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Case No. 12-10694 District Court Case No. 2:05-CR-119-MEF in the UNITED STATES COURT of APPEALS for the ELEVENTH CIRCUIT UNITED

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Case No. 12-10694 District Court Case No. 2:05-CR-119-MEF in the UNITED STATES COURT of APPEALS for the ELEVENTH CIRCUIT UNITED Case: 12-10694 Date Filed: 08/02/2013 Page: 1 of 62 Case No. 12-10694 District Court Case No. 2:05-CR-119-MEF IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT UNITED STATES OF AMERICA, Appellee-Plaintiff, v. RICHARD SCRUSHY, Appellant-Defendant. On Appeal from the United States District Court for the Middle District of Alabama PETITION FOR REHEARING EN BANC __________________________________________________________________ Arthur W. Leach James K. Jenkins Suite 225 MALOY JENKINS PARKER 5780 Windward Parkway 900 Arapahoe Avenue Alpharetta, Georgia 30005 Boulder, Colorado 80302 404-786-6443 303-443-9048 Leslie V. Moore Suite 204 5184 Caldwell Mill Road Birmingham, Alabama 35244 205-790-1062 Case: 12-10694 Date Filed: 08/02/2013 Page: 2 of 62 USA v. Scrushy Case No. 12-10694 Certificate of Interested Persons And Corporate Disclosure Statement Pursuant to Eleventh Circuit Rule 26.1-1, Appellant Richard M. Scrushy certifies that the following persons have an interest in the outcome of this case: Coody, Charles S., United States Magistrate Judge Fega, Stephen, former Assistant United States Attorney Franklin, Louis V., Acting United States Attorney Fuller, Mark E., District Judge, Middle District of Alabama Hinkle, Robert L., District Judge, Northern District of Florida Jenkins, James K., Attorney for Richard Scrushy Leach, Arthur W., Attorney for Richard Scrushy Morgan Stanley (symbol MS) Moore, Leslie V., Attorney for Richard Scrushy Pilger, Richard C., Department of Justice, Criminal Division Romano, John-Alexander, Department of Justice, Criminal Division Siegelman, Don Eugene, Co-Defendant in trial court Sissman, Peter L., Attorney for Don Siegelman Stemler, Patty Merkamp, Department of Justice, Criminal Division UBS AG (symbol UBS) C-1 of 1 Case: 12-10694 Date Filed: 08/02/2013 Page: 3 of 62 Statement of Counsel I express a belief, based on a reasoned and studied professional judgment, that the panel decision affirming the denial of Defendant’s motion to recuse based on the District Judge’s participation in an ex parte meeting in which the central factual element in a motion then pending before the judge was discussed, with no full disclosure of the full basis for disqualification, is contrary to the following decisions of the Supreme Court of the United States and the precedents of this Circuit and that consideration by the full Court is necessary to secure and maintain uniformity of decisions in this Court: Caperton v. A.T. Massey Coal Co., Inc., 526 U.S. 868 (2009); and United States v. Patti, 337 F.3d 1317 (11th Cir. 2003). I express a belief, based on a reasoned and studied professional judgment, that this appeal involves two questions of exceptional importance. First, the denial of recusal in the circumstances presented here without any fair determination of what occurred in the ex parte meeting and what information was conveyed concerning a motion then pending before the court does not adequately protect the integrity and dignity of the judicial process from any hint of bias. A proper objective determination of the recusal issue on the basis of the actual facts presented is crucial to protect the integrity and dignity of the judicial process, which is an issue of paramount and exceptional importance. i Case: 12-10694 Date Filed: 08/02/2013 Page: 4 of 62 Second, the affirmance of the denial of discovery of communications to and from the recused United States Attorney on the basis of the Magistrate Judge’s misleading representation that these communications were reviewed in camera and discovery denied based on the conclusion that no such communications existed is a question of exceptional importance because it mistakenly validates an important ruling affecting Defendant’s right to a new trial on the basis of a court’s misleading representation of the record in the case and raises substantial doubt as to the integrity of the judicial process in this matter. ii Case: 12-10694 Date Filed: 08/02/2013 Page: 5 of 62 Table of Contents Certificate of Interested Persons and Corporate Disclosure Statement ……….. C-1 Statement of Counsel …………………………………………………………….. i Table of Contents ……………………………………………………………….. iii Table of Citations ………………………………………………………………... iv Statement of the Issues Meriting En Banc Consideration ………………………. 1 Course of Proceedings and Disposition ………………………………………….. 2 Statement of Facts ……………………………………………………………….. 3 Argument and Citations of Authority …………………………………………….. 6 I. THE PANEL DECISION ON RECUSAL CONFLICTS WITH BINDING SUPREME COURT AND CIRCUIT PRECEDENT, AND PRESENTS AN ISSUE OF EXCEPTIONAL IMPORTANCE AS TO RECUSAL BASED ON A DISTRICT JUDGE’S EX PARTE MEETING CONCERNING THE CENTRAL FACTUAL ELEMENT IN A PENDING MOTION ……………....... 6 II. THE DENIAL OF SCRUSHY’S DISCOVERY REQUEST IS AN ISSUE OF EXCEPTIONAL IMPORTANCE BECAUSE IT IS BASED ON THE PANEL’S ACCEPTANCE OF THE MAGISTRATE JUDGE’S MISLEADING REPRESENTATION OF THE DOCUMENTS REVIEWED IN CAMERA …….12 Conclusion ………………………………………………………………………. 15 Certificate of Service ……………………………………………………………. 16 Opinion of the Court Sought to be Reheard …………………………… Addendum iii Case: 12-10694 Date Filed: 08/02/2013 Page: 6 of 62 Table of Citations Cases Caperton v. A.T. Massey Coal Co., Inc., 526 U.S. 868 (2009) …………… i, 10, 11 Scrushy v. United States, 130 S.Ct. 3541 (2010) ………………………………… 2 Skilling v. United States, 130 S.Ct. 2896 (2010) …………………………………. 2 United States v. Ayarza-Garcia, 819 F.2d 1043 (11th Cir. 1987) ………………... 7 United States v. Barshov, 733 F.2d 842 (11th Cir. 1984) ………………………… 7 United States v. Frazier, 387 F.3d 1224 (11th Cir. 2004) (en banc) …………11, 15 United States v. Patti, 337 F.3d 1317 (11th Cir. 2003) …………………… i, 10, 11 United States v. Potashnick, 609 F.2d 1101 (5th Cir. 1980) ……………………. 10 United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009) (Siegelman I) …… 2, 5 United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011) (Siegelman II)………3 Statutes 28 U.S.C.§ 455 ………………………………………………………………… 9 iv Case: 12-10694 Date Filed: 08/02/2013 Page: 7 of 62 Statement of the Issues Meriting En Banc Consideration I. Does the panel opinion affirming the denial of recusal based on the District Judge’s participation in an ex parte meeting in which he was informed by federal investigators that they had determined that purported e-mails between deliberating jurors that showed exposure to prejudicial extrinsic information were forgeries, a fact that was central to the determination of a pending motion for new trial, without a full disclosure on the record of the factual basis for recusal, and the application of a subjective standard in determining recusal rather than the objective standard mandated by decisions of the Supreme Court and this Court merit en banc consideration? II. Does the affirmance of the denial of discovery of communications to and from the recused United States Attorney in order to determine if she violated her recusal merit en banc consideration, where the denial of discovery was based on a determination in an in camera review that no such documents existed, the record demonstrates that the requested communications were never produced for the in camera review, and the Magistrate Judge’s order misleadingly represented the scope of documents that were produced and reviewed? 1 Case: 12-10694 Date Filed: 08/02/2013 Page: 8 of 62 Course of Proceedings and Disposition Appellant Richard Scrushy and former Alabama Governor Don Siegelman were convicted of federal funds bribery, honest services mail fraud and conspiracy in June 2006. Op. at 2. Scrushy moved for a new trial based on evidence of jury misconduct, which was denied after an evidentiary hearing. Op. at 4, 8-9. Scrushy filed a motion for reconsideration and new trial based on newly discovered evidence of jury misconduct, which was denied without an evidentiary hearing. Id. at 10-12. Scrushy was sentenced to 82 months in prison. Op. at 12. This Court affirmed on March 6, 2009. United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009) (Siegelman I). On June 26, 2009, Scrushy filed a motion for new trial based on newly discovered evidence. Scrushy also filed a motion to recuse based on an ex parte meeting between the District Judge and Government investigators, and motions for discovery. Op. at 17, 23-26. In June 2010, the Supreme Court granted certiorari, vacated this Court’s decision and remanded for further consideration in light of Skilling v. United States, 130 S.Ct. 2896 (2010). Scrushy v. United States, 130 S.Ct. 3541 (2010). On May 10, 2011, this Court reversed Scrushy’s convictions on two counts, affirmed his 2 Case: 12-10694 Date Filed: 08/02/2013 Page: 9 of 62 remaining convictions, and remanded for re-sentencing. United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011) (Siegelman II). This Court had previously assigned District Judge Hinkle to rule on Scrushy’s recusal motion. Shortly after the decision in Siegelman II, Judge Hinkle filed an order denying Scrushy’s recusal motion. Op. at 20-22. The Magistrate Judge denied Scrushy’s motions for discovery, which Judge Fuller upheld, and then denied Scrushy’s motion for new trial without a hearing. Op. at 26-27. Scrushy was re-sentenced to serve 70 months in prison. Doc. 1075. Scrushy appealed to this Court, which affirmed on July 15, 2013. United States v. Scrushy, -- F.3d. -- (11th Cir. 2013). Scrushy has been released from prison and is completing his term of special parole. Statement of Facts After his conviction in 2006, Scrushy moved for a new trial based on evidence of jury misconduct contained in anonymously mailed copies of what appeared to be e-mails between jurors on the case. Op. at 4-6. The court held an evidentiary hearing and asked each juror about exposure to extrinsic evidence, but never asked about the e-mails. Id. at 8.
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