Courtroom Chronicles

Winding Down

Mr. Leach is ready to go

Leach, "I would like to have Mr. Scrushy come to the microphone."  Scrushy is going to introduce his family.  Mr. Scrushy is introducing his family, I can't hear him so we'll just wait this out.

Fuller - You have a beautiful family Mr. Scrushy.

The next witness for Mr. Scrushy is Jimmy Mitchell.

He lives in Benson, Alabama outside Pell City... "I've known Richard Scrushy all of my life...The earliest memories I have outside my family are Richard Scrushy and his family...His family and my family lived next door to each other...All the way through high school..."

Did you ride buses to school?  I started off as a toddler with Richard Scrushy....As a toddler Richard Scrushy and I spent numerous hours today and outside he was the same type of child...He played with energy and enthusiasm...He and I began in first grade riding the buses...as all of us do...Somehow I want to cut through the fog...and let Judge Fuller know what I know of Richard Scrushy...Richard Scrushy never harmed anyone....Never got in a fight...I can't remember him even being disrespectful to anyone...He didn't fight....He didn't steal....They were devout Christian people....They raised their children like children ought to be raised....We both attended church...As children we're not theologians...But he was the type of person that believed in God as a child just as he does today..."

Did you stay in touch with Richard Scrushy? ..."We were all closely entwined...He developed a tremendous love of music...He loved music greatly and that was his thrust as an early adolescent...I moved to Dothan...attended high school and started a family...He moved to Dothan and started a respitory therapy program at Wallace Community College...Never ever did I ever see Richard Scrushy harm anyone...He may have gotten mad from time to time...I never saw him be disrespectful to anyone...."

We lived next to each other in Dothan for three years...He's a tenacious type of person...He has always had that type of drive...That type of zeal...Richard started a new busisness in Birmingham...HealthSouth...He developed a real enthusiasm for Vince Lombardi...His drive is what build that company..."

Had to take care of some technical issues.

Witness - "After selling my business, selling all of my assets...I today have started fresh...I look at that as injury $800,000 in medical bills and Mr. Foran got 1.5 years in the penitentiary...I've never worked for Richard Scrushy...He's never given me a pay check...Let Judge Fuller see the past I know is indicative of the future of Richard Scrushy....

Leach - I want to say I have tendered to the court two psychological reports I just want the court to keep them in the confidential portion of the record.

Fuller - I have the report from Wellsspring Christian Clinic, and Richard Ence...that will be placed under seal.

The next witness is Leigh Laatsch.

Leach - I referred to you as a pastor...Are you in fact an ordained pastor?

Witness - I am...The first time I met Richard and Leslie Scrushy they were surrounded by children....and covered in sprinkles....That was about seven years ago...The first thing he ever said to me was let me tell you about God and what he's done in my life...My husband and I are co-pastors of Grace and Purpose Church...It's something we all share a common bond in, such as reaching people for Christ...Grace and Purpose is a church that falls in line with Kingdom Builders...orphans...finding people that are in need....whether that be emotional..Our heart in Grace and Purpose Church is to reach those through TV who can't go to church...We have calls all week...

Witness - I've seen how he is with his family...He's very involved...Loves every single one of his children there's absolutely no way.

Mr. Feaga - You indicated that Grace and Purpose Church was founded 1.5 years ago, could you be a little more specific...

Witness - We were at dinner...and it was something we were just talking about...We ended up keep talking about it in the rain...Late fall...maybe 2005...Birthed in our spirit....

Feaga - I wonder if you know when Richard Scrushy was indicted...

Witness - I don't remember..."I love the Lord with all my heart and I've never seen this verse until this morning...I Timothy 6 17-18..."  "That verse so much captures the man he's extremely humble, extremely compassionate...that's the man I know.

Next witness is Gary West.  He is an engineer at Eco-Tech...He was also an engineer at HealthSouth...He says he's known Scrushy for 52 years...

West - After he left Selma, we stayed in touch over the years...He called one afternoon and told me about an event....

Did you eventually develop the auto-ambulator?  Yes. Sir

Witness - "Robotic Gate Orthosis...It's actually a robotic device that helps simulate walking...Marin, this is the concept he had based on what he had seen...He went to the trouble to do fundraising...The man that you seen in this is Doug A....He's a quadraplegic...What this device is to do is to help people with a walking problem...It attaches to just above the knee and the angle and moves the person's legs in a normal type walk...There were a handful of patents issued...they were assigned to the company

I've never seen this man run from anything...I don't know any reason he would....

Leach - At this time I would like to proffer from testimony from Mr. Scrushy's daughter...Krista Plia...

"Christa would tell the court she's always had a very close relathionship with her father...He had to make great efforts through a number of years to do what dad's do with children...She would want to tell the court...for years she believed Richard Scrushy was not a rich man...He was always there for her...They never failed through all the years to meet the children's needs...A big part of the reason Richard Scrushy moved back to Birmingham was so he could be close to his family...Richard Scrushy is the one that puts together the birthday parties...Additionally, she would like to tell the court as she has watched brothers and sisters...She characterizes Richard Scrushy as a rock...instilled values of doing the right thing...None of the children view each other as half brothers or half sisters...No one is treated better or worse..They get the same treatment...

Leslie Scrushy will now take the stand.

Leslie – He is an unbelievable father…He’s the type of father every child should have...

Fuller asks Leslie to adjust the microphone

Leslie - He makes sure each child feels special....He knows (one of the children)...likes cheese grits...and there are so many idiosyncracies...We are all very close...Richard is the rock of that...He has raised his children so well....and just last night...They were crawling all over him...He is the best father...Teaches them values...Prays over each and every one of them every night...We teach them the fruit of the spirit...He is the rock in our family...(She breaks down crying)

He has a mother's love for our children...Like he's the softy in the family...That's who he is and he's been portrayed as something he is not...As God as my witness he is not who has been portrayed to be..

"We have our television show Viewpoint which is a ministry....and we have Grace and Purpose church....Every night he's preparing sermons...We like to be in our pajamas like 7 O'Clock...They love their dad to read to them...Our life totally revolves around ministry...You see pastors coming in constantly....

Are you familiar with how many shows you have done?  Hundreds...I don't know exactly...I'm sorry I'm a little nervous....

Flight risk - "It is very important in our lives to be obedient to the authority that has been placed over us...The office of probation is an authority over us...On Nov 4, 2003 we were assigned probation officers...They called real early in the morning....It has always been crucial and important because we certainly don't want the wrath of the government on us....He will be here...because he loves us so much... no matter what happens...fleeing means he could never see his children again...He would never fllee, ever....

Mr. Feaga - If your husband was to flee the country (what would precvent you from going with him)

Leslie - If you'd ever seen us travel...We are citizens of the U.S.   It would not be possible for us to leave with him.

Feaga - Were you ever present when your husband met with Gov. Siegelman?

Leslie - Yes

Feaga - Were you with your husband...around July 1999

Lesle - "What I understand is that no one was present....I've seen your organization fight with all you have....to take him away from his children...I don't understand in America...how that could happen...I would think that you would want to know 100 percent that that happen..."

Feaga - Would you agree many of the jury had family?  Your husband has been saying they are corrupt.

Leslie - Well I understand there is some evidence that hasn't been investigated yet ....

Mr. Feaga is showing Mrs. Scrushy a newspaper article -  Would you agree that members of  jury (have families that might be hurt by Scrushy's comments)

Leslie - I would think members of the jury would want that investigated to find out if there was someone corrupt....I think anyone who sat in this courtroom was flabbergasted at the verdict.

Mr.Perrine is up for the government to address motions for upward departure as well as a response to Scrushy downward departure....

"We would agree with a couple of things...The court should sentence defendant based on his conduct both during, before and after this trial...I'd like to begin...with personal circumstances...The U.S. would point to this court U.S. vs. DeBegger..

"Though this defendant may have done good things in the past...Every defendant is held accountable for his criminal conduct...The law is he's held accountable for his actions...Richard Scrushy by  going to prison is in no way limited to continue his good works...He has numerous assets...It is significant to note that the ministries began at or near the indictment in Birmingham in 2003 or near the time of this indictment here and we would have the court take notice of that....This court routinely sentences middle-aged men to prison...Leon Carmichael was sentenced to 40 years by this court...Routinely men are sent to prison with sentences that reflect conduct...

"The value of bribe here was $500,000....We would agree this is certainly an atypical case...more than deserving of an upward departure...This case falls well outside the heartland...This is the Governor of the State of Alabama...This is a bribe paid to get on a state board....half a million dollars...Look at what Richard Scrushy got...He bribed his way to be a public official...Once he got on the board he contiued his fraudulent illegal conduct by bribing another CON Board member...He started bribing Tim Adams....to get control and influence...It was systematic.. It was thorough...It was planned out...He instructed Mike Martin to threaten to fire UBS...He personally delievered the money to defendant Siegelman...For them to claim that defendant Scrushy is deserving of dowanrad departure...You have to look at this man's conduct before, during and after the trial...We're arguing that this man has undertaken a purposeful systematic attack on the criminal justice system...We have introduced...the video of Richard Scrushy saying there were no witnesses...to perpetrate a massive PR campaign to say this is a kangaroo court....

Fuller yells at Hernandez - Let him finish

Perrine - This court can take notice....

Fuller - Move on

Perrine - We would ask for an upward departure of two levels.

Pilger - We're mostly stand on our briefs here....

Fuller admonishes Hernandez "If you want to snatch defeat from the jaws of victory continue..."

Hernandez will not speak to upward departure  then goes on to argue on downward departure.

Fuller - I will acknowledge in this court's mind that Mr. Scrushy has done many good things....but the court does not find that a departure is warranted...The U.S.motions for upward departure is DENIED.

Fuller - I believe we have heard all of the testimony in mitigation..I would say that I have reviewed all letters that have been sent to the court...summaries of telephone calls...About 574 letters that I have read (for Siegelman) numersous letters on behalf of Mr.Scrushy...I will hear from Mr. Siegelman and Mr. Scrushy....before pronouncing sentence.

Kilborn - Your honor still has complete discretion and I would ask that you exercise that descretion...

Siegelman - "Your honor first I want to thank you for this opportunity...There's a lot I'd like to say...I don't really know how to say it...(Emotional)...I want to apologize to this court, to this court and the people of Alabama...I want to say I'm sorry to my wife and my children....I never intended to do anything that approached a crime...I know the difference between right and wrong...It's something everyone can see...I've raised millions of dollars for thosusands of people...I have never once traded a contribution for anything...I know the jury has looked at my actions and heard my words through the voices of Nick Bailey and they saw bribery and obstruction of justice...

I am not a perfect person...That 1983 letter was a good lesson...I'm not a perfect person, but I am a good person...I was drawn into public service because I believe in the people of this state...All I ever wanted to do was to work to make this state a better place...I was fortunate to be raised by two wonderful parents...My dad worked all of his life, workd for 33 years for the same company and was fired from his job after he had a couple of heart attacks and I saw him cry because he thought he was bringing shame to our family....I saw my mother, who worked as a beutician from the time she was 16, work until her hands were bleeding from sticking her hands in those rough solutions....but they never quit...They never gave up...

They kept working so that my brother and I could have a better life than they had...I've held my wife in my arms as she lay critically injured....from a headon collision with a drunk driver who had just been released from prison...We have not lived the kind of opulent life that one might expect...I've never been motivated by greed, power....a house without central air conditioning or heating...My wife's pleasurei s going hiking...

We chose a frugal lifestyle and we were saving for our retirement...

Siegelman has gone on to talk about education...."Your honor I know that this verdict has tested my faith, tested my belief...It's shaken me...But I have never waivered in my belief in this justice system..I hope and believe the 11th Circuit will give us a new trial...I understand the jury saw it another wayl...I understand you have the sole power...to determine ....I ask you for mercy and compassion and I ask you to send me home...Thank you..."

Scrushy attorney Art Leach addressed the court next.

Leach - As I look back over this hard fought case...The most important things that comes to mind is the evidence we presented to you...I say this without question Richard Scrushy is the greatest man I have met in my life...I met him on October 31, 2003....Judge I'm a student of history I view learning history as walking a while with the great men...I recently completed David McCullogh's book on Harry Truman...It was hard when that journey was over...

When you think about Richard Scrushy as a man....I just want to reflect for a moment...Where can you go today...How many Henry Ford's or J.P. Morgans are out there in the world today...What you see are companies that are very old...People who  have created multi-billion dollar companies from the ground up are very rare...very rare...The only other two I can think of are Bill Gates...and Paul Allen...I am here to talk to you about an added dimension of this man...That is his heart and his giving nature...

I know we shouldn't talk about the case in Birmingham...The man did give away...millions of dollars...His giving and his loving heart I am asking you to be merciful to my client today...

As with everything with Richard Scrushy his soul is very complicated...I will tell this court, my contact with him has deepened my relationship with God...However he is one of the very few people I have met that actually lives his faith...(I was there during) This period where Richard was shifting...from a tycoon...to a man faith...

I remember Richard Scrushy telling me he was praying to God to show him...Within months Kingdom Builders was off and running....He was building...He takes that responsibilty so seriously...He often compromises other things...This case...There were literally a dozen times I had to grab Richard Scrushy and say you've got to focus on this case...He's spending his entire days strategizing with the Bishops....He's got people running businesses...I'll readily admit the foundation started....

He has given to this community...causes...In part I suggest to you it was Richard Scrushy's giving spirit that brings him into this courtroom here today...As I listened the other day to General Summerall...two ambitious men met (Scrushy and Siegelman)...And their lives aligned for a time...It was Richard Scrushy's giving heart....Had he rejected the Governor's request we would not be here...He went out and did what thousands do every day...

What has been lost in the discussion...is the law allowed the contribution...Years of litigation before the Supreme Court....The McCormick decision speaks to that...He has always been a giver and that continues today...it is reflected in his ministry...And my understaning is there have been 900 programs...Those are not political programs...All they did was talk about the Bible...Grace and Purpose church...South America, East and Central Africa...

All I ask judge is you continue these good deeds and conclude the man before you is not the typical defendant that comes before this court....HealthSouth produced jobs, incomes...Through his charitable giving that amounted to $22 million over the course of time...He's given of himself...I would go so far to say this court has never seen a defendant that has given so much away...You just never know that it's out there...

I bet through today this court was unaware of all these children being fed in Africa...Ricahrd Scrushy is a good man...Richard Scrushy did not know that the governor was in any way responsible for this debt...The first IHS check...It was only after that one was...which the governor stood as the guarantor...Richard Scrushy did not know anything about it...

When you compare sentences in similar cases both in state and federal court...you find those cases significantly lower then the guidelines...I know you're old enough to know when there were no guidelines...I would suggest to you judge if you went back...the sentecne you would be contemplating would not look anything...I respect the fact...You are probably the most patient federal judge I have ever seen...

The sentencing of Gov. Hunt...who was convicted in a similar corruption case and pocketing...$200,000 and placed on probation...Judge Gov. Hunt's case is comparable...Gov. Hunt was actually taking money....Richard Scrushy did not give a penny to the governor...Gov. Hunt's case is most comparable...Judge we've provided the court with the psychological reports...You can see the effect on his family...We suggest that by looking at this case...compared to the Hunt case the sentence needs to be lower...

Look at the great and good aspects of this man...If you do decide on prison...that you listen to all the testimony...working with probation...He had an impeccable record in Birmingham...He has complied here before this court...We provided evidence about his health situation...People need time to get their affairs in order...to address their medical needs...Judge the sentencing guidelines were an attempt to bring uniformity...What the sentencing guidelines have done..It simply would never happen outside the guidelines...Judge I ask that you find mercy...that whatever sentence you have in mind...you take into account...this giving man...

Scrushy now comes up...I cannot hear him.

It’s about destroyed my family and I’ve not been able to function and earn an income…I want to clear something up…When I was 15 years old I was called into the ministry…I went to my pastor…Saturday mornings…most children are asleep…Richard I’m not sure what you ought to do…See if God is really calling you…He called me every few years…

I did the things I felt was right…But I knew I was being called…In prayer I realized that he was calling me…I am full time in the ministry…I have a flock of people I pastor…Many of those young ladies were cocaine addicts when they came to our church as well as ministering to people…This is something that happened…All of us turn to God when they have trouble…Yes sir when you go through fire you turn to God..God is my life..I have been called to the ministry…We have 1,000 churches…I believe God has called me as an end-time soldier….You’ve heard the testimony of what we’re doing in Africa…We teach them how to raise money….3,000 children are a drop in the bucket…This is the tip of the iceberg…So much needs to be done…I want to mention my children.

I know there was only one perfect man who walked the face of the earth…I’m sorry for the things that happened…I never asked for anything and never received it…I would never ever serve again…I think it’s a horrible thing…I think we’re going to lose because of this …If we continue to go after people…I hope you will have mercy on this volunteer servant…It concerns me greatly…I think I’ve said enough I just want you to know that I feel bad about all of this…The governor and his family…

I was raised in a 900 square foot home…I know what people go through….They taught us right from wrong…I didn’t need any money…I didn’t want any money…God blessed me…I just pray your honor would consider my family…these services…these ministries…That’s who I am…I have no interest in having money…I’m just a pastor…I just ask you to allow me to continue to do that and pray that you will

Pilger for the Govenment -  "Judge you presided over the entire trial...What I would add here is the nature and circumstances of their crimes...in terms of the cynical criminal intent..With respect to Gov. Siegelman and Mr. Scrushy we would not deny they have not done some good things...We would ask that you keep those things in perspective...These matters can't serve to distinguish these defendants from the ordinary citizens...who simply have no chance that they would ask in the same way when they stand before you....they never have the money or position to do it in such a visible way...

Business criminals are not to be treated more leniently...They are more rather than less culpable...So we ask you judge ....that you keep in mind...To whom much is given much is expected...By no reckoning did they have to do what they did...for power and for money...The facts of this case show the defendants have no remorse at all...They still insist that business is as usual...They insist there is no need to punish them for bribery, conspiracy, and fraud...

The jury, the courts reject that for the nonsense it is...They chose to attack anyone ane everyone...They will continue to do so...This should increase their reasonable sentence...It is sad for the families...The defendants situations...are the result of their actions...Public corruption is not some arcane issue that regular people can't understand...Everywhere where corruption is tolerated...it leads to misery and ruin...

For one example, Gen. Sumerall talked about the troubles in Baghdad...We've sent people to Baghdad...Fortunately for us corruption is not tolerated here...The people of Alabama have spoken through a jury...The rule of law can't be turned into a rule of money...We ask you to impose a sentence...that reflects they have absolutely no respect for the laws...but did this out of greed for power and money..."

Joseph Fitzpatrick - "At points this trial has been contentious..earlier today the prosecution was equated as jackals...One during the course of the trial...it was compared to the Tuskegee Syphilis expeiment...We chalk it up to lawyers, as they should, zealously defending their clients...

Gov.Siegelman and Richard Scrushy are two men who have done some great things...I would like to thank Gov. Siegelman...Mr. Scrushy....That does not change the fact they sit at defendants' table as convicted felons...There's a saying that goes good men sometimes do bad things and likewise bad nen sometimes do good things....

In that time I've also prosecuted charismatic public servants...The history of the world is replete with examples...I'm here to argue ...both defendants must take responsibility for their actions...In this sentencing during the trial, we've heard there wasn't anything wrong with what they did...One of Mr. Scrushy's former defense counsel even said Alabama Politics 2006...It is clear defendants behavior in this case is wrong....

Since drug cases have been used as an analogy...Our prisons are filled with drug dealers and users...Often people supplying the drugs are not prosecuted...Now I work in the white collar...division....Gov. Siegelman has held more statewide positions...Richard Scrushy was the CEO of a Fortune 500 company...A message will be sent that the state and federal law have teeth...

If these two individuals can be charged...and convicted then certainly it can happen to a local official...At a time when our junior college system is in shambles...and our Legislature....The court will remember a $40,000 bribe...The very issues being brought up in this trial are being ignored by our Legislature...

There was a fistfight on the Senate floor...They have lost respect for themselves...This court has the opportunity...to promote respect for the law...The court has the opportunity to make sure what these defendants did will never be referred to Alabama Politics 2007, 2008 and beyond..."

Mr. Franklin - "...I am the prosecutor I am supposed to seek justice...I will respect the sentence...I know that it has been contentious...My emotions have gotten the best of me on occasion...And I apologize to the court if I crossed the line...It is important to the U.S...Judge I think in the last hour or two...what happens is the focus shifts...and I want to bring the court back...I see defendants...they start hiding behind their families...I need this court to focus...regardless of their social status...they stand before this court as defendants...They stand before this court as convicted felons...They are not victims in this case...They are convicted felons...I would ask this court treat them as such...I want to read to the court briefely an editorial comment...This particular person wrote - Grave harm is inflicted on society...in the case of Siegelman and Scrushy...jurors concluded that Siegelman traded a seat ...on a hospital board...

I want to tell you people should not be afraid of government service because of this case...What this case stands for is it should remind people why you seek public service...It is because you are honest...you are hardworking...Think what happened in this case...Gov. Siegelman was in office so long...He wanted to stay there...He traded...and Scrushy was willing...He did receive a tangible benefit...How bad does it look if you don't serve on the board where your corporate office is...

I walked into this courthouse and had a court impose life sentences and had court impose probation...This is not a probationary case...This is a case that screamed out for a sentence in the guideline range this court has determined appropriate...If as a defendants have told us that all politicians do this...That is more of a reason to pose a sentence of imprisonment to show them you cannot...accept a bribe...conspire...obstruct law enforcement...I have to believe that all politicians do not do what these defendants have been convicted of...I stand here ready to prosecute any case similar to this where a governor takes a $500,000 bribe from  a CEO and appoints him to a board.

Recess until 7 p.m.

Fuller - "I'm further obligated to state the reasons for a particular sentence to a particular defendant...It is clear the sentencing guidelines are advisory....the sentencing judge should filter that...I have done that to the best of my ability...I wish the record to be clear...I've heard all the evidence...I have considered and I have heard all the arguments written and oral...Gov.Siegelman

Siegelman 88 months

The courts ruling remains the same...Even if I had not granted the government's motion for upward departure...I would still make the same finding....

Governor Siegelman the sentence is order imposed...If you would please be seated....

Scrushy 82 months

Afternoon Sentencing Thursday

We are running a little late, the security machine was down for a while.  The judge is still not on the bench yet.

For people following the issues in the Department of Postsecondary Education - The State Board of Education was notified this morning that Bishop State President Yvonne Kennedy will retire effective July 31, 2007 and Shelton State President Rick Rogers will retire effective September 30, 2007.  We'll have more on this on wsfa.com later tonight.

The judge is now on the bench.  Susan James is talking.

"They say that Don Siegelman is worse than Mr. Shinburg...He was convicted on RICO...and when they ran those guidelines his base offense level was 29...The sentence he received was 188 months...and on appeal...121 to 151 months...I think the government...I can't comprehend that the government would compare Don Siegelman's activities with this...there were three or four judges...

Fuller - There is another case that concerns me...Gutman

James - Any public corruption case sould call for an upward departure...The conduct in both of those cases was convicted conduct...The very conduct the government wants to use as a basis is acquitted conduct...They say at page 2 of their motion that defendant Siegelman corrupted the office of governor...They also say Scrushy corrupted the office of governor...The probation officer's addendum...Probation officers rarely sit through the trial..."

Ms. James is going through arguments about public confidence..."There could be some argument...The world is looking to you for fairness...This could send an equally bad message...I know you have to issue a just sentence...The government asked for 30 years...People would come up to me and say 30 years are outrageous....We do Know politics are involved in this case...You've got some people who love Don Siegelman and some people don't...You risk saying to the public...Who wants to run for public office...

Based on his suggested guidelines 121 to 151 months (Nick Bailey)...He got a reduction between 8.5 and 11 years...He got more taken off than the government asked for in this case...Defendants ought not be penalized because people are interested in this case...People all the time in and out of the governor's office...In and out of the governor's mansion..It's a stretch to say that Gov. Siegelman's conduct impacted the ABC Board...the court did not attribute certain things to Gov. Siegelman in that regard...No one ever told me the first amendment was left at your house..He has a right to state what he thinks...I will tell the court I sat here almost as a spectator...I got to see the real Don Siegelman...That's the Siegelman the court needs to look at...

Perrine - This is not about a defendant's first amendment speech rights...This is for starring in a propaganda machine to attack the system...To say that this court is corrupt...That this court has perpetrated an unlawful proceeding...That it is somehow a sham and unlawful in itself...We're asking the court....to apply the law...This is a recognized departure of the 11th Circuit...Some of the things in Gutman justify...It has happened from day one and it continues...The court notes, in Gutman...he continued to blame the government...He carried out his obstruction while he served the state of Florida...That's exactly what happened in this case...The defendant was still the governor...While he was the CEO he consciously obstructed ...this investigation and then comes in and says the system's corrupt...Propoganda that heaps disrepute on this system..."

"This man deserves to be held accountable for his actions...Since the moment he has been accused of wrongdoing...to attack this system is reprehensible and he deserves to be punished and held accoutable for it...He's not being held accountable for acquited conduct...He knowingly engaged in that video...He knowingly made an attack on the jurors...He's knowingly accused the government of being politically motivated...We're only asking the court to apply the law...To say this district...upholds the rule of law...

James - Don Siegelman I don't believe they can offer one shred that he said the system was corrupt... I have no choice but to do it...They say there is no evidence of selective persecution...I'm sure the court is aware of a sworn affidavit of Jill Simpson...and she says there was corruption in this prosecution that trickled down...Quite Frankly we had intended to save this for another day...

Fuller - Let's do that

James - It had no purpose today.. but we had to say that.

Fuller - It is my obligation to make a proper calculation of the guideline range as a recommended sentence that is not binding on this court...Based on the evidence this court has heard...Based upon the pleadings...The plethora of media attention...Some reporting the news...Some of which has been generated with the assistance of Gov. Siegelman...The court ....if it did not address the government motion.;.document 591 in this case...Based upon all of that information I am convinced that the conduct in which Gov. Siegelman engaged in has damaged the executive branch of gov''t in this case...I will grant an upward departure of 4 offense levels...offense level of 36....pursuant to the guidelines...the guideline range 188 months to 235 months, supervised release 2-3 years per count...The consolidated fine from 20,000 to 200,000...And again I would remind counsel that is the court's findings...calculate a correct guideline recommendation...after objections to the presentence report and after motions of downward departures and variances and upward departures and variances..."

Carmen Hernandez now speaks for Mr. Scrushy and advises the judge that prosecutors are outside talking to the media...We can barely hear her.

She is arguing the sentencing guidelines..."Individuals...should not be sentenced on misinformation...The court knows our response to the government's motion seeking 25 years was to say frankly...we were dumbfounded...He has not killed anyone...He has not kidnapped anyone...I don't understand...I know I do not practice in this court...

Fuller - Take a breath... I don't think that my sentense is going to be anywhere near that...

Hernandez...This case to start with...the average is 20.5 months...This is not the most defendant friendly circuit...In the Middle District of Alabama the average fraud case is 5 months...Nationally, we had a very prominent case involving a lawyer, counselor to the Vice President of the U.S....There was media outside, this pales by it...and a lawyer he was charged with lying under oath and the matter under investigation was a serious matter...one of their covert agents has been identified...as an officer of the court there is a different burden...So in terms of just punishment I believe that a sentence within the guideline range would not result in just punishment...In terms of deterrance there is not a shred of evidence that sentence of 70 months, 80 months deters...more than one of two years...I guarantee there is not a businessman in the state of Alabama that would exchange places with Mr. Scrushy today...In matter of detterance...I think you have it....He has become a minister...and that is the primary focus of his life...I went and greeted the women...They are salt of the earth...They have been through difficult times....I would tell the court...that the sentencing commission says it failed to consider age into account in the guidelines...Someone of Mr. Scrushy age is less like to be recidivist...In his new life will not create a new...I seriously doubt Mr. Scrushy will ever give any politiclally contributions because of the danger...There is substantial evidence that as people get older they are less likely to recidivate...It is a factor the court can take into account..."

I want to put this case into context...HealthSouth is the biggest...Mr.Scrushy or another representative of HealthSouth has been on the CON Board 12 years and continue to be on the the CON Board...What he was buying...The thrust of their case is he bought his seat on the CON Board...It is undisputed that HealthSouth had almost an ex-officio seat that continues to this day...Mr. Scrushy had a HealthSouth lawyer working on CON Board matters because they were so taxing of his time...He has never been accused or convicted of giving a bribe in any other....In Washington our business is politics...The taxing effects of money in politics...Just this past week the Supreme Court struck down parts related to campaign finance...The court found no benefit attributed to Richard Scrushy from the $500,000.  Mr. Scrushy has a soft spot in his heart when it comes to children...I believe the only matter that came up related to this case while he was sitting...was Brookwood Hospital...I read the letter Elmer Harris sent...wisdom, insider and well respected...He told your honor he knows what happened...because he encouraged....

Fuller - He testified to everything he said in the letter...The jury had to make that decision...

Hernandez - A person has the sixth amendment right...The point I want to make to the extent he stands before the camera and says I'm innocent...It's based on his belief, a lie detector test, and even Elmer Harris even said it...

Judge Fuller said he was familiar with the evidence of the case and wanted to know what points and objections Ms. Hernandez had...

Hernandez is back arguing specific notes and points on downward departure.  "Your honor has made a finding that he did not receive anything more...so to sentence him as if he received a $500,000 benefit...If he had pocketed $500,000 his sentence would be identical..to me I'm not a judge to me that violates...avoid unwarranted disparaties...Your honor did not cut him a break in elevating him four levels ...You go to an airline counter to get a ticket...I want to keep the teller happy...I understand we've been through a few days...But the facts as presented in this courtroom is that Loree Skelton did not tell Richard Scrushy about the purchase order that resulted in the $11,000...So we've got six levels .."

Hernandez discusses with the judge the trip of Supreme Court Justice Scalia and a duck hunting trip...

"It's not an insignificant ammount (regarding the added levels)...This is atypical...He didn't pocket any money...The Randy Cunningham case...The industrialists were paying him...That's the typical bribe...It's not Richard Scrushy getting a seat on a CON Board...I'm coming in from the outside and looking at this case and it's making no sense to me...The Abramoff case...The government says in this courtroom every man should be treated exactly the same...They referred to you cases in Alabama...Stephen Russo, the mayor of Orange Beach,...Russo got 120 months...Kenneth Wall the contractor got a 12 month sentence...If we're going to treat everyone the same I ask the court to give Richard Scrushy 12 months...no less than that because he did not pocket any money...There are five children living at home...I have children...The court has children...Whatever our wrongs...The children should not suffer...With respect to Mr. Scrushy...with the court's indulgence one of the children's in the room and I'd rather not

Fuller - They will be excused

Hernandez - The two older children are with his first wife and they have lived with the Scrushy's for most of their lives...The two older children will be sent to live with their mother...It will be traumatic to the little ones who will not only be losing a father...but these...

The second aspect of the personal circumstance are Mr. Scrushy's charitable contributions...His entire life...The court has received letters of all different types...That's an aspect I would ask the court to consider...He's involved in a mass scale...where he is the primary funder...He's always had a calling...However as a head of a fortune 500 company he had little time to devote to that...He's and ordained minister...He and his wife are ministers in a church and that whole area of his life is something the court can take into account...The need to incarcerate and protect the public ...I think I've aggravated the court long enough...We just wanted to set out an outline...If the court wants to put him on home detention for another five years...I think that would be in keeping that the argument presents here...The government has gotten up here and told you over and over again the governor was demanding money from all over the state...The notion that Mr. Scrushy corrupted the office of governor...They can't have it two different ways...They've already gotten four levels...

Mr. Leach - The first thing I want to proffer to the court is Bishop Jones...He's a Bishop in Jacksonville, Florida...He was here but he didn't stay...He had something he had to take care of...Judge Bishop Jones met Richard Scrushy in the Guiding Light Church in Birmingham...Bishop Jones have continued in the mission together...Kingdom Builders is rather large...Bishop Jones part is in South America...Bishop O...runs a huge orphanage in Africa...In South America...they have 22 children...And what is happening in relationship between the churches in the United States and those churches overseas...They feed and house and clothe those children...The one point I want to make clear is these churches are not in the poshest neghborhood...It's not a lot of money...The Bishop from Africa will tell you...that anytime there has been a deficiency...over a period of years Mr. Scrushy wrote a check...He's committed to all the churches...He took the skills that he took to build HealthSouth from $0 to $4 billion...That company beyond any attack grew from zero to a $4 billion...Unlike Enron when the attack came it carried on...that's the company Richard Scrushy build...The assistance Richard Scrushy brings is the same vision...as HealthSouth...He tries to figure out how things can be made better...He's made tangible change...He's very commited to those churches."

"I also want to proffer to the court Mr. Scrushy's charitable giving..."

Pause as there is dialogue between Mr. Feaga and Mr. Leach...

"On charitable giving...the total amount, personal charitable giving was $28 million...The Richard M. Scrushy charitable foundation, which he funded, was used in a variety...In 2003 there was $1.7 million he gave in 2004 $882,700, in 2005 In 2007 just to date 868,000 For a total since 2003 to current $6,122,354.31 -

United Cerebral Palsey, Feed the Child, The Autism Society of Alabama,...Special Forces for Jesus...United Negro College Fund...MorningStar Pentacostal church...Bishop O...

At this time the witness will be Bishop Bernard Omukubkh -  Would you tell us a little bit about your educational background?

Bishop - I went to school in Africa...I have a masters degree in Theology...I have a PhD....

In your carerr have you taught at all? Yes I taught elementary school.  I taught high school.  I taught seminary...Right now it's located in Kenya and five different nations in central Africa...I am the president director of kingdom Builder's International..Richard Scrushy is the founder...He is presently the overseer...The one that has the oversight over the work...He's actually the visionary and many times he's the one that helps support the branches all over...Kingdom Builders is a great privilege for God...When he begun...In Africa we have over 450 churches...It's a large organization...In Africa 40,000 people..

Is your ministry in the U.S.?  I am an ordained Bishop in Africa...In Africa we have seven orphanages...We remain with four orphanages...AIDS victims...no mother no father...I identify them, write their names...We do feed them...We do clothe them..Medical help and care...Richard Scrushy has been a great help and is a great help...We go out and look for these children...We go out and identify children that have need...those that have nothing to eat...Those that have no father, mother...

How much does it cost to run 4 orphanages, 3000 children - Every month we have a budget of 10,000...There is so much involved every month.

How do you get your funding?  It's been very difficult for me and very strenuous...I don't believe anybody...I don't think there's anybody here who can do what Dr. Richard Scrushy can do for our ministry...Before I met Dr. Richard Scrushy...I was sleeping on the ground seeking help...I came across a pastor where Dr. Richard Scrushy used to go to church and after a few weeks I received a letter from him with a donation - $2,000 for him...I had his card and a number...I called his office and he gave me an appointment...He loves to give...Cares for ministers, preachers....He will not let them down...Many big people...He says come on in...

What year did you first reach Richard Scrushy?  2004 ...He's doing almost everything...We raise money sometimes through our own church...We feed the...I have a video

Of the money that is raised can you tell the perceantage that goes back to the children in Africa?  100 percent...provision of shelter, medical...If I recieve it now it goes to the Western Union and it is wired straight...I do not know what I would do if Richard Scrushy didn't do what he does...He's annointed with the Holy Spirit...He's not a corrupt person...This is a person that is kind...Lord have mercy....

Is it correct that you knew Richard Scrushy in the Birmingham case?  I used to ride greyhound...I used to go to the court and sit

Did his assistance to you increase or decrease?  It increased...This is a timely hour for this man to be set free to preach the gospel to lost and dying souls...This is not a selfish person...He liberally gives...I'm really surprised...that we can have no mercy ...on someone who gives without expecting everything...I did not have anything...I did not have transportation...I did not have a place to stay...When they found me...there was no furniture...I lived in a suitcase...I didn't have utensils...I didn't have clothes...I don't know what I would do if you would send him away ....I don't know what those children would do (Bishop is crying)..

I want to talk to you about the medical supplies..."He has assisted me in everything...Right now there is a school in progrss to be built..."

There is now a video playing of the children in the orphanage

Has there ever been a time since the orphanages have been with Kingdom builders there has been a deficiency?  Many many times...He says come to the office and he writes a check....

In the event that Mr.Scrushy is removed what is going to happen to those children?  Most of them will go to the streets and have no one to take care of them...I don't know what we're going to do...

Steve Feaga will now cross-exam the Bishop

Feaga - You said that Richard Scrushy was the founder...When did he found Kingdom Builders?

Bishop - Kingdom Builders was found in 2005-2006...

Feaga - You said when you met Richard Scrushy you were basically penniless?

Bishop - 2004...Not take care of me take care of the ministry that I represent...That was a personal thing I let the court know...I don't think that's of any interest to you...

Feaga - Richard Scrushy helped you came from a position from where you were to where you are today?

Bishop - I'm describing where the ministry was...

Feaga - Was it at the time that Kingdom Builders was founded he contributed money to the children?

Bishop - 2005

Feaga - Do you know if he was indicted...Had he been charged up in Birmingham?

Bishop - I wouldn't be familiar with that...He personally began to give 2004

Feaga - Do you know how much money Richard Scrushy is worth?

Bishop - I would not know

Feaga - I'm asking if there's any reason he could not give even if he were in jail?

Bishop - If he's taken away how would I get the check, how would he write the check....

Feaga - Has he told you whether or not he would continue giving

Bishop - His heart is giving...Giving in his heart is a fixed thing...Whether he's incarcerated....

Feage - If he were to sale that yacht...he could make charitable contributions....by selling the yacht...

Bishop - when he gives I don't question where the money comes from...

Leach - Are you a wealthy man?

Bishop - My account zero...I will give you my account number at Compass Bank...My suits, sharp, blessed like some of these lawyers is from God...Cripples walk...I minister side-to-side of him...I have a video of a lady walking from a wheel chair...That is the annointed one of God...I am afraid that this is happening...That we are going to deprive America of a great man of God....

Leach - one of the question...Is Richard Scrushy writing a $10,000 check every month

Bishop - close to $10,000 when there is a deficiency

Leach - You go out through Kingdom Builders and the churches and then if there is a deficiency do you turn to Mr. Scrushy?

Bishop - Sometimes it does not reach $500

We're going to start a new post.

Day of Decision

Barring anything unforseen (which may be going out on a limb) former Governor Don Siegelman and businessman Richard Scrushy will learn their sentences today.  Chief District Judge Mark Fuller is scheduled to get things started around 8:30 a.m.

There will be more discussion of upward and downward departure from the guidelines - that is the government wanting a sentence above what the guidelines suggest and the defendants wanting below those same guidelines.  We will later hear more character witness.

The judge has now taken the bench.

Fuller - We ended yesterday, we were taking up various motions on upward departures or variances and downward departures and variances.

Susan James - "The court can consider a combination of factors...this is precisely that case...especially in light of the court's judgement that acquitted conduct...can be considered....We do have an individual that has been humbled by this ordeal...We request a downward departure based on business destruction...Gov. Siegelman although a public servant for the bulk of his life is a licensed attorney...He was very successful in doing that...Bobby Seagall indicated the governor's lowest priority was money...He has continued to work as an attorney.  He is counsel for the Alabama Sheriff's Association...We don't know what the Bar will do...We believe this is something the court can consider and we believe a departure should be granted for that reason...This defendant will be vulnerable in prison...Prior to becoming a lawyer I worked for the federal prison system for eight years.  I have had the opportunity to deal with inmates...He had a particularly tough position on crimes and violence....He worked with Judge Carnes in passing some of the most hard crime legislation....If you impose the sentence...It is not likely that Gov. Siegelman would be assigned to a prison camp...I believe their cutoff is nine years...Because of his anti-crime stance and because of his policies and programs....He pulled in violent criminals that were out on work release...I was representing Phillip Chance....who went to Michigan...Governor Siegelman stayed on it relentlessly to have him brought back...I had him subpoenaed and had the opportunity to examine him on the witness stand...I have seen high profile people, including governors, incarcerated....They do pretty well in a prison camp setting...But his policies put him in a pseudo-law enforcement capacity...I think that is something the court should consider...The prison system solution will likely be to send them far away from home...If they have some security and safety concerns it is highly possible...he would be incarcerated outside the Southeast region..."

"I heard the testimony from the doctor in Talladega regarding Mr. Scrushy...Having worked in the prison system....inmates don't get to go to the doctor because they want to go to the doctor...His age also speaks to the rest of his productive life will be wasted...I think another factor judge, this whole investigation...has been going on for years...We know there was a case in Birmingham that had no merit...That takes a toll...I think the court saw when we modified the financial statement yesterday...how much of a toll its taken...He still has two college-age children..Even in this case...What's happened in the past year...It was a year ago he was convicted....While not in prison, he might has well have been....There is no getting it off your mind...It's a constant burden...He's been under supervision, He's been reporting to the probation officer...I have a unique background...I learned a long time ago the whole concept of punishment we kind of go about it the wrong way...There's three categories - swiftness, duration,.....What we do use the most is duration and it has been established that is the least effective....Don Siegelman does not need ten years to deter him or others from criminal conduct....This is not like the typical bribe situation....and of course we're not conceding this is a bribe situation...The typical situation is the guy who takes a bribe to award a contract...You heard his passion for education...We've all watched him in public office....He took $500,000 from Richard Scrushy and HealthSouth and paid off the lottery...Mr. Miller, ....said Don Siegelman was the best fundraiser I've ever seen and it just wasn't going to happen (default on loan)...When he appointed Richard Scrushy he wanted that guy...(He had served other governors)...To even say that this doesn't happen everyday is disingenuous...It happens every day...There is nothing unusual...about his appointment of Richard Scrushy to the Board (CON)..."

Fuller - I would prefer not to put strict time limits on your arguments, but I do not need to be read to...I've already read all these motions...

Mr. Kilborn - I've basically loaded everything into my head and my heart and that's what I want to talk to your honor about...You have made a legal ruling based on the law...That was hard, but not as hard as exercising your discretion...I thought about what to say to you...What can I do to help you with that burden...My burden is equal to your burden...I want to say to the court that whatever your honor does I will forever be satisfied that you exercised your discretion as the best you saw it....The system of justice that we have right now...has to work...and there's a reason...The reason is...I want them to know when they hear your sentence...that what theyre doing is worthwhile...Acquitted conduct...I want the court to have a downward sentence because of acquitted conduct...There's really a double standard working here...We've got the jury system that says guilt or innocence...And the government wants to say the defendants won't accept the responsibility...There's another half to that...The government needs to accept the part of the jury verdict against them...94%...Your honor told this jury at the end of the case...You thanked them and you said you would be forever grateful for their service, their fairness...you praised that jury for a proper verdict...Accept what the jury said...I'm not talking about the legal technicalities...If it's acquitted it's over.

There are really only two parts of the case - the CON Board and Lanny Young...

At this point Kilborn is putting a chart up and we cannot hear him or completely see the chart.

"My bottom line on acquitted conduct is lets have the same standard...Let's have both sides accept the jury verdict equally...Governor Siegelman has not put one cent in his pocket in this case...All the money that went to Young, $8 some odd million, all the money that went to Bailey...none of that money went to Gov. Siegelman...The HealthSouth money...none of that money went to Gov. Siegelman, that $500,000 in reality went to pay off the Alabama Democratic Party geto out the vote debt...He did not put that money in his pocket...Even with the motorcycle...

Overall what we've heard is Gov. Siegelman is not a greedy person...He could have done many things with his life...It's kind of funny judge, but I don't think he would say...with the fix I'm in I should have been a trial law...His character is built on not money but service to people..He still has that drive because it is in effect, outside his family, his life....One example in the trial...just a little incident where he cut his salary and no one knew about it...I think it was 10 percent...What he has gotten is his honor...That's really all he had..I called Bob Abrams...He said what would a white, jew lawyer have to do in Mobile, Alabama...I told him he was...one of the most respected legal people in the country...So he came...He was a little bit nervous and Bob Abrams said I think the most compelling thing...He'd known the governor 20 years...He said he came down to the inauguration for his friend and set there and looked across...and he thought My gosh this is where George Wallace stood...Jefferson Davis the president of the confederacy and yet now the first five speakers were African-American...Bob Abrams I suggest your honor is no fool...If there was a character flaw in Gov. Siegelman...I think that man would have smelled it out...I don't thnk he would have come down....He has a good idea of his character...Bobby Seagall is well known to the court...He's known the governor almost all of his life...Bobby is perceptive enough ...he would never come into this court and try to pull the wool over his eyes...That man will call a spade a spade...because he has a firm grasp of the system of justice and he said not only is the man of good character but he's a man that takes positions that will hurt him publicly..."

"Governor Siegelman has a heart for the little people...Who in the governor's mansion....would have ever thought that a rag-tag black man...would just go over and say who are you ....There wasn't any money in it..Maze shows up to the mansion to eat...Maze can't do anything for Siegelman...Helen Vance...a widow lady in her 70s...that drives down from Birmingham to tell of a private kindness...while she was laying in the hospital from nail bomb injuries...she doesn't have plenty of family...widows get neglected...Those are kindnesses that deserve credit for character...She says he doesn't need rehabilitation...Gen. Sumerall...I called him your honor...because he has a very important job....We're at war...He takes time out to come down here and speak to your honor...It's in a letter he wrote to your honor...Shortly after the war started and just a few weeks after I started working for him...II asked him why he entered politics..He said he entered politics because I wanted to help people...I decided to see if his actions matched his words...

Political motivation - I'm going to do it as a defense from what I've heard from the government...Something not expressly dealt with that you might consider...The government has chastised Gov. Siegelman for saying there was political motivation...If the government wants to deny it...Let them prove it or be quiet...As your honor knows we had a big hearing...We wanted to go into things regarding other politicians...Atty Gen. Pryor and Gov. Riley...If they are going to keep saying things...I want a full blown hearing...I want you to know, whatever you do the Governor and I trust in your judgement..."

Dr. Blakey - There is ample discretion for you to give...community service...Particularly in light of sentences given to other governors...I really want to focus on two aspects - justice and parsimony, the concept behind the statement that every sentence should be sufficient but not greater than necessary...

The growing consensus....is the relationship between just desserts and ...rehabilitation...Not whether we can pick and choose, ....If you thought a murderer would not recidivate...you are not entitled to release him...In the history of punishment there have been two basic....Kings, emperors...and prosecutors that have been willing to punish...Punish one innocent person to put the fear of Kings in others...I know a number of judges...One of the things I have heard them admit is that the rest of their life is closed...The only friends they have now are judges...And that's a bad thing for you but it's a good thing for us...Victims of crime...seekn not just sanctions but vengeance...not just for what he did but for everything..Our system is designed to obviate clan vendettas...It's always necessary to refer to Shakespeare...I know one thing terrorism and clan vengeance ends at that door, it does not belong in this court...We are a modern society, an American Society and we tend sometime to forget our Judeo-Christian heritage...We still think like our forefathers..."

Professor Blakey has quoted Leviticus, sorry I missed it.  He is now talking about Egyptian mythology and judgment of death..."Where the scales were used to represent justice...If your heart was heavier than a feather you were turned over to this beast...representing the notion of chaos...so you went into nothingness...I hope they will judge us based on our hearts...

He is talking about limitations on vengeance and clan justice again...

Sorry folks had to take a short break.

"I will give the government credit for at least one thing...They could have asked that they be stacked...Maybe we should think of them as being merciful for only asking for 30 they could have asked for more..."

"I think you know politics has reared its ugly head in the Sentencing Commission..Frankly because some of the people involved didn't trust judges...The problems with the sentencing guidlines they try to do it wholesale..I am not my social security number...I hope when I am judged by God almighty...I hope somebody doesn't. judge me as a number.....They are children of God and should be judged as individuals and the guidelines are factors you can consider...

"The difficulty is they didn't factor out sentences by governor...What I would like to do for you know is take a look at sentences by governors...Louisiana governor Edwin Edwards was...four terms governor...He's had an incredible problem with the Dept. of Justice...The Riverboat Gambling commission...He stole well over a million dollars from one group and he got a one time payment from Eddie Debartelo,...The Government put in his hand $2,400,000...The government put in Don Siegelman's hand...not a dollar...The guideline estimate on Edwards was he would have gotten 14-16 years...In fact he got 10...I would hope when you think of 10-12 for Gov. Siegelman you would compare and contrast....

Gov. Ryan...went down for a pervasive thrushing of state businesses...He used taxpayer's money in campaigns...He turned the state of Illinois into a grocery store for his friends and he handed out contracts to his friends...He didn't take responsibility...His guidelines were 8-10, the government asked for 8-10, they didn't ask for departure...He got 6.5

In West Virginia...he took illegal contributions...buying boats one-by-one and received at least one extortion payoff...The money went to him of $500,000...He got....

Another, ...received at least $350,000 in personal gifts...He added racing days to the favorite tracks...pre- Guideline sentence 4 years...Gov. Mandell...It was reversed

Gov. Blanton...Honest Services Mail Fraud...One of the ways he would get his payoffs he sold $38,000 worth of stock...and got a finders fee - pre-guidelines he got four years...

Another person- received at least $150,000 personally for corruption...He got three years.

Gov. Walker, a one-term governor...not convicted in office...Treated a savings and loan as a piggy bank and issued himself loans - $1.4 million in loans...He got 1.5 years.

More recent Connecticut Gov. John Roland (sp) - He received personally more than $100,000 in gifts...He gets a year and a day.  He got a year because it was federal...

Arkansas Gov. Jim Guy Tucker mail fraud conviction.  He also had problems with the IRS...He got four years probation...And finally, ...Gov. Guy Hunt...taking approximately $200,000 spent on personal items including cows - 5 years probation and 100 hours of community service a restitution of $212,000...Mr. Feaga...did not make a recommendation of time...Now he's part and parcel of a recommendation for 30 years...10 of the 10 received personal money

"This is the dog that did not bark...What's not in this indictment...tax evasion..."

"How can we justify 24 months for Young...The governor and Mr. Scrushy alone know what happened in that room...You have to take with you they were responsive...Trading someone elses time in jail for yours...The probation office says 8 years...and we know Young got 24 months...Mr. Bailey another man who got the money..He gets 18 months...His (siegelman's) life is in shambles...I can't understand jackals who want to feed on the carcases..."

Mr. Feaga stands up and Judge Fuller says, "Mr. Feaga take a seat..."

"Your honor i would like to read...from a speech given by Robert H. Jackson...The prosecutor has more control over lifel, liberty, and reputation...When he acts on malice...He is one of the worse...This authority has been granted by people who wanted the right thing done...Although if the government loses its case....He must remember....that lawyers rest their good opinion of each other not only on results but on justice...whether he returns to private practice.,,/One of the difficulties ...is he must pick his cases...He can choose his defendants...Therein is the most dangerous power...It is in this realm in which the prosecutor picks some person...and then looks for an offense...We must not forget that it was not so long ago that both the term Republican and the term Democrat...had sinister meaning...The qualities of a good prosecutor are elusive...and are hard to find...fairplay and sportsmanship is perhapbs the best balance...seeks truth and not victims...and approaches cause with humility..."

Professor Blakey apologizes to Mr. Perrine for remarks made earlier in the week.

Steve Feaga said during the break, "And you can quote me...He just wants to go back to Notre Dame and brag to his colleagues he was part of this case...He is like the fan sitting in the stands throwing rocks and bottles..." in refernce to Mr. Blakey's comments about jackals.

Louis Franklin is up for the government - "We think natural consequences do not require a downward departure...In this court I have prosecuted a husband and a wife and there were children involved...For the last 15 years...I have always walked into this courtroom and asked they...for what they have done...Threre is nothing that would warrant a downward departure...She says the governor has held office...and taken a harsh stance on violent crime...Should a politician who takes a harsh stance and then turns around and committs a crime...should that person be treated more leniently...It would b the height of hyprocracy for someone who has taken a tough stance on crime to turn around and then ....ask for leniency...There is nothing in the presentence investigation report that would indicate the governor is inform...There's been testimony of how he gets up before dawn and gets his exercise...The length of the investigation...Again judge a natural consequence of a long investigation...This court recently investigated Leon Carmichal....it was 10 years before an indictment...We don't ask for these investigations to last a long time...That's just the way it goes...We had an investigation..Sure it took some time...Ms. James also argued this is an atypical case...She said what the governor did in this instance was not a crime...That has been their decision...We don't say this defendant doesn't have the right to stand out on the corner and say he is innocent...It is the all out assault on the system...At every phase...to them come into this court and ask for acceptance of responsibility is hypocrisy...A juror conclude he is not (innocent)...Turning now to Mr. Kilborn he stood up and basically said...this will make a difference in the life of Gov. Siegelman...We're here because of the criminal conduct of the defendants...But for their criminal conduct we wouldn't be here....I want to be sure we all understand...There's nothing about that that takes it outside the heartland of cases...With respect to the acquitted conduct as it relates to Lanny Young...Lanny Young was a friend of the defendant...He was his biggest supporter...There were many meetings where Lanny Young was present...They shared a very close relationship...and Lanny Young told this court about that reltionship...A picture of Young and Siegelman...We don't deny that Gov. Siegelman has dones some good things in his lifetime...We're here because of the criminal conduct he engaged in while in office...A person who has good character is not immune and cannot be said to be someone who would not committ a crime...All we're asking the court to do is hold him accountable...If the court were inclined to give him a downward departure based on his good deeds...that would send the message okay you do 100 good deeds and your entitled to one criminal conduct...We're asking the court hold him accountable for his criminal conduct...Nothing more and nothing less....Mr. Marshall said something...He talked about the hypothetical of the two children...This defendant has a criminal history category of one...That has been taken into account...There is no reason for downward departure...This defendant should be sentenced in the guideline range...or if upward departure is warranted...There is nothing that warrants a downward departure, certainly not his good acts...In respect to the ...politics...It didn't happen...It's just as absurd today when it happened...It was raised outside this courthouse...It remained outside the courthouse...We investigated this case...We followed the evidence..We proceeded to trial...and he was convicted...

J.B. Perrine - After telling the judge that this court was under the laws of the U.S. and not the law of the Hebrews or Egyptions and if that were the case "we could use the law of China where they execute public official" Perrine went on to say, "All people are created equal under the law...that is what our men are fighting today in Iraq...We would ask your honor to apply U.S. law...Professor Blakey went on to talk ...about his theory of just desserts...The guidelines have already taken into account Professor Blakey's arguments...

He has failed at every turn to admit he did naything wrong...What did he do he sought to obstruct the investigation...Then he comes to trial and denies every aspect of the trial...Along the way he attacks every part of the system...He attacks his closest friends...He participates in a propaganda video...saying the system was corrupt...the jury was corrupt...Case law states that conduct is deserving of an upward departure..."

"In his reading of the statement of Robert Jackson, he failed to mention...."What every prosecutor is required to do is select the cases for prosecution...where the public harm the greatest and the proof the most certain..."

Your honor stated to the jurty that this was the most significant case...I hope never again will we have trial where the Governor of the state accepted bribes....It is the most blatant public corruption case...ever seen...Sold out the CON Board for half a million dollars..Then he engaged at the same time in a long running scheme with Lanny Young...This was the most flagrant case...Your honor has already found there was evidence of substantial evidence...There are making a flagranta unabashed attack on this court...Not only should you not downward depart...You should hold this against them...With respect to comparison cases...We would ask the court to look at some of the case brought here in Alabama....Henry Lee Gordan in Mossess Alabama...He was sentenced to 162 months...He was a crack addict and he was trading drugs...Another case in this district, Brian McKee and Dwight Faulk...They had a scheme about lowering the tipping fees...Another case Stephen Eugene Russo got sentenced to 120 months the gain from that case was found to be around $600,000...In this case $3.7 million....Bobby Jay...Floyd Dougherty...These men got sentenced to 51 months...In all these cases, local level politicians, a sheriff, a probate judge in Etowah County, a mayor of Orange Beach,...none of those reach statewid office...Now we have the governor of the state and he's in here pleading for a downward departure...his conduct in no way shape and form deserves downward departure.

Susan James says "Nick Bailey is like a buzzard hanging around this courthouse hoping to testify against Gov. Siegelman.."She went on to say Lanny Young was the one who benefitted.

Kilborn - They accuse counsel of attacking the witnesses as if there was something wrong with that when they're lying, like Mr. Young and I would attack him again if he'd show his face...Bad judgment maybe....They're trying to introduce 1983 letters...I think it's clear a double standard shouldn't be applied...We do not think its fair for the government to continue we be punished for what the jury found us innocent of...He's doing his time...We shouldn't do his time..(referring to Lanny Young)

We are now going to hear a witness for Mr. Scrushy

"I am an ordained minister in Birmingham..We get women right out of the county and Tutwiler..We have a ministry for troubled women...It runs the whole gamut from women who are just on drugs to women who have committed vioilent crimes...We have a special program with DOC..I didn't really know him til about a year ago and a friend of mine called and said he wanted to bring someone by to see the ministry...Richard Scrushy came into the building for the first time about a year ago...First of all I was very shocked to see him...I was a little skeptical at first...He started coming to pray with them talk to them...I was not expecting...I watch TV a lot, so I was expecting this man to come in very flamboyent and all...On Thursday night he comes and preaches to this women and sometimes he stays for hours....He's the real deal now in his relationship with God...He comes to the center and goes to the Kids Zone where all the children are and he sits down and just plays with them...What he does is he takes and explains no matter what they've done they have the forgiveness of God...

Did Richard Scrushy ask you to testify - "No I was watching television and I saw some man yelling at Leslie outside the courthouse and the Lord led me to testify...I called him...Richard said I want you to be careful I don't want you to do anything that will make people look poorly on your ministry..."

Is Richard Scrushy a big financial contributor?  "Richard Scrushy one time gave $25,000 for us to keep the power on.  Totally over the year about $75,000..."

"She started coming with Richard after a month or two...We had a flood and she brought so many bags of clothes...Richard Scrushy did not give any money but his foundation gave the $75,000  I think it is the Richard M. Scrushy Foundation..."

What does Richard Scrushy give them?  Nothing except acceptance...I was surprised at what a good preacher he is...He really knows the word of God...The facility was the old hospital there's so many rooms but there's not a large room..There was a building in Irondale that was for sale...so Richard...to buy the building...and the women can go ...to worship...He has a vision of a mission....The people he ministers too are not the affluent...They are the hurting people...I just can't see him flighting anywhere...One thing a few weeks ago I was talking to Richard and Leslie...I was getting very emotional...and he started ministering to me...Don't worry about this it's God's will...

Did you bring any of the women from the shelter?  Yes...Stand up guys.

Leach then gets the names of the women for the record.

Mr. Feaga will cross.

Feaga - "We appreciate your ministry...we applaud you...How long have you been ministering?"

Witness - Three years

Feaga - And you said you'd known Mr. Scrushy how long?

Witness - One year.

Mr. Perrine is arguing his motion for upward departure for Mr. Siegelman.

"We have a man...at least a period of six years was involved in a pay-for-play scheme with Lanny Young...Whatever he wanted Lanny Young would give it to him so he would do things for his business...This went across the branches of Alabama government...The Goat Hill Construction Project perpetrated a fraud...to pay off the lease on these warehouses...Involved the Alabama Beverage Control Board, ADECA...He gives Lanny Young 2.3 million to do a job a 12-year old girl could do...Further...The benefit of $3 million to Lanny Young for the change in the service area for the Three Corners Landfill....was a result of his pay-for-play scheme...."

Perrine talks about corruption of the Alabama Department of Revenue related to the Emelle landfill ruling..."In this part of defendant Siegelman's criminal conduct...we have two local authorities...we're not talking about a one time happenstance...This was conduct he engaged in for six years...And then you have...the CON Board....Your honor has already found there was a $500,000 bribe paid...The conspiracy and scheme charged...These defendants then went out and corrupted another CON Board member, Tim Adams....The cases that the government cited in its brief...We set forth for the court the facts that the 11th Circuit detailed...(Shemberg)...You have a circuit judge involved in a kickback scheme...In this case we're not asking for five levels we're asking for four levels...I would point the court to another case...The U.S. vs Gutman, April 2000 - the defendant in that case where the court applied the same upward departure...and the court departed upward to the statutory maximum...In that case a state of Florida representative...the defendant engaged in obstruction of justice during the investigation...The court make take judicial notice of public reaction to this case...The court takes judicial notice that the defendant declared his innocent and said....it was politiclly motivated...That's exactly what this defendant...has done...I would say there has not been any case like this related to the press coverage involved...the malicious attacks these defendants have made...These defendants have...attacked the system...attacked the court...This causes a huge loss of public confidence...We would ask the court to upward depart four levels...We believe a reasonable upward departure is four levels...."

Lunch recess until 1 p.m.

Afternoon Hearing - Day II

Things have gotten started. We missed a few things as the government presents its objections to the presentence report.

Perrine is up again.  "There's a host of arrangements....to begin with the Sunday beer sales with the Talladega Speedway...Nick Bailey testified the governor did it..You had the Alabama Legislature mixed up in this...Lanny Young testified Don Siegelman

Fuller - Under the guidelines...if a defendant is charged with conspiracy or corruption of a variety of different acts is it contention the court can add a 4-point enhancement and count five people that might make up different parts of the conspiracy...For example if the Governor was the leader/organizer of a conspiracy that what went on in the governor's officer...but he only organized two or three for the CON Board...can I add people from ...the Lanny Young pay-for-play scheme as you call it...and add those individuals together to qualify....

Perrine..."I want to make sure the court understands...(he) doesn't have to be the leader/orgainzer of each individual scheme...

Fuller - (He talks about the difference between a leader/organizer and a manager.).."There might be a difference between a manager and a leader/organizer...Does the court have to make a separate finding or can you add the individuals involved in both of them...?

Perrine - I think it would be easier for the court to look at the CON Board, where there are five or more participants...To be a participant you need to be criminally involved...There's a difference between unwitting accomplices...I can give you 100 unwitting accomplices...In the CON Board....Defendant Siegelman is directly controlling the activities of Nick Bailey, Eric Hanson, Mike Martin falls under Scrushy, Tim Adams falls under Scrushy, you have ?Siegelman and Scrushy.  In pay-for-play there are four participants...

Fuller - What about the probate judge in Cherokee County?

Perrine - I think the court is right Philip Jordan would qualify.  That would give you five participants - Paul Hamrick, Nick Bailey....As far as otherwise extensive, there are at least eight government agencies...involved in the Lanny Young pay-for-play...I believe your concerning about combining participants is a non-issue....

James - We object because this is acquitted conduct...The other thing judge that we harped on yesterday is reasonable forseeability...There's no evidence we can event stretch that when Gov. Siegelman appointed Richard Scrushy to the CON Board he knew Tim Adams was going to be involved...The government contradicted themselves in their own argument...He started out saying this whole contribution situation began with Eric Hanson and then shortly thereafter within the next breath I submit he thought better and said it was Governor Siegelman who started it....There is just simply the lack of evidence...Simply because we have a governor....as many people he would have working for him...there are many people who are doing things without his knowledge..."

James - "Case law is clear whethr someone is organizer/leader - what share of the profits do they get? 

"It doesn't say criminal offense, where you're talking about a managerial role, it does say criminal activity, my position would be activity is criminal offense....They talk about Mr. Kassouf because he called Gov. Sigelman to get some information....to consider them would be wrong...I truly believe while we're not advocating a role enhancement for Mr. Scrushy...the government said Mr. Scrushy corrupted the officer of governor...Ms. Capel's languaage...There is no known supporting statements that defendant devised a scheme....Bailey testified Siegelman did not know what he was up to and didn't get any of the money...In order for this to fly...you've got to find there was an explicit agreement and there isn't....

Perrine - These two defendants continue to refuse to be accountable for their actions...Both defendants have made numerous representations about what Ms. Capel put in her presentence report...she did not attend the trial...The defense argues that defendant Siegelman did not benefit....he became governor because Lanny Young was willing to give him hundreds of thousands in campaign dollars, signs, travel on airplane to campaign....cash properties...He got a $500,000 bribe used to pay off the loan for which he was personally liable....

Each part of the criminal activity in this case had five or more participants...Each part was otherwise extensive relative to the guidelines...

The judge now wants to talk to the probation officer and steps off the bench to talk to her.

There is more argument being made about who is a leader organizer.

Perrine - The CON Board scheme included five or more members....You can certainly have more than one organizer/leader

Hernandez - the evidence is clear that Mr. Scrushy did not reach out to the governor to pay a bribe...The evidence is clear people came to him...Elmer Harris testified ...it would be good for the state (for Scrushy to go meet Siegelman)...Scrushy did not in any sense of the term organize this scheme....

Fuller - Briefly (someone is talking but we do not know who)

Here are the courts finding of fact:  The objection for the failure to apply an acceptance for a credit is overruled....The objection of the application of two points for obstruction of justice is overruled...The objection as to otherwise relevant conduct...the court would cite for the record the U.S. of America vs Clay...The court will apply the law of the circuit....using relevant conduct where appropriate....As to the objection based on judicial estoppel the objection is overruled...As to the government's objections to which the government has argued there was more than one bribe that objection is sustained...The objection by the U.S.....as to Gov. Siegelman being a leader organizer,,,I will freely admit for the record this is a very troubling determination...but based on the evidence....I am unable to find there were five participants who qualify...which would allow me to apply the enhancement...Therefore that objection is overruled...The amount of loss as to Gov. Siegelman....The court has looked at the categories....

The court has looked at the value of the payment made….based upon the evidence I have heard at trial…the arguments made….the court has found that the amount of the bribe was $500,000…the court finds tha amount of the loss for the Goat Hill Construciton project…that same amount of loss $181,325…The amount of benefits received would also include the amount of the Goat Hill construction money paid to Lanny Young…$181,325 plus the amount that was received from Waste Management…$50,000, plus the value of the amount of the motorcycle valued at 9,200 and the benefits Lanny Young received for the sale of the landfill $3 million….

The total $3,740, 525…The amount of benefits would be the largest category 2B1.1…Under the specific events characteristics $3,740, 525 place Gov Siegelman in Category J which …would result in an offense level increase of 18 points…Having made findings…The court adopts the factual statements in the pres…The offense level is 32…The guideline is from 121 months to 151 months the supervised release period is from 2-3 years…and the consolidated fine 17,500 to ?

Fuller - You have my ruling if I am wrong...I feel certain that could be addressed later.

The defendants objections  All I will say is the court will apply the law as I find it applicable…I would overrule it as moot and give you the opportunity to appeal…As to the acceptance of responsibility that objection is overruled…as to the objection the court not accept evidence as it relates to Tim Adams…that objection is overruled…As to the base offense levell…that objection is overruled…As to the payment being calculated at $250,000 instead of $500,0000 that objection is overruled…As to the objection to Mr. Scrushy being a leader organizer that objection is overruled

As to the government’s objection there was more than one bribe that objection is sustained…As to the government’s objection…The findings I have made as to the benefit received is the 517,000 bribe and the 11,000 Tim Adams was paid, the 17,000….$528,000 and finally as to the government’s objections to include the words otherwise extensive…that objection will be sustained and the presentence report will be modified…It will also include language that the conduct was otherwise extensive. 

As to the U.S.objection seeking an obstruction of justice enhancement that objection is overruled.

The only victim I would consider Mr. Scrushy paying restitution would be to the UBS portion of the loan.

The offense level becomes 30, the criminal history is one, the guideline range is 97 – 121 months ….supervised release 2-3 years per count $15,000 to 150,000

Attorney Robert Abrams is on the stand for Gov. Siegelman...

Abrams - I'm a product of New York City...Columbia Univ. School of Law...Elected to three terms in the New York state assembly...Four terms as attorney general of New York 1978-1993..."

Kilborn - Have you had any other public service

Abrams - No,

Kilborn - That would be enough

Abrams - That's what my wife says

Kilborn - Tell the judge how you know Gov. Siegelman

Abrams - I met Don Siegelman when he became Attorney General...The National Association of Attorneys general meet....there are meetings of various comittees...Attorneys general get to know each other quite well...I appointed him to a body on victims rights...We spent a lot of time together...His family came to my home one Thanksgiving....We spent dinner and walked around a lot together...Lori when she comes to New York stays in our home...I've stayed in their home...I actually came to Montgomery when Don Siegelman was sworn in as governor...I felt very proud...I told a lot of my friends...It was a sunny, cold January day with a couple of thousand people from Alabama because my friend, a person I admire was taking the oath of office...The people had a lot of pride...I remember just going through my mind....Don Siegelman talking progressively about providing an education....for every student in Alabama...It was a very emotional moment...Here was Don Siegelman taking an oath where George Wallace took the oath and Jefferson Davis of the Confederacy took the oath and now the first five people who spoke were African-American....That night at the innaugural ball there was a lot of pride...A newspaper publisher was telling me what a good man he was...and frankly it's also coming to mind you mentioned the lecture series...every year I had the opportunity to ask someone to deliver the message...Senator Joseph Lieberman kicked off the series...this was going to be the third lecture....I put in a call to Don Siegelman...and that little encounter was reflective of what I know of Don Siegelman...there wasn't a second's hesitation...warm, kind, thoughtful...he said I'll be there...He flew in to NY U law school...and what happened at that lecture is reflective...he was humble, gracious...he inspired them...He indicated he was a suporter of the death penalty and he stood his ground...He hung in there and explained why he felt there had to be a death penalty in certain circumsances...He's become a warm, wonderful friend to my wife and myself....We've attended meetings together...Different political ideology...Views that I have are shared by other attorneys general...We've been shocked ...it's a variance...he's honorable, he's been giving, kind, he's deferential he's courteous there's this quality of decency...I believe his honor has received a number of letters....

Kilborn reads from Abrams' letter -

Abrams - Even this morning walking here with ordinary folks coming by and Don takes the time to talk to everybody

Kilborn asks about leniency and going to prison

Abrams - "Look this is personal...who knows the period of terror this has been for them...I think they have paid a very, very heavy price...I think a huge societal penalty has already been imposed...Well believe me I believe, although he is very stalwart...Don is an amazing guy...He has held up his composure...but I know the inner turmoil and hurt this has caused...He does not represent that kind of risk (a flight risk)

Mr. Abrams is questioned by Mr. Feaga

Feaga - I'd like to ask as an attorney general your responsibility included overseeing many prosecutions....

Abrams - Every state has a different structure...In New York there is very limited criminal jurisdiciton...There is some limited white collar...It is more civil than criminal

Feaga - Why would the state of New York delegate to the attorney generral responsibility for white collar prosecution?

Abrams - It's limited...but the basic criminal responsibility is at the borourgh or county

Feaga - Would you agree in the conduct of your office it's very important that you maintain...that you not break the law?

Abrams - Correct

If kids don't believe in their country and government...become part of the process.

Feata - Would you agree when public officials break the public trust...should they be punished...

Abrams - I must tell you....what I read in the newspaper, I wasn't here in the trial...but what some of the findings are are at such variance with what I know about Don Siegelman I couldn't believe he'd be guilty of doing that....I just can't apply He's one of the most decent, humble...human beings I've met in my life

Feaga is asking about the bribe

Abrams says that is not consistent with the Don Siegelman he knows...It's incomprehensible to me that he would be part of that...I think he has suffered tremendously

Feaga is asking about public confidence and officials in their hand in the cookie jar

Abrams - Obviously it's the case but it's so at variance with what I know about this man I can't put the two together...It's the responsibility of the court to impose fair sentences...Again those who know Don Siegelman cannot believe and comprehend what's been happening to him...

Feaga asks about Siegelman trying to get free flying lessons when he was attorney general.  Abrams says no.

Feaga made an oops Siegelman was Secretary of State at the time and Feaga corrects the record.

Abrams says he has never met Nick Bailey or Lanny "Young

Kilborn - How do you think it looks...where the incident was on the screen...as a relevant bad act something the Governor was found innocent of by the Ethics committee

Abrams - If Don Siegelman was found innocent I don't know why it would be brought in.

Siegelman motion on downward departure or variance…Ordinarily I would take character witnesses up in the last part…but if you have witnesses who are here…I will give you the ability to call them out of order….If you’re going to call anyone out of order…I would you make very clear the purpose for which testimony is being offered and the court is aware of the nature of the witnesses testimony…I do not want to hear redundant testimony….

Feaga - Is it appropriate to solicit personal things for yourself on office stationary

Abrams - Your leading me down a path that is hypothetical and I usually stay away from that

"Well I appreciate the court's giving me the chance to express myself...Don loved public service I think he did a lot of good...He helped a lot of period and I think this last period of time have been a period of great travail and hurt....I know that they adore him, they idolize him...they respect him and know he has suffered a lot in respect to all of this...

Judge Robert Vance's wife will be taking the stand...Vance was killed by a bomb

Kilborn - You fussed at me when I called you

Vance - I answer more to Helen than I do to Ms. Vance...

She lives in Birmingham.  She is the widow of federal judge Robert S. Vance.

He was killed in 1989 when someone sent him a mail bomb...He was killed and I was badly injured...He was an Appeals Court judge on the 11th Circuit...

She thinks he was a judge for 11 years and practiced law for 25 years.

Vance - "I have known Don for about 30 years since he was very young...My husband at the time was chairman of the Democratic state party...He worked as a lawyer in the law firm and with my husband in the political office...four or five years....I really don't know how long...fairly well...as well as I knew anybody in the office...He was always there and always ready to work...He would work on my husband's behalf...

Kilborn - Do yu think your husband taught him right?

Vance - I do

Vance - when my husband was killed I was taken to the hospital and a number of people came to the hospital and Don was one of the people there....It was getting late and Don went out and brought sandwiches and coffee for the people waiting there...For a year or more after my husband died every couple of months Don would call me and see if there was anything he could do for me

Kilborn why did you come all the way down

Vance - Ithink he's a good man and I could not, not come down to testify...I personally do not think anything would be gained by sending Don Siegelman to prison...If you send him to prison you're not going to rehabilitate him he doesn't need rehabilitating...Any further political aspirations are gone...

Feaga - We'd just like to say it's an honor to meet you, thank you for coming.

Bobby Seagal, the attorney, has taken the stand.  He started out as Judge Johnson's law firm...

Witness:  I've been president of the Alabama State Bar.  I was a Bar Commisioner for 9 years...They have a few task forces and those kinds of things...The Bar Commission is the governing arm of the Alabama State Bar...They do not (police the judges)

Segal - "I've known him for around 30 years maybe a little more... I have handled lawsuits with him on the other side.  I've handled lawsuits with hom on the same side...When he was AG I had a lawsuit against his office...I think we've been friends.  It's hard to know exactly how you become friends with somebody, over the years we've had a lot of personal conversations...We have a lot of conversations that friends have...I know what's in his heart...His son and my son went through Sunday School together...I know how much they love him...Just know him

Kilborn wants opinion on Siegelman's innermost character and ethics.

Seagall - I do think I know him well enough to do that.  I think and I know that fundamentally at his corps Don Siegelman is a good kind caring person...I think he is honest...I don't think he's been other than honest...He has a moral corps...He cares deeply about the feelings of other people...I've seen him demonstrate great compassion....He's someone who came to public service to serve...He's a smart person...He could have had an extraordinary legal career...But what he wanted to do is serve...He is a politician...But I have seen him over the years I don't think were designed to help his political career and had all the potential in the world of hurting his poltical career...Don Siegelman is someone who has always cared about the rights of the minority...In the early 70s, he had ambition to run for office but he was outspoken on minority rights when that was not popular...He worked for Bob Vance...Don stood firm in his believe ...in inclusion and participation in the Democratic party...The overwhelming of members did not agree with that decision...He's had a heart for the disadvantaged...I know judge you've heard...Let me just say this...I'm sure somebody has said something about the governor's feeling about public education...There was a concerted effort to destroy public education in this state...in particularly K-12...That's where the effort was aimed at...When he was governor...He was probably a defendant in his capacity...The education budget was in proration....Despite probably the most trusted person in the governor's administration urged him to do what every governor has done and say it applies across the board to everybody...He took a position that under the amendment to the statute...He took the position that it fell less harshly on K-12...You could feel the air go out of his effort to be re-elected...Higher Ed turned 180 degrees the other way...He was told he shouldn't do it but he did it because he thought it was the right thing to do...I am satisfied that this lottery was intended to benefit children in Alabama...I know there was no thought of personal benefit...In fact very shortly after this lottery started...There was a huge campaign mounted against the lottery....I was involved in the 10 Commandments litigation...and many state officials just demogogued that to death...The one person who did not do that, who tried to find a middle ground...He's the one politician who stood out that didn't try to make hay out of that...He is a great human being...."A

I am no authority on the guidelines...There are huge degrees...I would anologize in civil law on wrongful death...The damages, the punishment varies dramatically...I recognize that a sentence to some extent is supposed to send a message and I'm not exactly sure it started...The message a prison sentence would send in this case is wrong...We have gotten into a process of politics by indictment...Someone's talking in terms of AG Gonzalez being indicted...That's the dumbest thing I've heard of...In Alabama anytime a public servant does the least thing questionable...I don't care if it's Scooter Libby, it doesn't matter, the question is...no one could get me to be a public servant because the second you become one you become a target...Someone came to me and was told what can you give me on Don Siegelman, the man had been in office only a month...It's unbelievable...What it tells people is public service is for someone else...With him honor means everything...Because I urged him not to run for governor...He said to me in tears his honor had been destroyed and the only way to get it back was to have this overturned and for people to recognize that he hasn't don't anything wrong...So he's lost his honor...He loves his children, he's losing his family maybe.  The trauma to his family has been tremendous...He will  lose his law license...I don't think you will find many people that will support the rights of folks...There is a huge difference Don Siegelman has lost through this conviction and the impact it will have on him for the rest of his life....In my opinion there is a 100% chance that Don Siegelman will be wherever the judge tells me to be whenever the judge tells him to be there..."

I think they have a target on their backs.

Mr. Feaga is doing the questioning now and he is talking about ethics complaints and something to do with the tobacco settlement.

Seagall - He was cleared of all that.  The Ethics Commission if I am correct...related to a suit bought by the University of South Alabama...The facts showed he didn't take one penny of money

Feaga - Isn't it true that although they structured a severance sort of arrangement for him was given as part of a settlement as part of the Blalock case

Seagall - I don't believe it was even part of the ethics commission charge

The complaint was not filed for that reason...The complaint was filed by a semi-friend of mine in Mobile that every time he sees something he files a complaint....

Flying lessons -  I think this was more than 20 years ago and he was exonerated completely...What I do remember is he was totally and completely exonerated...We went to his house and watched the movie "It's a wonderful life.."

Feaga - You've seen the letter that said if you give flying lessons the Secretary of State will....

It's not a good idea for a public official to solicit any type of personal benefit....

Segall - Anybody who writes a letter on anybody's stationary for sure isn't trying to hide anything...It could happen, but I make a distinction in sentencing somebody...In my mind there's a difference between somebody who does things intentionally and someone who makes a mistake...

Feaga - Did you know he solicited buisiness for Cherry-Givens on letterhead that appeared to be from the Lt. Governor's office....

Feaga reads a letter....Would you agree that's not a good idea?

Seagall - There's a lot of lawyer advertising that I don't think is a good idea...Do I think it's a good idea, no...There's a lot of advertising I don't think is a good idea

Feaga wants to move forward to the time Siegelman was governor...

Seagall - What's a good idea and what's a bad idea may be in the eye of the beholder...At the time Melvin Cooper was in charge of the Ethics Commission...If you're asking me would I send this, no it's bad judgment

Feaga - You talked about the Alabama Education Lottery...Do you recall the time...a dustup occurred between Jack Miller and the Democratic Party and Governor Siegelman....

Seagall - I recall you telling me about that...I don't know that I should talk about a conversation I had with him as a lawyer....

Feaga - I guess my question is did you ever talk to him...

Seagall -  I think i asked him about it after you told me about it...

Feaga - Also,...I think you were called on as an attorney in his official capacity...to help straighten out a failure to report monies....

Seagall - My opinion is Governor Siegelman did not know anything about that money going up to Boston...and the next question is yes

Seagall says it would be his opinion that Nick Bailey knew about it.

Seagall - The first thing is I don't remember when you told me that...I don't remember in sequence of when Nick Bailey left...I subsequently looked into that...

Feaga wants to know about keeping people in employ who do things without employers knowledge...

Seagall - Again I don't remember...But I thought Nick Bailey at the time that it came up had a reasonable explanation for what was done...The explanation he gave was reasonable...But I'm talking about something I can't remember the facts on

Feaga asks about the late filing of FCPA documents...

Seagall - No disclosure statement had been timely filed...I got a call from someone asking me...if I could oversee the preparation of the report...There was no one to sign it so I signed it as the lawyer...I think it was accurate.

Feaga is asking about public trust, "Do you think it's important they be punished?"

Seagall - First of all, ....my opinion is it is a wonder that innocent people don't get convicted all the time given the advantage the prosecutors have over the defense team...This happened in a state court in the last couple of months...A judge decided she didn't think it was bad and didn't impose a sentence that was required...You can't say this person violated this statute and therefore this person receives a particular person....

Feaga - Are you saying we don't think you ought not to put people in prison who committ criminal offenses...

Seagall - It'a s hypothetical and you're assuming the person breached his duty...There could be a finding by the Court of a breach of duty where a sentence would not be appropriate...

Feaga - If that person is not exhibiting any remorse

Seagall -  If you are innocent that is one of the worse catch-22's I've ever seen in my life.

Judge Fuller admonishes members of the audience for applauding, banging the gavel tells him they will be tossed.

Fuller says exhibits will be part of the record, I will say for the record I will not consider conduct for which Gov. Siegelman was charged but exonerated by the Ethics Commission....

Let's move on.

Kilborn - Do you know of any person on the face of the earth that has a target on his back as big as governmnor Siegelman....

Fuller - Let's move on.

Kenneth Maze Marshall is the next witness.

Since the trial Maze has gotten married.  Maze is a nickname it derives from a singing group he used to belong to. His physical limitiations - he is a paralyzed veteran...He fell from a helicopter in Korea March 11, 1987 and that's how he became paralyzed.

"When I first got hurt I only made $636 a month and by the time I paid my bills I might have $100 left for that month and I got $10 in foodstamps...I had lost all of my self esteem...People wouldn't approach me in any way...I only had a couple of pieces of clothes to wear...Out of all the people in that room he sought me out and asked me my condition...I told him I was a paralyzed veteran and a wheelchair athlete...He took an interest in me and it really touched me...He gave me his personal information to contact me...I wanted to see if he would remember me....And we went to his office...He not only acknoledge that he knew me, He welcomed me with open arms.  (Maze has begun to cry on the stand.)  There was a time sir I had to eat every two days because I didn't have enough money to eat...The governor would invite me to functions where they served food and he didn't know it but that was how I ate...I apolgize...That's how I ate a lot of times sir, because of this man...The generosity he has shown me...He displayed love not only to me, but to others in simialr situations...The people no one wants to be around...He reaches out to them...That's how deep my love is for this man and his family...I went to the Sydney Olympics in 2000 and while I was there I won three gold medals...and upon my return my medals were stolen and WSFA or one of the stations did a story about it...The governor put a reward out...They were never returned...Javelin, shotput and discus...The Lord reversed that situation...The Lord stepped in and said enough was enough and reinstated my full benefits as a paralyzed veteran...You have better intellect than I have...If you had two children and one of those children had a history of bad acts, but you hardly ever had a history....The one that had a history , you would whip them...The other child you would simply adomonish and explain to them...and you have done more than if you would have whipped them...He's not a criminal...I don't know the law...All I know is that's a good man...That's a man that reaches out to people no one else reaches out to....It oversells the punishment in my opion...He does more for the underserved citizens of this state...That man runs from nothing.  He's here today...If he's let out on bond pending appeal...He's not going anywhere...That's an honorable man, who I said runs from nothing...

Leach wants to know if Maze knows Mr. Scrushy

Maze - I've known him for 10 years...Someone introduced him to me because of my status as a wheelchari athlete...the opinion that I have is nothing compared to all of our judges, that is God...He is a Christian man...All I know of this man is honorable...He does things that people are unaware of...He feeds 2,000 children in Africa every month...Mr. Scrushy had a private jet and a yacht...I'm not a rocket scientist but I do believe if he wanted to leave he could have been gone..."

The judge is sorting through things, upward and downward departures and variances.  And then character witnesses in mitigation...Because of the time today we're going to break...We're going to start in the morning with argument from Gov. Siegelman related to the motions...The government will have the opporunity to argue..then make any findings of fact or changes to the guideline...Then we would get into the area of sentencing...

Siegelman and Scrushy will have the opportunity to say anything in mitigation tomorrow.  Start time 8:30 a.m.

Judge to Delay Findings of Fact Regarding Siegelman

Judge Mark Fuller will issue his findings of fact regarding objections to the presentence investigation report on former Gov. Don Siegelman first thing this morning.  Things may get a little interesting this morning according to the rumor mill.  We'll just have to see.  The judge has not yet come in.

We had audio problems again.

Feaga is up.  he is talking about Nick Bailey and the fact Siegelman is denying any guilt.

"Truth is truth," says Kilborn.  "It only matters what the truth is, for them to come in and try to rip up Jim Hayes with the grand jury transcript and not Nick Bailey is a double standard."

"I'll admit I don't understand a lot about criminal law, but I do understand the truth...."

Ms. James, "I am familiar with the guidelines...it related to the government standing silent about whether pressure was put on Mr. Bailey or not..."

Feaga "While we're on the subject of truth....The reasons that we require a defendant to report to probation and their net worth....we asked a question about the PSI which says this defendant is worth $2.3 million...Have they been truthful with the court...He walked out of the court yesterday and said that was not accurate...We'd like a representation now if they were truthful with the probation officer..."

Fuller - If there's information in this court that has not been corrected I warn each defendant that should be corrected.

James - He advised me there had been some reductions in accounts...As of yesterday that government Siegelman's accountant has not finished that...We're not all of a sudden running out and telling lies...

Fuller - Should I propose a fine that is beyond what your client has available.

James - The Presentence report is confidential...while we don't want to open up Gov. Siegelman's finances to the media...I would suggest that be done in camera....

Fuller - If you have the information I would suggest you do that as well

Feaga - One of the things we are going to be asking the court to consider...the discredit that this defendant...have showered discredit on these procedings...This lack of remorse...

Mr. Leach is objecting to the speech.  No We do understand.

Feaga - It's our job...They don't understand they are not on trial any more.

Fuller - Counsel, We are here to go through objections and I am going to be meticulous...If ...this is not correct it is to their detriment.

You need to do your best to make sure the information I have is accurate...It is not like this snuck up on anyone.

Fuller- I will withold my findings of fact, until we go through the objections of Mr.Scrushy.  That way if there are objections relevant to Gov. Siegelman we would not have to go back..."

At this times I'm going to turn to the objections of Mr.Scrushy.

With respect to any additional arguments...I would say there are two.  One is reference to a case just decided by the Supreme Court, which may require us to reformulate our arguments...the other is the acceptance of responsibility guideline..."

"I think the record here is Mr. Scrushy has never denied he caused the two payments to be made...The basic facts that are asserted with whether he made a payment or political contribution has never been denied..What he has said is that it is a political contribution and nothing more..."

"In addition to addressing some factual items, the second major...number one the Supreme Court clearly said the court could not give presumptive weight to the guidelines...The guideline in this case, this case is atypical..."

"I think what is required is that I object to the guideline itself...it is flawed...One way to the extent it takes into account the loss, If the guidelines requires the use of $500,000...this is a case where there was no tangible benefit intended...I am not admitting any fact...I'm not admitting Mr. Scrushy paid any money to get a seat on the CON Board...

Fuller - I don't want to be mistaken...Let's don't travel on what the government may be arguing...If there's some difference as to what guideline that applies to the conviction...."

Hernandez - It's the basis to challeng the guidelines...To the extent the guidelines do not take into account family situation, etx...To the extent it fails to take these things into consideration in bribery....it is flawed...Also, it does not differentiate between someone who corruptly paid some one to get a contract and someone like Mr. Scrushy according to the jury paid for a seat on the board.

Fuller - Should I look behind the bribe...What the financial motivations were?

Hernandez - It is something that can be taken into account...If the purpose was to pocket money...the guidelines do in other instances take those things into account...the motive and the purpose...We know that you can't into account every possible permutations...to the extent that those factors...the court knows you have to do justice....We have argued this in a different context...that the guideline overstates or overrepresents

Mr. Scrushy was not charged with bribing Tim Adams. 

We want to correct the record in the following ways.  Loree Skelton had informed Alva Lambert that she had retained Tim Adams to do an analysis of the Pet Scan....As a result Mr. Adams recused himself from the board on the Pet Scanner...It was not the first time a member of the CON Board worked on an issue that came before it...The nature of a bribe is the hidden nature...You don't pay a bribe bringing in a bundle of cash and putting it in someone's desk..In this case Tim Adam's recused himself as a result of the conflict of interest..."

Mr. Perrine is speaking but we again cannot hear.

Mr. Scrushy did not know Tim Adams had been paid $11,000 by HealthSouth.

Fuller - So what is your objection specifically to paragraph 25

Hernandez - Mr. Adams requested a job at HealthSouth.  All Mr. Scrushy did was say send him to personnel and they want to offer him a job go ahead...

We've got more technical issues.  Ms. Hernandez is discussing the value of a bribe after Judge Fuller went back through his list of objections.

Hernandez - The value of the payment ought to be zero, a zero amount of loss.

Fuller - 7 new objections,...

Hernandez - The only remaining objections are responses to the government arguments...

Fuller - I'll first take up the govenments objections as argued for Mr. Scrushy.

Pilger - We're going to take these up in a different order.  I think we should start with what is the appropriate guideline...The defense argued that a misdemeanor statute should apply and there's a new argument that a gratuity guideline should apply...This case was charged under the felony statute that misdimeanor is available for minor misconduct...it has only been used once since since WWI

Fuller - I'm satisfied the correct guideline has been moved so you can move on.

Perrine -  I want to address the factual assertions...I didn't know know if I followed all their factual objections...

Fuller - The only objection to para. 19 is they wanted a reference made that indicates the information pertaining to statements made by Nick Bailey are prefaced by the words, "according to the testimony of Nick Bailey,"

Perrine - It says, "Nick Bailey tesified...." I believe paragraph 19 already makes the proper reference to trial testimony.

Fuller - I think Mr. Scrushy is also continuing to challenge the get acquainted meeting it was not possible the check was there....

Perrine - Gary White testified on May 9, 2005...Gary White testified that he and defendant Scrushy went and met privately with the governor...

Leach - I'd like to have a copy...I was given there was no notice

We made this objection.  Counsel for the government...We have millions of documents...When I've had no notice

Fuller - Maybe I need some assistance in what you want to accomplish by this objection...How would you want the facts changed

Leach - I tried to structure what we were looking for..

Perrine - I'd like to read it out loud

Fuller - Assuming that it says in there that witnesses flew down on the 19th but it was not presented in trial, what difference does that make

Perrine - He and Mr. Scrushy met .  The defense tried for three days to tear down Nick Bailey...Once again they are trying to block the government from.  Gary White and Mr. Scrushy

Fuller - This is going to have no effect.  You can move on.  Gary White's testimony is not going to come out from under seal.

Fuller raises his voice.  "We are arguing about things I am not going to consider...Let's move on."

Fuller just a second ago said he was going to open up grand jury testimony that was admitted as an exhibit in the hearing.  We'll try to find out more about this during the day.

Sorry folks this is not flowing very smoothly at all.  There is a lot of quotation from court cases which do not translate well to quick writing.

Perrine - With reference to Tim Adams...the manner of the conspiracy charged, Richard Scrushy did use his influence on the CON Board, Richard Scrushy called Margie Sellers...The testimony from Loree Skelton was that she was told by Richard Scrushy to keep Tim Adams happy...Scrushy showered Adams...with things...Oskosh Air Show, ...Loree Skelton testified she informed Richard Scrushy about that payment...She waffled but when Mr. Franklin took her back through her grand jury testimony she admitted she had told Richard Scrushy about the payments...The jury was presented with that indictment...

Fuller - You can move on.

Perrine - We disagree with all their references to Tim Adams...The defense conveniently left out in their rendition of the facts of how things got started...Richard Scrushy sent his emissary Eric Hanson to Don Siegelman to see what it was going to take...$500,000 before any checks were written that was the agreement

Fuller - Move on

Perrine - The HealthSouth check was concealed...

Fuller - I'm satisfied with that move on.

Perrine - Another point on Tim Adams, he abstained...He did not recuse himself...He stayed in the meeting...Turning to organizing and role enhancement...The govenment agrees with probation, Richard Scrushy was an organizer...There were certainly five or more participants...This was of course an otherwise extensive scheme...Richard Scrushy directed the activity of Eric Hanson...Richard Scrushy was the one that told Mike Martin to get the money from UBS and make sure his fingerprints were not on the check...Richard Scrushy made phone calls to Bill McGAhan to put pressure...It was Mike Martin pursuant to Richard Scrushy's instructions...personally delivered the check to Richard Scrushy....It was Richard Scrushy who went to Montgomery on more than one occasion to execute the bribery...It was Don Siegelman who went to Richard Scrushy to get the HealthSouth check....Only Richard Scrushy could approve the collosal contribution...He exerted the pressure on UBS...Richard Scrushy's the one that told Loree Skelton to keep Tim Adams happy...ride on the helicopter...

Fuller - Move on.

Perrine - As to the benefit received, the defense is claiming Richard Scrushy received no benefit...We would like to offer up Eric Hanson's testimony...We would like to read to the court

Leach - Those are not Eric Hanson's words it's a leading question affirming ...

Fuller - I don't need it unless you feel compelled to go through this argument to argue with defense counsel

Perrine - The things their representing to the public that Richard Scrushy didn't want to be on the CON Bord

Leach - The truth is Eric Hanson was threatened.to be indicted ...Why didn't they call him?

Fuller - They will remain under seal and I will not review them.

Pilger - I will represent the U.S. wants to make a record on acceptance of responsibility.  She's not admitting anything and intent is an element the jury had to find...The defense has never to this day admitted a quid pro qou...

Compilation of video clips on the issue of Mr. Scrushy on acceptance of responsibilities.

The first video shows Scrushy say, "When you get convicted of something you didn't do the justice system is a fraud....It's not justice it's injustice...It's totally made up...It's a lie...They shoed there was no evidence, no testimony...they have got a gun to his head, you either put on a show in Montgomery, Alabama or we're going to put you away...

Fuller - For purposes I will only consider this on accpetance of responsibilty

Pilger - This was produced by Mr. Scrushy...That should weigh in...Finally, you ruled against using Mr. Hanson's testimony...I would like to submit three questions and three answers...He has not taken responsibility for taking a seat on the CON Board and advancing his and HealthSouth's interest...

Pilger reading from Hanson grand jury testimony.

We can't hear an objection raised by the defendants but the judge has sustained the objections....

After a break the government will raise their objections to the presentence report as it applies to Richard Scrushy.

Well first Carmen Hernandez - I do object to the government's continuing assertions...about lies...

Fuller - Let's move on.

Hernandez - Let me explain how the statements in the presentence report appear...We made objections and presented Ms. Capel with the basis for our objections...We also presented them to the government...

Fuller - I understand how the system works.

Hernandez - The government did not present any of the grand jury testimony....We don't have the ability to refute...

Fuller - That's why I want to emphasize, I'm not going to consider it

Hernandez - Any allegations that there were multiple meetings between Richard Scrushy and the government are not true...Also, the record reflects...there was no threat to Mr. McGahan...

Fuller - I recall from trial there was a conference call.

Hernandez - The threat was...certainly not made at the conference call where Mr. Scrushy was present.  As far as Loree Skelton, her in trial testimony was she did not recall telling Mr. Scrushy about paying Tim Adams...With response to whatever allegations about Tim Adams travelling on the helicopter, Mr. Adams requested it...The travel to the air show, a number of people travelled.  Tim Adams paid his way.  With respect to the job that was supposedly offered..."

Fuller - My notes indidate that Mr. Martin testified that Mr. Martin and Mr. Scrushy called Mr. McGahan, Mr. Scrushy said to Mr. McGahan - You owe it to us...

Leach reminds the judge there were two conversations.

Fuller - There were two conversations...if I did not make it clear for the record I'm making it clear.

Fuller to Perrine - Let's move on.

Perrine talks about Skelton's testimony again. He says Scrushy was "lavishing" things on Tim Adams.

We now move on to additional government objections.

Pilger is going to talk again on the more than one bribe objection.  "We rely as the jury on the conduct involving Tim Adams...We're not talking about relevant conduct or things someonw has to speculate...We have a jury finding beyond a reasonable doubt....This is just to emphasize you don't have to look past the jury's verdict to see more than one bribe.

Perrine - With respect to the benefit received....We'd also like to point the $17,000 benefit to IHS from UBS in the debt forgiveness and the $11,000 in bribes paid to Tim Adams...The United States still objects to the courts ruling on the Phenix City Hospital, the benefit should be $528,000...There is an agreement in the record between IHS and UBS Warburg....

Fuller - Do you also want to proffer the evidence on the Phenix City Hospital...

Perrine - We would proffer once again that HealthSouth benefitted $3,109,xxx

Fuller - Brookwood Hospital?

Perrine - Yes...We would proffer all of that as the total benefit or loss as a result of the criminal conduct of defendant Scrushy.  We object to the presentence reports faiure two give a two point enhancement...As your honor is aware...this year...during the investigation of whether he investigated whether he violated his restrictions...He obstructed justice...He lied to the probation officer both while he was in Florida...and when he returned...He told Tamara Martin his yacht had been docked for two years...Most of all when he testified in this court under oath about these matters about whether he told his boat captain ....He said he told the boat captain to tell the absolute truth....In that testimony, ...that is not what Bill Kurtz did, that is not what the testimony of Agent Baker"

This has to do with Scrushy telling Kurtz to have the FBI call Art Leach, who did not represent Kurtz.  Leach sent an e-mail to the goverment that he did not represent Kurtz.  The government is arguing for an enhancement for obstruction of justice.

Perrine - To continue Bill Kurtz told Agent Baker, and this is in the transcript, pages 31-39, 61-69.  When questioned about agent Baker's testimony.  Agent Baker testified "At that time he indicated to me he was represented specifically by Art Leach and refused to talk to me...He also indicated he had been instructed by Mr. Scrushy not to talk to law enforcement...."

Perrine says Scrushy lied to the court under oath.

Hernandez - The record is clear Scrushy did not direct the payment of $11,000 and it was not charged as a separate bribe in the indictment...And the jury verdict with respect to the Tim Adams part are just mail fraud counts the jury did not find that Tim Adams was paid a bribe by Richard Scrushy...

Fuller - Give me a reference

Hernandez - 2C1.1 subsection B1...Members of the CON Board travel together

Fuller - I'm not going to consider that, that being the helicopter rides.

Hernandez goes backs over Loree Skelton's testimony briefly.  With respect to Brookwood Hospital

Fuller - They're just offering it for the purposes of appeal.

Hernandez - The call Richard Scrushy made to Margie Sellers was to advise her..it was Mr. Scrushy's belief he had an ethical obligation to bring that to the chair of the CON Board, Brookwood is seeking monies in connection with their attorney's fees on the appeal...The entire time they were running the MRI unauthorized

Fuller - We can only deal with the court I'm in right now and I'm not going to consider that against your client

Hernandez - With regard to the obstruction of justice

Fuller - You can move forward...If you want to snatch defeat from the jaws of victory go ahead

Hernandez - There is in fact an e-mail trail

Fuller - By all means make it a part of the record...I would hate to miss the opportunity to read that

Pilger - More than one bribe...She failed to mention this was honest services mail fraud...The Tim Adams payments were entirely separate.  They were distinct.

Perrine - Reference to Richard Scrushy's ethical motivations...There is no evidence before this court from a witness or a document (concerning the call to Margie Sellers)..The defendant did not testify during trial....

Fuller - I am not going to consider the grand jury testimony (from today) and that will remain under seal. 

Lunch until 1:15 p.m.

Sentencing Hearing Begins

The sentencing hearing for former HealthSouth CEO Richard Scrushy and former Governor Don Siegelman is scheduled to begin this morning around 9 a.m.  REMINDER to those who may not be familiar with how the Chronicles operate - this will be live.  There will be typos.  It is not a complete transcript, but every effort is made to get as much info to you as possible.  You will have to refresh your browser to see the updates.  See everyone around 9 a.m.

Things are beginning to shape up in the courtroom as most of the attorneys are now present.  I joked with Ethics Commissioner Jim Sumner that he was following me - Sumner addressed the two-year college president's association yesterday, clearly outlining the ethics law and took some tough questions from the audience.  Sumner has been subpoenaed by the government.

Judge Fuller is on the bench and he says the attorneys know what he expects.  Start with objections to pre-sentence report.  Variances.  Then statements in mitigation related to a reasonable sentence. 

He has asked Siegelman to stand.  He asks if they have seen the pre-sentence report.  "I am aware there are several unresolved objections."

We have sound problems.  I have gotten with the marshals who have gotten with the judge and people are working on it to try and get the sound issue handled.

Susan James is at the mic.  She wants to deal with the amount of loss last.

Fuller:  How am I going to reach a recommended guideline sentence.  I can't take up variance until I determine what the guideline sentence is to begin with.

Susan James says the amount of objections that we have is going to have several hours of objections.

Fuller:  I don't know why you can't argue what...a witness will testify to. 

James:  The government will take as much or more time as we would on the things we have objections to.  Mr. Perrine is talking and of course we can't hear.

Fuller:  For  the record I also have my trial notes here.  If you want I can call upon my notes.

James is talking from what we can hear about the quid pro quo issue.  She is arguing for lowering of sentence amount for acceptance of responsibility.

Susan James is addressing the issue of the acquited conducte.  "We strongly object to the inclusion of any acquitted conduct in this case."

Fuller is asking for case law related to a preponderance of the evidence and the use of acquitted conduct.

James says Siegelman might as well not be there if the government is going to get everything they want.

"We say without succeed we should have no more than a 14-level increase for the Scrushy conduct and the motorcycle...Miss Caple says we should have 18 level increase based on acquitted conduct...All of these enhancements are on the use of acquitted conduct and relevant conduct.  To sentence obstruction you have to use relevant conduct."

Fuller is discussing the grouping of obstruction of justice and the guidelines.

James - "That doesn't make it any more palatable to us. "

Let's don't be presumptive says Fuller.

James says the use of acquitted conduct is a violation of Siegelman's 6th amendment rights.

"I do have an argument with why the court shouldn't group this.  It may be a short argument.  If the court will note I came up with a different guideline assessment and procedure than the probation officer.  Depending on whether or not the court is prepared to address this now...the probation officer's entire theory....is based on "each of the counts of conviction results in one composite harm."  Our position is these are separate harms.  "The court need look no further than the indictment.  We have RICO...at least some of the racketeering acts do mirror the charges....of which they were convicted..."

"The court can't reject the jury finding the defendant not guilty...on those charges...the government has spoken to the fact that they are separate...The government chose to indict that way and they have to live with it...The Scrushy conduct will fall under the bribery category...but there is no bribery related to any of the other conduct...at the most that was gratuity conduct."

"As I understand the evidence there was no specific quid pro quo type conduct related to Young, etc."

Fuller notes "As late as April this year in the 11th circuit it says if the court finds it was covered by a preponderance of the evidence."

James says the government's proof does not rise to the preponderance of the evidence.

Judge Fuller says he does not want all the attorneys from each side talking on one issue.

Proffessor Blakey is now talking about relevant conduct but we can not hear him.  He is arguing relevant conduct does not fall under the guidelines and he is addressing some issue related to the sentencing commission.

"One on the 11th Circuit...2004, that of course is binding on this court...There are two distict court decisions that are of course not binding..."  One of the district cases is in Florida in 2007.

"We must consider whether there are distinctive similarities...rather than isolated events..."

"If we take a look at the other conduct...we can see there are other people involved...Mr. Young is not involved with Mr. Scrushy...the other offenses at best are qratuities...there are different objectives..."

"If we look at the units of government we have the CON Board on one hand, counties etc. on the other...There were separate times and places...The government says they were different...They indicted that way...normally what relevant conduct means...is not a series of conduct going back years...When the commission had to sit down and take a look at Title 18 it's mind boggling what Congress is doing...What the commission basically did...doesn't quite shoehorn in..."

We still can't hear well.  Blakey is talking about multiple objectives and RICO and diverse objectives.

"There's a disjoint between RICO and the guidelines...for offenses to be joined they must be the same or similar...Contrast over to RICO, what joins to RICO is substantive elements...Racketeering acts can be joined to each other if they are in the affairs of an enterprise...."

Mr. Perrine jumps in but we can not hear him. 

Blakely Becuase he can not see it does not mean it's not there.

Fuller is calling Blakey on the carpet for his remarks and tells him to move on.

Blakely "There are two reasons this is appropriate - This prevents prosecutors from putting as much in the can as they can..."  Blakey talks about the counts against Mack Roberts as being weak on evidence...What they hope to do is overcharge under RICO...I'm not objecting to acquitted conduct...I'm not objecting to related conduct...but this activity is not related to the underlying offense...I'm specifically talking about Goat Hill, the race track, the revenue ruling, the bond issue...basically everything that Lanny Young talked about except the motorcycle..."

Blakey says "Nothing that Bailey said is relevant conduct...except for testimony (related to Scrushy...)

"To the degree that the court brings in more and more relevant conduct...the more this becomes not about what the jury said...but what the court says...The court ought to tread lightly..."

Susan James is back up.  "I would note specifically as to role enhancement and the bribe...When the governor asked for the contribution...he was not aware of what Mr. Scrushy would do on the CON Board..."

Fuller - In your argument about role enhancement is that about anything related to the position of trust.  James says no. 

Fuller - What is your objection for her calculations. I'm not going to cut you off.

James - Ms. Caple also did not state there was more than one bribe.  While these two are not objections, when the fine and restitttion...it is my reading that Ms. Caple did not make a recommendation...

Fuller - Ms. Caple has recommended a fine in this case of $150,000.

James - I apoligize judge.  We think there should be no fine in this case...The government did not prove the governor benefitted one penny.  She says, "Don Siegelman is reported to have gained benefit or stood to have gained benefit...While he was listed as guarntor...Siegelman never received any monoey...The fine issue overlaps with the fraud/loss issue.  I respect the confidentiality of the presentence report...about governor's finances..Suffice it to say we would be glad to share with the court some of the changes in that status....the trial has diminished the ability of the governor to earn income...The court can only imagine that the legal fees in this case have continued to mount...In camera we can discuss this more specifically if the court should choose...We believe Miller has to come from Mobile..."

Judge Fuller says there will be a break before lunch. 

James says "We have specific objections as to the amount of loss...The government suggest there are others...It would be my plan to address just the one Ms. Caple has suggested...There may be a few monetary amounts that weren't included in the original report...The way I've broken this down is she is suggesting that Gov. Siegelman be held accountable for a $500,000 contribution from Mr. Scrushy and a $9200 motorcycle, also $3 million landfill fee...When the first suggestion came out related to the revenue ruling it was $1 million, that number has increased to $4.2....We are confused how that was arrived at...Additionally they suggest the Governor should be held accountable for a $50,000 donation from Waste Management to Lottery Foundation...There is a suggestion he be held accountable for a $25,000 Mr. Hamrick was alleged to have gotten for a BMW..."

James: "As it relates to the $3 million that is suggested to be attributable to Gov. Siegelman and the landfill in Cherokee County..."

Fuller I'm not going to cut you off.  Unless there is some testimony...I don't want us to waste a lot of time..."

James - In regard to revenue on the landfill sales...The govenment keeps saying they want to rely on the record..Other than Lanny Young getting $3 million there is no breakdown....How much of that went to partners...How much of that was related to the bribery of Judge Jordan the probate judge...Judge Jordan in substance says he couldn't vote...There is no question that Lanny Young bribed him for something he didn't need...His testimony makes clear and the record is missing support for this...Governor Siegelman had no impact...some reference that he made some phone call at night...I would submit that in and of itself is not sufficient to atribute $3 million sales ...The government should be required to prevent proof..."

"There was no suggestion that the contribution to the Alabama Lottery Foundation that it had anything related to the revenue ruling (the contribution from Waste Management)" 

What Gov. Siegelman didn't know was that Lanny Young and Nick Bailey were in cahoots to steal money from the state of Alabama"  (This relates to GH Construction warehouses) 

She quotes something assistant U.S. Attorney Feaga said to the press.

Judge Fuller says he expects to ask the government about that.

James goes on to talk about the car purchase and says "it was not known by Gov. Siegelman...Those were matters that were not discussed with Gov. Siegelman...He has no knowledge...We don't believe those are attributable..."

"The Tim Adams $11,000...involve allegeations of Mr. Scrushy's conduct on the CON Board...It would certainly have not been forseeable that Mr. Scrushy would be conducting any illegal conduct...To the contrary his thinking would have been Mr. Scrushy had served honorably under three governors."

Mr. Kilborn is up to argue  about the landfill - "There is no proof there was a benefit...Let's say I was trying to get damages from the state of Alabama saying Chemical Waste Management got advantages..Your honor would require...testimony, there would be motions, there would be considerations of attempting to intervene factors...the burden of proof is on the government...The fact of the matter is the trend in the waste management business was down...I have an exhibit...A national analysis for 1999...on the waste business...Kilborn reads from the report...The trend was to go down...Ms. Caple put the $1 million figure on it...We think that should be dropped...The tonnage...Your honor will notice in 1998 there were 8 months in which there were 10,000 or more tones...After 1998 the tonnage coming into Emelle was down...Mr. Harrington in his grand jury testimony...says basically the waste business had dried up by the year 2000...Until the government comes forward...."

Jim Hayes and Jack Miller are witnessess to be called regarding to objections for Siegelman.

The government responds.  Mr. Perrine.

"They should be grouped together.  The U.S. agreed with probation...they should be grouped together...You have the same victim....The citizens of Alabama...This man abused his position of trust....from the time he was elected governor to the time he was no longer governor...He was involved in pay to play agreement...The same victim, the citizens of Alabama...The same criminal objective...greed, avarice and power....to line his pockets with things of value..."

"Counts 3, 5, 6-9 are all to be sentenced (under the same guideline) the benefit received goes to Defendant Siegelman's criminal conduct...The corruption offenses Don Siegelman...Nick Bailey testified that that transaction Nov 16, 2001 if they would have been....Without Nick Bailey's testimony there would have been no conviction...Nick Bailey is the link...You have the governor engaged in corrupt activity...."

Fuller "This is related to the obstruction of justice account..."

Perrine - If you don't grant the enhancement...he's getting off lightly for criminal conduct...

Fuller - We can go forward ...to try to calculate the guideline...

Perrine - You have to add the two points for obstruciton of justice.  The U.S. position agrees with probation...It is the law of the land that relevant conduct, acquitted conduct can be used...It's a law in this district that is applied every day. with defendants..particularly in drug cases...routinely sentenced to 20,30, 40 years in prison.  Now these two rich, white defendants..."

Fuller - Let's keep race out of this...just for the record "caucasian"

Perrine - Lanny Young and Nick Bailey testified to the illegal agreement.  The jury believed Lanny Young or they wouldn't have convicted...Don Siegelman is the one that got the revenue ruling changes...Siegelman is calling Mathews requesting a contributions..."

Fuller - I have not seen anything related to a transcript on this.

Perrine says it's in grand jury testimony.  Kilborn has an objection, he wants the entire transcript.  "He would not have given the $50,000 without the tax break...Now, Cherokee County the $3 million that Lanny Young received was for two things - change in service area and reduction in fee...Lanny Young will be prepared to testify today...Testified Don Siegelman made phone calls...for the sole purpose "Lanny Young...help him if you can...Other examples of relevant conduct...It was strictly a means...Siegelman to line his own pockets...Lanny Young testified he gave him $400,000...airplane rides, cash...as part of this pay for play arrangement...All these things were testified to ...Count 17...The underlying offense they're trying to cover up is Don Siegelman's criminal activity....The relevant conduct criteria is satisfied...The jury was instructed...conspiracy charged in count five not only did Scrushy bribe Siegelman...shortly after he was appointed...Margie Sellers testified to this ...the sole reason Don Siegelman told her (to make Scrushy vice chair)....Scrushy exercised influence over the CON Board...All that is conduct that Siegelman participated in and that was forseeable to him....Professor Blakey mentioned proximity...CON Board ran from Jan 1999 to Jan 2000, the same time Siegelman was involved in this pay for play scheme...same criminal conduct...Professor Blakey and Ms. James are trying to create a smoke screen, claiming 94% of counts...The jury did find Siegelman guilty of two predicate acts...Again the words were not guilty not innocent..."

Perrine - "The testimony showed the $500,000 bribe...the $250,000 check from IHS...Came about from Richard Scrushy putting pressure...

Fuller - "I;ve heard all of this."

Perrine - "That's money $265,000 that should be paid back to UBS...I believe they corrected that a minute ago to a charity...The HealthSouth check....

Fuller - how did HealthSouth Benefit?  How can that be ordered as restitution if HealthSouth got exactly what they were asking for...Strictly in terms of restiution wouldn't that be double benefit....and then turn around and requre that Gov. Siegelman or Mr. Scrushy be required to pay them back

Perrine - "Same argument with regard to Tim Adams...The state of Alabama...realized a $4.2 million loss from the MOU...You admitted that testimony...as a benefit to Waste Management...Exactly the amount Waste Management benefitted...Loretta Nelson was the witness...We'd also say that $4.2 milllion was money the state of Alabama lost and the state should be paid back...Also, the money that was paid to ADECA to Lanny Young...is money that should be paid back to the state....Defendant Siegelman....

Fuller - I have a joint statement as to restitution as it applies to the Goat Hill project $181,325...In good conscience how can I order Gov. Siegelman to pay back more as a loss to the state of Alabama...

Perrine - "That was part of a negotiated settlement...He pled guilty...That was part of the negotited plea agreement....Mr. Siegelman has not pled guilty...He say she has done nothing wrong...so there is a huge difference..Every thing was part of the pay for play agreement..."

"With respect to resitution, the other victime is Brookwood Hospital...Victim of criminal conduct betwen Gov. Siegelman and Mr. Scrushy...HealthSouth wanted to be able to have influence over the CON Board, Brookwood has been a competitor...Margie Sellers, the night before a CON Board meeting...Scrushy called Margie Sellers to look askew...Brookwood's application was before the CON Board...Regardless if it was unanimous or not...in that case the defendant bribed a member of the board for influencing the members of the board....he expected members that he bribed to provide benefit...The only reason that Richard Scrushy contacted Margie Sellers...at the same time other hospitals...we have a witness ready to testify today...this witness will call because of Brookwood's denial they couldn't provide services...it was a loss amount that should be consider...We have been able to develop through Brookwood, the total amount of loss is $171,xxx plus $32,

Fuller $204,000 plus

Perrine - Yes, your honor

"We have a letter...about the amount...a firm spent on the appeal of Brookwood being denied..."

Fuller - I will take it under advisement.

Carmen Hernandez wants this information struck.

Fuller - I'll take it under advisement.

Perrine - But the final after two or three years of litigation...They finally got the machine...Other hospitals got machines without going through this....It was conduct charged....That completes the list of victims the U.S. has identified.

Fuller - Any other response as to Gov. Siegelman

Perrine - Only to the extent..We also object to the final figure...on the PSR Report..."

Fuller - We'll take up your objections separately.

Perrine - We not satisfied...There is a difference

Fuller - That was one of the points raised...The amount of loss...

Perrine - "We would start with the conduct involving Defendant Siegelman...You need to account for the total benefit received...That amount determines how far to go up the table -  The probation office has categorically stated the greatest of those categories...DeBegger case...A couple of points the 11th Circuit makes...You need not make precise calculations...that qualifies...Second the benefit received does not have to be to the defendant...the government relied on the profit to that firm to calculate the guidelines (in referenced case)...(Another case)...The court used a tax benefit to a third party...

Fuller - Not the bribe

Perrine - This is cited

Fuller - With that, what is the total amount?

Perrine - $11, 895,549 broken down the greatest benefit received Scrushy and Siegelman is the benefit from construction of the Phenix City Hospital.

Kilborn - Objects.  This is totally bogus.

Fuller - It's the government's position, if in fact it was resources of HealthSouth that were used to bribe Mr. Siegelman to put Mr. Scrushy on the CON Board and through the influence Mr.Scrushy had on the CON Board Phenix City was able to get a hospital...

Perrine - The testimony from Loree Skelton

Fuller - Is there any evidence that anyone else on that CON Board knew

Perrine - Defendant Scrushy is not going to tell other members

Fuller - If the influence is over one member of the board

Perrine - If you don't get Tim Adams back you don't have a vote

Fulller - If the CON Board didn't agree all ...tht would happen is the board would vote to deny...

Perrine - HealthSouth knew that hospital was going to be profitable...Loree Skelton knew there was not going to be a quorum...She called Tim Adams...They convicted these men on it...

Fuller - You're saying that was forseeable....

Perrine - It's a $500,000 bribe...The jury found

Fuller - Slow down if you want it on the record

Perrine - !2 members ...this is charged offense conduct...the overt acts include the payments to Tim Adams...

Kilborn - I want to cross-examine...It shows...that HealthSouth was still in the hole...The financial statements show that project was on a downward trend...In fact it was a loss...

Fuller - If you wish to proffer, to call this witness I'm not inclined to apply this amount to  Gov. Siegelman.

Leach - One of the points the court needs to be aware of...more importantly it takes a huge investment to build these type of facilities...The contract adjustment needs to be explored...throughout that period of time...shows that that hospital....

Fuller - If I am not inclined to consider it why do I need ...

Leach - I just want to get on the track.  You just said Siegelman

Fuller - We're only on Siegelman..."It is too far removed for this court to account it to Mr. Siegelman or Mr. Scrushy or the cost to Brookwood Hospital...I just don't want to spend all afternoon here which is only going to be for the benefit of preserving the record when you can proffer it..."

Perrine - Waste Management benefitted $4.2 million...your honor admitted that testimony under the theory that was a benefit to Waste Management....Another benefit Lanny Young testified $400,000 in campaign contributions, cashe, 4-wheeler....

Fuller - You disagree with amount Ms. Caple set out - $106,000

Perrine - The things of value in Lanny Young's testimony was a lot greater than $106,000.  Nick Bailey received over $60,000...Paul Hamrick received at least $50,000 in benefits...Lanny Young benefited at leatst $50,000 from being involved with Claire Austin - Siegelman got Austin/Young clients....Lanny Young testified...that he received $35,000 from Bill Blount....Blount had to contact Paul Hamrick....Bill Blount contacted Lanny Young...phone conversations where they talk about Hamrick ....and getting Bill Blount moved up....That was all part of the pay for play scheme...

The $500,000 in regard to the revenue ruling....Waste Management benefitted $4.2 million.

The United States calls Andy Price.  ( I believe he is an accountant)

He is senior VP of accounting at HealthSouth. Mr. Feaga is questioning. HealthSouth has a partner in the hospital. P:rice: We splt the profits 50/50 Feaga Did you prepare that exhibit? Price: Yes Feaga: Is your employment to do this sort of thing? Price : This is one of my duties. Feaga: Price: the net 3,109,054 Feaga: This is HealthSouth's half of the profit Price: Yes

The court is not persuaded although there has been finding of guilt that Mr. Scrushy .....
The court also finds that Mr. Scrushy paid the expenses of Tim Adams and quite possibly influenced Tim Adams to vote....
The court is not persuaded that any other memver of the CON Board knew about or was influenced in any way by the illegeal conduct....Scrushy, Siegelman,
and Tim Adams.
Therefore unless it is shown that other inappropriate conduct or influence caused the other members....who voted for....I am not persuaded
that should be used in the amount of restitution or loss attributable to Mr. Siegelman or Mr. Scrushy

The blog is currently down.  We will recap later.  There are still issues with the sound we are hoping gets corrected before tomorrowl