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No. 09-____

WILSON-EPES PRINTINGCO.,INC. (202)789-0096 WASHINGTON,D.C.20002

IN THE

Supreme Court of the United States

DON EUGENE SIEGELMAN,Petitioner,

v.

UNITED STATES OFAMERICA,Respondent.

Petition for Writ of Certiorari to theUnited States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

KEVIN DIGREGORYMANATT,PHELPS &

PHILLIPS, LLP700 12th St. NW, Ste. 100Washington, DC 20005

REDDING PITTFARRIS,RILEY &PITT, LLPMassey Bldg., Ste. 4002025 3rd Ave. NorthBirmingham, AL 35203

SAM HELDMANCounsel of Record

THE GARDNER FIRM, PC2805 31st St. NWWashington, DC 20008(202) 965-8884

VINCENT F.KILBORN IIIDAVIDA.MCDONALDKILBORN,ROEBUCK&

MCDONALD

P.O. Box 66710Mobile, AL 36606

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(i)

QUESTIONS PRESENTED1. Under McCormick v. United States, 500 U.S.

257, 273 (1991), a connection between a campaigncontribution and an official action is a crime only ifthe payments are made in return for an explicitpromise or undertaking by the official to perform ornot to perform an official act. In such situations theofficial asserts that his official conduct will be con-trolled by the terms of the promise or undertaking.

Does this standard require proof of an explicit

quid pro quo promise or undertaking in the sense ofactually being communicated expressly, as variousCircuits have stated; or can there be a convictionbased instead only on the inference that there was anunstated and implied agreement, a state of mind,connecting the contribution and an official action?

2. Does the intent clause of the obstruction ofjustice statute 18 U.S.C. 1512(b)(3) (with intent to

. . . hinder, delay, or prevent the communication to alaw enforcement officer or judge of the United Statesof information relating to the commission or possible

commission of a Federal offense . . .) require proof ofthe specific intent to interfere with communicationsto law enforcement? Or is this element of the statutesatisfied by proof of an intent to engage in acoverup more generically?

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ii

PARTIES TO THE PROCEEDING BELOWThe parties in the Court of Appeals were Don

Eugene Siegelman (Petitioner), as Defendant- Appellant; Richard Scrushy, as Defendant-Appellant;and United States of America (Respondent), Appellee.

There were other defendants in the District Court,Paul Michael Hamrick and Gary Mack Roberts, butthey were not parties in the Court of Appeals.

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(iii)

TABLE OF CONTENTSPage

QUESTIONS PRESENTED................................ i

PARTIES TO THE PROCEEDING BELOW ..... ii

TABLE OF AUTHORITIES ................................ v

PETITION FOR WRIT OF CERTIORARI ......... 1

OPINIONS BELOW ............................................ 1

JURISDICTION .................................................. 2

STATUTES INVOLVED ..................................... 2

STATEMENT ...................................................... 2

A. The charges relating to the C.O.N.Board Appointment, and Question 1 ....... 3

B. The 1512(b)(3) charge, and Question 2 ... 9

REASONS FOR GRANTING THE PETITION .. 11

A. The first question presented is ofenormous importance to all electedofficials and campaign contributors, is

the subject of a Circuit split, and is aquestion on which ambiguity in the lawis intolerable. ............................................ 11

B. On the second question presented, thedecision below is contrary to the text of 1512(b)(3), and contrary to the decisionsof other Circuits.. ...................................... 23

CONCLUSION .................................................... 29

APPENDIX

APPENDIX A, Decision of Court of Appeals .. 1a APPENDIX B, Order of Court of Appeals

denying rehearing ........................................ 62a

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TABLE OF CONTENTSPage

APPENDIX C, Excerpts from jury instruc-tions............................................................... 63a

APPENDIX D, Order of District Court deny-ing motions for judgment of acquittal ......... 65a

APPENDIX E, Statutes at issue ..................... 73a

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v

TABLE OF AUTHORITIESCASES Page

Evans v. United States, 504 U.S. 255(1992) ......................................................... 11-17

McCormick v. United States, 500 U.S. 257(1991) ................................................ i, 3-9, 12-22

United States v. Abbey, 560 F.3d 513 (6thCir. 2009) .............................................. 16-17, 22

United States v. Allen, 10 F.3d 405 (7thCir. 1993) ................................................... 20

United States v. Blandford, 33 F.3d 685(6th Cir. 1994) ........................................... 16United States v. Ganim, 510 F.3d 134 (2nd

Cir. 2007) ................................................... 15, 22United States v. Genao, 343 F.3d 578 (2d

Cir. 2003) ................................................... 26United States v. Hertular, 562 F.3d 433

(2nd Cir. 2009) .......................................... 26United States v. Kincaid-Chauncey, 556

F.3d 923 (9th Cir. 2009) ............................ 15, 22United States v. Siegelman, 561 F.3d 1215

(11th Cir. 2009) ........................................passim

STATUTES

18 U.S.C. 666 ............................................ 2, 7, 2118 U.S.C. 1341 ........................................... 218 U.S.C. 1346 ........................................... 218 U.S.C. 1512(b)(1)................................... 2518 U.S.C. 1512(b)(3)............. i, 3, 9-10, 23, 25, 2718 U.S.C. 1512(c)(1) ................................... 2518 U.S.C. 1512(c)(2) ................................... 2528 U.S.C. 1254 ........................................... 2

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vi

TABLE OF AUTHORITIESContinuedOTHER AUTHORITIES Page

Brief of Petitioner in Evans v. UnitedStates, 1990 U.S. Briefs 6105, 1991 U.S.S. Ct. Briefs LEXIS 492 ............................ 17

Brief of United States in Evans v. UnitedStates, 1990 U.S. Briefs 6105, 1991 U.S.S. Ct. Briefs LEXIS 493 ............................ 17

Merriam-Webster Dictionary ....................... 18Oxford English Dictionary ........................... 18

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IN THESupreme Court of the United States

No. 09-___

DON EUGENE SIEGELMAN,Petitioner,

v.

UNITED STATES OFAMERICA,Respondent.

Petition for Writ of Certiorari to theUnited States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Don Eugene Siegelman respectfully praysthat a writ of certiorari issue to review the decision ofthe United States Court of Appeals for the EleventhCircuit, United States v. Siegelman, 561 F.3d 1215(11th Cir. 2009).

OPINIONS BELOW

The opinion of the Court of Appeals, reported at561 F.3d 1215, is reproduced in the Appendix at 1a-61a. The order of the Court of Appeals denying

rehearing is reproduced in the Appendix at 62a. Theorder and opinion of the United States District Courtfor the Middle District of Alabama, denying motions

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for judgment of acquittal, is at 65a-72a. The relevantjury instructions as given by the District Court are at63a-64a.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. 1254(1). The Court of Appeals issued its decisionon March 6, 2009. The Court of Appeals denied Gov-ernor Siegelmans timely application for rehearing onMay 14, 2009.

STATUTES INVOLVEDThe statutes at issue are in the appendix, 73a-75a.

STATEMENT

Petitioner, Don Siegelman, was the Governor of Alabama from 1999 to 2003. He had previouslyserved as Alabamas Lieutenant Governor, Secretaryof State, and Attorney General.

In 2005, Governor Siegelman was indicted alongwith other defendants in the United States District

Court for the Middle District of Alabama. The juryrejected most charges, but convicted GovernorSiegelman on seven counts.

Six of those counts were 18 U.S.C. 1341 and 1346honest services mail fraud, 18 U.S.C. 666 bribery,and conspiracy charges, all relating to GovernorSiegelmans appointment of co-defendant RichardScrushy to the States Certificate of Need (C.O.N.)Board. The theory of the prosecution was that Gov-ernor Siegelmans exercise of his appointment power

was linked to contributions that Scrushy had raisedto support a referendum campaign. The campaign,which Governor Siegelman supported, would have

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established a State lottery to fund public education.The seventh and final count of conviction wasan obstruction of justice charge under 18 U.S.C. 1512(b)(3).

This Petition presents important questions of law,raising the concern that Governor Siegelman hasbeen convicted for things that are not crimes. Answersto these questions are important, not only for thesake of Governor Siegelman, but for the sake of allelected officials throughout the nation, and of all whocontribute to electoral or issue-referendum campaigns.

A. The charges relating to the C.O.N. Boardappointment, and Question 1.

Government officials often appoint major politicalcontributors to boards, ambassadorships and the like.Likewise, government officials often take other actions,such as voting on legislation or taking executiveaction, that benefit people who have given them cam-paign contributions. Some degree or type of linkagebetween contribution and action can be inferred inmany cases, if not all.

What degree or type of linkage is enough to take acase across the line from politics (which voters cantake into account as they see fit) into crime? ThisCourt answered this question, as to the Hobbs Act, in

McCormick v. United States, 500 U.S. 257, 273(1991): there is a crime only if the payments aremade in return for an explicit promise or undertakingby the official to perform or not to perform an officialact. In such situations the official asserts that hisofficial conduct will be controlled by the terms of the

promise or undertaking.

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The present case involves other statutes, yet itimplicates the same concerns and considerations thatdrove the decision in McCormick. And it calls uponthis Court to clarify what theMcCormick standard is.Does it require proof of an actual communication bythe official, promising or agreeing that the action willfollow the contribution? Or can there be a convictionbased instead only on the inference of an unspokenstate of mind linking the two?

The allegation underlying the first six counts ofconviction, in this case, was that there was an unlaw-

fully close connection between Governor Siegelmansappointment of Scrushy to the C.O.N. Board, andScrushys raising of contributions for a referendumcampaign that Governor Siegelman supported. It isthis alleged connection, and the legal question ofwhat sort of connection must be proven to take such asituation out of the realm of mere politics in the realmof crime, that makes or breaks all of these counts.1

Scrushy was the CEO of one of Alabamas, and thenations, leading healthcare corporations. He had

served on Alabamas C.O.N. Board through appoint-ment by three previous Governors. There is nothingat all odd about appointing a healthcare executive tothe Board; in fact, several seats on the Board are

1 There was nothing else allegedly unlawful about GovernorSiegelmans appointment of Scrushy, other than its allegedconnection to the contributions. This is confirmed by the factthat the Court of Appeals reversed Governor Siegelmansconviction on two counts, for insufficiency of the evidence.Those were the counts having to do with things that Scrushy or

others had done while on the C.O.N. Board; the Court of Appeals realized that there was no evidence that GovernorSiegelman was complicit in any such thing. [23a-29a, 561 F.3dat 1229-32].

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reserved by law to health care provider representa-tives. [4a-5a, 561 F.3d at 1220 & n.5].

One of Governor Siegelmans initiatives, during hiscampaign and his administration, was a State lottery,with the proceeds to support education. Other Stateshad instituted such programs with great success.Under Alabama law, the institution of such a programwould require a vote of the people. There was, there-fore, an issue-advocacy or referendum campaign onthe question. Governor Siegelman raised contributionsto a fund supporting the pro-lottery side of that

referendum campaign. [4a, 561 F.3d at 1220].

Scrushy raised and made substantial contributionsto the lottery campaign. And Governor Siegelman re-appointed Scrushy to the C.O.N. Board.

What connection, if any, was there between thecontributions and the appointment? The key parts ofthe prosecutions evidence came through the testimonyof Governor Siegelmans former aide Nick Bailey,who was testifying under a cooperation agreementwith the government and hoping for a reduced sen-

tence himself. Taking Baileys testimony as true, onecould conclude that Governor Siegelman sent word toScrushy that he wanted Scrushy to contribute sub-stantially to the lottery campaign. And one couldconclude that Bailey told Governor Siegelman thatScrushy wanted reappointment to the C.O.N. Board.One could also conclude, from the evidence, thatScrushy or his colleagues saw the contribution as thekey to obtaining the reappointment.

In terms of what Governor Siegelman knew or said

about any connection between the contribution andthe appointment, again the high-water mark of theprosecutions evidence came through Baileys testi-

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mony. Bailey testified that he reminded the Gover-nor periodically of the conversations that [Bailey] hadwith [Scrushy associate] Eric Hanson and the conver-sations that the Governor had with Eric Hansonabout what Mr. Scrushy wanted for his contributions,and that was the CON Board. [6a, 561 F.3d at1221]. And Bailey testified that after Scrushy madethe first substantial contribution, Bailey and Gover-nor Siegelman had a conversation. As the Court of

Appeals recounted it, Bailey asked, what in the worldis he [Scrushy] going to want for that? Siegelman

replied, the CON Board. Bailey then asked, Iwouldnt think that would be a problem, would it?Siegelman responded, I wouldnt think so. [7a, 561F.3d at 1221].

In other words, there is certainly no evidence beyonda reasonable doubt that Governor Siegelman actuallypromised Scrushy, or overtly agreed with him, thatan appointment to the C.O.N. Board would be givenin exchange for contribution to the lottery campaign.The Court of Appeals did not suggest that there wassuch evidence. Instead it held, as we will discuss in

more depth below, that McCormick does not requiresuch evidence.

Governor Siegelman presented and preserved hiscontention about the applicable legal standard fol-lowingMcCormick, both in terms of jury instructionsand in terms of sufficiency of the evidence.

Governor Siegelman proposed jury instructionsthat would have told the jury of the necessity of proofbeyond a reasonable doubt of an explicit quid proquo connection between the contributions and the

appointment. And he objected to the District Courtsinstructions on the grounds that they failed toinclude that element. The District Courts honest

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services fraud instructions required no proof of aquid pro quo arrangement at all, but instead allowedconviction upon the mere conclusion that GovernorSiegelman intended to act as a result of campaigncontributions. [63a]. The District Courts 666instructions told the jury that there must be proofthat the official and the contributor agree that theofficial will take specific action in exchange for thething of value. [18a-19a, 561 F.3d at 1227]. But,over Governor Siegelmans objection, the DistrictCourt refused to tell the jury that such agreement

must be of the explicit sort, as contrasted withbeing just a matter of an unspoken state of mind thatis inferred from the circumstances.

On appeal, Governor Siegelman continued to pressthe argument that the McCormick standard appliesto these statutes, and that it requires proof of anexplicit quid pro quo, an explicit promise or under-taking by the official linking the official act to thecampaign contribution. Governor Siegelman arguedthat an inference about what the official had in mindis not enough; what must be shown under the

McCormick standard, he argued, is an actual com-munication from the official, promising the action inexchange for the contribution.

The Court of Appeals did not deny that theMcCormick standard applies to the honest servicesstatute and to 666, just as it does to the Hobbs Act.Nor did the Court of Appeals deny that theMcCormickstandard applies to cases involving referendum orissue-advocacy contributions, just as it does to elec-tion campaigns.

And, crucially, the Court of Appeals did not suggestthat the evidence was sufficient, or that the juryinstructions were correct, if Governor Siegelman was

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correct on the content of the McCormick standard.The Court of Appeals did not suggest that the convic-tion could be affirmed if the law requires proof of anactual overt quid pro quo promise or undertaking.

Instead, the Court of Appeals affirmed the convictionon these counts by disagreeing with GovernorSiegelman as a matter of law on the content of the

McCormick standard. The crux of the courts reasoningwas that when this Court inMcCormick required anexplicit promise or undertaking, an explicit quid

pro quo, the word explicit did not mean express,

or actually spoken.

McCormick does use the word explicit whendescribing the sort of agreement that is requiredto convict a defendant for extorting campaigncontributions. It does not, however, meanexpress.Defendants argue that only proof of actual con-

versations by defendants, will do, suggesting intheir brief that only express words of promiseoverheard by third parties or by means of elec-tronic surveillance will do.

ButMcCormick does not impose such a stringentstandard.

[16a, 561 F.3d at 1225-26 (emphasis in original)].

The Court of Appeals took McCormicks wordexplicit to mean only that there must be an agree-ment, express or implied, linking the contribution tosome specific official action. But the Court of

Appeals insisted that the agreement does not have tobe actually communicated expressly; it is enough,said the Court of Appeals, if the jury can infer the

existence of an unspoken agreement from the sur-rounding circumstances.

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Since the agreement is for some specific action orinaction, the agreement must be explicit, butthere is no requirement that it beexpress.

[17a, 561 F.3d at 1226 (emphasis in original)]. TheCourt of Appeals further stated, in this vein, Fur-thermore, an explicit agreement may be implied from[the officials] words and actions. [18a, 561 F.3d at1226 (brackets in original)]. Likewise the Court of

Appeals insisted that the evidence was sufficient toprove the requisite state[] of mind, regardless ofwhether a quid pro quo promise was made expressly.

[21a, 561 F.3d at 1228].

So in the Eleventh Circuit, the explicit aspect ofMcCormicks standard does not mean express, orovertly communicated. Furthermore, according to thedecision below, a promise that is merely implied,and is only a matter a state[] of mind rather thanbeing verbally expressed, can nonetheless be deemedexplicit within the meaning ofMcCormick. As wewill show below, there is a clear split in authoritybetween the decision below, and the decisions of other

Circuits; and this is a question on which ambiguityand regional difference are especially intolerable.

B. The 1512(b)(3) charge, and Question 2.

Other than the counts pertaining to the C.O.N.Board appointment, the sole remaining count of con-

viction charged one act as obstruction of justice under18 U.S.C. 1512(b)(3): that Governor Siegelmancaused his then-aide Nick Bailey to write him a checkfor $2,973.35, with a notation on the check sayingbalance due on m/c. This was the purchase price for

the remaining interest in a motorcycle that, upon the

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completion of this transaction, Bailey had bought infull from Governor Siegelman.2

The Court of Appeals viewed Baileys purchase ofthe motorcycle as part of an effort to cover up apay-to-play payment that another person, Lanny

Young, had allegedly made. [2a, 561 F.3d at 1219].(On the merits, the jury had rejected all chargesalleging that there was actually such a pay to playscheme with Young.) The theory is that this pur-chase of the motorcycle was not bona fide. Thetheory is that what was really going on was that

Young had, earlier, indirectly given money to Gover-nor Siegelman through Bailey, and this check waspart of an effort to make it seem in retrospect asthough that alleged indirect transfer had just been aloan to Bailey so that he could buy the motorcycle.

The Court of Appeals, affirming the denial of Gov-ernor Siegelmans motion for judgment of acquittal,set forth its view of the facts pertaining to the 1512(b)(3) charge at 561 F.3d at 1222-23, and 1233-36. 9a-11a, 32a-38a. The Court of Appeals opined

that there was sufficient evidence to conclude thatGovernor Siegelman had persuaded Bailey, and thathe had engaged in misleading conduct towards Baileyslawyer, in regard to the check from Bailey toGovernor Siegelman. (Persuading, and engaging inmisleading conduct, are two of the types of acts thatcan constitute a violation of 1512(b)(3), if done withthe intent that the law prohibits.) And the Court of

Appeals deemed the evidence sufficient to show thatthe check was part of a coverup of an earlier pay-ment from Young. That colloquialismcoverup or

2 Governor Siegelman had earlier bought the motorcycle forhimself. [9a, 561 F.3d at 1222].

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cover up, repeated at least sixteen times in theappellate opinionwas the centerpiece of the Ele-venth Circuits portrayal of the facts.

The second question for this Court asks whetherthe facts portrayed by the Court of Appeals, even iftrue, make out a violation of the statute. As we willshow, the Court of Appeals upheld the conviction onlyby giving the statute a broad coverage that is at oddswith the statutes plain text. The statute has a pre-cise and narrower coverage; and it involves arequired element of proof that neither the Eleventh

Circuit, nor the prosecutors, even claimed was satis-fied here. That is the element that the statute itselfsets forth: with intent to . . . hinder, delay, or pre-

vent . . . communication to a law enforcement officeror judge . . . By adopting the loose colloquialismcoverup in place of adherence to the text of the sta-tutes intent clause, the Court of Appeals departedfrom the law and from decisions of other CircuitCourts.

REASONS FOR GRANTING THE PETITION

A. The first question presented is of enor-mous importance to all elected officialsand campaign contributors, is the subjectof a Circuit split, and is a question onwhich ambiguity in the law is intolerable.

On the first question presented, there is deep disa-greement among the federal Circuit Courts about thelegal standard that makes a crime of the alleged con-nection between a campaign contribution and anofficial action. As a result of the decision below, the

Circuit Courts are now divided as to whether thisCourts decision in Evans v. United States, 504 U.S.255 (1992), dilutes the explicit quid pro quo stan-

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dard of McCormick v. United States, 500 U.S. 257,273 (1991), in cases involving campaign contributions.

As explained above, the standard ofMcCormick isthat a linkage between a campaign contribution andan official action is criminal only if the payments aremade in return for an explicit promise or undertakingby the official to perform or not to perform an officialact. In such situations the official asserts that hisofficial conduct will be controlled by the terms of thepromise or undertaking. Id.

This Court, in McCormick, recognized how impor-tant it is, that there be a clear line in this context todivide the lawful from the unlawful. That was one ofthe avowed goals ofMcCormick itself: to ensure thatthere is clarity as to where that line is. The Courtnoted that officials routinely serve constituents; thatcampaigners must necessarily raise money throughcontributions; and that there will be situations inwhich official action affecting a contributor will followclose in time to a contribution. McCormick, 500 U.S.at 272. The Court applied a clear statement rule to

Congress, inferring that Congress would speakclearly about such situations if it wished to forbidthem in a criminal statute. Id. at 272-73. And thisCourt, upon adopting the stringent explicit promiseor undertaking standard, again emphasized the

value of clarity in the law: This formulation definesthe forbidden zone of conduct with sufficient clarity.

Id. at 273.

The year after McCormick, this Court decidedEvans; and as a result ofEvans, what was made clearinMcCormick became arguably less clear. The ques-

tion that this Court took up inEvans was somethingentirely separate from the McCormick explicit quid

pro quo question. It was whether an affirmative act

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of inducement by a public official, such as a demand,is an element of the offense of extortion under colorof official right prohibited by the Hobbs Act. Evans,504 U.S. at 256. Evans was not petitioned, briefed, orargued as a case about the meaning of, or possiblealteration of, the McCormick explicit quid pro quostandard for cases involving contributions.

But in the end, this Courts decision in Evansincluded a short passage mentioningMcCormick:

We reject petitioners criticism of the instruction,

and conclude that it satisfies the quid pro quorequirement ofMcCormick v. United States, 500U.S. 257 (1991), because the offense is completedat the time when the public official receives apayment in return for his agreement to performspecific official acts; fulfillment of the quid proquo is not an element of the offense.

Evans, 504 U.S. at 268. And Justice Kennedy, con-curring in part and concurring in the judgment,wrote a separate opinion that included views on quid

pro quo as an element of all Hobbs Act extortion

cases. Id. at 272-78. Included in Justice Kennedysseparate opinion was the view that the quid pro quodoes not have to be stated in express terms in orderto amount to a crime. Id. at 274.

After Evans, there are now two competing schoolsof thought about the nature of the explicit quid proquo requirement under McCormick, in cases involv-ing campaign contributions. (1) In some Circuits,including at least the Second, Sixth, and Ninth, theprosecution is required to prove that there was an

explicit, meaning express, promise or agreement bythe official that he would take the official action inexchange for the contribution. An inference about

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unspoken states of mind is not enough in those Cir-cuits, in a case involving campaign contributionsrather than some personal payment to the official.(2) The competing view, exemplified by the decisionbelow, insists that the contributor and the official canboth be convicted if the jury could find that there wasan unspoken, merely implied, exchange of contribu-tion for a certain official action. [16a-18a, 521 F.3d at1226 (treatingEvans as support for the rule allowingconviction based on unspoken states of mind andimplicit linkage between contribution and official

action)]. It is not clear that any other Circuit sharesthe view of the Eleventh Circuit in this regard.

It is important, for the sake of all elected officials,candidates, and campaign contributors, that there beclarity and uniformity on the answer to this question.

As the Court of Appeals admitted in this very case,the answer to this question will implicate, and affect,core First Amendment values and interests.

The bribery, conspiracy and honest services mailfraud convictions in this case are based upon the

donation Scrushy gave to Siegelmans educationlottery campaign. As such, they impact the First Amendments core valuesprotection of freepolitical speech and the right to support issues ofgreat public importance. It would be a particu-larly dangerous legal error from a civic point of

view to instruct a jury that they may convict adefendant for his exercise of either of these con-stitutionally protected activities. In a politicalsystem that is based upon raising private con-tributions for campaigns for public office and for

issue referenda, there is ample opportunity forthat error to be committed.

[13a-14a, 561 F.3d at 1224].

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Several Circuits have held that, after Evans andMcCormick, the law is as follows: (1) that for casesinvolving official action allegedly taken in exchangefor campaign contributions, McCormicks originalexplicit quid pro quo standard still robustly applies,meaning that prosecutors must prove an expresspromise or agreement linking the contribution andthe official action; and (2) that for cases where theofficial has personally received money that is not acampaign contribution, a looser quid pro quo stan-dard applies, in which the linkage does not have to be

proven to have been explicit (or express).The Second Circuit, for instance, explained that

this is the law in United States v. Ganim, 510 F.3d134 (2nd Cir. 2007) (Sotomayor, J.). The Second Cir-cuit understood McCormick as holding that proof ofan express promise is necessary when the paymentsare made in the form of campaign contributions.Ganim, 510 F.3d at 142. The Court continued, id. at143, that it had harmonizedMcCormick andEvansby recognizing that outside the campaign contribu-tion context there still must be proof of a quid pro quo,

but not an explicit one. Evans modified [the quidpro quo] standard in non-campaign contribution cases,Ganim, 510 F.3d at 143, such that in cases that donot involve campaign contributions, the quid pro quocan be implied as contrasted with express. Id.

The Ninth Circuit followed Ganim in this regard,and stated this understanding comprehensively, inUnited States v. Kincaid-Chauncey, 556 F.3d 923,936-37 (9th Cir. 2009): for campaign contributionsthere must be proof of an express quid pro quo

promise in order to make out a crime, but for casesthat do not involve contributions the quid pro quomay be implicit. The Sixth Circuit is in the same

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camp, as reflected in its discussion in United Statesv. Abbey, 560 F.3d 513, 517-18 (6th Cir. 2009).

The Eleventh Circuit, by contrast, takes Evans ashaving diluted the explicit quid pro quo standard inall casesthose involving campaign contributions aswell as those involving personal payments to the offi-cial. Based on that understanding, the EleventhCircuit held thatMcCormicks explicit quid pro quostandard does not require proof of an expresspromise or agreement linking the contribution andofficial action. [16a-17a, 561 F.3d at 1226]. In the

Eleventh Circuits view, there can be conviction ifthere is proof from which the jury could infer anunspoken state of mind, on the part of the official andthe contributor, linking the contribution and theaction. Explicit, declared the Eleventh Circuit, doesnot mean express; and so the official and the con-tributor can be convicted and jailed even where therewas no promise or agreement spoken. [16a, 561 F.3dat 1225-26].

The Eleventh Circuit suggested that its view of

Evans is supported by Sixth Circuit precedent. [17a-18a, 561 F.3d at 1226, citing and quoting UnitedStates v. Blandford, 33 F.3d 685, 696 (6th Cir. 1994)(Evans instructed that by explicit McCormick didnot mean express)]. But in fact not even the SixthCircuit believes that, anymore. Instead, as notedabove, the Sixth Circuit is among those Courts thattreatsEvans as having adopted a less stringent, non-explicit, quid pro quo standard for cases that do notinvolve campaign contributions. Cases involvingcampaign contributions still require the heightened

showing, one that is not diluted byEvans. SeeAbbey,560 F.3d at 517 (treating Blandfords analysis ofEvans as dictum); id. at 517 (Not all quid pro quos

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are made of the same stuff. . . . Evans modified thestandard in non-campaign contribution cases . . .);id. at 517-18 (reflecting that in non-campaign contri-bution cases, the difference is that the quid pro quoagreement does not have to be explicit).

Upon full review, the Court should firmly reject theEleventh Circuits broad reading ofEvans. The sin-gle sentence aboutMcCormick, in the Courts opinionin Evans, is on its face not a comment on the expli-cit aspect ofMcCormicks explicit quid pro quoholding. It is not about what explicit means, or

whether explicitness is required. The Court wastalking in Evans about something entirely different,about an argument that could be answered by sayingthat fulfillment of the quid pro quo is not an elementof the offense. Evans, 504 U.S. at 268 (emphasissupplied). The issue at hand was about fulfillment,or consummation, of an exchangenot about howexplicit the planned exchange had to be.

The briefs in Evans confirm this. The argumentthat Evans was making, to which the Court was res-

ponding, was twofold: first that the inquiry had tofocus on the officials intent rather than the payors,and second that the official did not commit a crimeuntil he actually attempted to follow through withofficial action. See Brief of Petitioner inEvans, 1990U.S. Briefs 6105, 1991 U.S. S. Ct. Briefs LEXIS 492,*74-78. Responding, the United States wrote a pas-sage that this Court adopted nearly verbatim in itsopinion as quoted above. Brief of United States in

Evans, 1990 U.S. Briefs 6105, 1991 U.S. S. Ct. BriefsLEXIS 493, *51.

As a matter of proper interpretation of precedent,therefore, the Eleventh Circuits broad view ofEvans,as vitally affecting the meaning of explicit, is wrong.

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Moreover, the Eleventh Circuits view of the wordexplicitthat it does not mean expressis quiteidiosyncratic as a matter of ordinary language.3

But whether or not the Court already sees theEleventh Circuit as being wrong about what the

McCormick standard is, there can be no doubt thatthe Eleventh Circuit has starkly disagreed with otherCircuits on the question. Nor can there be any doubtthat Governor Siegelman stands convicted by virtueof a standard that no reasonable person would have

Andin taking the view that the word explicit merelyrequires that the quid pro quo agreement be about aspecific action, 17a-19a, 561 F.3d at 1226-27, theEleventh Circuit was merely taking the side of thedissent in McCormick. See McCormick, 500 U.S. at282-83 (Stevens, J., dissenting) (contending that animplicit linkage between a contribution and a spe-cific action was enough to constitute a crime). Like-

wise, the Eleventh Circuits view cannot be squaredwith McCormicks further description of the cases inwhich a crime has occurred: In such situations theofficial asserts that his official conduct will be con-trolled by the terms of the promise or undertaking.

Id., 500 U.S. at 273. Here, even on the description bythe Court of Appeals, there is simply no evidence thatGovernor Siegelman ever assert[ed] any such thing.Having in mind an intention to do something, but notspeaking it directly and out loud as a promise, doesnot count as assert[ing] that one will do it. In short,

the decision below represents exactly the view thatthis Court rejected inMcCormick.

3 The Oxford English Dictionary, for instance, defines expressas stated explicitly. . Merriam-Webster lists the words as syn-onyms. .

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known, in advance, to be the law; this in itself raisesserious questions of fairness.

The question presented here is important not onlyto Governor Siegelman, but also to all public officialswho raise or receive campaign contributions and toall citizens who contribute. Every interested personshould be able to know in advance where the line is,between politics and crime. Raising campaign funds,and donating to campaigns, are not only a necessityin our modern democracy; beyond that, these activi-ties are expressions of constitutional rights under the

First Amendment. (They can be regulated to adegree, of course, but still they are of constitutionalimportance). Likewise, seeking governmental actionis itself a constitutional right under the First Amend-ments petition clause. And officials must takeaction, including action that affects contributors. Ifthe definition of relevant crimes is different from oneCircuit to the next, and if the definitions areuncertain, then officials and citizens take all theseactions at their peril. The exercise of constitutionalrights will be chilled by this lack of clarity.

Moreover, in defining the relevant standard, thecourts likewise define the degree of discretion thatprosecutors enjoy; and discretion that is wider, in thiscontext, is more dangerous. The Eleventh Circuitsstandard, by allowing prosecutors to seek indictmentbased not on words that are spoken but on states ofmind that are inferred, grants an enormous amountof discretion. It gives prosecutors the authority todecide which governmental officials are to be trustedto have made decisions for legitimate reasons, and

which ones should be prosecuted because theirthoughts are believed to have been inappropriate. And this heightened degree of prosecutorial discre-

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tion is dangerous not only because it can lead tounjust prosecutions, but because it can underminepublic confidence in the prosecutorial function. Whenthe line between law and politics is unclear, the pub-lic does not and cannot have faith that all prosecutorschoose their targets legitimately.

For these reasonsbecause there is disagreementamong the Circuits, and because the question isimportant to our democracythe Court should grantreview to clarify theMcCormick standard.

One might perhaps argue, as a reason for denyingreview in this case, thatMcCormick was a Hobbs Actcase and that this case is not. But that distinctionshould not stand in the way of review. There aregood reasons to believe that the same standardshould apply,4 and to our knowledge no Circuit hasdenied it. Even the Eleventh Circuit, below, did notdeny that the McCormick standard should be thesame as to these statutes as it is in the Hobbs Actcontext. The Court of Appeals stopped just short ofso holding, but recognized the force of the point.

[15a, 561 F.3d at 1225]. TheMcCormick standard issquarely at issue here, just as it has been in the casesfrom other Circuits that have interpretedMcCormickdifferently. There is a Circuit split on whatMcCor-mick means, whether under the Hobbs Act or otherstatutes.5

4See, e.g., United States v. Allen, 10 F.3d 405, 411 (7th Cir.

1993) (recognizing that extortion and bribery are but differentsides of the same coin and that it would therefore make sensefor the sameMcCormick standard to apply).

5

As we noted above, a significant part of the reasoning ofMcCormick was a clear statement rule, an expectation thatCongress would speak explicitly if it wished to adopt a standardthat would sweep more campaign-contribution cases into the

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One might conceivably argue, in opposition to cer-tiorari, that this case is slightly different from someother McCormick cases, since this case involves acontribution to a referendum campaign instead of acampaign for elective office. But if this distinctionmattered at all, it would matter in the sense of urg-ing even more protection for the contributor and theofficial in this very case, not less. As the EleventhCircuit noted below,

Arguably, the potential negative impact of thesestatutes on issue-advocacy campaigns is even

more dangerous than it is to candidate-electioncampaigns. Issue-advocacy campaigns are a fun-damental right in a free and democratic societyand contributions to them do not financially ben-efit the individual politician in the same waythat a candidate-election campaign contributiondoes. Defendants assert, and we do not knowotherwise, that this is the first case to be basedupon issue-advocacy campaign contributions.

[13a, 561 F.3d at 1224 n.13]. Therefore, this distinc-

tion should not stand in the way of certiorari. Issue-zone of criminal prohibition. Id. 500 U.S. at 272-73. Neitherthe honest services statute nor 666 contains anythingremotely approaching a clear statement in this respect. Thehonest services law is clear as mud in many respects, includ-ing this one. And 666 contains the crucial, but unclear,limitation that it prohibits actions only if they are donecorruptly. Without that textual limitation, nearly anycampaign contribution motivated by a desire to reward aspecific official action that the donor thought to have been agood idea would, bizarrely enough, be a crime. Corruptly is

therefore an essential, but unfortunately unclear, part of thestatute; the McCormick standard is the best interpretation ofwhat it means, in the context of campaign contributions that arealleged to have been bribes.

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advocacy or referendum campaigns are a major partof the current political landscape in many states; thelaw about them should be clear, no less than the lawregarding campaigns for elective office.

Likewise, one might conceivably label as dicta thediscussion of the standard applicable to campaigncontribution cases, in Ganim,Kincaid-Chauncey, and

Abbey, since those decisions were primarily con-cerned with fact scenarios that did not involve cam-paign contributions. But such an argument would bemisplaced as grounds for opposing certiorari. In

those Circuits that have said in published opinionsthat proof of an express quid pro quo promise isrequired in a campaign contribution case, surely noUnited States Attorney could justifiably seek anindictment and try for a conviction on a looserstandard. Therefore, in practice, the stark conflictbetween the law in the Eleventh Circuit, and the lawin Circuits such as the Second, Sixth, and Ninth, willnot go away. Evidence and potential inferences thatcan lead to a conviction and sentence in the EleventhCircuit will not lead even to an indictment in some

other Circuits. It is an immediate problem, and aproblem that will not disappear, and a problem thatshould not be allowed to linger.

But even if there were not a division among theCircuit Courts, still certiorari would be appropriatebecause the issue is so important and because thedecision below is so hard to square with McCormickitself. This Court inMcCormick required an explicitquid pro quo, an explicit promise or undertakingby the official, to make receipt of a contribution a

crime. This Court inMcCormick rejected the dissen-ters view that an implicit exchange of the contribu-tion for some specific action was enough to constitute

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a crime. The Eleventh Circuit has somehow founditself able to adopt the dissenters view, and to dec-lare that a promise or undertaking can be explicitwhen it is only implicit. This gives prosecutorsextraordinary discretionary power to target officials,or not, for actions that are quite routine. The Courtshould grant review in order to return clarity to thisarea of law.6

B. On the second question presented, thedecision below is contrary to the text of 1512(b)(3), and contrary to the decisions

of other Circuits.

The second question presented, about the reach of18 U.S.C. 1512(b)(3), also deserves this Courts fullconsideration. This could be viewed as resolving asplit in lower court authority, as we will show. Butfrankly the question is so easily answeredand theEleventh Circuits treatment of the issue is so devoidof reasoned attention to the questionthat it couldalso be viewed as a necessary exercise in error-correc-tion. The bottom line is that Governor Siegelman

stands convicted under 1512(b)(3) despite the fact

6 Even if this Court ultimately agreed with the EleventhCircuit that an unspoken state of mind was enough forconviction in this sort of case, still the Court should reverseGovernor Siegelmans conviction based on due process fairnessand notice concerns; given the state of the law at the time, hecould not have known that the law allowed conviction withoutan actually-stated express quid pro quo. Moreover, even if theCourt adopted a standard that allowed conviction based onunspoken states of mind, the Court should reverse GovernorSiegelmans conviction because of the insufficiency of the

evidence; and in that respect, the Court should scrutinize theevidence at or near a de novo level of scrutiny (withoutdeference to the jurys actual or potential conclusions) becauseof the First Amendment concerns involved in the case.

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that (even accepting the Eleventh Circuits portrayalof the facts) there was not a bit of evidence that hehad the intent that the statute covers.

The Court of Appeals upheld the conviction on thiscount, portraying the evidence as allowing the infer-ence that Governor Siegelman engaged in an effort tocover up an earlier, allegedly improper, paymentfrom Lanny Young.7

The theory of the prosecution was that GovernorSiegelman persuaded Bailey to write the check, andthat he and Bailey misled Baileys counsel about thenature of it. That is how the prosecution sought tomeet the first element of the statute, which requires

proof of persuasion, misleading, or other sorts of acts.On full review, we believe the Court would see thatneither of those facts can fairly be inferred from theevidence; there was, for instance, not actually anyevidence that Governor Siegelman even asked, muchless persuaded, Bailey to write this check.

This coverup, according to theCourt of Appeals, consisted of the creation of docu-ments, including the check that was the gravamenof this count. In what sense was it allegedly a

coverup? According to the Court of Appeals, it wasin the sense that it was an effort to convey theimpression that (rather than giving money toGovernor Siegelman) Young had merely lent moneyto Bailey to buy the motorcycle.

But whether the charge was that he persuade[d]or engage[d] in misleading conduct, the statute alsorequired proof of a particular intent: the intent tohinder, delay, or prevent the communication to a lawenforcement officer or judge of the United States of

7 As noted above, the jury rejected the charges relating to theearlier payment itself.

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information relating to the commission or possiblecommission of a Federal offense.

This statute, in other words, prohibits efforts tostop or keep people (by persuasions, threats, or trick-ery) from providing information to law enforcement,or at least to slow them down from doing so. That isthe plain meaning of the intent to hinder, delay orprevent portion of the statute. There are other sta-tutes that cover, more generally, improper attempts toinfluence what people say in certain contexts. See,

e.g., 18 U.S.C. 1512(b)(1). Those statutes might

cover efforts to induce people to give information tolaw enforcement that they would not otherwise havegiven, but this is not such a statute; Congress decidednot to use the word influence in 1512(b)(3). Thereare also other obstruction statutes that cover mis-leading acts involving documents in certain contexts.

See, e.g., 18 U.S.C. 1512(c)(1). There are otherobstruction statutes that are drawn as catch-all pro-

visions, but only in contexts that are inapplicablehere. See 18 U.S.C. 1512(c)(2) (catch-all provisionregarding corruptly influencing an official proceed-

ing). Congress knows how to write the obstructionstatutes it wants, to cover the behavior it wants tocriminalize, as broadly or narrowly as it chooses.

Rather than focusing on the words of the intentclause of the statute, the Court of Appeals was satis-fied with its conclusion that the intent was to engagein a cover up. But that is not what the statutedemands. Some coverups, it is true, might involvekeeping witnesses from conveying information to lawenforcement. But not all coverups are of that sort;

there can be coverups of other types. Coverup isnot a legal term, under federal law; it is a colloquialterm that covers many sorts of things. If there was a

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coverup in this case, was it of the sub-species that isbased on keeping people from telling law enforcementwhat they know? The Court of Appeals did not say,and it cited no evidence that it was.

The Court of Appeals thus went astray by failing toadhere to the words of the statute, and in particularits clause about the required intent. The Court of

Appeals allowed the colloquialism coverup to sub-stitute for adherence to this portion of the statutesplain text. In that, the Court of Appeals departedfrom the holdings of other Circuits. Consider, for

instance, United States v. Hertular, 562 F.3d 433(2nd Cir. 2009). There, the Second Circuit recognizedthat a conviction under this statute requires a spe-cific intent to interfere with the communication ofinformation. Id. at 443, citing United States v.Genao, 343 F.3d 578, 586 (2d Cir. 2003). By contrast,as recognized in Hertular, an intent to hinder orprevent . . . simply the filing of an indictment is notenough to come within the statute. 562 F.3d at 443.It is the intent to hinder, delay or prevent communi-cation to law enforcementnot a perceived intent to

cover up or avoid indictment in a more genericsensethat makes this crime.

The Eleventh Circuit did not suggest that therewas evidence to come within the actual words of theintent clause of the statute. Nor did the prose-cution argue that any evidence supported a finding ofsuch particular intent, for that matter. There isabsolutely no suggestion, for instance, that Baileywould have given information to law enforcement,such that Governor Siegelman formulated the intent

to hinder, delay or prevent him from doing so. Noris it plausible to suggest that Governor Siegelmanhad that intent as to Baileys counsel, the person

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allegedly misled. There is simply no way that Baileysown lawyer would have gone to law enforcement toinculpate Bailey and Siegelman with informationthat he possessed, such that Bailey and Siegelmanwould have misled him in order to stop him; that isthe antithesis of a lawyers role. Even the Court of

Appeals was unwilling to make such far-fetched sug-gestions. But only that sort of far-fetched suggestion,or something else equally lacking in evidentiaryfoundation and unmentioned by the Court of Appeals,could bring the case within 1512(b)(3), once one

focuses (as the Court of Appeals did not) on the wordsof the statute.8

So as to avoid possible confusion, we note thatthe issue we are raising here is separate from someother issues that often arise in the caselaw under 1512(b)(3). There is sometimes debate, for instance,about how much proof there must be of a defendantsintent to interfere with a federal as opposed to stateinvestigation. And there is sometimes debate aboutwhether state law enforcement officials can count asthe people who are misled, as the people whose com-

munications are intended to be hindered.

9

8 The indictment, notably, had tracked the intent prong of

the statute: the charge was that Governor Siegelmans intentwas to hinder, delay or prevent either Bailey, or Young, orBaileys lawyer from communicating to the FBI. But as noted inthe text above, neither the Court of Appeals nor the prosecu-tions appellate team claimed that any evidence at trial actuallyproved such intent.

9 The United States sometimes does frame indictments so asto allege that law enforcement officials are the people whose

communications to other law enforcement officials are intendedto be hindered, delayed or prevented. The United Statesthereby tries, in some cases, to have the statute cover someattempts to cover up things by misleading investigators; the

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This case is simpler than those, and should not beconfused with them. This case involves a starkabsence of proof of any intent to hinder, delay, orprevent communications to law enforcement. Theabsence of such proof was so stark that the Court of

Appeals did not claim that there was such proof; itrested instead on the legally erroneous view that itwas enough to find an intent to cover up.

Thus only by departing from the plain text of thestatute and from decisions like Genao could the Ele-

venth Circuit affirm Governor Siegelmans conviction

on this count. For these reasons, we respectfullysubmit that this question 2 is deserving of certiorarieven on its own. But most assuredly, if the Courtgrants the writ as to question 1, then the Courtshould grant the writ as to question 2 as well.

We recognize that the error of the Court of Appealson question 2 was perhaps a matter of error causedby inattention to careful legal reasoning, as opposedto being a conscious disagreement on a reasonablydisputable point of law. But this should not lead to a

denial of review. Even though this Court does notoften grant review for error-correction, it should do soin this case. Otherwise there would be the troublinglikelihood of a grave injustice: that Governor Siegel-

theory in such cases is that the coverup keeps the investiga-tors from learning inculpatory facts and thus hinders them fromcommunicating such inculpatory facts to others in law enforce-ment. This case does not require the Court to opine on thevalidity of that workaround. If the workaround is ever valid, itis only in cases where the indictment alleges it, and the jury

finds it. Here, as noted above, the indictment alleged that theintent was to hinder, delay, or prevent communications byBailey, Young, or Baileys lawyernot to hinder, delay, orprevent communications within law enforcement.

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man would finally obtain exoneration on the corecharges against him, only to face imprisonment on anafterthought charge that was not actually supportedby the law and the evidence.

CONCLUSION

By granting review, this Court would have theopportunity to right an injustice, to free a man whohas committed no crime, and to clarify the law in amanner that will be important to all candidates,elected officials, and politically engaged citizens. For

the foregoing reasons, this Court should grant review.

Respectfully submitted,

KEVIN DIGREGORYMANATT,PHELPS &

PHILLIPS, LLP700 12th St. NW, Ste. 100Washington, DC 20005

REDDING PITTFARRIS,RILEY &PITT, LLP

Massey Bldg., Ste. 4002025 3rd Ave. NorthBirmingham, AL 35203

SAM HELDMANCounsel of Record

THE GARDNER FIRM, PC2805 31st St. NWWashington, DC 20008(202) 965-8884

VINCENT F.KILBORN III

DAVIDA.MCDONALDKILBORN,ROEBUCK&

MCDONALDP.O. Box 66710Mobile, AL 36606

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APPENDIX A

IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

No. 07-13163D.C. Docket No. 05-00119-CR-F-N

UNITED STATES OFAMERICA,Plaintiff-Appellee,

versus

DON EUGENE SIEGELMAN,RICHARD SCRUSHY,Defendants-Appellants.

Appeals from the United States District Courtfor the Middle District of Alabama

(March 6, 2009)

Before EDMONDSON, Chief Judge, TJOFLAT andHILL, Circuit Judges.

PER CURIAM:

Don Eugene Siegelman is the former Governor ofAlabama. Richard Scrushy is the founder and formerChief Executive Officer of HealthSouth Corporation,a major hospital corporation with operationsthroughout Alabama. The defendants were convictedof federal funds bribery, in violation of 18 U.S.C. 666(a)(1)(B), and five counts of honest services mail

fraud and conspiracy, in violation of 18 U.S.C. 1341, 1346, and 18 U.S.C. 371. Siegelman was

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also convicted of obstruction of justice, in violation of18 U.S.C. 1512(b)(3).

The defendants bribery convictions were based onallegations that they made and executed a corruptagreement whereby Scrushy gave Siegelman$500,000 in exchange for Siegelmans appointing himto Alabamas Certificate of Need Review Board (theCON Board). The honest services mail fraud convic-tions incorporated the same bribery allegations, butalso alleged that Scrushy used the CON Board seatobtained from Siegelman to further HealthSouths

interests. Siegelmans obstruction of justice convic-tion is based on allegations that he corruptly influ-enced another to create a series of sham check trans-actions to cover up a pay-to-play payment to him.1

But it has arrived in this court with the sword andbuckler of a jury verdict. The yeomans work of our

judicial system is done by a single judge and a jury.Twelve ordinary citizens of Alabama are asked to sitthrough long days of often tedious and obscure testi-mony and pore over countless documents to decidewhat happened, and, having done so, to apply tothese facts the law as the judge has explained it tothem. And they do. Often at great personal sacrifice.Though the popular culture sometimes asserts oth-erwise, the virtue of our jury system is that it mostoften gets it right. This is the great achievement of

This is an extraordinary case. It involves allega-tions of corruption at the highest levels of Alabamastate government. Its resolution has strained the re-sources of both Alabama and the federal government.

1 The obstruction of justice allegations involved conductunrelated to the Siegelman-Scrushy bribery, mail fraud andconspiracy charges.

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our system of justice. The jurys verdict commandsthe respect of this court, and that verdict must besustained if there is substantial evidence to supportit. Glasser v. United States, 315 U.S. 60, 80 (1942).

Furthermore, to the extent that the jurys verdictrests upon their evaluations of the credibility of indi-

vidual witnesses, and the reasonable inferences to bedrawn from that testimony, we owe deference tothose decisions. In our system, the jury decides whatthe facts are, by listening to the witnesses and mak-ing judgments about whom to believe. This they have

done, and, though invited to do so,2

This is not to say that the judgment below isinviolable. Our duty as an appellate court is toanswer properly presented questions from the partiesin the case as to whether the law was correctly inter-preted and applied by the district court. Juries applythe law as the judge instructs them, and the defen-dants lawyers assert that there were errors in thoseinstructions. Defendants also contend that there were

other legal mistakes committed during the course ofthis trial. With this in mind, we have reviewed theclaims of legal error in the proceedings below, andour opinion as to their merit follows. First, however,we recount the facts as the jury found them.

we shall notsubstitute our judgment for theirs.

3

2 The defendants assert that this is a case in which we owe no

deference to the jurys findings of fact, but we disagree.3 Where the jury need not have found a particular fact to be

established in order to reach their verdict, we indicate whotestified to that fact.

I.

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Don Siegelman was elected Governor of Alabamain 1998 on a campaign platform that advocated theestablishment of a state lottery to help fund educa-tion in Alabama. After his election, he established the

Alabama Education Lottery Foundation (the Foun-dation) to raise money to campaign for voterapproval of a ballot initiative to establish a statelottery. Darren Cline, the Foundations fundraisingdirector, testified that Siegelman called the shotson the lottery campaign. The lottery initiative waseventually defeated in a referendum held in October

of 1999.On March 9, 2000, the Foundation borrowed

$730,789.29 from an Alabama bank in order to paydown debt incurred by the Alabama DemocraticParty for get-out-the-vote expenses during the lotterycampaign. This note was personally and uncondition-ally guaranteed by Siegelman.4

Richard Scrushy, the CEO of HealthSouth hadserved on the CON Board under three previousgovernors of Alabama. The CON Board is an arm of

the State Health Planning and Development Agencyand exists to prevent unnecessary duplication ofhealthcare services in Alabama. The Board deter-mines the number of healthcare facilities in Alabamathrough a process that requires healthcare providersto apply for and obtain a certificate of a healthcareneed before opening a new facility or offering aspecial healthcare service. The CON Board decideswhich healthcare applications will be approved for anannounced healthcare need, choosing betweencompeting applications and ruling on objections filed

4 There was another personal guarantor, but each wasindividually liable.

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by an applicants competitor. The Governor ofAlabama has sole discretion to appoint the membersof the CON Board, who serve at his pleasure.5

Mike Martin is the former Chief Financial Officerof HealthSouth. He testified that having influenceover the CON Board was important to Scrushy andHealthSouth because it determined the number ofhealthcare facilities in the state, thereby affectingHealthSouths ability to grow. He testified thatScrushy told him that to have some influence or aspot on the CON Board, they had to help Siegelman

Scrushy had supported Siegelmans opponent in thejust prior election.

Nick Bailey was one of Siegelmans closest asso-ciates and had worked on Siegelmans campaign forgovernor. Cline testified that whatever [Bailey] toldme that the Governor wanted was what the Governorsaid. Cline also testified that if the Governorwanted to get something done, then [Bailey] went

aheadblindly went ahead and did it.

Bailey testified that, after Siegelmans election in1998, Siegelman met with Eric Hanson, an outsidelobbyist for HealthSouth, and told Hanson thatbecause Scrushy had contributed at least $350,000 toSiegelmans opponent in the election, Scrushy neededto do at least $500,000 in order to make it rightwith the Siegelman campaign. Bailey testified thatSiegelman was referring to the campaign for thelottery initiative, and that Hanson was to relay this

conversation to Scrushy. Bailey also testified that, inanother conversation, Hanson told Bailey thatScrushy wanted control of the CON Board.

5 Three of the nine seats on the Board are reserved for healthcare industry providers.

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raise money for the lottery campaign. Scrushy saidthat if they did so, [they] would be assured a seat onthe CON Board. Martin testified, [W]e were makinga contribution . . . in exchange for a spot on the CONBoard.

Bailey testified that lobbyist Hanson made it clearto him that if Mr. Scrushy gave the $500,000 to thelottery campaign that we could not let him downwith respect to the CON Board seat. Bailey also testi-fied that he reminded the Governor periodically ofthe conversations that [Bailey] had with Eric Hanson

and the conversations that the Governor had withEric Hanson about what Mr. Scrushy wanted for hiscontributions, and that was the CON Board.

Martin also testified that Scrushy told him thatHealthSouth could not make the payment to the lot-tery campaign, nor could he do it personally becausewe [HealthSouth] had not supported that and thathis wife, Leslie, was against the lottery, and it would

just look bad if HealthSouth made a direct contribu-tion to the lottery, so we needed to askhe

instructed me in particular to ask our investmentbanker, Bill McGahan, from [the Swiss bank] UBS, tomake the contribution.

Bill McGahan did not want to make such an out ofthe norm donation and hoped the matter would goaway. Over the next two weeks, Martin calledMcGahan at least once a day to ask him about thestatus of the UBS donation, and told McGahan thatScrushy was going to fire UBS if it did not make thecontribution. Finally, Martin testified, Scrushy him-self called McGahan to put more pressure on him to

make the contribution.

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McGahan testified that he did not want UBS tomake such a large contribution directly, so he toldMartin that he would get Integrated Health Services(IHS) of Maryland to make the donation to the lot-tery campaign in exchange for UBS reducing an out-standing fee that IHS owed UBS. IHS agreed to thisarrangement and donated $250,000 to the Founda-tion in exchange for a reduction of $267,000 in the feeit owed UBS.

The IHS donation was in the form of a checkdated July 19, 1999, made payable from itself to the

Foundation. Martin testified that Scrushy told him itwas important that he, Scrushy, hand deliver theIHS check to Siegelman, so Martin delivered thecheck to Scrushy so that he could do so.

Some time later,6

Siegelman appointed Scrushy to the CON Board onJuly 26, 1999one week after the date on the IHScheck.

Siegelman and Scrushy met inSiegelmans office. Bailey testified that after Scrushyleft, Siegelman showed the IHS check to Bailey andtold him that Scrushy was halfway there. Baileyasked, what in the world is he [Scrushy] going towant for that? Siegelman replied, the CON Board.

Bailey then asked, I wouldnt think that would be aproblem, would it? Siegelman responded, I wouldntthink so.

7

6 Bailey told the FBI that Scrushy gave the check to

Siegelman in a meeting on July 14, 1999, but testified at trialthat he did not remember exactly when the meeting was.

7 Seven other Board members were appointed that day.

Siegelman directed Bailey to contact theBoard chair-designee to tell her that Siegelmanwanted Scrushy to be vice-chair of the CON Board,and the Board so chose. Bailey testified that

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Siegelman made Scrushy vice-chair [b]ecause[Scrushy] asked for it. Scrushy stayed on the Boarduntil January of 2001, at which time Siegelmanappointed Thom Carman, HealthSouths vice-president, to the remainder of Scrushys term.Siegelman subsequently reappointed Carman to afull term. While Carman was on the Board, Health-South successfully applied for and received Certifi-cates of Need for a mobile PET scanner and a reha-bilitation hospital.

Darren Cline, the Foundations fundraising direc-

tor, testified that Siegelman gave him the IHS checkand told him it was from Scrushy. Cline wasconcerned about the amount of the donation from oneperson, and Siegelman told him to hold the check. InNovember of 1999, however, at Siegelmans direction,Bailey retrieved the check and opened a new check-ing account in the Foundations name at a Birming-ham bank. Bailey made an initial deposit of$275,000the $250,000 IHS check and a $25,000check from another company. Cline was never told.

On March 9, 2000, the Foundation borrowed, fromthe same Birmingham bank, $730,789.29 to repay theAlabama Democratic Partys debt in connection withthe lottery initiative and Siegelman guaranteed theloan. At that time, the Foundation had over $447,000in its checking account at the bank, $250,000 ofwhich had come from the IHS check deposited inNovember of 1999. On March 13, 2000, $440,000 wasdebited from the account to pay down the Founda-tions loan.

In May, Siegelman and Bailey traveled to Health-

Souths headquarters in Birmingham, where Siegel-man met privately with Scrushy in Scrushys office.

At that meeting, Scrushy gave Siegelman a check

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issued by HealthSouth for $250,000 payable to theFoundation.8

8 HealthSouths political contributions coordinator testified

that she did not know about the donation until she read about itin the newspaper. The Foundations fundraising directortestified that he was not present when Scrushy gave Siegelmaneither of the checks.

On May 23, 2000, the $250,000 checkwas applied directly against the Foundations loanbalance.

The Foundation was required to disclose contribu-tions received and expenditures made in statementsfiled with the Alabama Secretary of State. It failed tofile timely any disclosure regarding any fundsreceived until July of 2002, after Alabama newspa-pers questioned whether the financial dealingsbetween the Foundation and the Alabama

Democratic Party had been properly reported and theSecretary of States Office had written a letter to thestate Attorney Generals Office about the Founda-tions non-disclosure of the payoff of the DemocraticPartys campaign loan. All funds received were thenreported.

Lanny Young was a long-time business associate ofSiegelmans who testified that he was part of a pay-to-play arrangement with Siegelman existing overmany years. He testified that he would provide

money, campaign contributions, and other benefits inreturn for official action, as needed, that benefittedYoungs business interests. He testified that in Janu-ary of 2000, Siegelman asked him for $9,200 to buy amotorcycle. The evidence was that Siegelman hadalready purchased the motorcycle. Young testifiedthat he and Bailey worked out the details for thetransaction.

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Bailey testified that he did not want Young to givethe money directly to Siegelman, so Bailey told Young to write the check to him, Bailey, which hedeposited into his own account. He then wrote acheck to Lori Allen, Siegelmans wife, which he gaveto Siegelman and which was deposited into Siegel-mans bank account that same day. There was testi-mony that a check written to the IRS for fourth quar-ter estimated taxes would not have cleared theaccount but for the $9200 deposit.

By June of 2001, Siegelman was well-aware of the

federal-state investigation into the Foundationsfinances and Siegelmans dealings with Young.Bailey and Young each testified that, in an effort tocover up Youngs $9,200 payment to Siegelman,Bailey gave Young a check for $10,503.39, on whichhe noted repayment of loan [the $9,200] plus inter-est in order to make it appear that he had borrowedthe $9,200 from Young. Bailey also wrote a check toSiegelman for $2,973.35 with the notation balancedue on m/c to provide a reason for his borrowingmoney from Young, which was to purchase the

motorcycle from Siegelman. Bailey testified that hedid not borrow the money to buy the motorcycle, butthat Youngs $9,200 had gone through him to Siegel-man and we used the motorcycle to cover it up.Bailey testified that Siegelman was aware of andapproved Baileys writing of the $10,503.39 check to

Young.

Bailey testified that he gave Siegelman the$2,973.35 check at the office of Siegelmans attorney,who, along with Baileys own attorney, was present

for the transfer. Neither lawyer was told that thepurpose of the transaction was part of the coverup ofthe $9,200 payment from Young to Siegelman. Sie-

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gelman accepted the check, and provided Bailey witha bill of sale for the motorcycle, which the attorneyshelped finalize. Bailey testified that he lied about thetransaction to the lawyers, that he and Siegelmanknew that the federal investigation was going on, andthat he later lied to federal investigators about thetransaction to protect himself and Siegelman.

II.

On December 12, 2005, a grand jury returned asecond superseding indictment against Siegelman

and Scrushy and two other defendants.

9

Both Siegel-man and Scrushy were charged with federal fundsbribery, honest services conspiracy and honestservices mail fraud.10

9 The superseding indictment replaced an earlier version of

the indictment.10 The federal funds bribery statute criminalizes the taking of

a bribe by an official of a state agency that receives over $10,000in federal funds annually. 18 U.S.C. 666. Honest services mail

fraud criminalizes the mailing of a letter in connection with ascheme to defraud a state agency of an officials honest servicesin the performance of his official duties. 18 U.S.C. 1341 and1346.

Siegelman was also chargedwith multiple counts of racketeering conspiracy,racketeering, honest services wire fraud, obstructionof justice and extortion.

Trial on the indictment began on May 1, 2006. OnJune 29, 2006, the jury convicted Siegelman andScrushy on the bribery, conspiracy and honestservices mail fraud counts, and Siegelman was

convicted of one count of obstruction of justice. The jury acquitted Siegelman on the remaining twenty-two counts. The other two defendants were acquittedon all counts against them.

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Siegelman and Scrushy were each sentenced toapproximately seven years in federal prison.11

The bribery statute under which defendants wereconvicted makes it a crime for a state official tocorruptly agree to accept anything of value from

On appeal, Siegelman and Scrushy together allegenine errors in the trial proceedings below. Withrespect to the bribery, conspiracy and honest servicesmail fraud counts against them, defendants assertthat the courts instructions erroneously failed torequire the jury to find a quid pro quo in order toconvict; that, in any event, there was insufficientevidence of any quid pro quo; that the bribery countswere barred by the statute of limitations; and that

the trial court erroneously admitted hearsay used toconvict them on these counts. Defendants also allegethat there was juror misconduct requiring the grantof a new trial and that the procedures used to selecttheir grand and petit juries violated the JurySelection and Services Act of 1968 and the Constitu-tion. Siegelman contends that there was insufficientevidence that he obstructed justice and that thedistrict court abused its discretion in sentencing himby upwardly departing from the Sentencing Guide-lines. We shall consider each of these allegations of

error in turn.

III.

1. Bribery, Conspiracy and Honest Services MailFraud Counts.

A. Jury Instructions

11 Siegelman and Scrushy were denied bond pending appeal,but a panel of this court subsequently released Siegelmanpending resolution of this appeal.

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another person intending to be influenced in thatpersons favor in an official action. 18 U.S.C. 666(a)(1)(B). The honest services mail fraud statutecriminalizes the use of the mails to execute a schemeto defraud another of the right to a public officialshonest services. 18 U.S.C. 1341, 1346. Theconspiracy statute prohibits two or more personsfrom conspiring to commit a federal offense. 18U.S.C. 371.

The bribery, conspiracy and honest services mailfraud convictions in this case are based upon the

donation Scrushy gave to Siegelmans educationlottery campaign.12 As such, they impact the First

Amendments core valuesprotection of free politicalspeech and the right to support issues of great publicimportance. It would be a particularly dangerouslegal error from a civic point of view to instruct a jurythat they may convict a defendant for his exercise ofeither of these constitutionally protected activities.13

12 Although the conspiracy and mail fraud counts alleged a

broader scheme for Scrushy to self-deal once on the Board, thesecounts also incorporated the allegations of an agreementbetween Siegelman and Scrushy to exchange money for the seaton the Board.

13 Arguably, the potential negative impact of these statutes onissue-advocacy campaigns is even more dangerous than it is tocandidate-election campaigns. Issue-advocacy campaigns are afundamental right in a free and democratic society andcontributions to them do not financially benefit the individual

politician in the same way that a candidate-election campaigncontribution does. Defendants assert, and we do not knowotherwise, that this is the first case to be based upon issue-advocacy campaign contributions.

In a political system that is based upon raisingprivate contributions for campaigns for public office

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and for issue referenda, there is ample opportunityfor that error to be committed.

The Supreme Court has sought to protect againstthis possibility by requiring more for conviction thanmerely proof of a campaign donation followed by anact favorable toward the donor.McCormick v. United

States, 500 U.S. 257 (1991). In reviewing a Hobbs Actprosecution, the federal crime of extortion under colorof official rightdemanding a campaign donation inreturn for taking some favorable official actiontheCourt said:

Serving constituents and supporting legislationthat will benefit the district and individuals andgroups therein is the everyday business of alegislator. It is also true that campaigns must berun and financed. Money is constantly being soli-cited on behalf of candidates, who run onplatforms and who claim support on the basis oftheir views and what they intend to do or havedone. Whatever ethical considerations andappearances may indicate, to hold that legisla-

tors commit the federal crime of extortion whenthey act for the benefit of constituents or supportlegislation furthering the interests of some oftheir constituents, shortly before or aftercampaign contributions are solicited and receivedfrom those beneficiaries, is an unrealisticassessment of what Congress could have meantby making it a crime to obtain property fromanother, with his consent, under color of officialright. To hold otherwise would open to prosecu-tion not only conduct that has long been thought

to be well within the law but also conduct that ina very real sense is unavoidable so long as elec-tion campaigns are financed by private

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contributions or expenditures, as they have beenfrom the beginning of the Nation.

Id. at 272.

To avoid this result, the Court made clear that onlyif payments are made in return for an explicitpromise or undertaking by the official to perform ornot to perform an official act, are they criminal.Id.at 273 (emphasis added). The Court quoted the Courtof Appeals for the Fifth Circuit, which had said that:

A moments reflection should enable one to

distinguish, at least in the abstract, a legitimatesolicitation from the exaction of a fee for a benefitconferred or an injury withheld. Whetherdescribed familiarly as a payoff or with the Lati-nate precision of quid pro quo, the prohibitedexchange is the same: a public official may notdemand payment as inducement for the promiseto perform (or not to perform) an official act.

Id. (quoting United States v. Dozier, 672 F.2d 531,537 (5th Cir. 1982)).

While the Court has not yet considered whetherthe federal funds bribery, conspiracy or honestservices mail fraud statutes require a similar expli-cit promise, the Seventh Circuit Court of Appealshas observed that extortion and bribery are butdifferent sides of the same coin. United States v.

Allen, 10 F.3d 405, 411 (7th Cir. 1993).14

14 We acknowledge, as the defendants point out, that several

district courts, in unpublished opinions, have extended theMcCormick rationale to the bribery and honest service statutes.The government points to no contrary authority, relying insteadon inapposite authority not involving campaign contributions.

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The district court agreed to instruct the jury thatthey could not convict the defendants of bribery inthis case unless the defendant and the official agreethat the official will take specific action in exchangefor the thing of value. (emphasis added). Thisinstruction was fashioned by the court in directresponse to defendants request for a quid pro quoinstruction, and was given in addition to theEleventh Circuits pattern jury instruction for federalfunds bribery cases. So, whether or not a quid proquo instruction was legally required, such an instruc-

tion was given.Defendants, however, assert that the instruction

was inadequate under McCormick. Defendantsassert that the instruction failed to tell the jury thatnot only must they find that Siegelman and Scrushyagreed to a quid pro quo, the CON Board seat for thedonation, but that this agreement had to beexpress.We disagree that McCormick requires such aninstruction.

McCormick does use the word explicit when

describing the sort of agreement that is required toconvict a defendant for extorting campaign contribu-tions. It does not, however, meanexpress. Defendantsargue that only proof of actual conversations by de-fendants, will do, suggesting in their brief that only

express words of promise overheard by third partiesor by means of electronic surveillance will do.

But McCormick does not impose such a stringentstandard. One year after McCormick, the SupremeCourt approved the following jury instruction:

However, if a public official demands or acceptsmoney in exchange for [a] specific requestedexercise of his or her official power, such a

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demand or acceptance does constitute a violationof the [federal extortion statute] regardless ofwhether the payment is made in the form of acampaign contribution.

Evans v. United States, 504 U.S. 255, 258 (1992).The Court held that the instruction satisfies thequid pro quo requirement of McCormick v. United

States.Id. at 268. The Court said that the Govern-ment need only show that a public official hasobtained a payment to which he was not entitled,knowing that the payment was made in return for

official acts.Id.

The instruction approved in Evans required thatthe acceptance of the campaign donation be in returnfor a specific official actiona quid pro quo.15

But there is no requirement that this agreement bememorialized in a writing, or even, as defendantssuggest, be overheard by a third party. Since theagreement is for some specific action or inaction, theagreement must be explicit, but there is no require-ment that it beexpress. To hold otherwise, as JusticeKennedy noted in Evans, would allow defendants toescape criminal liability through knowing winks andnods. 504 U.S. at 274 (Kennedy, J. concurring).Seealso United States v. Blandford, 33 F.3d 685, 696 (6th

Nogeneralized expectation of some future favorableaction will do. The official must agree to take orforego some specific action in order for the doing of itto be criminal under Section 666. In the absence ofsuch an agreement on a specific action, even a close-in-time relationship between the donation and the

act will not suffice.

15 The Latin means something for something, Blacks LawDictionary 1282 (8th ed. 2004).

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Cir. 1994) (Evans instructed that by explicitMcCormick did not mean express); United States v.Giles, 246 F.3d 966, 972 (7th Cir. 2001); United

States v. Tucker, 133 F.3d 1208, 1215 (9th Cir. 1998);United States v. Hairston, 46 F. 3d 361, 365 (4th Cir.1995).16

In this case, the jury was instructed that they couldnot convict the defendants of bribery unless theDefendant and official agree that the official will take

Furthermore, an explicit agreement may beimplied from [the officials] words and actions.

Evans, 504 U.S. at 274 (Kennedy, J., concurring). AsJustice Kennedy explained:

The criminal law in the usual course concernsitself with motives and consequences, notformalities. And the [jury] is quite capable ofdeciding the intent with which words werespoken or actions taken as well as the reasonableconstruction given to them by the official and thepayor.

Id. See also United States v. Massey, 89 F.3d 1433,1439 (11th Cir. 1996) (holding that bribery convictionunder general federal bribery statute, 18 U.S.C. 201, may be supported by inferences drawn from

relevant and competent circumstantial evidence).

16 Nor is this courts prior holding in United States v.Davis,30 F.3d 108 (11th Cir. 1994), to the contrary. In Davis, weacknowledged that, after McCormick, an explicit promise by apublic official to act or not act is an essential element of HobbsAct extortion, and the defendant is entitled to a reasonably clear jury instruction to that effect.Id. at 108. We reversed Davis

conviction not only because his jury did not receive a reasonablyclear instruction, but because the court in that case informedthe jury that a specific quid pro quo is not always necessary fora public official to be guilty of extortion.Id.

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specific action in exchange for the thing of value.This instruction required the jury to find an agree-ment to exchange a specific official action for acampaign contribution. Finding these facts wouldsatisfy McCormicks requirement for an explicitagreement involving a quid pro quo. Therefore,assuming a quid pro quo instruction was required inthis case, we find no reversible error.17

1. The Bribery, Conspiracy and Related MailFraud Counts

B. Evidence on the Bribery, Conspiracy andHonest Services Mail Fraud Convictions

18

17 Because the conduct charged in the conspiracy and honest

services mail fraud counts incorporates the conduct alleged inthe federal funds bribery counts, on which the jury wasinstructed to find a quid pro quo, any failure to adequatelyinstruct the jury on a quid pro quo requirement for theconspiracy and honest services counts was harmless. See Cuppv. Naughten, 414 U.S. 141, 148-48 (1973) (jury instructions mustbe evaluated as a whole).

18 Counts 6 and 7 charge Mail Fraud in connection with themailings of the letters appointing (Count 6) and reappointing(Count 7) Thom Carman as Scrushys replacement on the CONBoard in connection with the bribery scheme.

Defendants argue that the sole evidence of anyexplicit quid pro quo in connection with Siegelmansappointment of Scrushy to the CON Board wasBaileys testimony regarding the conversation he hadwith Siegelman following the meeting at whichScrushy delivered the first $250,000 check to Siegel-man, and that this evidence was legally insufficientto support the jurys finding of a quid pro quo. Wedisagree.

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Bailey testified that after the meeting, Siegelmanshowed him the check, said that it was from Scrushyand that Scrushy was halfway there. Bailey askedwhat in the world is he going to want for that?Siegelman replied, the CON Board. Bailey thenasked, I wouldnt think that would be a problem,would it? Siegelman responded, I wouldnt think so.

Defendants assert that this conversation showsthat there was not an explicit or express agreementat this time between Siegelman and Scrushy. Theyargue that the conver