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.