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.
Oh also Ms. Leverett, as i said you dont know them because Scrushy is no where close to being greedy, that is the most giving man! You have no idea. I am sorry you are blinded by something.
Posted by: tye norton | June 27, 2007 at 03:57 PM
I will tell you this Ms. Leverett, you dont know them to well if you think that. These are great people and you know nothing. I pray for you!
Posted by: tye Norton | June 27, 2007 at 03:53 PM
I totally agree with Ms. Leverett, they should get the maximum sentence.
Posted by: Delmar Morton | June 27, 2007 at 01:41 PM
I was a classmate of Richard or as I knew him as Marin Scrushy. As I recall, he was raised like me, with middle class parents who worked hard to make ends meet. When I first heard he had started his own business I was so proud to say I knew him. I was glad for him that he became successful. Later on when I first heard he was in trouble, I was in shock. He has proven to me that when people become successful and make lots of money, they usually become corrupt and greedy. They will do anything including unlawful things to make more money. Money also makes people feel powerful and think they are above the law. I hate to say this, but I believe he should get the maximum sentence.
Posted by: Alice Leverett | June 27, 2007 at 01:20 PM
This is pretty hard to follow, but I'm glad you are doing it anyway. It's certainly a valid contribution to the Web coverage of the case.
Glynn Wilson
Editor & Publisher
The Locust Fork News and Journal
LocustFork.Net
http://www.locustfork.net/news/
http://www.locustfork.net/blog/
Posted by: fast2write | June 27, 2007 at 01:15 PM
The defense is dragging it out.Let the Judge Sentence them. and stop wasting the tax payers money.
Posted by: Delmar Morton | June 27, 2007 at 01:09 PM