matters.

What do we learn from Phillips v. U.S.? Here are the basics of the case:

A Florida man named Paul M. Phillips was convicted in November 1986 of failing to file tax returns for the years 1979 and 1980. Phillips argued to the Eleventh Circuit that the trial court had erred in failing to grant his motion for a judgment of acquittal on one count because the six-year statute of limitations had lapsed at the time of his initial indictment on May 6, 1986. Here's how the Eleventh Circuit described the issue:

Nine days after Phillips' trial concluded, he filed a motion for judgment of acquittal as to count I of the complaint. Phillips asked the trial court to dismiss count I of the indictment due to the government's failure to comply with the applicable six-year statute of limitations period. 26 U.S.C. Sec. 6531(4). The trial court denied Phillips' motion for acquittal.

The ruling in Phillips goes on to describe a number of complicating issues-- including the fact Phillips had filed for an automatic extension, which the IRS had denied, raising questions about when the statute of limitations kicked in. But those issues are not relevant to the Siegelman case. The section we highlighted in bold, however, is extremely relevant; it says that Phillips raised the limitations defense in a motion nine days after the trial. And the Eleventh Circuit found that was proper. From Phillips:

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.

Court records show that Siegelman defense attorneys raised the limitations defense via Rule 29 of the Federal Rules of Criminal Procedure ("Motion for a Judgment of Acquittal"), and that's the same rule used in Phillips. The key provision is found in Rule 29(c):

(c) After Jury Verdict or Discharge. (1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later. (2) Ruling on the Motion. If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal. (3) No Prior Motion Required. A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.

What do we learn from this? It is proper for the defense to move for a judgment of acquittal after a jury verdict--and the defense is not required to raise such a motion before the case goes to jury. Translation: The Siegelman/Scrushy defense properly raised the limitations defense after the jury verdict, and court records indicate they did it within the time frame set by law. For good measure, the Phillips case of 24 years ago shows the defense raised the issue properly.

So why did Richard Scrushy recently complete a prison sentence--and Don Siegelman is about to head back to prison? We can think of only one explanation: The entire Eleventh Circuit is corrupt.

Consider this grim irony: The three-judge panel in Phillips included Robert S. Vance Sr., who had been Don Siegelman's law partner and professional mentor. A little more than one year after the Phillips ruling was issued, Vance was killed when he opened a mail bomb that had been sent to his home in Mountain Brook, Alabama.

Are my allegations about a conspiracy involving the Eleventh Circuit extreme or "out there." Not when you consider how the appellate court is supposed to run.

After a three-judge paneled upheld the bribery convictions, the Siegelman defendants filed a petition seeking review by the entire Eleventh Circuit, called an en banc rehearing. The circuit's internal procedures under Rule 35 of the Federal Rules of Appellate Procedure ("En Banc Determination") states as follows:

(1) A copy of a petition for rehearing en banc is distributed to each active judge in the circuit;

(2) Any active judge may request that a poll be taken regarding en banc consideration, in the event the panel declines to grant rehearing;

(3) Any active judge may request that a poll be taken regarding en banc consideration, even if a party has not filed a petition.

What does this tell us? All 17 active judges on the Eleventh Circuit had an opportunity to get it right on the statute of limitations issue in the Siegelman case. All of them had to be familiar with the court's holding in Phillips, and they all had to know that the panel's finding in Siegelman was in conflict with settled law.

The whole purpose of en banc rehearing, according to court rules, is "to secure and maintain uniformity of court decisions."

So why did 17 judges, both Republican and Democratic appointees, not raise a peep about a panel finding in Siegelman that clearly conflicts with settled Eleventh Circuit law?

Corruption of a dark and conspiratorial nature is the No. 1 answer that comes to mind. The only other possibility is systemic incompetence of an almost unbelievable scope.

Either way, it's way past time for the public to realize our courts are failing us at all levels. And loud, persistent citizen action is the only way the problem will be addressed.

22 comments:

John Cell said...

When you talk about the donation that put siegelman and scrushy in jail, why do you gloss over how sketchy it was?

The foundation was in debt and don guaranteed the debt. Any donation was a direct benefit to him. You never say this.

Even you have to admit that healthsouth pressuring its investment banker to pay on its behalf, who then made a client that owed it money write a check to the foundation in exchange for debt forgiveness, who then sent that check to scrushy for him to donate to the foundation looked extremely bad.

If it was so "routine" and not illegal/sinister, why didn't healthsouth donate directly?

Oh wait, because Don requested the donation/bribe to stay on CON, as Bailey testified at trial.

Also, has it ever occurred to you that calling a judge corrupt and a criminal probably isn't the smartest thing to do for frequent litigants like you?

I'm embarassed that when people Google things related to Alabama, your SEO optimized trash is at the forefront. Page views do not equal credibility. If your writing and insight is so great, why haven't you moved to the Times or even the Huffington Post as a paid writer? It is because you have no sense, and no editor wants to attach their name to your nonsensical garbage.

jeffrey spruill said...

Would not this be considered quid pro quo ("something for something") agreement:

http://www.nytimes.com/2008/07/07/business/media/07weather.html?_r=2

Judge J. Harvie Wilkinson was the former editorial page editor of the Norfolk,Va. Va. Pilot whose former colleague-Conrad Shumadine was one of the attorneys that handled this case:

http://bcove.me/xh82za7f

That's why Judge J. Harvie Wilkinson could not have a confirmation hearing--- because of his FBI files not because of the Bush inner circle:

http://en.wikipedia.org/wiki/J._Harvie_Wilkinson_III

legalschnauzer said...

John Cell:

Siegelman/Scrushy were not charged with having a "sketchy donation." They were not charged with having a donation made in a roundabout way. Those things aren't crimes. They were charged with federal funds bribery under section 666. That's a specific crime, with specific elements. Do you know the elements of bribery under 666? Obviously, the answer is no.

It boils down to this: Was there an explicit agreement on a "something for something" deal, a quid pro quo? That's the crime, and it has nothing to do with whether a check went here then there, or whether something looks "sketchy." There was no evidence at trial of such a deal, and Fuller did not even include the correct language in jury instructions.

More importantly, as this post shows, the whole case was brought way too late, almost one full year past the statute of limitations. None of the issues you raise matter under the law, and they certainly don't matter when you consider that the prosecution was barred by the statute of limitations.

As for your other points, you seem to be admitting that certain judges are corrupt and engage in criminality. If a judge would intentionally cheat me because of something I wrote on a blog, that is blatantly corrupt. I've got news for you, too: I was being cheated by judges long before I started this blog, so being quiet and taking it doesn't help either. The judges are corrupt, either way, and you seem to acknowledge that.

As for credibility, my blog is read every day by dozens of law firms, plus people from the DOJ, Congress, government agencies, media outlets, universities, and so on. I've even had about 10 visits from the "Executive Office of the President" in Washington, D.C. That's in a place called the White House.

One reason I haven't moved on to the Times or Huffington Post is that I haven't applied to those places. I'm not interested in working at those places. I've worked for plenty of other people--been there, done that. I'm interested in the unfiltered truth, and that's what readers get at Legal Schnauzer.

Anonymous said...

Mr. Cell:

You are embarrassed that a real journalist resides in Alabama, but you aren't embarrassed by all the corrupt judges and prosecutors who practice their dirty deeds in our state?

I would say your values are badly out of alignment.

Anonymous said...

Johnny C:

If Nick Bailey's testimony was so compelling, how come he had to be coached heavily and threatened with being outed as gay?

Multiple citizens have filed affidavits to these facts, but you aren't concerned about that--or the fact that jurors were improperly e-mailing each other during the course of the trial?

Sheesh.

David in S, Alabama said...

One of those seventeen "en banc" members of the 11th Circuit is Bill Pryor who just happens to be the former Alabama Attorney General who started the investigation of Don Seigelman in the first place. He was appointed to fill the remainder of the term of the previous AG. He ran for a full term and guess who he hired to run his campaign - why none other than Karl Rove. This same Karl Rove who later moved to White House and who got George Bush to appoint Pryor to the 11th Circuit. Before he took the oath as Circuit Judge, he took everthing he had on Siegelman and gave it took Leura Canary, the new US Attorney in the Middle District of Alabama' who Karl Rove got George Bush to appoint. She just happened to be the wife of Bill Canary who just happens to have been a partner of Karl Rove when they ran Bill Pryors AG campaign. Go and check the Senate Judicary Committee files on the appoinments of Pryor, Canary and the Judge in Siegelman's case Mark Fuller. You won't find much.

Anonymous said...

John Cell you are not really the name and the person?

Truly bankrupt in the IQ factor and EQ? You are clearly retarded and worse, a sub-human filth manipulator of words and this is not new here in the land of Mafioso USA.

As LS said, to be quiet does not work and civilized? We are, otherwise your sub-human cult would be in prison, all.

Don Siegelman is obviously a "Self Hating Jew" and this frankly put,

HE REFUSED TO BEND OVER TO A NEW WORLD ORDER CRIMINALLY INSANE OLD WORLD FANTASY, thus, he gets to go to prison and teach U.S. ALL not in the "cult" with "you," what happens when we roll over and play good American goyim.

legalschnauzer said...

To be clear, Don Siegelman is Catholic, and his wife is Jewish. My understanding is that they raised their children in the Jewish faith.

Anonymous said...

NCO financial calls here perhaps 6 times per day. Some days they are trying to say that Ophelia Matthews lives here and the rest of the time they are asking for me. I just always say I don't have a clue about any of the people they are mentioning. I just don't intend to listen to any of these types of calls anymore....I am too enlightened about the way these companies/people operate. I would offer this as advice to anyone who has had to deal with NCO.

John Cell said...

Roger you obfuscate yet again. I know the elements of what siegelman was charged with. I know that the 11th circuit panel disagreed with you on the jury instruction, and I know that the 11th circuit and supreme court will not hear the appeal.

Sketchy transactions made it look like both siegelman and scrushy were trying to hide their deal, as ALL BRIBEERS WOULD.

If don's lawyer decided not to raise hell about the statute of limitations at the beginning, that was an error. But he waived it as the court said.

I'm not saying that a judge would cheat you, but you will get little leeway in discretionary rulings because you come off as a kooky pro se plaintiff.

Any why should readers listen to you...haven't you lost EVERY SINGLE LAWSUIT YOU HAVE BEEN INVOLVED WITH???

Appellate records are available on Google scholar. None show you winning on appeal.

Just because your blog is well read doesn't mean anyone credible quotes it or depends on your reporting. Eddie curran destroyed you in his book...you should have gone away after that. Instead, you go on more witch hunts and continue to lose lawsuits.

Let's face it...you, Roger Shuler, are a loser in life. Lost job because you were too stubborn to take a warning. Lost house because you wouldn't pay a small judgment. Lose every frivolous lawsuit you bring. Just a loser.

10 years ago you wouldn't ever be heard of, but because you link to yourself and game SEO, I have to see your loser thoughts on Alabama related issues.

Anonymous said...

Ah Ha,

Don Siegelman is Catholic. His children are converts, read the Protocols of the Elders of Zion.

Now the pieces of the puzzle are beginning to fit into the well- chosen and woven fabric of Holy Dress.

What Goldman Sachs said to Nora Nash and the Sisters of St. Francis, regarding the responsible investing that the Catholic Church wanted to be known for ...

"The Faith Corporations, have been met with and, no further meetings."

Now, we are all in one form or another in a "faith" situation.

I do not care one way or another about a human being and the belief system of "faith," in whatever keeps the unknown "soul," "mind," "emotions," and in essence the "professional human being" in a centered or balanced, call it a grounded choosing to be in a category of "grown-up."

The outcome is we as humans do the best of our whole being. The problem is the engineering of our poor innocent "specie."

All that said, to each their own in "practicing the faith" of whatever "Lode Star" shines.

The deal is, "religions" have used superstition and holy dress for eons to keep humanity very dumb.

Romans were barbaric. To this day, the ideology is practiced as though a religion to be believed in, as though the only faith in forever IS murder dressed up as though a crusade for G-O-D.

Anonymous said...

Elders of the Protocols of Zion,

Don Siegelman "destiny?"

Anonymous said...

Same as Rachel Corrie. See what is happening with the case of Rachel Corrie, it cast in stone, so to speak, the same fate as Don.

His "soul" gets to be a "power" that now belongs to the "Protocols."

In Syria, when the Protocols began to be acted in a production on stage, well the Middle Eastern people want to see whether or not the end of the Protocols comes to fruition - we all should.

Souls are energy and the superstitious need whatever energy that is missing, call it "wound of the soul, I'm not worthy," and therefore "collect other souls," to feel "filled."

Yes, no question about the Romans that were insane yesterday and dressed up as though "Holy" in "religion cloaks," while we can "KNOW THEM BY THEIR FRUITS," the ghetto earth is intentional.

Peace does not manufacture a hell that can, and is, a heaven to the criminally insane.

Anonymous said...

I've not a clue, as to what Don is to do for his "soul."

He does, yes we all do for our own path, know the solutions to the problems. One Edgar Cayce used was "sleep," so did "Carl Jung."

As we fall into the alpha state, our consciousness "alters."

Into conscious, unconscious, subconscious, superconscious and so on, are also beta, delta, theta and so on.

For lack of better "words," because the "energy" of the experience in being "subtle human" first, saves us from so much outer "gross, dense, coarse," and NOT a "smooth ride."

When entering the sleep state talk to the mind. The unknown is our friend, or we're in serious doubt about "life."

As I sleep I dream and in my dream I solve: PROBLEM.

The mind is goal seeking, problem solving, the teaching says.

When I awaken I remember my dream and I WRITE my solution and therefore, this is how I TRUST my inner reality can actually be as my outer life path.

A variation of whatever Jung and Cayce et al have taught works.

There is more "meditation," however, this practice alone is more difficult than it is perceived here /rk

choggs said...

Speaking of 666, a jury convicted Earnest Levi Garner in the Northern District of Ms. The judge of the case just through out the verdict saying the jury instructions were prejudicial to the defendents. The alleged bribee didn't fit the defintion of "agent" as requirement of 666. So, the jury was misled on bad jury instruction? The judge feared a reversal so the jury instructions that approved were not correct?

You would not believe the sham prosecutions that are still going foward. Alot of these swine get promotions off their convictions. Thats why.

legalschnauzer said...

choggs:

Thanks for sharing the info about Garner case. I've heard a little about that, but need to get more up to speed.

It sounds like the defense filed a postjudgment motion for acquittal, just as Siegelman lawyers did here in Alabama. And yet, the Eleventh Circuit found that was not the proper time to raise certain defenses--even though the law clearly says that it is. (Rule 29, FRCP, plus Phillips v. U.S.)

The judge's actions in Garner seem to add to the mountain of evidence that the Siegelman case was horribly botched. Actually, "botched" is not the right word because that implies a mistake was made. The Siegelman case was an intentional cheat job, not a mistake.

Here is a link to an article with the latest on Garner case. Folks who have followed Siegelman will want to keep up with this:

http://djournal.com/view/full_story/19926172/article-Judge-threw-out-convictions-in-Garner-Shoemaker-case?instance=secondary_stories_left_column

jeffrey spruill said...

Mr. Schnauzer:

Your focus in this post seems to rely more on a statute of limitations defense. That is why I commented on a quid pro quo ("something for something") agreement.(second comment)

These things go on ALL THE TIME. Which is why this Rehnquist quote becomes all the more relevant:

“The Constitution requires that Congress treat similarly situated persons similarly, not that it engage in gestures of superficial equality.”

*

It WAS a political prosecution!!!

John Cell said...

My second comment from yesterday strike too close to the bone? Is that why you didn't post it?

legalschnauzer said...

John Cell:

I didn't see a second comment from you yesterday. Feel free to resend.

legalschnauzer said...

Johnny Cell:

I found your comment from yesterday. It got lost in the shuffle. I will try to publish your original, but in case that doesn't work, I will cut and paste it here:

John Cell said . . .

Roger you obfuscate yet again. I know the elements of what siegelman was charged with. I know that the 11th circuit panel disagreed with you on the jury instruction, and I know that the 11th circuit and supreme court will not hear the appeal.

Sketchy transactions made it look like both siegelman and scrushy were trying to hide their deal, as ALL BRIBEERS WOULD.

If don's lawyer decided not to raise hell about the statute of limitations at the beginning, that was an error. But he waived it as the court said.

I'm not saying that a judge would cheat you, but you will get little leeway in discretionary rulings because you come off as a kooky pro se plaintiff.

Any why should readers listen to you...haven't you lost EVERY SINGLE LAWSUIT YOU HAVE BEEN INVOLVED WITH???

Appellate records are available on Google scholar. None show you winning on appeal.

Just because your blog is well read doesn't mean anyone credible quotes it or depends on your reporting. Eddie curran destroyed you in his book...you should have gone away after that. Instead, you go on more witch hunts and continue to lose lawsuits.

Let's face it...you, Roger Shuler, are a loser in life. Lost job because you were too stubborn to take a warning. Lost house because you wouldn't pay a small judgment. Lose every frivolous lawsuit you bring. Just a loser.

10 years ago you wouldn't ever be heard of, but because you link to yourself and game SEO, I have to see your loser thoughts on Alabama related issues.

legalschnauzer said...

Well, that worked. The original published up the way a little bit, at 12:52 p.m. And no it didn't strike close to the bone. There isn't an original thought in it. I've heard all that before. But nice try.

legalschnauzer said...

Mr. Cell:

You really ought to try harder to come up with something original. Let's review:

* You pull out the tried and true "the appellate courts didn't agree with you" routine. If you read this blog for any time, you know that its whole point is that our courts often get rulings wrong--either through incompetence or corruption. Unlike most MSM journalists, I examine the appellate rulings and see if they fit with settled case, procedural, and statutory law. If they don't, I show exactly how the court got it wrong. I've written more than a dozen posts on how the 11th Circuit butchered the Siegelman appeal, and I notice you make no substantive statement to counter my work. That's because you can't.

* Then you pull out another chestnut--the "you've lost every legal case you've been in, etc." Again, I've shown via court documents and legal precedent how those cases were butchered. I've exposed the disgraceful ethics record of con man/lawyer Bill Swatek, and how the Alabama "justice system" coddles him. Do you have ADD? Is that why you don't seem to have the attention span required to actually read what I've written?

* You were one of the six people who read Eddie Curran's book? Congrats. You really need to get a life if you can't find better reading material than that.

* Then you stoop to a third grader's level with the old "You're a loser" routine. Come on, John, grow up and act like an adult. You can't do better than that?

* By the way, what warning did I receive? And why was someone sending me a warning? About what? Care to enlighten?

* Sounds like your bitter that my blog has a major presence on the Web. It has nothing to do with SEO, by the way; it has to do with a lot of work and strong content. A Web expert, who makes his living doing SEO and the like, told me that he was "blown away" by the presence LS has on the Web--and he said it had all happened "organically," with no SEO tricks, etc. He offered a deal where he would engage in formal SEO to enhance my presence. He's a smart guy, but I turned down the deal. I like LS the way it is. The focus is on journalism, not SEO--and that's how I want it.

If you are jealous of LS, try starting a blog of your own. Let me know when you do it, and I will be sure to check it out so I can send smarmy, sophomoric, uninformed comments under an assumed name. I'm sure you will appreciate the courage it takes to do that.