Thursday, August 19, 2021

The U.S. 11th Circuit Court of Appeals denies en banc review in David Roberson case, proving once again it's the place where constitutional rights go to die

David Roberson

In a sign of ongoing corruption, incompetence (or both), the U.S. 11th Circuit Court of Appeals has denied David Roberson's request for en banc review of his conviction in the North Birmingham Superfund bribery case. Also, Roberson recently had to undergo emergency surgery for an intestinal blockage that likely was caused by rhe unrelenting stress of his legal ordeal. Both of those news items come from a report at

The 11th Circuit's ruling should be a shocker, but it isn't because we have reported frequently on the court's tendency to trample black-letter law, including its own precedent and that of the U.S. Supreme Court. (See here, here, and here.) Note: The 11th Circuit, based in Atlanta, covers Alabama, Georgia, and Florida.

The issues on Roberson's appeal are straightforward. He and other executives at Drummond Company relied on statements from Balch & Bingham attorney Joel Gilbert that their actions in the North Birmingham case were legal. That means Roberson had an iron-clad advice-of-counsel defense. But U.S. District Judge Abdul Kallon ordered Roberson and Gilbert to be tried jointly, which deprived Roberson of an opportunity to fully exercise one of his primary defenses.

It's hard to imagine a more blatant trampling of a defendant's constitutional right to a fair trial. But a three-judge panel of the 11th Circuit upheld Kallon's ruling, and when Roberson sought en banc review of the full 11th Circuit, it was denied. Here's how we framed the issues in a post from July 2021, citing an amicus brief from the National Association of Criminal Defense Lawyers (NACDL): 

Was it fair for former Drummond Company executive David Roberson to be tried jointly with a Balch & Bingham lawyer -- the very lawyer who had assured Roberson and others at Drummond that their actions leading to the North Birmingham Superfund trial were legal?  The answer is no, says a nonprofit bar association that submitted an amicus curiae brief strongly suggesting the trials of Roberson and Balch lawyer Joel Gilbert should have been severed to avoid the high risk that Roberson would be prejudiced. In fact, the National Association of Criminal Defense Lawyers (NACDL) says the district court's decision to try the case jointly merits a new trial for Roberson. A three-judge panel of the U.S. 11th Circuit Court of Appeals seemingly ignored the amicus brief in upholding Roberson's conviction. But Roberson likely will seek an en banc review of the full 11th Circuit. Based on the NACDL brief, he will be armed with a strong argument.

The question at the heart of the NACDL's brief is this: Did Circuit Judge Abdul Kallon err when he  declined to sever Roberson’s trial from that of his attorney co-defendants, despite Roberson’s resulting inability to present a complete advice-of-counsel defense? The association's blunt answer is yes. Here is how the brief frames the argument:

This brief addresses a narrow but vitally important question: when, if ever, a criminal defendant may be tried alongside an attorney on whose advice he relied with respect to the alleged offense. A motion for severance under Federal Rule of Criminal Procedure 14(a) always requires a careful balancing of competing interests. But joint trials of attorneys and their clients raise unique concerns that weigh heavily in favor of severance. The right to seek and rely on the advice of counsel is fundamental to our system of justice. For that reason, the law has long recognized that a defendant’s good-faith reliance on the advice of counsel may serve as a complete defense to many criminal charges. And the importance of the advice-of-counsel defense has only grown with time, as our world and our legal codes have become increasingly complex. Yet joint trials of attorneys and their clients risk undermining that defense by precluding client-defendants from presenting at trial the advice they obtained from their lawyer co-defendants. Courts should view such joint trials with a healthy dose of skepticism.

The NACDL beief explains how Kallon's decision to hold a joint trial undermined Roberson's defense:

The facts of this case vividly illustrate the danger such trials create. David Roberson, a mid-level executive at Drummond, was indicted and tried on charges of federal bribery along with two of Drummond’s attorneys. At trial, the prosecution successfully introduced a portion of a statement Roberson made to investigators admitting his concerns about retaining the consulting services of the state legislator the trio was accused of bribing. But when Roberson sought to introduce the rest of his statement—explaining that he had resolved his concerns by obtaining advice from Drummond’s lawyers—that evidence was excluded to protect his co-defendants’ Confrontation Clause rights. That ruling appropriately sought to safeguard the other defendants’ constitutional rights under Bruton v. United States, 391 U.S. 123 (1968). But it did so at the expense of Roberson’s own constitutional right to present a complete advice-of-counsel defense. Rather than subordinate Roberson’s interests to those of his attorneys, the district court should have granted Roberson a separate trial where his critical exculpatory evidence could be properly explored.

Joint trials of attorneys and their clients will often present such problems. Advice of counsel is a commonly raised defense—and one essential to the smooth functioning of highly regulated fields. But joint trials pose inherent obstacles to asserting the defense successfully: It is particularly likely that attorney and client co-defendants will have irreconcilable defenses, or that exculpatory evidence for one defendant will inculpate another and be rendered inadmissible because of the resulting prejudice. And because trials of this sort are often lengthy—perhaps implicating corporate activities governed by complex laws and regulations—there is a significant risk that prejudice against a defendant will manifest well into the trial. Accordingly, courts should exercise special care when considering the fundamental fairness of trials implicating the attorney-client relationship. By their nature, such trials present heightened risks of prejudice and inefficiency that should tip the balance in favor of prompt severance.

It's hard to overstate the importance of these issues in America's criminal courts. From the NACDL brief:

The right to seek and rely on the advice of counsel is central to our legal system. That right can be undermined, however, when prosecutors seek to try a criminal defendant and his attorneys at the same trial. A joint trial in these circumstances may—as here—lead to the exclusion of evidence critical to an advice-of-counsel defense. And where such prejudice requires a do-over of a lengthy trial, insisting on a joint trial at the outset may end up hindering rather than promoting judicial efficiency. Thus, while courts must weigh severance motions on a case-by-case basis, in this specific context the balance tips sharply in favor of prompt severance.

Federal Rule of Criminal Procedure 14 allows courts to “order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires” where “joinder of offenses or defendants ... appears to prejudice a defendant or the government.” Fed. R. Crim. P. 14(a). Although joint trials can often “conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays,” courts cannot “‘secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty.’” Bruton v. United States, 391 U.S. 123, 134, 135 (1968). Accordingly, in considering whether severance is warranted, courts must “balance the right of defendants to a fair trial, absent the prejudice inherent in a joint trial, against the interests of judicial economy and efficiency.” United States v. Gonzalez, 804 F.2d 691, 694 (11th Cir. 1986). Such balancing occurs on a case-by-case basis, as “[t]he risk of prejudice will vary with the facts in each case.” Zafiro v. United States, 506 U.S. 534, 539 (1993). “‘Ultimately, the test is whether the defendant received a fair trial’”—that is, whether the trial achieved “[f]undamental fairness.” Gonzalez, 804 F.2d at 695, 696.

The passage in green above was concisely composed by the U.S. Supreme Court -- stating that the right to a fair trial trumps concerns related to judicial economy -- and it forms the crux of Roberson's argument. But the 11th Circuit has an ugly history of ignoring or misconstruing the nation's highest court -- even botching its own precedent -- and David Roberson is the court's victim this time. Here is more from the NACDL brief:

Undue prejudice may occur where “a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” That prejudice may take many forms, but two are particularly relevant here. First, a joint trial may cause unfair prejudice “when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant.” Second, a defendant may be prejudiced where “essential exculpatory evidence that would be available to a defendant tried alone [is] unavailable in a joint trial.” The Supreme Court addressed the first type of prejudice in Bruton. That case involved the admission of a non-testifying co-defendant’s confession that also inculpated the defendant. The Court held that admitting such a statement violated the defendant’s Sixth Amendment confrontation rights, because the co-defendant’s right against self-incrimination rendered the statement immune from cross-examination. In so holding, the Court rejected the argument that the prejudice could be cured by a “sufficiently clear” jury instruction “to disregard” the statement’s reference to the defendant. Accordingly, “where two defendants are tried jointly, the pretrial confession of one [non-testifying defendant] cannot be admitted against the other.” Richardson v. Marsh, 481 U.S. 200, 206 (1987).

The threat of prejudice easily can be avoided. But neither Kallon nor the 11th Circuit seem to care about Roberson's right to a fair trial:

To comply with that rule, the defendants can be tried separately. See United States v. Avery, 760 F.2d 1219, 1223 (11th Cir. 1985) (introduction of statement by “non-testifying co-defendant that implicates another co-defendant can present the compelling prejudice that requires a severance”), abrogated on other grounds by United States v. Lane, 474 U.S. 438, 449 (1986). Or the prosecution can refrain from using the co-defendant’s statement at all. Or, as the Supreme Court explained in Richardson, the statement may be redacted “to eliminate not only the defendant’s name, but any reference to his or her existence.” 481 U.S. at 211 (emphasis added). A redaction that still implicates the defendant, despite not naming her directly, will not suffice. See Gray v. Maryland, 523 U.S. 185, 195 (1998).

Another kind of prejudice can occur where being tried with others prevents a defendant from presenting “essential exculpatory evidence” of his own. That situation calls for severance because it compromises a defendant’s constitutional right to advance a complete defense. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006).

Consider those words in green above: The U.S. Constitution guarantees David Roberson's right to present a complete defense. But Judge Kallon and a three-judge appellate panel denied that right -- and the full 11th Circuit did not think it merited 11th Circuit review.

That sounds unbelievable, but we are talking about the 11th Circuit here. And we know from experience that its ability to plunder the law has no apparent boundaries.


legalschnauzer said...

I can't state strongly enough that this ruling is an absolute outrage. And it follows in a long line of 11th Circuit cheat jobs, going back to the Don Siegelman case and probably much further.

legalschnauzer said...

Speaking of Don Siegelman, here is an LS post on how the 11th Circuit cheated him, a former governor of Alabama:

How the 11th Circuit Cheated Don Siegelman: A Summary Explosive news has been breaking in recent days from motions for a new trial in the case of former Alabama Governor Don Siegelman and former HealthSouth CEO Richard Scrushy. It's worth noting that the Siegelman/Scrushy motions would not have been necessary if the U.S. 11th Circuit Court of Appeals had done its job.

We showed in a recent series of posts that the 11th Circuit made multiple unlawful findings in upholding most of the convictions in the Siegelman case. Now might be a good time to review the judicial hatchet job the 11th Circuit administered on the Siegelman/Scrushy appeal.

What did we learn from our multi-part series about the appeal? Clear law required the 11th Circuit to overturn the Siegelman/Scrushy convictions. But the appellate court botched its ruling on at least five key issues. And we're not talking about complicated stuff here. I don't have the first day of law school, and I could rather easily determine the many areas where the 11th Circuit got it wrong. All the court had to do was follow its own precedent--and it couldn't even do that.

How do you explain such judicial butchery? Two words come to mind--incompetence and corruption.

One member of the three-judge panel is in his mid 80s and another is about to hit 80. But I don't think these judges are senile, and thus, incompetent. So I think we are looking at corruption.

legalschnauzer said...

Here are key issues where the 11th Circuit screwed Don Siegelman:

Why did the 11th Circuit uphold a trial-court judgment that it had to know was unlawful? I have some theories on that, and we will get to those in a bit. But first, let's review the five key issues where the 11th Circuit got it wrong:

* Statute of limitations--It's undisputed that the alleged actions that made up the government's bribery charge against Siegelman and Scrushy took place outside the five-year statute of limitations. So how did the government get away with bringing this case, much less winning it? It drafted an indictment that was vague, and when Siegelman/Scrushy moved for a bill of particulars that would have required a few specifics, the judge denied it. Defense attorneys raised the limitations defense in a proper manner for a case involving a vague indictment. But the trial court, and the 11th Circuit, wrongfully ruled that they had waived the defense.

* The fundamentals of bribery laws--It's undisputed that the controlling law in the Siegelman case was McCormick v. United States, 111 S. Ct. 1807 (1991). The 11th Circuit admits this and even correctly states that McCormick finds that an "explicit agreement" must be present to obtain a bribery conviction. But the 11th Circuit then turns around and claims the Siegelman team cites the need for an "express agreement." The Siegelman team, however, does not make this argument. Essentially, the 11th Circuit puts words in the mouth of the Siegelman team. And that's how the appellate ruling gets it wrong on the basics of bribery law.

* Jury instructions--This could not be more clear. McCormick requires an "explicit agreement." The trial court's jury instruction did not require an "explicit agreement," and thus was unlawful. But the 11th Circuit let it stand. The trial court's instruction focused on a "specific action." But McCormick makes it clear that bribery is not about any action that the parties might take; it is about an agreement, one that is explicit. The trial court did not follow the law, and the 11th Circuit let the bad jury instruction stand, meaning Siegelman and Scrushy were convicted for a crime that doesn't exist.

* Hearsay--Key testimony came when one former HealthSouth official said another (a non-witness) had bragged to him about helping the company secure a spot on a hospital-regulatory board. Normally, this would be inadmissible hearsay. But the judge allowed it under the "coconspirator exception" to hearsay. For the exception to apply, a conspiracy must involve both the declarant and the defendant against whom the statement is offered. That would be Don Siegelman. But there never was any evidence that Siegelman was involved in a conspiracy involving HealthSouth officials. The coconspirator exception was not applicable. The trial judge allowed it anyway, and the 11th Circuit let it stand.

* Insufficient evidence--At most, evidence showed that Siegelman thought Scrushy expected a spot on a hospital-regulatory board in exchange for his campaign contribution. But the law is clear that evidence of an expectation on the part of one party or another is not enough to support a bribery conviction. There must be evidence of an "explicit agreement" between the two parties. That kind of evidence was not present. But the 11th Circuit let unlawful convictions stand.

That's a pitiful string of botched rulings, and the Roberson case is also a gross hatchet job.

legalschnauzer said...

The bottom line on Roberson: He was convicted, not because he committed a crime but because he was tried with the very attorney, from Balch & Bingham, who assured him his actions were lawful and ethical.

In common language, that is guilt by association, and it's unfair and prohibited by the U.S. Supreme Court.

legalschnauzer said...

If I sound overly pissed, it's because I've walked in David Robertson's shoes. From being cheated out of my job of 20 years at UAB, from having a wrongful foreclosure on our house in Birmingham, to my unlawful arrest, beating, and incarceration in Shelby County, to my wife being cheated out of her job at Infinity Insurance, I've watched judges in the Northern District rule unlawfully and seen the 11th Circuit uphold those rulings every time.

So yes, it's personal, and I think it's way past time for a criminal investigation of the Northern District and the 11th Circuit. I believe we are dealing with organized crime, and I don't know just how deeply it runs.

Anonymous said...

Are federal courts so strapped for cash that they have to do joint trials to save money?

legalschnauzer said...

That's a reasonable question @10:44, but no, they are not strapped for cash. I would invite readers to visit their nearest federal courthouse. They are like palaces compared to state courthouses, like 4-star hotels. And they don't seem to be all that busy. They could have easily tried Roberson and Joel Gilbert separately. But I think the "overlords of justice" in Birmingham wanted a joint trial because they knew that would get a Roberson conviction.

legalschnauzer said...

On a personal note, here is the 11th Circuit's unlawful ruling on my arrest and incarceration in Shelby County. I haven't written a post about this, mainly because I've covered the issues extensively in post re: trial judge Virginia Emerson Hopkins. But I think it might be time for a separate post on the 11th Circuit's handling of this case. The court seems to have no problem with illegal incarcerations, either in the Roberson case or mine;

legalschnauzer said...

Here is a URL to posts about Judge Virginia Emerson Hopkins' butchery on our jail
case, and 11th Circuit said everything she did was fine:

legalschnauzer said...

If you want to boil the Roberson case down to one key piece of law, this is it:

"courts cannot “‘secure greater speed, economy and convenience in the administration of the law at the price of fundamental principles of constitutional liberty.’” Bruton v. United States, 391 U.S. 123, 134, 135 (1968)"

Does the 11th Circuit have an obligation under the law to follow U.S. Supreme Court precedent? Yes. Did it do it in this case? No.

legalschnauzer said...

If you want to boil the Roberson case down to a second piece of law, thi is it:

"Another kind of prejudice can occur where being tried with others prevents a defendant from presenting “essential exculpatory evidence” of his own. That situation calls for severance because it compromises a defendant’s constitutional right to advance a complete defense. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006)."

Again, that is U.S. Supreme Court precedent, and the 11th Circuit ignored it.

Anonymous said...

Does Balch & Bingham benefit from this? Do they have the power to make the 11th Circuit do their bidding?

legalschnauzer said...

The answer to your questions are yes and maybe. On the second question, multiple Alabama Lawyers have told me that Jeff Sessions and his allies (Rob Riley, Luther Strange, Doug Jones, and Steve Windom) basically control the Alabama State Bar. Could that form a conduit to the 11th Circuit? My opinion is it could. And it would be designed to benefit the white, male, conservative elites who control the Alabama legal world. And Sessions is longtime ally of Balch & Bingham.

I will address your first question in the next comment.

legalschnauzer said...

How could Balch & Bingham benefit from the Roberson ruling? Roberson, best we can tell, still has a $75-million lawsuit pending against Balch and Drummond. We don't know for sure because the case has been improperly sealed.

But if Roberson goes to prison, as now appears likely, it becomes much harder for his attorney (Burt Newsome) to litigate the civil matter. A lawyer needs access to his client during the course of a lawsuit. But that becomes difficult when the client is in prison. And the government could send Roberson to a prison far from Alabama, as it did with Siegelman.

My guess? That is the No. 1 element driving the 11th Circuit's chicanery with Roberson.

legalschnauzer said...

Balch might not be the only Birmingham law firm with smelly fingerprints on the matter. The trial judge, Abdul Kallon, is a former Bradley Arant lawyer who might have been Barack Obama's worst appointee ever. Another former Bradley lawyer, Kevin Newsom, now is on the 11th Circuit. He reportedly long has had a close relationship with Bill Pryor, another 11th Circuiter, who is a favorite of Jeff Sessions.

You will notice that 11th Circuit judges tend to come from corporatist "Big Law" firms, and that's probably a big reason the court is so crooked -- and so unrepresentative of average Americans' interests.