Tuesday, May 10, 2011

Court of Appeals throws out some Siegelman & Scrushy counts. Impact to BingoGate? UPDATE: Blow to defendants

News breaking today: Appeals court overturned some convictions, upheld most others and remanded the case back to the District Court for resentencing.

Last week, attorneys were in court for a hearing on USA vs McGregor et al, in which US District Judge Myron Thompson expressed some concerns over not having a decision from the appellate court. This decision could have a significant effect on how many and what type of counts the the prosecution ultimately brings against defendants at trial, currently scheduled to begin June 6, just weeks from now.  Thompson has also privately expressed frustration over the 11th Circuit’s inability to produce an opinion.

Now, he’s got one.

UPDATE: And it looks like Thompson has more than adequate guidance now, and will likely DENY the defendants’ motions to dismiss the counts alleging that campaign contributions and other items of value were provided to state officials in exchange for favorable treatment (i.e., a vote in favor of certain legislation).

Siegelman and Scrushy’s bribery convictions in this case were based upon the donation Scrushy gave to Siegelman’s education lottery campaign.12 As such, the convictions impact the First Amendment’s core values – protection of free political speech and the right to support issues of great public importance. It would be a particularly dangerous legal error from a civic point of view to instruct a jury that they may convict a defendant for his exercise of either of theseconstitutionally protected activities.

In a political system that is based upon raising private contributions for campaigns for public office and for issue referenda, there is ample opportunity for that error to be committed.

The Supreme Court has guarded against this possibility by interpreting federal law to require more for conviction than merely proof of a campaign donation followed by an act favorable toward the donor. McCormick v. United States, 500 U.S. 257 (1991). In reviewing a Hobbs Act prosecution for the federal crime of extortion under color of official right, the Court said:

Serving constituents and supporting legislation that will benefit the district and individuals and groups therein is the everyday business of a legislator. It is also true that campaigns must be run and financed. Money is constantly being solicited on behalf of candidates, who run on platforms and who claim support on the basis of their views and what they intend to do or have done. Whatever ethical considerations and appearances may indicate, to hold that legislators commit the federal crime of extortion when they act for the benefit of constituents or support legislation furthering the interests of some of their constituents, shortly before or after campaign contributions are solicited and received from those beneficiaries, is an unrealistic assessment of what Congress could have meant by making it a crime to obtain property from another, with his consent, “under color  of official right.” To hold otherwise would open to prosecution not only conduct that has long been thought to be well within the law but also conduct that in a very real sense is unavoidable so long as election campaigns are financed by private contributions or expenditures, as they have been from the beginning of the Nation.

The district court in this case instructed the jury that they could not convict the defendants of bribery in this case unless “the defendant and the official agree that the official will take specific action in exchange for the thing of value.”

From today’s ruling, we can now answer the question: Is a campaign contribution a bribe?

The Courts’ answer: Sometimes.

UPDATE II: In another crushing blow to the defense in USA vs. McGregor et al, Scrushy and Siegelman argued that the quid pro quo arrangement involving a campaign contribution in exchange for favorable treatment had to be express, meaning that there had to be some evidence that the parties to the conspiracy had to overtly agree with one another that something of value was being exchanged for some favorable official action. Furthermore, Siegelman and Scrushy both argued that the agreement had to have been overheard or “by means of electronic surveillance.”

The Court disagreed, stating that if the public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts, he is guilty of the crime alleged.

In the BingoGate case, there actually is evidence from means of electronic surveillance, and now that the wiretap evidence in that case will be heard by a jury, the prosecution’s chances at conviction took a big step forward with this decision today.

UPDATE III: The 11th Circuit opinion affects Counts 2 through 17 in USA vs McGregor et al, which is 16 of the original 33 counts in the indictment.

UPDATE IV: As expected, US District Judge Myron Thompson has ordered all parties in the BingoGate case to file supplemental briefs discussing the impact of Siegelman, due no later than May 13.

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