IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT APPEAL NO UNITED STATES OF AMERICA, Plaintiff-Appellee,

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1 Case: Date Filed: 06/18/2012 Page: 1 of 82 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT APPEAL NO UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICHARD M. SCRUSHY, Defendant-Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA BRIEF FOR THE UNITED STATES AS APPELLEE LOUIS V. FRANKLIN, SR. Acting United States Attorney Middle District of Alabama LANNY A. BREUER Assistant Attorney General JOHN D. BURETTA Acting Deputy Assistant Attorney General RICHARD C. PILGER Director, Election Crimes Branch Public Integrity Section PATTY MERKAMP STEMLER, Chief JOHN-ALEX ROMANO, Attorney Appellate Section, Criminal Division U.S. Department of Justice 950 Pennsylvania Ave, NW, Rm Washington, DC Tel

2 Case: Date Filed: 06/18/2012 Page: 2 of 82 United States v. Richard M. Scrushy, Appeal No CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT In compliance with Fed. R. App. P and 11th Cir. R and , the undersigned hereby certifies that the following persons and/or entities have an interest in the outcome of this case: Coody, Charles S., U.S. Magistrate Judge Feaga, Stephen, former Assistant U.S. Attorney Franklin, Louis V., Acting U.S. Attorney Fuller, Mark E., U.S. District Judge Hinkle, Robert L., U.S. District Judge Jenkins, James K., Attorney for Richard Scrushy Leach, Arthur W., Attorney for Richard Scrushy Moore, Leslie V., Attorney for Richard Scrushy Perrine, J.B., former Assistant U.S. Attorney Pilger, Richard C., Department of Justice, Criminal Division Romano, John-Alex, Department of Justice, Criminal Division Siegelman, Don Eugene, Co-defendant Sissman, Peter L., Attorney for Don Siegelman C-1 of 2

3 Case: Date Filed: 06/18/2012 Page: 3 of 82 Morgan Stanley (symbol MS) Stemler, Patty Merkamp, Department of Justice, Criminal Division UBS AG (symbol UBS) /s/ John-Alex Romano John-Alex Romano C-2 of 2

4 Case: Date Filed: 06/18/2012 Page: 4 of 82 STATEMENT REGARDING ORAL ARGUMENT Defendant Richard Scrushy appeals various post-conviction rulings related to his motion for a new trial based on newly discovered evidence. The record on appeal is voluminous. We agree with Scrushy that oral argument may assist this Court in resolving the issues on appeal and respectfully request that oral argument be heard. -i-

5 Case: Date Filed: 06/18/2012 Page: 5 of 82 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT C-1 STATEMENT REGARDING ORAL ARGUMENT i JURISDICTION STATEMENT OF THE ISSUES STATEMENT OF THE CASE I. Course of the Proceedings And Disposition Below II. Statement of Facts A. Scrushy Bribes Siegelman B. The District Court Denies Defendants First New-Trial Motion C. This Court Affirms The Denial Of Defendants First New-Trial Motion D. The District Court Denies Scrushy s Second New-Trial Motion And Related Motions For Discovery And Recusal III. Standards of Review SUMMARY OF ARGUMENT ii-

6 Case: Date Filed: 06/18/2012 Page: 6 of 82 ARGUMENT I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING SCRUSHY S RECUSAL MOTION A. Background B. Judge Hinkle Did Not Abuse His Discretion In Denying Scrushy s Recusal Motion Chief Judge Fuller s Impartiality Could Not Reasonably Be Questioned Chief Judge Fuller Did Not Have Personal Knowledge Of Disputed Evidentiary Facts And Was Not Likely To Be A Material Witness In The New-Trial Proceeding Scrushy s Arguments Lack Merit C. Any Error Was Harmless II. THE DENIAL OF SCRUSHY S MOTIONS FOR A NEW TRIAL AND DISCOVERY WAS NOT AN ABUSE OF DISCRETION A. Selective Prosecution Background Scrushy Was Not Entitled To Discovery Or An Evidentiary Hearing B. Judicial Misconduct Background Scrushy Was Not Entitled To Discovery Or An Evidentiary Hearing iii-

7 Case: Date Filed: 06/18/2012 Page: 7 of 82 C. The U.S. Attorney s Recusal Background Scrushy Was Not Entitled To Discovery Or An Evidentiary Hearing D. Improper Jury Contacts Background Scrushy Was Not Entitled To Discovery Or An Evidentiary Hearing CONCLUSION CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE iv-

8 Case: Date Filed: 06/18/2012 Page: 8 of 82 TABLE OF AUTHORITIES FEDERAL CASES Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct (1993) Dick v. Scroggy, 882 F.2d 192 (6th Cir. 1989) Easley v. University of Michigan Board of Regents, 853 F.3d 1351 (6th Cir. 1988) Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403 (2005) In re Bell South Corp., 334 F.3d 941 (11th Cir. 2003) In re Brooks, 383 F.3d 1036 (D.C. Cir. 2004) In re Evergreen Sec., Ltd., 570 F.3d 1257 (11th Cir. 2009) , 24 Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S. Ct (1988) ,26 Liteky v. United States, 510 U.S. 540, 114 S. Ct (1994) Neder v. United States, 527 U.S. 1, 119 S. Ct (1991) *Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir. 1988) ,24,25,26,56 -v-

9 Case: Date Filed: 06/18/2012 Page: 9 of 82 Person v. Miller, 854 F.2d 656 (4th Cir. 1988) Price Brothers Co. v. Philadelphia Gear Corp., 629 F.2d 444 (6th Cir. 1980) R.B. Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir. 1980) Rehberg v. Paulk, 611 F.3d 828 (11th Cir. 2010) Remmer v. United States, 347 U.S. 227, 74 S. Ct. 450 (1954) Rushen v. Spain, 464 U.S. 114 (1983) Skilling v. United States, 130 S. Ct (2010) Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982) United States v. Adams, 785 F.2d 917 (11th Cir. 1986) ,21,43 United States v. Alabama, 828 F.2d 1532 (11th Cir. 1987) United States v. Amadeo, 487 F.3d 823 (11th Cir. 2007) *United States v. Armstrong, 517 U.S. 456, 116 S. Ct (1996) ,34,35,36,37 United States v. Bass, 536 U.S. 862, 122 S. Ct (2002) vi-

10 Case: Date Filed: 06/18/2012 Page: 10 of 82 United States v. Campa, 459 F.3d 1121 (11th Cir. 2006) ,32 United States v. Dahlstrom, 180 F.3d 677 (5th Cir. 1999) United States v. Espinosa-Hernandez, 918 F.2d 911 (11th Cir. 1990) ,39 United States v. Gordon, 817 F.2d 1538 (11th Cir. 1987) United States v. Huber, 404 F.3d 1047 (8th Cir. 2005) United States v. Huntress, 956 F.2d 1309 (5th Cir. 1992) United States v. Jackson, 430 F.2d 1113 (9th Cir. 1970) United States v. Jennings, 991 F.2d 725 (11th Cir. 1993) United States v. Jernigan, 341 F.3d 1273 (11th Cir. 2003) ,30 United States v. Jones, 52 F.3d 924 (11th Cir. 1995) ,32 United States v. Jordan, 429 F.3d 1032 (11th Cir. 2005) United States v. Jordan, 635 F.3d 1181 (11th Cir.), cert. denied, 132 S. Ct. 356 (2011) ,37 -vii-

11 Case: Date Filed: 06/18/2012 Page: 11 of 82 United States v. Kelly, 888 F.2d 732 (11th Cir. 1989) United States v. Lafeyette, 983 F.2d 1102 (D.C. Cir. 1993) ,60 United States v. Lee, 68 F.3d 1267 (11th Cir. 1995) United States v. Lilly, 983 F.2d 300 (1st Cir. 1992) ,54 United States v. Lorenzo, 995 F.2d 1448 (9th Cir. 1993) United States v. Moten, 582 F.2d 654 (2d Cir. 1978) United States v. Nava-Salazar, 30 F.3d 788 (7th Cir. 1994) United States v. Patti, 337 F.3d 1317 (11th Cir. 2003) *United States v. Phillips, 664 F.2d 971 (5th Cir. 1981) United States v. Rhymes, 196 F.3d 207 (4th Cir. 1999) United States v. Schlei, 122 F.3d 944 (11th Cir. 1997) United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009) ( Siegelman I ), cert. denied, 130 S. Ct (2010) ,9 -viii-

12 Case: Date Filed: 06/18/2012 Page: 12 of 82 *United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011) ( Siegelman II ), cert. denied, 2012 WL (2012) passim United States v. Simms, 385 F.3d 1347 (11th Cir. 2004) ,43 United States v. Smith, 231 F.3d 800 (11th Cir. 2000) United States v. Smith, 424 F.3d 992 (9th Cir. 2005) United States v. Spuza, 194 Fed. App x 671, 674 (11th Cir. 2006) United States v. Sweat, 555 F.3d 1364 (11th Cir. 2009) United States v. Swindall, 971 F.2d 1531 (11th Cir. 1992) United States v. Thompson, 422 F.3d 1285 (11th Cir 2005) ,32,49 *United States v. Velarde, 485 F.3d 553 (10th Cir. 2007) ,29,39,53,54 United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) United States v. Williams, 613 F.2d 573 (5th Cir. 1980) United States v. Young, 39 F.3d 1561 (11th Cir. 1994) ,22 -ix-

13 Case: Date Filed: 06/18/2012 Page: 13 of 82 Washington v. Recuenco, 548 U.S. 212, 126 S. Ct (2006) Webber v. Scott, 390 F.3d 1169 (10th Cir. 2004) ,57 Wright v. United States, 732 F.2d 1048 (2d Cir. 1984) *Young v. United States ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 107 S. Ct (1987) ,50,52,56 FEDERAL STATUTES & RULES 18 U.S.C U.S.C U.S.C U.S.C U.S.C U.S.C. 455(a) ,15 28 U.S.C. 455(b) U.S.C. 455(b)(1) ,21 28 U.S.C. 455(b)(5)(iv) ,21 28 U.S.C Fed. R. App. P x-

14 Case: Date Filed: 06/18/2012 Page: 14 of 82 Fed. R. Crim. P. 12(b)(3) Fed. R. Crim. P. 12(e) Fed. R. Crim. P Fed. R. Crim. P. 33(b)(1) ,27 Fed. R. Crim. P. 33(b)(2) Freedom of Information Act, 5 U.S.C MISCELLANEOUS 11th Cir. No , Scrushy Reply Br., 2007 WL ,20 11th Cir. No , Scrushy Rule 48 Mot. (docketed 7/21/08) ,20 -xi-

15 Case: Date Filed: 06/18/2012 Page: 15 of 82 TABLE OF RECORD REFERENCES Brief Page Nos. Document Docket No. 2 Redacted Jury Verdict (Siegelman) Redacted Jury Verdict (Scrushy) Defendants Motion for a New Trial 467 5, 17 Memorandum Opinion and Order (denying new-trial motion) 5, 6 Motion to Reconsider Order Denying New Trial 17 Purported Juror (June 25, :09 pm) 17 Purported Juror (June 25, :41 pm) 6 Scrushy s Motion to Supplement Previously Filed Motion to Reconsider 2, 7, 19, 23 Memorandum Opinion and Order (denying motions to reconsider) Judgment 627 3, 9, 10, 27, 29, 36, 38, 41, 42, 46, 57, 58, 60, 61 Motion for a New Trial , 38 Conyers Report , 34 Affidavit of Arthur W. Leach David Cromwell Johnson Letter (Mar. 25, 2002) xii-

16 Case: Date Filed: 06/18/2012 Page: 16 of Press Release, U.S. Attorney Canary (May 16, 2002) Complaint, John Aaron v. U.S. Department of Justice, Case No. 1:09- cv (D.D.C.) 33, 48 from U.S. Attorney Canary (Sept. 19, 2005) 51 from U.S. Attorney Canary (Sept. 27, 2005) 50 from Patricia Watson to Stephen Doyle (Apr. 6, 2005) 53, 61 Tamarah Grimes Letter to Attorney General Holder (June 1, 2009) 61 News Article, Montgomery Advertiser (July 13, 2008) 58 Chain of s Between Tamarah Grimes and AUSA Patricia Watson (June 15, 2006) Declaration of Nick Bailey , 13 Motion for Recusal 954 6, 7, 8, 43, 44 DOJ Letter (July 8, 2008) Motion for Discovery Government Response to Motions for a New Trial Declaration of Keith Baker Declaration of Stephen P. Feaga , 46, 50, 53, 60, 61 Declaration of Louis V. Franklin, Sr , 50 Declaration of Stuart M. Goldberg xiii-

17 Case: Date Filed: 06/18/2012 Page: 17 of 82 39, 50 Declaration of Andrew C. Lourie Declaration of Richard C. Pilger Declaration of James. B. Perrine Declaration of Debbie Shaw Transcript of Interview of Karl Rove by U.S. House of Representatives, Committee on the Judiciary 39, 50 Reply to Government Response to Motion for New Trial FOIA Request of John Aaron (Feb. 6, 2006) 10 Second Motion for Discovery (page 3) 55 Declaration of Sandra Stewart , 7, 8, 13, 14, 23, 43 1, 3, 10, 14-17, 21, 22, 24, 25, 42, 44 Order on Referral of Recusal Motion 1006 Order Denying Motion for Recusal Government Motion to Supplement Record with Publicly Available Material Affidavit of Terry Butts Affidavit of Matthew Lembke Affidavit of Robert R. Riley, Jr Letter to the President from Associate Special Counsel William E. Reukauf (Sept. 29, 2009) 57, 59, 60 Summary of OSC Report of Investigation xiv-

18 Case: Date Filed: 06/18/2012 Page: 18 of Letter to Scott J. Bloch, U.S. Office of Special Counsel, from David Margolis, Associate Deputy Attorney General (Sept. 29, 2008) , 59 OSC Report of Investigation Letter to William Reukauf, Acting Special Counsel, from David Margolis, Acting Deputy Attorney General (Feb. 9, 2009) 57, 59 Supplement to OSC Report of Investigation (without attachments) 10, 40 Order to Produce Documents In Camera , 10, 30, 34, 35, 40, 41, 47, 48, 50, 51, 53, 54, 58, 60 Order Denying Motions for Discovery , 3, 10, 30, 32, 37, 41, 48, 58 Memorandum Opinion and Order Denying Second New-Trial Motion Amended Judgment , 3,10 Order Overruling Objections to Magistrate Judge s Order Denying Discovery Notice of Appeal , 47, 50, 51, 53 Transcript of Hearing on Discovery Motions (Nov. 2, 2011) xv-

19 Case: Date Filed: 06/18/2012 Page: 19 of 82 JURISDICTION This is an appeal of post-conviction rulings in a criminal case. On June 29, 2011, District Judge Robert L. Hinkle (sitting by designation) denied defendant Richard Scrushy s motion to recuse then-chief Judge Mark Fuller from considering his new-trial motion. Doc On January 24, 2012, Judge Fuller denied Scrushy s motion for a new trial and, on February 1, 2012, he denied Scrushy s appeal of the magistrate judge s order denying discovery on his newtrial claims. Docs. 1072, Scrushy timely filed a notice of appeal. Doc The district court had jurisdiction under 18 U.S.C This Court has jurisdiction under 28 U.S.C STATEMENT OF THE ISSUES 1. Whether Judge Hinkle abused his discretion by denying Scrushy s motion to recuse then-chief Judge Fuller from proceedings related to his motion for a new trial. 2. Whether the denial of Scrushy s motion for a new trial without discovery or an evidentiary hearing was an abuse of discretion. -1-

20 Case: Date Filed: 06/18/2012 Page: 20 of 82 STATEMENT OF THE CASE I. Course of the Proceedings And Disposition Below On June 29, 2006, a jury convicted Scrushy and Don Siegelman of federal funds bribery, in violation of 18 U.S.C. 666; conspiracy, in violation of 18 U.S.C. 371; and four counts of honest-services mail fraud, in violation of 18 U.S.C. 1341, The jury also convicted Siegelman of obstructing justice. Docs. 437, 438. On December 13, 2006, the district court denied defendants first motion for a new trial. Doc On June 22, 2007, the court denied their motions for reconsideration. Doc The court thereafter sentenced Scrushy to 82 months imprisonment, to be followed by three years of supervised release, and ordered him to pay a $150,000 fine and $267,000 in restitution. Doc On March 6, 2009, this Court affirmed Scrushy s convictions and affirmed all but two of Siegelman s convictions. United States v. Siegelman, 561 F.3d 1215 (11th Cir. 2009) ( Siegelman I ). On June 29, 2010, the Supreme Court granted defendants certiorari petitions, vacated the judgment, and remanded the case for consideration under the intervening decision in Skilling v. United States, 130 S. Ct (2010). 130 S. Ct. at On remand, this Court vacated Scrushy s and Siegelman s convictions on two honest-services counts, but affirmed their -2-

21 Case: Date Filed: 06/18/2012 Page: 21 of 82 remaining convictions. United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011) ( Siegelman II ), cert. denied, 2012 WL , (2012). The district court resentenced Scrushy to 70 months imprisonment and re-imposed the previous term of supervised release, fine, and restitution award. Doc After Siegelman I, Scrushy filed a motion for a new trial based on newly discovered evidence (Doc. 953), motions for discovery (Docs. 955, 985), and a motion to recuse the district judge (Doc. 954). At then-chief Judge Fuller s request, Scrushy s recusal motion was assigned to a different judge, who denied it. Doc A magistrate judge largely denied Scrushy s discovery motions. Doc Judge Fuller overruled Scrushy s objections to that ruling, Doc. 1078, and also denied his new-trial motion, Doc II. Statement of Facts A. Scrushy Bribes Siegelman. Scrushy was the chief executive officer ( CEO ) of HealthSouth Corporation, a major hospital corporation in Alabama, and Siegelman was the governor of Alabama. Siegelman II, 640 F.3d at Defendants formed, 1 Siegelman filed new-trial and discovery motions almost identical to Scrushy s but, as of the filing of this brief, the district court has not ruled on them. After Siegelman II, in accordance with each defendant s request, this Court stayed its mandate as to Siegelman but not Scrushy. 11th Cir. No , Docket Entries dated 6/10/11 and 12/1/11. On June 15, 2012, the Court issued the mandate as to Siegelman. -3-

22 Case: Date Filed: 06/18/2012 Page: 22 of 82 Governor Siegelman $500,000, in the form of donations to an issue-referendum campaign supported by Siegelman, in exchange for Siegelman s appointment of Scrushy to a state board that was important to HealthSouth s operations. Id. at , Siegelman used the bribe money to pay down campaign debt for which he was personally liable as a guarantor. Id. at 1165, B. The District Court Denies Defendants First New-Trial Motion. In September 2006, Scrushy and Siegelman moved for a new trial under Fed. R. Crim. P. 33 based on alleged juror misconduct. Doc Defendants relied in part on purported juror s received by Scrushy and defense counsel from an anonymous source. Id. at The purported s allegedly were exchanged between Jurors 7 and 40, and between Juror 40 and possibly two other jurors; defendants maintained that, if authentic, they showed that some jurors were communicating about the case outside formal deliberations and may have 2 considered information about applicable penalties. Id. at Defendants requested a sweeping investigation of juror conduct. Id. at The district court held two evidentiary hearings on defendants new-trial motion, including one where it examined each juror about the jury s exposure to executed, and concealed an agreement whereby then-ceo Scrushy paid then- 2 The page numbers cited for district court documents are those assigned by the district court s docketing system. -4-

23 Case: Date Filed: 06/18/2012 Page: 23 of 82 outside influences and extraneous information. Doc. 518 at On December 13, 2006, the district court denied the new-trial motion. The court found that the jurors had been exposed to limited extraneous information which posed no reasonable possibility of prejudice to defendants. Id. at 26-31, The court also denied defendants claim that the jury had deliberated prematurely and with fewer than all members present. Id. at The court had serious concerns about the basis for the claim, given the anonymous source of the purported juror s, but concluded that Federal Rule of Evidence 606(b) barred it from questioning jurors about matters unrelated to extraneous information and outside influences. Id. at The court assumed the juror s were authentic, but found that they showed only limited premature deliberations or deliberation by fewer than all twelve jurors and did not prejudice defendants. Id. at One week later, Scrushy and defense counsel received two more purported juror s, also mailed anonymously, which defendants submitted to the district court in support of motions to reconsider. Doc. 519; Docket Entry 520. The purported s appeared to have been sent from Juror 40 to Juror 7 during jury deliberations; defendants maintained the s showed that jurors had been exposed to information from the internet and that Jurors 7 and 40 were biased. -5-

24 Case: Date Filed: 06/18/2012 Page: 24 of 82 Doc. 519 at 4-8. Defendants renewed their request for investigation. Id. at 4, 8, 19; see also Doc. 532 (receipt of third supplemental ). Also around December 21, 2006, at least five co-workers of Jurors 7 and 40 received copies of the same purported s submitted in support of Scrushy s motion to reconsider. Doc at 3. The co-workers informed the jurors, who reported the matter to the U.S. Marshals Service. Id. The Marshals Service informed the presiding judge in this case, then-chief Judge Fuller, who directed the U.S. Marshal to investigate any attempt to influence, coerce, or intimidate a 3 federal juror. Doc at 3. The Marshals Service then contacted Acting U.S. Attorney ( USA ) Louis Franklin, one of the trial prosecutors; Franklin asked the Postal Inspection Service to investigate who sent the letters to the jurors coworkers and transferred oversight of that investigation to an Assistant U.S. Attorney ( AUSA ) not involved in this prosecution. Doc at 3. A Postal Inspector interviewed Jurors 7 and 40 and some of their coworkers. Doc at 3. A co-worker who had monitored Juror 7 s during trial reported not having seen any incoming s from Juror 40. Id. The Postal Inspector also compared the purported s to test s sent to and from Juror 40 s account and submitted the purported s for forensic examination, 3 Judge Fuller was Chief Judge of the Middle District of Alabama between 2004 and

25 Case: Date Filed: 06/18/2012 Page: 25 of 82 the results of which were inconclusive. Id. The investigation was closed in September 2007; no charges were brought. Id. In early April 2007, while defendants motions to reconsider were pending, representatives from the Marshals Service and Postal Inspection Service briefed Chief Judge Fuller on the status of the investigation. Doc at 3-4; Doc at 3. A Postal Inspector volunteered his preliminary conclusion that the purported s were not authentic but indicated they had not yet determined who sent copies to the jurors co-workers. Doc at 4; Doc at 3. No prosecutor attended the April 2007 meeting, and no prosecutor had any contact with Chief Judge Fuller concerning the Postal Inspectors investigation. Id. 4 Over two months later, the district court denied defendants motions to reconsider. Doc The court noted irregularities in the purported s, but stated that [w]hatever concerns or doubts the Court has about those documents, it has not influenced its ruling on the matters before it. Id. at 4 n.9. The court did not address, and defendants and defense counsel were not then aware of, the investigation into the material received by co-workers of Jurors 7 and The government subsequently learned of the April 2007 meeting between law enforcement and Chief Judge Fuller. Doc at

26 Case: Date Filed: 06/18/2012 Page: 26 of 82 C. This Court Affirms The Denial Of Defendants First New-Trial Motion. On direct appeal, defendants challenged the district court s denial of their motion for a new trial. The Appellate Section of the Criminal Division had primary responsibility for handling the appeal. In preparing its response brief, the government focused on the investigation of the anonymous mailings to jurors coworkers. On July 8, 2008, in a letter signed by Appellate Section Chief Patty Merkamp Stemler (the DOJ letter ), the government disclosed to the defense the existence of the investigation and the April 2007 meeting between Chief Judge 5 Fuller and the Marshals Service and Postal Inspection Service. Doc Ten days later, citing the DOJ letter, Scrushy filed a motion pursuant to Fed. R. App. P. 48 for appointment of a special master to investigate the source and authenticity of the purported juror s. 11th Cir. No , Rule 48 Mot. (docketed 7/21/08. In his reply brief, Scrushy also addressed the April 2007 meeting, the DOJ letter, and the fact that the government and the district court did not report the meeting earlier WL , Scrushy Reply Br. at 25-27, The DOJ letter states that only representatives from the U.S. Marshals Service met with Chief Judge Fuller in April Doc at 3-4. As no federal prosecutor attended the meeting, we defer to Judge Fuller s recollection that Postal Inspectors also attended. Doc at

27 Case: Date Filed: 06/18/2012 Page: 27 of 82 This Court denied Scrushy s appeal of his new-trial claim. Siegelman I, F.3d at ; Siegelman II, 640 F.3d at The Court explained that [d]istrict courts are subject to very stringent limitations on their authority to question jurors, and to use one or more juror s testimony to impeach the verdict of all. Siegelman II, 640 F.3d at Except with regard to extraneous information or outside influences, Rule 606(b) precludes a juror from testifying about deliberations, thereby protect[ing] jurors from postverdict investigation and [] protect[ing] the verdict from endless attack. Id. at The Court concluded that the district court did not abuse its discretion in deciding that the purported s, assuming they are authentic, do not entitle defendants to a new trial. The district court applied the relevant factors to the evidence and was well within its discretion to conclude that they did not demonstrate premature deliberation or deliberation with fewer than all jury members sufficient to arise to a constitutional violation. Id. at 1187; see also id. at 1186 n.37. The Court also denied Scrushy s motion for appointment of a special master. Id. at 1181 n.29. D. The District Court Denies Scrushy s Second New-Trial Motion And Related Motions For Discovery And Recusal. Three years after the verdict, Scrushy filed a motion for a new trial under Fed. R. Crim. P. 33(b)(1), which governs new-trial motions based on newly discovered evidence. Doc Scrushy alleged that: (1) he was the victim of 6 The Court s analysis in Siegelman I and Siegelman II is identical. -9-

28 Case: Date Filed: 06/18/2012 Page: 28 of 82 selective prosecution; (2) the district court committed misconduct by having ex parte communications with the government about the investigation into the purported juror s; (3) U.S. Attorney ( USA ) Leura Canary failed to honor her self-imposed recusal from this prosecution; (4) prosecutors engaged in misconduct by having improper contacts with jurors; and (5) prosecutors failed to disclose exculpatory and impeaching evidence and failed to correct false testimony at trial. Id. at Scrushy requested an evidentiary hearing, id. at 80-83, and moved for discovery, Docs. 955, 985. Scrushy also moved to recuse then-chief Judge Fuller from considering his motions. Doc Except for an order requiring the government to produce documents related to Scrushy s fifth claim for in camera review, Doc. 1042, Scrushy s motions were denied in their entirety. Docs. 1024, 1070, 1072, We describe those rulings and provide background on Scrushy s new-trial claims in relevant sections of the Argument. III. Standards of Review The Court reviews the denial of a recusal motion for an abuse of discretion. United States v. Amadeo, 487 F.3d 823, 828 (11th Cir. 2007). The abuse-of-discretion standard likewise applies to this Court s review of the denial of Scrushy s new-trial motion without an evidentiary hearing, see -10-

29 Case: Date Filed: 06/18/2012 Page: 29 of 82 United States v. Sweat, 555 F.3d 1364, 1368 (11th Cir. 2009), and the denial of Scrushy s motion for discovery, see United States v. Espinosa-Hernandez, 918 F.2d 911, 913 (11th Cir. 1990). SUMMARY OF ARGUMENT I. Judge Hinkle did not abuse his discretion by denying Scrushy s motion to recuse then-chief Judge Fuller from proceedings on Scrushy s second new-trial motion. Chief Judge Fuller s ex parte communications with law enforcement did not create an appearance of partiality under 28 U.S.C. 455(a) because the communications concerned a potentially criminal attempt to harass jurors, the judge assumed the purported s underlying defendants juror misconduct claim were authentic when denying their first new-trial motion and motions to reconsider, and this Court affirmed his rulings. Similarly, Chief Judge Fuller did not have personal knowledge of disputed evidentiary facts that were necessary to resolve Scrushy s claim of improper ex parte communications, 28 U.S.C. 455(b)(1), and he was not likely to be a material witness, id. (b)(5)(iv), because his assumption that the purported juror s were authentic rendered the substance of the ex parte communications immaterial. II. The decisions denying Scrushy s second new-trial motion and related motions for discovery were not an abuse of discretion. Three of Scrushy s new- -11-

30 Case: Date Filed: 06/18/2012 Page: 30 of 82 trial claims are not the proper subject of a motion under Rule 33(b)(1), and all four claims that he raises on appeal suffer from other defects. A. Scrushy waived his selective-prosecution claim by not raising it before trial. On the merits, Scrushy did not satisfy his burden of bringing forth some evidence of discriminatory effect and discriminatory motive necessary to obtain discovery, and there was no factual dispute that required resolution before the district court could rule on his claim. B. Scrushy s claim that Chief Judge Fuller had improper ex parte communications with law enforcement about the anonymous mailings to jurors co-workers was barred by the district court s and this Court s previous rejection of defendants claim of juror misconduct. In any event, Scrushy was not entitled to discovery or a new trial on his claim because the record is clear that Chief Judge Fuller committed no misconduct and the communications did not prejudice Scrushy. C. Scrushy failed to support his claim that he was denied a disinterested prosecutor. The materials on which he relied show only that, after her recusal, then-usa Canary had fleeting involvement in the case on non-substantive matters. That involvement affords no basis for discovery, an evidentiary hearing, or a new trial. -12-

31 D. The district court s inquiry into juror misconduct in connection with the first new-trial motion largely disposes of Scrushy s speculative claim of improper contacts between jurors and the government. To the extent it does not, Scrushy s allegations provided no basis for relief. ARGUMENT I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING SCRUSHY S RECUSAL MOTION. Scrushy s motion to recuse then-chief Judge Fuller was based on the April 2007 meeting in which the judge learned the Postal Inspectors preliminary conclusion that the purported juror s sent to co-workers of Jurors 7 and 40 were not authentic. Doc. 954 at Scrushy s challenge to Judge Hinkle s denial of his motion is highly flawed. A. Background In asking this Court to refer Scrushy s recusal motion to another judge, Chief Judge Fuller set forth his recollection of facts related to defendants allegation of improper ex parte communications: According to the Court s memory of these events, the U.S. Marshals staff apprised the Court of the receipt of the purported s by the jurors co-workers, and the Court directed the U.S. Marshal to investigate any attempt to influence, coerce, or intimidate a federal juror.... Case: Date Filed: 06/18/2012 Page: 31 of

32 According to the Court s recollection, in April 2007, representatives of the U.S. Marshals Service and the U.S. Postal Inspection Service briefed the Court on the on-going investigation, during which a postal inspector volunteered to the Court that his preliminary conclusion was that the alleged juror s were not authentic. Doc at 3. Judge Hinkle denied Scrushy s recusal motion. Doc Judge Hinkle reviewed the purported juror s forming the basis of defendants first newtrial motion, Doc at 14-18, emphasizing that, on appeal, this Court squarely rejected the defendants position that the district court should have granted a new trial or at least conducted or authorized a broader investigation into juror conduct, id. at Case: Date Filed: 06/18/2012 Page: 32 of 82 Judge Hinkle found that Acting USA Franklin acted appropriately in directing that an investigation be undertaken into the purported s anonymously mailed to the jurors co-workers, as those mailings evidenced a possibly criminal effort to harass or intimidate the juror[s]. Doc at Likewise, the Postal Inspectors had every right to investigate not for the purpose of supporting the government in the Siegelman and Scrushy case but for the purpose of determining whether a new crime had been committed and, if so, who committed it. Id. at 22. Judge Hinkle found nothing unusual in the fact that the Marshals Service would report juror harassment to the district court or that the -14-

33 Case: Date Filed: 06/18/2012 Page: 33 of 82 court would request an investigation. Id. at Judge Hinkle recognized that defendants motion for reconsideration was pending and the s were at the heart of the motion. Id. at 25. Although [i]t plainly would have been better had these communications with the judge not occurred, Judge Hinkle found not a hint of bad faith in any of this. Id. Judge Hinkle explained that district judges routinely receive extrinsic information about a case from other sources. Doc at 26. When this occurs, the judge must decide the issue without considering the extrinsic information in any way. Id. at 27. Chief Judge Fuller did that here ; despite express[ing] doubt about the authenticity of the s, he said his doubt was not a factor in the decision to deny relief on defendants claim of juror misconduct. Id. at Judge Hinkle concluded that, under these circumstances and in light of circuit law, the judge s receipt of the extrinsic information entitles the defendants to neither a new trial nor recusal of the judge. Id. at Until then, Judge Hinkle had been addressing recusal based on the alleged appearance of partiality, noting that this standard is an objective one. Doc at (citing 28 U.S.C. 455(a)). He then rejected defendants arguments that recusal was required under a theory that Chief Judge Fuller had personal knowledge of disputed evidentiary facts related to the second new-trial motion or -15-

34 Case: Date Filed: 06/18/2012 Page: 34 of 82 that he would be a material witness. Id. at 36 (citing 28 U.S.C. 455(b)(1), (b)(5)(iv)). Because Chief Judge Fuller set aside extrinsic information about the purported juror s when denying the motion to reconsider, and because this Court affirmed his decision, what was said in the April 2007 meeting does not matter; it is not a disputed issue. Id. B. Judge Hinkle Did Not Abuse His Discretion In Denying Scrushy s Recusal Motion. 1. Chief Judge Fuller s Impartiality Could Not Reasonably Be Questioned. Section 455(a) provides that a judge... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Section 455(a) establishes an objective standard. Liteky v. United States, 510 U.S. 540, 548, 114 S. Ct. 1147, 1154 (1994). The test is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge s impartiality. Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988); accord In re Evergreen Sec., Ltd., 570 F.3d 1257, 1263 (11th Cir. 2009). The abuse-of-discretion standard under which recusal decisions are reviewed allow[s] a range of choice for the district court, so long as that choice does not constitute a -16-

35 Case: Date Filed: 06/18/2012 Page: 35 of 82 clear error of judgment. United States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989). Judge Hinkle did not commit a clear error of judgment in concluding that an objective observer, informed of Chief Judge Fuller s communications with law enforcement, would not reasonably question his impartiality. Those communications concerned serious conduct. See United States v. Adams, 785 F.2d 917, 920 (11th Cir. 1986) (noting that in some situations the trial judge may find an ex parte conference necessary ). The apparent purpose of the anonymous mailings to the jurors co-workers was to harass Jurors 7 and 40 and possibly to obstruct justice. They occurred one month after the jurors had testified that they had been exposed only to limited extraneous information and just one week after the district court denied defendants first new-trial motion. Doc. 518 at 1-2, The purported juror s contained references to extrinsic material. Docs , The anonymous mailer surely sought to discredit the testimony of Jurors 7 and 40 or to exact payback for their guilty verdict. Either scenario presented troubling conduct of which the Judge Fuller needed to be aware, in his capacity as both presiding judge and chief judge of the district. Doc at 24. And as Judge Hinkle found, it was certainly permissible for the judge to refer a possible crime to law enforcement for investigation. Id. -17-

36 Case: Date Filed: 06/18/2012 Page: 36 of 82 This case is similar to United States v. Phillips, 664 F.2d 971 (5th Cir. 1981) (Unit B), superseded by rule on other grounds, United States v. Huntress, F.2d 1309 (5th Cir. 1992). In Phillips, government attorneys (separate from the trial prosecutors) briefed the trial judge ex parte on three occasions about the defendants plots to flee the country, to intimidate and eliminate witnesses, and to kill the judge. Id. at In one meeting, government attorneys told the court about their investigation into obstruction of justice, and the trial judge told them they could continue the investigation. Id. at 1001, 1003 n.41. The court held that the district judge was not required to recuse himself, based on an appearance of partiality or actual bias (id. at 1001), because the ex parte meetings had been proper; the information enable[d] the judge to perform his continuing duty to conduct an orderly trial and to take appropriate measures designed to protect the participants therein, and the information was highly relevant to the court s determination on bond revocation. Id. at The court found that the judge was not impermissibly involved in the government s investigation... and did not direct the investigation. Id. Similarly, here, the information concerning the 7 See Stein v. Reynolds Securities, Inc., 667 F2d 33, 34 (11th Cir. 1982) (adopting as binding precedent all prior decisions of Unit B of the former Fifth Circuit). -18-

37 Case: Date Filed: 06/18/2012 Page: 37 of 82 Postal Inspectors investigation was relevant to Chief Judge Fuller s oversight of proceedings in his courtroom and to the administration of justice in the Middle District of Alabama; he was not involved in and did not direct the Postal Inspectors investigation. See also United States v. Jackson, 430 F.2d 1113, 1115 (9th Cir. 1970) (disqualification not required where prosecutor informed judge ex parte of threats to witnesses, leading the judge to revoke the defendants bonds). To be sure, defendants motions for reconsideration were pending when the Marshals Service initially met with Chief Judge Fuller and when the Postal Inspectors later volunteered their preliminary views on the s authenticity. But Chief Judge Fuller not only set aside that information when he ruled on defendants motions, he assumed arguendo that the purported s were authentic. Doc. 611 at 4 n.9. He thus gave defendants every benefit of the doubt concerning that material. See In re Adbox, Inc., 243 Fed. App x 420, 421 (9th Cir. 2007) (unpublished) (ex parte communications did not necessitate recusal under 455(a) because they related to procedural matters and did not affect rulings). Critically, this Court affirmed Chief Judge Fuller s analysis in its entirety, conclud[ing]... that the district court did not abuse its discretion in deciding that the purported s, assuming they are authentic, do not entitle defendants to a new trial. Siegelman II, 640 F.3d at 1187 (emphasis added). Scrushy minimizes -19-

38 Case: Date Filed: 06/18/2012 Page: 38 of 82 the significance of that decision, Br. 23, but this Court plainly knew that, in April 2007, Chief Judge Fuller had been advised of the Postal Inspectors preliminary conclusion about the authenticity of the second group of s; Scrushy relied on that information when trying to rebut the government s argument that a sweeping investigation of jurors was unnecessary, 2007 WL , Scrushy Reply Br , and in moving this Court to appoint a special master to investigate the purported juror s, 11th Cir. No , Rule 48 Mot. 4-6, 9-10 (docketed 7/21/08). If this Court had found Chief Judge Fuller s assumption of authenticity disingenuous, or found that the s, if authentic, actually required a new trial, it would not have affirmed his decision. Because Chief Judge Fuller set aside the extraneous information about the purported juror s in a manner that bolstered Scrushy s claim of juror misconduct, and because this Court affirmed his ruling, the judge s impartiality could not be reasonably questioned. At the very least, Judge Hinkle committed no clear error of judgment in so concluding. 2. Chief Judge Fuller Did Not Have Personal Knowledge Of Disputed Evidentiary Facts And Was Not Likely To Be A Material Witness In The New-Trial Proceeding. For similar reasons, Judge Hinkle committed no clear error of judgment in denying recusal under 455(b). Chief Judge Fuller did not have personal -20-

39 Case: Date Filed: 06/18/2012 Page: 39 of 82 knowledge of disputed evidentiary facts concerning Scrushy s second new-trial motion, 28 U.S.C. 455(b)(1), and he was not likely to be a material witness in the proceeding on that motion, id. 455(b)(5)(iv). Scrushy was entitled to relief on his substantive claim of ex parte communications only if the communications, assuming they were improper, prejudiced him. See Rushen v. Spain, 464 U.S. 114, (1983) (holding that an unrecorded ex parte conversation between a trial judge and juror is reviewed for harmless error); United States v. Swindall, 971 F.2d 1531, 1550 (11th Cir. 1992) ( [T]he ex parte conference did not affect the fairness of the rest of the trial and thus cannot be grounds for reversal of the remaining counts. ); United States v. Simms, 385 F.3d 1347, (11th Cir. 2004) (finding no error in ex parte discussions between prosecutors and district court where defendant suffered no prejudice); Adams, 785 F.2d at 921 (holding ex parte communications raising an appearance of impropriety did not give rise to reversible error because defendant was not prejudiced by them). The communications here could not have prejudiced Scrushy because Chief Judge Fuller s assumption that the purported juror s were authentic benefitted Scrushy and rendered irrelevant what was said in the April 2007 meeting. Doc at 36. Therefore, Judge Hinkle did not abuse his discretion by denying recusal under 455(b). See United States v. Young, 39 F.3d -21-

40 Case: Date Filed: 06/18/2012 Page: 40 of , 1570 (11th Cir. 1994) ( failure to recuse constitutes reversible error only where the conflict of interest is readily apparent and the risk of impartiality is substantial ). 3. Scrushy s Arguments Lack Merit. a. Scrushy faults Judge Hinkle for not making a complete determination of the facts relating to the ex parte meetings. Br But that inquiry was unnecessary because, again, Chief Judge Fuller did not consider what was said in the April 2007 meeting in any way. Doc at 37. As Judge Hinkle put it, [h]ad there been a court reporter, we would know precisely what didn t matter. But it still wouldn t matter. Id. The recusal cases cited by Scrushy (Br. 17) involving evidentiary hearings are inapposite. Three of them did not involve ex parte communications, let alone a judge who set aside the ex parte information. See United States v. Alabama, 828 F.2d 1532, 1539, 1546 (11th Cir. 1987); R.B. Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1106 (5th Cir. 1980); Easley v. University of Michigan Bd. of Regents, 853 F.3d 1351, 1358 (6th Cir. 1988). In the fourth case, Price Bros. Co. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th Cir. 1980), a hearing was necessary to determine facts concerning a pre-trial visit by the judge s law clerk to the plaintiff s manufacturing plant. Id. at But the purpose of that visit -22-

41 Case: Date Filed: 06/18/2012 Page: 41 of 82 apparently was to gather and consider extraneous evidence about the merits of the 8 case the antithesis of what Chief Judge Fuller did here. Scrushy s related assertion (Br. 21) that Chief Judge Fuller did not actually assume the authenticity of the s under investigation by the Postal Inspectors is wrong. See Siegelman II, 640 F.3d at In denying reconsideration, Chief Judge Fuller discussed his assumption of authenticity with respect to the first group of s, and then went on to state: the Court has not based any ruling on a finding that these s are not authentic and [w]hatever concerns or doubts the Court has about these documents, it has not influenced its ruling on the matters before it. Doc. 611 at 4 n.9 (emphasis added). Chief Judge Fuller was plainly referring to every juror and every ruling related to the juror misconduct claim. Further, when requesting in 2010 that another judge resolve defendants recusal motion, Chief Judge Fuller reiterated that he assum[ed] that the s were authentic when he denied Scrushy s motion to reconsider. Doc at 2. The record is more than sufficient to show that he set aside the extraneous information learned at the April 2007 meeting with law enforcement. See In re Brooks, 383 F.3d 1036, 1038, (D.C. Cir. 2004) (finding no reason for 8 Scrushy also cites United States v. Rhymes, 196 F.3d 207 (4th Cir. 1999), Br , but recusal was not at issue on appeal because the judge had recused himself. 196 F.3d at 215,