Hubbard-State's Sentencing Brief

7/25/2019 Hubbard-State's Sentencing Brief

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IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA, )

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v. ) CASE NO. CC-2014-000565

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MICHAEL GREGORY HUBBARD, )

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Defendant. )

STATES BRIEF IN SUPPORT OF

SENTENCING RECOMMENDATION

The State of Alabama respectfully submits this Brief in Support of its

Sentencing Recommendation that Defendant Michael Gregory Hubbard

(Hubbard) be sentenced on each of his 12 felony Ethics Law convictions to an

18-year base sentence, split to serve 5 years in prison, followed by a term of

supervised probation equal to the time remaining. This sentence is appropriate

because Hubbard betrayed the publics trust and, even now, refuses to accept

responsibility for his actions. Such a sentence will also deter other public officials

from committing similar crimes. The State also respectfully requests this Court

require Hubbard to pay $1,125,000.00 in restitution (Hubbards ill-gotten gain), the

maximum fine of $360,000.00 ($30,000.00 per count), the maximum amount to the


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Crime Victims Compensation fund, $120,000.00 ($10,000.00 per count), and

court costs and fees as determined by this Court.

INTRODUCTION

A Lee County jury found Hubbard guilty of 12 felony Ethics Law violations.

Specifically, the jury returned a guilty verdict on one count of voting on legislation

with a conflict of interest, in violation of 36-25-5(b) (Count 5); seven counts of

soliciting or receiving a thing of value from a lobbyist or principal, in violation of

36-25-5.1(a) (Counts 6, 10, 16, 17, 18, 19, 23); one count of using his office for

personal gain, in violation of 36-25-5(a) (Count 11); two counts of lobbying the

executive for a fee, in violation of 36-25-1.1 (Counts 12, 13); and one count of

using state equipment, materials, etc. for private or business benefit, in violation of

36-25-5(c) (Count 14).

Each of the above convictions carries a possible sentence of 2 to 20 years in

prison and a maximum fine of $30,000.00. As the evidence at trial showed,

Hubbard flagrantly and repeatedly violated the Ethics Law in order to make money

and obtain financial favors from individuals with interests in State government.

Despite being found guilty on the majority of the charges in the indictment,

Hubbard continues to refuse to accept responsibility for his criminal conduct. This

Court should impose a strong sentence to punish Hubbard, deter other public


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officials from violating the Ethics Laws, and help restore the peoples confidence

in their government.

FACTS

In the course of committing the 12 felonies for which he stands convicted,

Hubbard directly enriched himself and his businesses by $1,125,000.00. Hubbard

also received a free business turnaround plan from a financial professional that

enabled Craftmaster Printers to be recapitalized, which staved off bankruptcy and

Hubbards personal and political ruin. Further, Hubbards felonious enrichment

occurred after he spearheaded the Republican takeover of the legislature based in

large part on the promise of strengthening the States Ethics Lawsand cleaning up

what he termed the culture of corruption. His success in leading the Republican

takeover led his fellow House members to reward him with the position of Speaker

of the House and invest him with the substantial power inherent in that office.

Instead of honoring the reward of position and investment of power by serving the

people of Alabama, Hubbard intentionally and continuously monetized his office

for personal gain, as evidenced by his 12 felony Ethics Law convictions through

the following money-making schemes.


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I. The jury convicted Hubbard (1) of receiving $95,000 from

principal APCI, and (2) of voting on legislation with a conflict of

interest related to APCI.

Two of Hubbards 12 convictions stem from Hubbards contractual

relationship with the American Pharmacy Cooperative, Inc. (APCI), under which

he was paid $5,000 per month for 19 monthsJune 2012 through December 2013

for a total of $95,000. Hubbard knew that APCI was a principalbecause APCIs

Alabama-based lobbyist, Ferrell Patrick, facilitated Hubbardsconsulting contract

with APCI. The jury convicted Hubbard of receiving a thing of value from

lobbyists or principals because he accepted the money from APCI.

Not only did Hubbard violate the Ethics Laws by receiving APCIs money,

he also concealed the existence of the APCI contract from even his closest

advisors. Indeed, Josh Blades, Hubbards former chief of staff, testified that

Hubbard did not tell him about the existence of the contract. Instead, he learned

about the contract from lobbyist John Ross who, in turn, had learned about it from

APCIs lobbyist Ferrell Patrick. Further, Patrick only revealed the existence of the

contract to Ross a few hours before the House was scheduled to vote on the 2013

general fund budget, Senate Bill 143. That bill contained a provision that would

have made APCI the sole pharmacy benefit manager for Medicaid in Alabama a

provision that Hubbard, Blades, and Ross had actively supported and helped insert


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into the bill. Patricks revelation regarding the existence of the contract occurred

11 months after Hubbard entered into the APCI contract.

Recognizing the serious potential problem that Hubbards secret APCI

contract presented, given the APCI-monopoly provision in SB143, Blades and

Ross confronted Hubbard about the issue. Only after they confronted him did

Hubbard finally admit that he had a contract with APCI. Hubbard claimed that it

was not a problem because Jim Sumner, then-director of the Ethics Commission,

had approved it. But Sumner testified that he first heard about Hubbards

relationship with APCI when the Governors legislative liaison, Blaine Galliher,

contacted him about it two days after the vote on SB143. The jurysverdict shows

that they clearly believed Sumner over Hubbard on the issue.

After being forced to admit that he had a contract with APCI, Hubbard told

Blades to work to remove the APCI-monopoly provision from the bill. Blades was

unable to get the provision removed. Shortly thereafter, when SB143 came to the

House floor for a vote, Hubbard asked Blades what he should do. Blades

unequivocally told him, Dont do it, and implored Hubbard not to vote on the

bill. Ignoring Blades advice, Hubbard pushed the green button and voted in favor

of SB143 even though it contained APCI-monopoly provision. The jury convicted

Hubbard of voting on legislation with a conflict of interest based on that vote. And


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Hubbard continued to accept $5,000 per month from APCI through December

2013, eight months following the budget vote.

Even before Hubbard voted on the bill, John Ross and his partners, Tim

Howe and Dax Swatek, decided to immediately terminate their contract with APCI

because they were angry that Patrick had not disclosed the existence of the

Hubbard contract to them earlier even though he had known about it from its

inception. In fact, so great was their anger and frustration with Patricks

concealment of the Hubbard contract since, as Howe testified, it could present an

ethics problem for all of us, that they severed all professional ties with Patrick

within two weeks and went so far as to forgo payment on outstanding invoices so

as to be completely done with the relationship. In stark contrast, Hubbard, who the

evidence showed never passed up an opportunity to get paid, continued to accept

$5,000 per month from APCI through December 2013, eight months following the

budget vote. Hubbard also testified at trial that Ferrell Patrick was his friend.

II. The jury convicted Hubbard of receiving $210,000 from principal

Edgenuity/E2020.

The jury also found Hubbard guilty of receiving $210,000 under another

consulting contract with principal Edgenuity/E2020. As with APCI, Hubbard was

clearly aware that Edgenuity/E2020 was a principal because their Alabama

lobbyist, Ferrell Patrick, facilitated Hubbard receiving the contract.


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Under the contract, Edgenuity/E2020 paid Hubbard $7,500 per month for 28

months, from April 2012 through August 2014. Edgenuity/E2020s executive vice

president Michael Humphrey explained that he hired Hubbard because of

Hubbards legislative position. As Speaker, Hubbard could make contacts with

legislators in other states on Edgenuity/E2020s behalf, including the Speakers of

the North and South Carolina Houses, whom Hubbard called at Edgenuity/E2020s

request. Hubbard received the Edgenuity/E2020 payments because of his position

as Speaker. This was fully consistent with Hubbards pattern of monetizing his

Speakership.

III. The jury convicted Hubbard of (1) using his office for personal

gain by accepting $220,000 from Bobby Abrams/CV Holdings; (2)

lobbying the Department of Commerce for a fee; (3) lobbying the

Governor for a fee; and (4) using state equipment, materials, etc.

for private benefit.

The jury also convicted Hubbard for using his office for personal gain by

obtaining a consulting contract with Bobby Abrams/CV Holdings that paid him

$10,000 per month from October 2012 to August 2014, for a total of $220,000.

Hubbards consulting contract was ostensibly for the purpose of helping one of

Abramss businesses, Capitol Cups, sell cups. But Tina Belfance, the general

manager of Capitol Cups, testified that Hubbard never sold a cup or gave her a

contact that led to a sale.


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Lacking cup sales experience, Hubbard leveraged his office to justify his

monthly payments. For example, Hubbard discussed selling Capitol Cups to

Waffle House with Senator Balfour from Georgia while both were attending a

legislative conference in Scotland. Balfour, a Waffle House executive, pledged

to break through for Hubbard and Capitol Cups.

Similarly, Hubbard used his office to attempt to secure a meeting with

Publix for the purpose of selling cups. In an email to Publix employees, he

identified himself as Alabamas Speaker and requested assistance on a project

related to a cup manufacturer in his district. Hubbard wrote that arranging a

meeting with a Publix decision maker would be a huge favor to me and that it

would mean a great deal to me if such a meeting could be arranged. Hubbard

failed to identify himself as a Capitol Cups consultant in the email testifying at

trial that he did not think that was relevant but included a signature block

identifying himself as the Speaker. Hubbards deceptive email had the intended

effect: one of the Publix recipients forwarded the email to another Publix

employee, explaining that Mike Hubbard is the Speaker of the Alabama House of

Representatives who had emailed on behalf of a constituent of hisand stating

that [a]ny consideration would be much appreciated. The jury convicted

Hubbard of the felony ethics violation of using his office for personal gain in

relation to Bobby Abrams and his businesses.


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Hubbards deceptive use of his office on behalf of Bobby Abrams and his

businesses was not limited to his attempts at cup marketing. As the jury found, he

also used his office to represent Bobby Abrams before both Governor Bentley and

Commerce Secretary Canfield as part of his consulting work for which Abrams

paid him $10,000 per month. Specifically, Hubbard arranged for Secretary

Canfield to tour Abramss manufacturing facility in Auburn and discuss Abrams

training needs to see whether the State would provide funding, and he arranged for

Abrams to meet with Governor Bentley in Montgomery to discuss further the

potential for State funding. At no point in arranging the meetings did Hubbard

disclose that he was being paid $10,000 per month for consulting work for

Abrams. Accordingly, the jury convicted Hubbard for representing Abrams and his

business interests before the Office of the Governor and the Department of

Commerce.

The jury also convicted Hubbard of using state resources and equipment to

speed up the process for Abrams to receive a printed patent from the U.S. Patent

Office and the Government Printing Office. Specifically, Hubbard enlisted his

then-chief of staff, Josh Blades, to determine whom to contact within the Patent

Office and then to contact that individual on Abramss behalf. After Blades had

contacted the appropriate individual, Hubbard would periodically call to check up

on the progress of the process, telling Blades on one occasion that it was very


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important to [Hubbard] that we get this done and that he had 100,000 reasons to

get this done. As Blades explained, Hubbards reference to 100,000 reasons made

him uncomfortable because he immediately thought that the Speaker meant

money in some form.

Hubbard claimed at trial that he was referring to the amount of money

Abrams had to spend in legal fees for every day that the patents printing was

delayed. But the evidence refuted his self-serving explanation, and the jury

properly rejected it. Instead, the evidence proved Bladessuspicion correct: when

Hubbard made that statement, he had received $100,000 under his consulting

contract with Abrams. Blades justified discomfort led him to tell Hubbard to

handle any further follow up communications with the Patent Office. The jury

convicted Hubbard because he used Blades to service Abrams while Abrams was

paying Hubbard $10,000 per month.

IV. The jury convicted Hubbard of soliciting and receiving (1) a

business turnaround plan from Will Brooke to save Craftmaster

Printers; and $150,000 investments from principals (2) Brooke,

(3) James Holbrook/Stern Agee, (4) Jimmy Rane, and (5) Rob

Burton.

As reflected in the jurys verdict, Hubbards monetization of his position as

Speaker was not limited to entering into lucrative consulting contracts. He also

secured a business turnaround plan for his financially troubled Craftmaster Printers

business, as well as $600,000 in investments in Craftmaster from four principals.


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The financial problems at Craftmaster, including unpaid payroll taxes and a stifling

level of debt, were personal for Hubbard, not only because he was an owner of the

business, but also because he had personally guaranteed Craftmasters loans. And

he feared that failure would negatively affect him politically as well.

Believing that Craftmasters financial problems could ruin him both

personally and politically, Hubbard repeatedly emailed multiple people about how

these problems threatened his ability to continue as Speaker. In so doing, Hubbard

often reminded his correspondents of his value as Speaker to them. For instance,

when he emailed Will Brooke about his financial problems, Hubbard also

described his efforts to ensure that the State fully funded the Boys & Girls Club

because Brookes wife strongly supported that organization.

Hubbards email solicitations paid off when Brooke, who was the executive

vice president and managing partner at a four-billion-dollar investment firm and a

Business Council of Alabama board member, gave him a plan to recapitalize

Craftmaster through the sale of stock in the company. The plan would (and did)

raise $1.5 millionenough to pay off Craftmasters back taxes and loans for which

Hubbard was personally liable through the sale of stock to ten investors for

$150,000 apiece. Consistent with his usual practice, Hubbard solicited and secured

four of the $150,000 investments from principalsBrooke; Jimmy Rane, president

of Great Southern Wood Preserve; Rob Burton, president of Hoar Construction;


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and James Holbrook, then-CEO of Sterne Agee Group, Inc. who invested Sterne

Agees money in Craftmaster instead of his own personal money.

The jury returned five felony convictions for soliciting or receiving a thing

of value from a principal against Hubbard for his Craftmaster scheme one for

each $150,000 investment, and one for the financial rescue plan that Will Brooke

created for him that saved Hubbard from personal and political ruin.

ARGUMENT

Hubbard was elected to serve the people of Lee County for 18 years as their

Representative in the Legislature. He was also chosen by his fellow House

members to serve the people of Alabama for 5 years as Speaker of the House. But

a jury found that he used his time in Montgomery to reap over one million dollars

in private gain.1

Under these circumstances, an 18-year sentence, split to require Hubbard to

serve 5 years in prison and the remainder on supervised probation, is an

appropriate punishment for Hubbards brazen and repeatedbreach of the publics

trust and the resulting diminishment of the peoples confidence in the integrity of

their government. Such a sentence would deter other public officials from violating

the Ethics Law and help restore the peoples trust in their government.

1 For purposes of sentencing, the jurys acquittal of Hubbard on 11 of the charges in theindictment is not a relevant consideration or mitigating factor. See, e.g., United States v. Morgan,635 F. Appx 423, 449 (10th Cir. 2015) (It is improper, as well asillogical, to think acquittalson some counts somehow ameliorate guilt on convicted counts.).


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Accordingly, the State recommends an 18-year base sentence on each of the 12

felony convictions, split to serve 5 years in prison; the maximum fine of

$360,000.00, $30,000 for each of his twelve convictions; the maximum payment to

the Crime Victims Compensation Fund of $120,000.00, which is $10,000.00 per

count; and restitution to the State of Alabama for $1,125,000.00, which equals the

amount of money Hubbard illegally obtained.

I. A sentence of 18 years, split to require Hubbard to serve 5 years

in prison and the remainder on supervised probation, is

appropriate.

Requiring Hubbard to serve 5 years in prison as part of an 18-year split

sentence is appropriate under the circumstances. Such a sentence would adequately

punish Hubbard for his multiple schemes of corruption in the course of his five-

year term as House Speaker: securing illegal consulting contracts, using his public

office to benefit his consulting clients, soliciting and receiving hundreds of

thousands of dollars from lobbyists and principals, and obtaining financial favors

from individuals with interests in state government.

As an initial matter, a non-custodial probationary sentence would not be

appropriate under the circumstances of this case. The citizens of House District 79

trusted Hubbard to serve them and represent their interests in the State House, and

his fellow House members chose him to serve as House Speaker. But Hubbard

breached the trust of his constituents in District 79, his fellow House members who


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elevated him to Speaker, and every Alabama citizen by violating the Ethics Laws a

dozen times. His betrayal of his constituents, his fellow House members, and the

citizens of Alabama warrants a strong, meaningful sentence in order to punish him,

deter other public officials from violating the Ethics Laws, and help restore the

peoples trust in their government. As the Tenth Circuit explained:

Properly considering general deterrence, we fail to see how a non-custodial sentence would deter public officials from soliciting bribes.General deterrence comes from a probability of conviction andsignificant consequences. If either is eliminated or minimized, the

deterrent effect is proportionately minimized. This country dependson honest representative democracy and, while our system isimperfect, it does not generally suffer from widespread corruption. Its

proper functioning requires elected officials to serve the commongood, not illicit personal gain. Our citizens place faith in the honestyand integrity of elected officials. Without meaningful consequencesfor a breach of trust, their trust is no more than blind trust.

United States v. Morgan, 635 F. Appx 423, 450 (10th Cir. 2015); see alsoUnited

States v. Livesay, 587 F.3d 1274, 1279 (11th Cir. 2009) (If a would-be white-

collar criminal could steal millions of dollars, place the money in an off-shore bank

account, serve his probationary sentence, and then be free to start a new life with

his newly-acquired fortune, this court sees little incentive for that person to think

twice before concocting such a scheme.). As such, it is appropriate for this Court

to sentence Hubbard to serve a term of years in prison.

A sentence of 18 years, split to require Hubbard to serve 5 years in prison, is

likewise appropriate because of the calculated nature of Hubbards crimes. Indeed,


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Hubbards schemes to enrich himself and his businesses began almost immediately

after he was entrusted with the powerful position of Speaker of the House.

Prompted by the loss of his employment contract with IMG and the impending

financial collapse of Craftmaster, Hubbard made the intentional, deliberate, and

conscious decision to repeatedly violate the Ethics Laws. This was not a mere

oversight; rather, it was a calculated decision. Hubbard weighed the consequences

of obeying the law against the risk of having his crimes discovered and being

brought to justice and chose to violate the law. Therefore, a strong, meaningful

prison sentence is appropriate. SeeUnited States v. Martin,455 F.3d 1227, 1240

(11th Cir. 2006) (Defendants in white collar crimes often calculate the financial

gain and risk of loss, and white collar crime therefore can be affected and reduced

with serious punishment.); see also United States Sentencing Guidelines, Appx

C, Vol. III, at 82 (Amendment 666) (offenders who abuse their positions of public

trust are inherently more culpable than those who seek to corrupt them, and their

offenses present a somewhat greater threat to the integrity of governmental

process.).

The States recommended sentence is also consistent with recent changes in

Alabama law regarding sentencing guidelines. In 2006, the Alabama Legislature

approved the Initial Voluntary Sentencing Standards proposed by the Alabama

Sentencing Commission. The Standards provided sentence recommendations for


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the 26 felonies that constituted the vast majority of state convictions. No felonies

under the Alabama Ethics Act were included. In 2013, the Sentencing Standards

for non-violent offenses were modified to become presumptive and several new

felonies were added as covered offenses. Again, no felonies under the Alabama

Ethics Act were included. On January 30, 2016, the Alabama Prison Reform Bill

went into effect. Although sweeping changes were made to many criminal

offenses, no changes were made related to sentencing for the Ethics Law violations

and no changes were made to the sentencing structure of Class B felonies.

Therefore, the only sentencing structure applicable to the Class B felonies under

the Alabama Ethics Law is that set forth by the Alabama Statutory Penalty

Provisions contained in Ala. Code 13A-5-6.

Even if the Presumptive Sentencing Standards were applicable to ethics

offenses, numerous aggravating factors exist in this case which would allow this

Court to depart from both the dispositional and durational sentence

recommendations. Although these aggravating factors are not applicable to

sentencing under the statute, they are persuasive for this Court to consider when

determining the length of sentence imposed:

Hubbard was the central figure in a scheme of public corruption which

involved many co-conspirators that Hubbard approached and recruited.Hubbard also used his supervisory power to involve his subordinates inthe commission of his crimes. SeeSentencing Standards Manual 2013, at

p. 26, 1.


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All of Hubbards convictions are based on Hubbards conductduring histime as Speaker of the Alabama House of Representatives.Id. at 4.

As Speaker of the House, Hubbard was in a position of public trust with

the State of Alabama. He was the fiduciary over all of the States

resources.Id. at 5. The loss to the State exceeds $1.1 million in ill-gotten gains.Id. at 9.

Hubbard abused his office during the entire time he served as Speaker of

the House. And he pursued multiple schemes of corruption designed toenrich himself by using his office.Id. at 10.

This case is unique in Alabamas history. No other highly-placed public

official in this State has been convicted of engaging in such wide-ranging

corruption to benefit himself. The federal system works differently, but the

following sentences in comparable public corruption cases2 show that the States

recommended sentence is appropriate:

Defendant Position Monetary

Loss

(Approx.)

Plea / Trial Sentence

LarryLangford

JeffersonCountyCommissioner

$236,000 Trial 15 years;$241,843.00restitution3

RodBlagojevich

IllinoisGovernor

$1.5 million Trial 14 years

2

Under federal law, Hubbard would be eligible for multiple increases in offense level becausehe was a public official for his convictions for both receiving and soliciting things of value, andfor use of his public office for another. See United States Sentencing Guidelines, 18 U.S.C. 2C1.1., et seq.; see also, United States v. White, 561 F. Appx 850 (11th Cir. 2014); UnitedStates v. Durrett, 524 F. Appx 492 (11th Cir. 2013).Hubbard would also be eligible for multipleincreases in offense level under federal laws due to his lack of remorse and failure to acceptresponsibility. See id.3An additional $7.6 million in restitution is still being litigated, if affirmed, Langford will be joint and severallyliable along with two additional defendants.


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Sheldon Silver Speaker of theAssembly,

New York

$5 million Trial 12 years;$1.75 millionin fines and$5.3 million inrestitution

Ray Nagin Mayor of NewOrleans

$500,000 Trial 10 years;$585,000 inrestitution

Gary White JeffersonCountyCommissioner

$22,000 Trial 10 years;$22,000 inrestitution;additional$22,000forfeiture

DonSiegelman

AlabamaGovernor

$500,000 Trial 6 years and 6months;$50,000 fine

Roy Johnson Chancellor ofAlabama Two-Year System

$440,000 incash and gifts

Pleaded 6 years and 6months;$19,506,485 inrestitution

George Ryan IllinoisGovernor

Over $1million to

friends andfamily, plusreceived gifts

Trial 6 years and 6months;

$603,348restitution

Edward E.B.McClain

Alabama StateSenator

Over $300,000in personalgain

Pleaded 5 years and 10months

Terry Spicer Alabama StateRepresentative

$61,500 ingifts, $48,000to $144,000 incash

Pleaded 4 years and 9months;$40,000 fine

Gordon Fox Speaker of theHouse, RhodeIsland

$160,000.00 Pleaded 3 year;$603,348


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John Perzel Speaker of theHouse,Pennsylvania

$10 millionschemeinvolvingmultiple

public officials

Pleaded 2.5 to 5 years;$30,000 fines;$1,000,000restitution;$85,653 yearly

pensionforfeiture

Sue Schmitz Alabama StateRepresentative

$177,251 Trial 2 years and 6months;restitution$329,251

Bryant Melton Alabama StateRepresentative

$68,000 Pleaded 1 year and 3months

Chris McNair Jefferson

CountyCommissioner

$850,000 Trial 5 years;

$425,000

Jeff Germany JeffersonCountyCommissioner

$39,000 inpersonal gain;$23,500 in

bribes tofriends andfamily

Trial 2 years, 8months;$126,860

Jack Swan Jefferson

CountyCommissioner

Over $300,000 Trial 8 year and 6

months;$250,000 fine

Hubbard made the conscious decision to break the States Ethics Laws

multiple times in the course of multiple schemes to enrich himself and his

businesses during his entire five-year term as Speaker. This Court should not let

Hubbards repeated and intentional conduct go unpunished. To be sure, Hubbards

crimes seriously harmed this State and therefore warrant a harsh sentence. See

United States v. Nagin, 2:13-cr-00011 (E.D. La.) (January 20, 2015) (Doc. 202)

(Sentencing comments from District Judge Helen G. Berrigan: The seriousness of


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Mr. Nagins offenses can hardly be overstated. Even when there are no

quantifiable monetary consequences, corruption breeds public cynicism and

mistrust of public officials. And nowhere is this more harmful than a city like New

Orleans where the perception of the city as a den of corruption stubbornly persists,

despite great strides in public integrity.). As such, Hubbard should be held

accountable for his actions by serving at least 5 years of an 18-year sentence in

prison.

II. Hubbard has failed to accept responsibility for his actions.

Hubbard has never accepted responsibility for any of his actions. In fact,

shortly after the jury rendered its verdict, Hubbard told a reporter that he did

nothing wrong: I continue to steadfastly maintain my innocence . Hubbard:

Working to come to terms with ethics trial verdicts, Kim Chandler, Associated

Press, June 12, 2016.4 Hubbard continues to refuse to accept responsibility for his

actions, and he has never shown any remorse for his illegal conduct. His refusal to

accept responsibility and lack of remorse further justify an 18-year sentence, split

to require him to serve 5 years in prison. See United States v. Simpson, 796 F.3d

548, 558 (5th Cir. 2015), cert. denied, 136 S. Ct. 920, 193 L. Ed. 2d 807 (2016)

([W]e have previously recognized that a defendants lack of remorse and

acceptance of responsibility are acceptable sentencing considerations).

4 Available at: http://m.apnews.com/ap/db_268748/contentdetail.htm?contentguid=
http://m.apnews.com/ap/db_268748/contentdetail.htm?contentguidhttp://m.apnews.com/ap/db_268748/contentdetail.htm?contentguidhttp://m.apnews.com/ap/db_268748/contentdetail.htm?contentguid


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III. A strong sentence would deter others from violating the Ethics Laws.

An 18-year split sentence with a requirement that Hubbard serve 5 years in

prison would effectively punish Hubbard and deter other public officials

contemplating the risks of violating the Ethics Laws. SeeRombokas v. State, 170

So. 780, 782 (Ala. App. 1936) ([T]he punishment of crime has a dual purpose:

One to inflict a penalty on the offender; the other to deter others from committing a

similar crime, or any crime.). Deterring violations of the Ethics Law with strong

sentences is particularly necessary because these crimes are difficult to detect and

prosecutions are infrequent. C.f. United States v. Bragg, 582 F.3d 965, 969 (9th

Cir. 2009) (noting that because of the limited number of criminal tax prosecutions

relative to the estimated incidence of such violations, deterring others from

violating the tax laws is a primary consideration underlying the Federal

Sentencing Guidelines) (internal alterations and citations omitted).

Deterrence is also particularly important under the circumstances of this

case. Hubbard did not decide to commit crimes in the heat of the moment. Nor did

he commit crimes of passion. Instead, Hubbards crimes were calculated risks

and they were risks taken after Hubbard carefully weighed the consequences of his

actions. After considering his options, he repeatedly chose to break the law over a

multi-year period resulting in ill-gotten gain in excess of one million dollars. This

Court should make clear that the risks of this kind of criminal activity far exceed a


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slap on the wrist. A significant sentence will communicate to Hubbard and others

like him the weighty consequences of a decision to violate the law.

Hubbard did not literally commit his crimes during the dark of night, but he

hid his crimes through half-truths and concealment. While he was supposed to be

serving the people of Alabama in one of the most powerful offices in the State,

Hubbard used that power to enrich himself. And his sophisticated knowledge of the

Ethics Laws and the purposeful nature of his actions helped him hide his criminal

conduct. For these reasons, he deserves a strong sentence. See United States v.

Martin, 455 F.3d 1227, 1240 (11th Cir. 2006) (Because economic and fraud-

based crimes are more rational, cool, and calculated than sudden crimes of passion

or opportunity, these crimes are prime candidates for general deterrence.)

(internal alterations, quotations and citations omitted). The calculated

circumstances of Hubbards multiple schemesjustify the imposition of prison time

to deter Hubbard and others similarly situated from breaking the States Ethics

laws.

In sum, this Court has the ability to effectively deter public corruption

crimes in this State by imposing a strong, meaningful sentence in this case. Courts

in other jurisdictions that have, like Alabama, been plagued by public officials

selling their elected offices have seen fit to do exactly that:


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We need not resign ourselves to the fact that corruption exists ingovernment. Unlike some criminal justice issues, the crime of publiccorruption can be deterred by significant penalties that hold alloffenders properly accountable. The only way to protect the publicfrom the ongoing problem of public corruption and to promote respectfor the rule of law is to impose strict penalties on all defendants whoengage in such conduct, many of whom have specialized legaltraining or experiences. Public corruption demoralizes and unfairlystigmatizes the dedicated work of honest public servants. Itundermines the essential confidence in our democracy and must bedeterred if our country and district is ever to achieve the point wherethe rule of law applies to allnot only to the average citizen, but toall elected and appointed officials. This Court hopes that this opinionwill further the goal of deterrence; that the message will go out to all

those individuals who are tempted to sell their offices or participate inany way in public corruption offensesif you commit these crimesyou will give up your freedom for a significant period of time. It isthis Court's opinion that these persons who commit crimes in the hallsof government should be subject to the same consequences as thosethat commit crimes on the streets. Thus, courts must continue theirvigilance in our nation's struggle against public corruption.

United States v. Spano, 411 F. Supp. 2d 923, 940 (N.D. Ill.), aff'd, 447 F.3d 517

(7th Cir. 2006). Accordingly, the State respectfully requests this Court impose an

18-year base sentence, split to serve 5 years in prison.

IV. Regardless of the sentence, Hubbard should be denied an appeal

bond.

Hubbard has made clear that he intends to appeal the jurys verdict and

various Court rulings in this case. The grounds for his appeal are presently

unknown, but Hubbard does not have a right to delay justice and remain free until

his appeal is completed, which could be years from now.


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The decision as to whether Hubbard may be permitted to remain free on

bond pending appeal is committed to the sound discretion of this Court. Rule

7.2(c) of the Alabama Rules of Criminal Procedure provides that [a]ny defendant

who has been convicted of an offense for which the defendant has been sentenced

to a term of imprisonment for twenty (20) years or less may be released on a

secured appearance bond or on the defendant's personal recognizance . . . Ala. R.

Crim. P. 7.2(c)(2) (emphasis added). Section (c) recognizes that after conviction

the defendant is no longer presumed innocent and is not entitled to admission to

bail as a matter of right. If a defendants sentence is for twenty (20) years or less,

the defendant can be admitted to bail, in the judges discretion, unless the judge

has reason to believe that bail will not reasonably assure that the defendant will not

flee, or has reason to believe that there is a real and present danger to others posed

by the defendants being at large.Id., Committee Commentsto Rule 7.2 (emphasis

added).

Rule 7.2(c) modifies Ala. Code 1975, 12-22-170, which [previously]

unconditionally allowed bail if the sentence did not exceed twenty (20) years . Id.

Alabama case law also recognizes that Rule 7.2(c) altered the previous practice of

allowing an appeal bond to be granted as a matter of right. SeeEx parte Kandola,

77 So. 3d 1209, 1213 (Ala. Crim. App. 2011) (Under 1222170, an appellant

had an absolute right to an appeal bond if his sentence was 20 years or less.


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However, according to Rule 7.2, Ala. R.Crim. P., there is no absolute r ight to any

bail pending the outcome of an appeal.) (emphasis added).

Hubbard has had his day in court. After a year-long grand jury investigation,

a year and a half long pretrial litigation period, and following a 3-week trial, the

jury spoke clearly and strongly by convicting Hubbard on 12 counts. He has been

out on bond since October 21, 2014 some 619 days ago. Hubbard is no longer

presumed innocent; he is guilty of 12 felonies. This Court should hold Hubbard

accountable immediately for his deliberate and calculated actions. Therefore, this

Court should exercise its discretion to deny Hubbard an appeal bond and require

him to immediately begin serving his sentence.

V. This Court should order Hubbard to pay restitution for the

money he illegally obtained, and this Court should impose the

maximum fine.

This Court should order Hubbard to pay restitution to the State of Alabama

for the amount of money he illegally received, which is as follows:

Counts 5 & 6: $95,000.00 from APCI;

Count 10: $210,000.00 from Edgenuity;

Counts 1114: $220,000.00 from Bobby Abrams/CV Holdings;

Count 16: $150,000.00 from Will Brooke;

Count 17: $150,000.00 from Sterne Agree Group;

Count 18: $150,000.00 from Jimmy Rane; and

Count 19: $150,000.00 from Rob Burton.

In total, Hubbard illegally obtained $1,125,000.00. Hubbard should be ordered to

disgorge this ill-gotten gain.


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By criminally obtaining this money, Hubbard breached the publics trust

while he presided over the House of Representatives as Speaker. The people of the

State of Alabama are the victims of Hubbards crimes. Accordingly, Hubbard

should be ordered to pay the State of Alabama $1,125,000.00 in restitution for his

crimes. See 15-18-65, et seq. (Ala. Code 1975).

This Court should impose the maximum fine of $30,000.00 for each of the

12 counts, or $360,000.00, as well as the $120,000.00 maximum for the Crime

Victims Compensation Fund.5

In addition to the reasons stated above, the

maximum fines are also proper here because the State has had to expend

significant financial resources to hold Hubbard accountable for his criminal

conduct.

CONCLUSION

The people in House District 79 elected Hubbard 18 years ago to serve them

in the Legislature. Hubbards colleagues in the House, collectively representing the

people of Alabama, elected him to serve as their Speaker five years ago. But

Hubbard betrayed that trust, selling his office and keeping the profits for himself

and his businesses. As a consequence of his betrayal, this Court should impose a

5 The $1,605,000.00 in restitution and fines does not weigh against Hubbard serving a lengthyterm of years in prison. Cf. United States v. Seacott, 15 F.3d 1380, 1388-89 (7th Cir. 1994)(Allowing [federal] sentencing courts to depart downward based on a defendants ability tomake restitution would thwart the intent of the [Federal Sentencing] guidelines to punishfinancial crimes through terms of imprisonment by allowing those who could pay to escapeprison.).


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strong, meaningful sentence to punish Hubbard for his crimes and restore the

peoples faith in their government. A significant sentence will also deter other

elected officials from using their offices to serve their own interests instead of the

interests of the people who elected them.

For these reasons, the State respectfully asks this Court to sentence

Defendant Michael Gregory Hubbard to an 18-year prison term base sentence, split

to serve five (5) years in prison for each of the 12 felony Ethics Law convictions,

set to run concurrently and split to require him to serve 5 years in prison, followed

by a term of supervised probation equal to the time remaining. In addition to being

within the range of possible sentences for the crimes for which he stands

convicted, the 18-year base sentence would be commensurate with the number of

years that he served as the elected Representative for District 79, and the five years

imposed in prison would be commensurate with the number of years that Hubbard

served as Speaker of the House the office that he was convicted of repeatedly

abusing for personal gain. Additionally, the State respectfully asks this Court to

impose a fine of $360,000.00, order restitution to the State of Alabama in the

amount of $1,125,000.00, and order $120,000.00 to the Crime Victims

Compensation fund.


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Respectfully submitted this 30th day of June, 2016.

/s/ W. Van DavisW. Van DavisSupernumerary District Attorney

Acting Attorney [email protected]

OF COUNSEL:

Miles M. HartDeputy Attorney General

[email protected] D. GibbsDeputy Attorney General

[email protected] B. DuffyDeputy Attorney General

[email protected] LangerAssistant Attorney General

[email protected] KirkpatrickAssistant Attorney General

[email protected] BeckmanAssistant Attorney General

[email protected] OF THE ATTORNEY GENERALSTATE OF ALABAMA501 Washington AvenueP.O. Box 300152Montgomery, AL 36130
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

I hereby certify that I have, this the 30th day of June 2016, electronicallyfiled the foregoing using the AlaFile system which will send notification of suchfiling to the following registered persons, and that those persons not registered withthe AlaFile system were served a copy of the foregoing by U. S. mail:

William J. BaxleyJoel E. DillardDavid McKnightBaxley, Dillard, McKnight, James & McElroy2700 Highway 280Suite 110 EastBirmingham, AL 35223

[email protected]@[email protected]

R. Lance BellTrussell, Funderburg, Rea & Bell, P.C.1905 1st Avenue SouthPell City, AL [email protected]

Phillip E. Adams, Jr.Blake OliverAdams White Oliver Short & Forbus, L.L.P.205 South 9th StreetOpelika, AL 36801

[email protected]@adamswhite.com

/s/ W. Van Davis

Acting Attorney General
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

Documents

Hubbard-State's Sentencing Brief