Siegelman v. USA Cert Pet

8/3/2019 Siegelman v. USA Cert Pet

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No. 11-____

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 the

United States Court of Appealsfor the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

ROBERT D.SEGALLCOPELAND,FRANCO,

SCREWS &GILL, PA444 South Perry St.P.O. Box 347Montgomery AL 36104(334) 834-1180

REDDING PITTFARRIS,RILEY &PITT, LLPMassey Bldg., Suite 4002025 Third Ave. NorthBirmingham AL 35203(205) 324-1212

SAM HELDMANCounsel of Record

THE GARDNER FIRM2805 31st St. NWWashington DC 20008(202) [email protected]

VINCENT F.KILBORN,IIIDAVIDA.MCDONALDKILBORN,ROEBUCK&

MCDONALDPost Office Box 66710Mobile AL 36660

(251) 479-9010

Counsel for Petitioner


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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.

Does this standard require proof of an explicitquid pro quo in the sense of actually being com-municated expressly, or can there be a conviction

based instead only on the inference that there wasan unstated and implied agreement connecting acampaign contribution and an official action?

2. Do 18 U.S.C. 666 and honest services law(under 18 U.S.C. 1346) cover campaign or referen-dum contributions as alleged bribes at all?

3. Does the intent clause of 18 U.S.C. 1512(b)(3)require proof of the specific intent to interfere withcommunications to law enforcement, or is it satisfiedby proof of an intent to engage in a coverup moregenerically?


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

Eugene Siegelman (Petitioner), as Defendant-Appel-lant; Richard Scrushy, as Defendant-Appellant; andUnited 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

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

OPINIONS BELOW ............................................ 2

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

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

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

A. The charges relating to the C.O.N.Board Appointment, and Questions 1and 2. ......................................................... 3

B. The 1512(b)(3) charge, and Question 3. 10

REASONS FOR GRANTING THE PETITION ... 12

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; the second question,which is closely related, is of enormouspractical and legal importance as well. ... 12

B. On the third question presented, thedecision below is contrary to the text of 1512(b)(3), is contrary to the decisionsof other courts, and is untenable in lightof this Courts decisions in Fowler and

Skilling. ..................................................... 27

CONCLUSION .................................................... 33


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TABLE OF CONTENTSContinuedPage

APPENDIX

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

APPENDIX B, Order of Court of Appealsdenying rehearing ..................................... 61a

APPENDIX C, Excerpts from juryinstructions ............................................... 62a

APPENDIX D, Order of District Courtdenying motions for judgment ofacquittal .................................................... 64a

APPENDIX E, Statutes at issue ................. 72a


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TABLE OF AUTHORITIESCASES Page

Evans v. United States, 504 U.S. 255(1992) .................................................... 13-19, 24

Fowler v. United States, 131 S.Ct. 2045(2011) ......................................................... 30

McCormick v. United States, 500 U.S. 257(1991) ........................................................passim

Sabri v. United States, 541 U.S. 600 (2004) 26

Salinas v. United States, 522 U.S. 52(1997) ......................................................... 26

Skilling v. United States, 130 S.Ct. 2896(2010) ................................................ 1, 21, 25, 31

Sorich v. United States, 555 U.S. 1204(2009) (Scalia, J., dissenting from denialof certiorari)............................................... 22

United States v. Abbey, 560 F.3d 513 (6thCir. 2009) ................................................... 16-18

United States v. Blandford, 33 F.3d 685(6th Cir. 1994) ........................................... 17

United States v. Dean, 629 F.3d 257 (D.C.Cir. 2011) ................................................... 24

United States v. Ganim, 510 F.3d 134 (2ndCir. 2007) ................................................... 16, 18

United States v. Genao, 343 F.3d 578 (2dCir. 2003) ................................................... 30

United States v. Hertular, 562 F.3d 433

(2nd Cir. 2009) .......................................... 30United States v. Inzunza, 638 F.3d 1006

(9th Cir. 2011) ........................................... 18


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TABLE OF AUTHORITIESContinuedPage

United States v. Kincaid-Chauncey, 556F.3d 923 (9th Cir. 2009) ............................ 18

United States v. Siegelman, 561 F.3d 1215(11th Cir. 2009), vacated, 130 S.Ct. 3542(2010) ......................................................... 1

United States v. Siegelman, 640 F.3d 1159(11th Cir. 2011) ........................................passim

STATUTES

18 U.S.C. 666 ............................................passim

18 U.S.C. 1341 ........................................... 2

18 U.S.C. 1346 ..........................................passim

18 U.S.C. 1512(a)(1)(C) .............................. 30

18 U.S.C. 1512(b)(1)................................... 29

18 U.S.C. 1512(b)(3)..................... 3, 10-11, 27-32

18 U.S.C. 1512(c)(1) ................................... 29

18 U.S.C. 1512(c)(2) ................................... 29

28 U.S.C. 1254 ........................................... 2

OTHER

Brief of United States inSkilling v. UnitedStates, No. 08-1394 ................................... 25

John L. Diamond, Reviving Lenity and Honest Belief at the Boundaries ofCriminal Law, 44 U. Mich. J. L. Reform1 (2010) ...................................................... 19


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TABLE OF AUTHORITIESContinuedPage

Ilissa B. Gold, Explicit, Express, and Everything in Between: The Quid ProQuo Requirement for Bribery and Hobbs

Act Prosecutions in the 2000s, 36 Wash.U. J. L. & Pol'y 261 (2011) ........................ 20

Peter J. Henning and Lee J. Radek,The Prosecution and Defense of PublicCorruption: The Law and Legal Strat-

egies (Oxford University Press, 2011) ..... 19

Embassy Openings for Open Wallets,Washington Post, January 19, 2011 ........ 4

The 2012 election brings a new kind of fundraiser: The super bundler, Wash-ington Post, August 16, 2011.................... 4


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IN

THE

Supreme Court of the United States

No. 11-____

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 respectfullyprays that a writ of certiorari issue to review thedecision of the United States Court of Appeals for theEleventh Circuit, United States v. Siegelman, 640F.3d 1159 (11th Cir. 2011). This Court vacated anearlier opinion and remanded for further considera-tion in light of Skilling v. United States, 130 S.Ct.2896 (2010). United States v. Siegelman, 561 F.3d1215 (11th Cir. 2009), vacated, 130 S.Ct. 3542 (2010).The second appellate opinion is largely the same as

the first; we respectfully seek this Courts reviewagain.


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OPINIONS BELOWThe opinion of the Court of Appeals, 640 F.3d 1159,

is in the Appendix at 1a-60a. The order denyingrehearing is at 61a. The order and opinion of theUnited States District Court for the Middle Districtof Alabama, denying motions for judgment of acquit-tal, is at 64a-71a. The relevant jury instructions asgiven are at 62a-63a.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. 1254(1). The Court of Appeals issued its decisionon May 10, 2011, and denied Governor Siegelmanstimely application for rehearing on November 9,2011.

STATUTES INVOLVED

The statutes at issue are in the appendix, 72a-74a.

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 DistrictCourt 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 and1346 honest services mail fraud, 18 U.S.C. 666bribery, and conspiracy charges, all relating toGovernor Siegelmans appointment of co-defendant


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Richard Scrushy to the States Certificate of Need(C.O.N.) Board. The theory of the prosecution wasthat Governor Siegelmans exercise of his appoint-ment power was linked to contributions that Scrushyhad raised to support a referendum campaign. Thecampaign, which Governor Siegelman supported,would have established a State lottery to fund publiceducation. The seventh and final count of convictionwas an 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.

Answers to these questions are important, not onlyfor the sake of Governor Siegelman, but for the sakeof all elected officials throughout the nation, and ofall who contribute to electoral or issue campaigns.

A. The charges relating to the C.O.N. Boardappointment, and Questions 1 and 2.

First, the case presents the question whether cam-paign contributions (in an electoral or, as in this case,a referendum campaign) can be prosecuted as bribesunder 18 U.S.C. 666 and 18 U.S.C. 1346 (honestservices) and, if so, what linkage between contri-bution and official action must be proven in order toconstitute a crime.

Government officials often appoint major politicalcontributors to boards, ambassadorships and the like.Officials often take other actions as well, such aslegislative votes or executive action, that benefitpeople who have given them campaign contributions.

Some degree of linkage between campaign contribu-tion and action can be inferred in many cases, if notall. It is a fact that some find unfortunate. Others,


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untroubled, see it as the fruit of constitutionallyprotected expression or just as the way the worldworks. But it is a simple fact: money is the lifebloodof modern politics, and most if not all officials areresponsive in at least some degree to those whocontribute.1

What degree or type of linkage is enough to take acase across the line from politics 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 are

made 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. The Courts key wordsthere include explicit, asserts, and terms words that (especially when taken all together)convey, at least to many readers, the understandingthat only an overtly spoken quid pro quo communica-tion between the contributor and the official amountsto a crime.

1As the Washington Post put it recently, Wealthy donors

who bundle contributions for candidates have long exercisedinordinate influence in U.S. politics, often being rewarded withcushy ambassadorships or powerful positions in Washington.But recent changes in the landscape of campaign-finance lawhave given these donors even greater influence with candidatesand their advisers. See The 2012 election brings a new kind offundraiser: The super bundler, Washington Post, August 16,

2011. See also Embassy Openings for Open Wallets, Washing-ton Post, January 19, 2011 (discussing those ambassordshipsthat are the traditionally-for-sale category and stating thatthe really plum ones are likely to go for upward of $1 million).


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This case involves other federal statutes, yet itimplicates the same concerns and considerations thatdrove McCormick. It calls upon the Court to decidewhether these statutes even cover electoral or (here)issue-referendum campaign contributions, when thehistory shows that the Congress in enacting thesestatutes did not mean to be addressing this difficultand constitutionally-sensitive area. And, if thesestatutes do cover campaign contributions, the casecalls upon this Court to clarify what the McCormickstandard is; for it should be uncontroversial that the

McCormick standard applies under these laws, ifthese laws do cover campaign contributions at all.DoesMcCormick require proof of an actual communi-cation by the official, promising or agreeing that theaction will follow the contribution? Or can there be aconviction based instead only on the inference of anunspoken state-of-mind agreement linking the two?If it is the latter, as the court below held in this case,then prosecutorial discretion to select high-profiletargets for investigation and prosecution is extra-ordinarily broad.

The allegation, again, was that there was anunlawful connection between Governor Siegelmansappointment of Scrushy to the C.O.N. Board, andScrushys raising of contributions for a referendumcampaign that Governor Siegelman supported.

Scrushy was the CEO of one of Alabamas, and thenations, leading healthcare corporations. He hadserved on Alabamas C.O.N. Board through appoint-ment by three previous Governors. Several seats onthe Board are reserved by law to health care provider

representatives. [5a, 640 F.3d at 1165 & n.5].


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One of Governor Siegelmans initiatives, during hiscampaign and his administration, was a Statelottery, with the proceeds to support education.Other States had instituted such programs withgreat success. Under Alabama law, creating such aprogram would require a vote of the people. Therewas, therefore, an issue-advocacy or referendumcampaign on the question. Governor Siegelmanraised contributions to a fund supporting the pro-lottery side of that referendum campaign. [4a, 640F.3d at 1165].

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 partsof the prosecutions evidence came through thetestimony of Governor Siegelmans former aide NickBailey, who was testifying under a cooperationagreement with the government and hoping for areduced sentence himself. Taking Baileys testimony

as true, one could conclude that Governor Siegelmansent word to Scrushy that he wanted Scrushy tocontribute substantially to the lottery campaign.

And one could conclude that Bailey told GovernorSiegelman that Scrushy wanted reappointment to theC.O.N. Board. One could also conclude that Scrushyor his colleagues saw the contribution as the key toobtaining the reappointment.

In terms of what Governor Siegelman knew or saidabout any connection between the contribution andthe appointment, again the high-water mark of the

prosecutions evidence came through Baileys testi-mony. Bailey testified that he reminded the Gover-nor periodically of the conversations that [Bailey] had


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with [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, 640 F.3d at1166]. 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 theworld is he [Scrushy] going to want for that? Siegel-man replied, the CON Board. Bailey then asked, Iwouldnt think that would be a problem, would it?

Siegelman responded, I wouldnt think so. [8a, 640F.3d at 1167].2

In other words, there is certainly no evidencebeyond a reasonable doubt that Governor Siegelmanactually promised Scrushy, or overtly stated to oragreed with him, that an appointment to the C.O.N.Board would be given in exchange for contribution tothe lottery campaign. The Court of Appeals did notsuggest that there was such evidence. Instead itheld, as we will discuss in more depth below, that

McCormick does not require such evidence.

2The conflict within Baileys testimony, as recounted above,

demonstrates how unsteady the proof of a quid pro quo can be,while still passing muster under the view of the law taken bythe court below. Bailey first has himself telling GovernorSiegelman repeatedly what Scrushy wanted; but then, quiteoddly, he has himself asking Governor Siegelman what Scrushywanted. In neither version is there evidence that GovernorSiegelman actually promised Scrushy the appointment in returnfor the contribution. If shaky proof such as this will suffice

instead of proof of an actual quid pro quo communication by theofficial to the donor, then proof of the crime is markedly easyand the range of potential prosecutorial targets is troublinglywide.


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Governor Siegelman presented and preserved hiscontention about the applicable legal standardfollowing McCormick, in terms of both juryinstructions and sufficiency of the evidence. Heproposed jury instructions that would have told the

jury of the necessity of proof beyond a reasonabledoubt of an explicit quid pro quo connectionbetween the contributions and the appointment. Andhe objected to the District Courts instructions on thegrounds that they failed to include that element. TheDistrict Courts honest services fraud instructions

required no proof of a quid pro quo arrangement atall, but instead allowed conviction upon the mereconclusion that Governor Siegelman intended to actas a result of campaign contributions. [62a]. TheDistrict Courts 666 instructions told the jury thatthere must be proof that the official and the contribu-tor agree that the official will take specific action inexchange for the thing of value. [16a, 640 F.3d at1170]. But, over Governor Siegelmans objection, theDistrict Court refused to tell the jury that suchagreement must be of the explicit sort, as

contrasted with being just a matter of an unspokenstate of mind that is inferred from the circumstances.On appeal, Governor Siegelman continued to pressthe argument, both as to jury instructions and as tosufficiency of the evidence; and he argued that thestatutes at issue do not cover referendum campaigncontributions at all.

The Court of Appeals did not deny that theMcCormick standard applies to campaign-contributioncases under the honest services statute and 666,

just as it does under the Hobbs Act. Nor did the

Court of Appeals deny that theMcCormick standardapplies to cases involving referendum contributions,

just as it does to office-election campaigns.


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The Court of Appeals also did not suggest that theevidence was sufficient, or that the jury instructionswere correct, if Governor Siegelman was correct onthe content of theMcCormick standard. The Court of

Appeals did not suggest that the conviction could beaffirmed if the law requires proof beyond a reasona-ble doubt of an actual overt quid pro quo promise orundertaking.

Instead, the Court of Appeals affirmed the convic-tion on these counts by disagreeing with GovernorSiegelman on the content of the McCormick

standard. The crux of the courts reasoning was thatwhen this Court in McCormick required an explicitpromise or undertaking, an explicit quid pro quo,the word explicit did not mean express, oractually spoken.

McCormick uses the word explicit when des-cribing the sort of agreement that is requiredto convict a defendant for extorting campaigncontributions. Explicit, however, does not mean

express. Defendants argue that only proof of

actual conversations by defendants, will do,suggesting in their brief that only express wordsof promise overheard by third parties or bymeans of electronic surveillance will do.

ButMcCormick does not impose such a stringentstandard.

[16a-17a, 640 F.3d at 1171 (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 to

some specific official action. But the Court insistedthat the agreement does not have to be actuallycommunicated expressly; it is enough, said the Court,


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if the jury can infer the existence of an unspokenagreement from the surrounding circumstances.

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

[17a-18a, 640 F.3d at 1171 (emphasis in original)].The Court of Appeals stated, Furthermore, an expli-cit agreement may be implied from [the officials]words and actions. [18a, 640 F.3d at 1172 (bracketsin original)].

So in the Eleventh Circuit, the explicit aspect ofMcCormicks standard does not mean express,actually stated, or overtly communicated. Further-more, according to the decision below, a promisethat is merely implied, rather than being verballyexpressed, can nonetheless be deemed explicitwithin the meaning ofMcCormick. As we will showbelow, there is a clear split in authority between thedecision below and the decisions of other Circuits;and this is a question on which ambiguity andregional difference are especially intolerable.

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

Other than the counts pertaining to the C.O.N.Board appointment, the sole remaining count ofconviction charged one act as obstruction of justiceunder 18 U.S.C. 1512(b)(3): that Governor Siegel-man caused his then-aide Nick Bailey to write him acheck for $2,973.35, with a notation on the checksaying balance due on m/c. This was the purchaseprice for the remaining interest in a motorcycle that,


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upon the completion of this transaction, Bailey hadbought in full from Governor Siegelman.3

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, 640 F.3d at 1164].(On the merits, the jury had rejected all chargesalleging that there was actually such a pay to playscheme with Young.) The theory is that thispurchase 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 been a loanto Bailey so that he could buy the motorcycle.

The Court of Appeals, affirming the denial ofGovernor Siegelmans motion for judgment of acquit-tal, set forth its view of the facts pertaining to the 1512(b)(3) charge at 640 F.3d at 1168, and 1177-80(10a-11a, 30a-37a). The Court opined that there was

sufficient evidence to conclude that Governor Siegel-man had persuaded Bailey, and engaged in mis-leading conduct towards Baileys lawyer, in regardto the check from Bailey to Governor Siegelman.(Persuading, and engaging in misleading conduct, aretwo of the types of acts that can constitute a violationof 1512(b)(3), if done with the intent that the lawprohibits.) And the Court deemed the evidencesufficient to show that the check was part of acoverup of an earlier payment from Young. Thatcolloquialism coverup or cover up, repeated at

3 Governor Siegelman had earlier bought the motorcycle forhimself. [10a, 640 F.3d at 1168].


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least sixteen times in the appellate opinion was thecenterpiece of the Eleventh Circuits portrayal of thefacts.

The third question for this Court asks whether thefacts portrayed by the Court of Appeals, even if true,make out a violation of the statute. As we will show,the Court of Appeals upheld the conviction only bygiving the statute a broad coverage that is incon-sistent with the statutes plain text. The statute hasa precise and narrower coverage; it involves arequired element of proof the Eleventh Circuit did

not even suggest was satisfied here. That is theelement that the statute itself provides: with intentto hinder, delay, or prevent communication to alaw enforcement officer or judge By adopting theloose colloquialism coverup in place of adherence tothe text of the statutes intent clause, the Court of

Appeals departed from the law.

REASONS FOR GRANTING THE PETITION

A. The first question presented is of enorm-

ous importance to all elected officials andcampaign contributors, is the subject of aCircuit split, and is a question on whichambiguity in the law is intolerable; thesecond question, which is closely related,is of enormous practical and legal impor-tance as well.

On the first question presented, there is disagree-ment among the federal Circuit Courts about thelegal standard that makes a crime of the allegedconnection between a campaign contribution and anofficial action. By virtue of the decision below, theCircuits are now divided as to whether this Courts


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decision in Evans v. United States, 504 U.S. 255(1992), dilutes the explicit quid pro quo standard ofMcCormick v. United States, 500 U.S. 257, 271 & n.9,273 (1991), in cases involving campaign contribu-tions. Can officials and contributors be convicted forbribery or extortion, in a pure campaign-contributioncase, only upon circumstantial proof of some impliedand unspoken linkage between a campaign contribu-tion and an official action? The Eleventh Circuitholds that they can. The question of whether thatcourt is correct is extremely important to the law of

democracy.As explained above, the standard ofMcCormick is

that 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. at 273.

This Court, in McCormick, recognized how impor-

tant it is, that there be a clear line in this campaignfinance context to divide the lawful from the unlaw-ful. That was one of the avowed goals ofMcCormickitself: to ensure that there is clarity as to where thatline is. The Court noted that officials routinely serveconstituents; that campaigners must necessarilyraise money through contributions; and that therewill be situations in which official action affecting acontributor will follow close in time to a contribution.

McCormick, 500 U.S. at 272. The Court applied aclear statement rule to Congress, inferring that

Congress would speak clearly about such situations ifit wished to forbid them in a criminal statute. Id. at272-73. And this Court, upon adopting the stringent


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explicit promise or undertaking standard, againemphasized the value of clarity in the law: Thisformulation defines the forbidden zone of conductwith sufficient clarity. Id. at 273.

The opinion in McCormick certainly suggests thatproof of an overt explicit, express quid pro quocommunication between the official and the donor isrequired. This requirement emerges from the phraseexplicit quid pro quo, 500 U.S. at 271 & n.9, fromthe phrase in return for an explicit promise orundertaking by the official, id. at 273, and from the

word asserts (a word that certainly denotes an overtand clear statement): the official asserts that hisofficial conduct will be controlled by the terms of thepromise or undertaking, id. Those words takentogether including explicit, asserts, and terms certainly convey to many readers the requirementof an overt clear definitive communication ofexchange. The requirement of an actual overtcommunication also inheres in the Courts reasoningabout the importance of creating a line of real clarity.

And this is certainly how the dissent read the opinion

as well. Id. at 282 (Stevens, J., dissenting).

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 actof 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 possible


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alteration 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 perform

specific 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 extortioncases. Id. at 272-78. Included in the separateopinion was the view that the quid pro quo does nothave to be stated in express terms in order toamount to a crime. Id. at 274.

After Evans, there are now competing schools ofthought about the nature of the explicit quid proquo requirement under McCormick, in cases involv-ing campaign contributions. In some Circuits, theprosecution is required to prove that there was anexplicit, meaning express or actually stated, prom-ise or agreement by the official that he would takethe official action in exchange for the contribution.

An inference about unspoken states of mind orimplied understandings is not enough in thoseCircuits, in a case involving campaign contributions

rather than some personal payment to the official.These Circuits take Evans as allowing convictionbased on an unspoken quid pro quo agreement in


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cases that do not involve campaign contributions; butthey require proof of a true express quid pro quo incases (like this one) that involve campaign contribu-tions.

The Second Circuit, for instance, explained thatthis is the law in United States v. Ganim, 510 F.3d134 (2nd Cir. 2007) (Sotomayor, J.). The SecondCircuit understoodMcCormick as holding that proofof an express promise is necessary when thepayments are made in the form of campaign contri-butions. Ganim, 510 F.3d at 142. The Court

continued, id. at 143, that it had harmonizedMcCormick and Evans by recognizing that outsidethe campaign contribution context there still must beproof of a quid pro quo, but not an explicit one.

Evans modified [the quid pro quo] standard in non-campaign contribution cases, Ganim, 510 F.3d at143, such that in cases that do not involve campaigncontributions, the quid pro quo can be implied ascontrasted with express. Id. The Sixth Circuit is inthe same camp, as reflected in United States v.

Abbey, 560 F.3d 513, 517-18 (6th Cir. 2009).4

4 The Government may say that cases like Ganim andAbbeyare dictum insofar as they require proof of a truly explicit,spoken or express, quid pro quo in campaign-contribution cases,because those cases themselves were not campaign-contributioncases. But that argument would be misplaced. Where theCircuits in question have stated that requirement in a publishedopinion, prosecutors in those Circuits surely must not and

surely will not charge people with crimes on a looser standard.Surely no one can be convicted in those Circuits for obeying thelaw as those Circuits have described it, even if some lawyermight call the description dictum.


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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. The Eleventh CircuittakesEvans as having diluted the explicit quid proquo standard in all cases those involving campaigncontributions as well as those involving personalpayments to the official. Based on that understand-ing, the Eleventh Circuit treatsMcCormicks explicitquid pro quo standard as not requiring proof of an

express promise or agreement linking the contribu-tion and official action. [16a-17a, 640 F.3d at 1171].In the Eleventh Circuits view, there can be convic-tion if there is proof from which the jury could inferan unspoken agreement, on the part of the officialand the contributor, linking the contribution and theaction. Explicit, declared the Eleventh Circuit, doesnot mean express; and so the official and thecontributor can be convicted and jailed even wherethere was no promise or agreement spoken. [16a-18aa, 640 F.3d at 1171-72].

The Eleventh Circuit suggested that its view ofEvans is supported by Sixth Circuit precedent. [18a,640 F.3d at 1171, citing and quoting United States v.

Blandford, 33 F.3d 685, 696 (6th Cir. 1994) (Evansinstructed that by explicitMcCormick did not meanexpress)]. But not even the Sixth Circuit believesthat, anymore. Instead, as noted above, the SixthCircuit is among those Courts that treats Evans ashaving adopted a less stringent, non-explicit, quid

pro quo standard for cases that do not involvecampaign contributions. Cases involving campaign

contributions still require the heightened showing,one that is not diluted byEvans. SeeAbbey, 560 F.3dat 517 (treating Blandfords analysis ofEvans as


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dictum); id. at 517 (Not all quid pro quos are made ofthe same stuff. Evans modified the standard innon-campaign contribution cases ); id. at 517-18(reflecting that in non-campaign contribution cases,the difference is that the quid pro quo agreementdoes not have to be explicit).

So we have this stark conflict as to whether proofof an express, stated quid pro quo agreement isrequired, in cases involving campaign contributions.

And the Ninth Circuit has followed still another path:that only the officials promise of official action must

be explicit. If the official says out loud what actionhe is going to take, then the linkage between thatpromise and the campaign contribution can rise tothe level of crime even if the linkage is not stated,and perhaps even if it is only a causal[] connection.United States v. Inzunza, 638 F.3d 1006, 1014 (9thCir. 2011). So in the Ninth Circuit, the quid has tobe express, see United States v. Kincaid-Chauncey,556 F.3d 923, 936-37 (9th Cir. 2009) (following casesincluding Ganim, supra, which equate explicit withexpress). But the pro and the quo do not. The

Ninth Circuit confess[ed] considerable uneasiness inapplying this standard to the acceptance of campaigncontributions because, in our flawed but nearlyuniversal system of private campaign financing, largecontributions are commonly given in expectation offavorable official action. Inzunza, 638 F.3d at 1013.

Again there is confusion, lack of clarity, and lack ofuniformity as to where the line lies, between politicsand crime. And the evidence in this case does noteven reach the Ninth Circuits standard, as there wasnot even proof of an express promise in this case.


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The same lack of clarity appears in scholarlycommentary. For instance, a recent treatise beginswith the bedrock understanding that in casesinvolving campaign contributions, a true expressquid pro quo conditioning official action on thecampaign contribution must be proven. In themodern American political system, giving money to apolitical candidate who promises to support (oroppose) a particular policy is an exchange of moneyfor the exercise of political authority, yet that is alegal campaign contribution and not a crime, unless

the candidate expressly conditions performance onthe payment. Peter J. Henning and Lee J. Radek,The Prosecution and Defense of Public Corruption:The Law and Legal Strategies, p. 2 (Oxford Univer-sity Press, 2011) (footnote omitted). Yet the same

volume later recognizes the decision in this case, andparticularly the Eleventh Circuits rejection ofexpress as the touchstone, as part of an unclearbody of law on the topic. Id. at 115.

Other commentators, too, have recognized theimportance of the issue, the lack of clarity in the law,

and the need for resolution.

Cases likeSiegelman raise the question whetherthe acceptance of otherwise lawful campaigncontributions puts a public official in jeopardy ofcriminal prosecution when, even in the absenceof any express agreement, the official acts in amanner consistent with the desires of his contri-butor. [T]hree other federal circuits, unlike

Siegelman, have construed McCormick andEvans to require express quid pro quo to crimi-

nalize campaign contributions.John L. Diamond, Reviving Lenity and Honest Beliefat the Boundaries of Criminal Law, 44 U. Mich. J. L.


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Reform 1, 21 (2010); see also Ilissa B. Gold, Explicit, Express, and Everything in Between: The Quid ProQuo Requirement for Bribery and Hobbs Act Prosecu-tions in the 2000s, 36 Wash. U. J. L. & Poly 261(2011).

It is important, for the sake of all elected officials,candidates, and campaign contributors, that there beclarity and uniformity on the answer to this questionof what it takes to turn a campaign contribution intoa bribe. As the Court of Appeals admitted in this

very case, the answer to this question will implicate,

and affect, core First Amendment values and inter-ests.

Siegelman and Scrushys bribery convictions inthis case were based upon the donation Scrushygave to Siegelmans education lottery campaign.

As such, the convictions impact the First Amendments core values protection 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 theseconstitutionally protected activities. In a politicalsystem that is based upon raising private contri-butions for campaigns for public office and forissue referenda, there is ample opportunity forthat error to be committed.

[13a-14a, 640 F.3d at 1169-70 (footnotes omitted)].

The question is important, as reflected above, inpart because of its First Amendment implications.

Where campaign finance is recognized as a realmof constitutionally protected expression, the linebetween crime and constitutional rights must be


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made clear. Likewise, because of the First Amend-ment aspect of the question, this Court should viewthe factual record with much closer scrutiny, toensure that the application of the law to the facts isconstitutionally sound. The issues are important notonly to Governor Siegelman, but 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 expressions of consti-

tutional rights under the First Amendment. More-over, seeking governmental action is itself a constitu-tional right under the First Amendments petitionclause. And officials must take action, includingaction that affects contributors. If the definition ofrelevant crimes is different from one Circuit to thenext, and if the definitions are uncertain, thenofficials and citizens take all these actions at theirperil. The exercise of constitutional rights will bechilled by this lack of clarity.

The question is also important because of due

process concerns, including both prongs of dueprocess that this Court reemphasized in Skilling:(1) giving fair and definite notice of the boundaries ofcriminal law, in advance, so that people can comportthemselves accordingly and will not be imprisoned fordoing things that were not clearly unlawful; and(2) reducing the danger of prosecutions that are arbi-trary or discriminatory by limiting the range ofprosecutorial discretion in choosing targets. SeeSkil-ling, 130 S.Ct. at 2927-28; id. at 2933.


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As to the first of these, Governor Siegelman standsconvicted on a standard that was not the law even inthe Eleventh Circuit before his case, and is not thelaw in other Circuits even now. This is intolerable inany case, and is certainly intolerable in a case wherethe relevant legal task is not just drawing a linebetween the unlawful and the lawful, but drawing aline between the unlawful and the First Amendment.It is simply not fair to prosecute someone for a crimethat has not been defined until the judicial decisionthat sends him to jail. Sorich v. United States, 555

U.S. 1204, 1207 (2009) (Scalia, J., dissenting fromdenial of certiorari). So even if the Court disagreedwith us on the standard in the end, still GovernorSiegelmans conviction should be vacated based onthis due-process notice problem.

As to the second due process concern, the EleventhCircuit approach marks an extreme expansion of therange of prosecutorial discretion to choose amonghigh-profile political targets (whether officials,contributors, or both). The Eleventh Circuit, byallowing prosecutors to seek indictment based not on

words that are spoken but on states of mind that areinferred, grants an enormous amount of discretion.This standard requiring no proof of an actuallyspoken quid pro quo gives prosecutors the authorityto decide which governmental officials are to betrusted to have made decisions for legitimatereasons, and which ones should be prosecutedbecause their thoughts are believed to have beeninappropriate. There is an intolerable risk that thisdiscretion will be exercised arbitrarily or discrimina-torily, whether such misadventures are conscious or

subconscious. Every elected official, we dare say, canbe suspected of having done something for someonebecause of a campaign contribution. But of course


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not every elected official will be investigated, muchless prosecuted. The danger of arbitrariness (orworse) is too great to tolerate, especially in a realmthat gives prosecutors the power to affect the verycourse of democracy at the local, state and nationallevels. This heightened degree of prosecutorialdiscretion 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 prosecutors

choose their targets legitimately.Moreover, there is good reason to believe that the

Eleventh Circuit was wrong on the merits, as amatter of interpretation of this Courts precedents. Inholding that the word explicit merely requires thatthe quid pro quo agreement be about a specificaction, 17a, 640 F.3d at 1171, the Eleventh Circuitwas fundamentally taking the side of the dissent in

McCormick.See McCormick, 500 U.S. at 282-83 (Ste- vens, J., dissenting) (contending that an implicitlinkage between a contribution and a specific action

was enough to constitute a crime). Likewise, theEleventh Circuits view cannot be squared with

McCormicks further description of the cases in whicha crime has occurred: In such situations the officialasserts that his official conduct will be controlled bythe terms of the promise or undertaking. Id., 500U.S. at 273. Here, even on the description by theCourt 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, does

not count as assert[ing] that one will do it. In short,the decision below represents exactly the view thatthis Court rejected inMcCormick.


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Evans, in turn, did not dilute the McCormickstandard for campaign-contributions cases. In con-cluding that Evans changed McCormick, the courtbelow has read too much into the pertinent passageofEvans. As the United States Court of Appeals forthe District of Columbia Circuit recently said, inaddressing another prosecutorial effort to read toomuch into that passage ofEvans:

The question inEvans was whether an affirma-tive act of inducement by a public official, suchas a demand, is an element of the offense of

extortion prohibited by 18 U.S.C. 1951.Id. at256. The statement relied upon by the govern-ment was nothing more than an answer by theCourt to that question.Id. at 268.

United States v. Dean, 629 F.3d 257, 260 (D.C. Cir.2011).

In addition to the First Amendment and dueprocess concerns already discussed, the questionspresented here are also vitally important to yetanother facet of the law of democracy: separation of

powers. This is seen in the second questionpresented, i.e., whether campaign contributions canbe prosecuted as bribes at all under 666 and 1346.The better answer is that they cannot. Especially insuch a constitutionally-sensitive area, it must be upto the Congress not to courts hearing the argu-ments of aggressive prosecutors to create theoffenses and declare their elements. If there are tobe federal criminal laws setting the boundaries ofinfluence through campaign contributions, we shouldlet Congress set them. We should expect that if

Congress wants to create such laws, it will do so withthe care that the constitutional and practical sensi-tivity of the issue demands. We should expect that if


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the Congress takes up the question, there will bepublic attention and debate as well, about where theline lies between crime and constitutional right. Weshould expect most of all that if there are to be suchlaws, they should be clear in what they provide,about where the line is.

But in 666 and honest services, we have lawsthat the Congress simply never envisioned, neverdebated, never wrote, and never enacted with any eyetowards campaign contributions. Take honestservices first, the statute (18 U.S.C. 1346) that this

Court saved through narrowing in Skilling. Whenenacting that law (beforeMcCormick, and so withoutthe McCormick standard in mind), Congress had noreason to contemplate the treatment of campaigncontributions as honest services bribes, becausethat was not part of the doctrines core in pre-

McNally caselaw. It is only the pre-McNally corethat survives after Skilling. Skilling, 130 S.Ct. at2928. Did that core include campaign contributionsas bribes? The Governments brief inSkilling, uponwhich this Court relied as having identified the pre-

McNally solid core, see id., 130 S.Ct. at 2930, givesthe answer (perhaps, in retrospect, unwittingly andnow to the Governments regret): the vast majority(if not all) pre-McNally honest-services cases didinvolve self-enrichment schemes. Brief of UnitedStates in Skilling, No. 08-1394, p. 51. Campaigncontributions, especially contributions to a referen-dum campaign, are quite different from self-enrichment schemes and are not included in honestservices afterSkilling.


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Take 666 next. Like 1346, this statute wasenacted before McCormick, and therefore withoutMcCormick in mind. This Court has looked at thelegislative history of 666, inSabri v. United States,541 U.S. 600, 606-07 (2004) and Salinas v. United

States, 522 U.S. 52, 58-59 (1997). There is no indica-tion that Congress meant to wrestle with, or that iteven occurred to anyone in Congress to think about,the issue of campaign contributions as 666 bribes.It would have been a big legislative step: the creationand definition of a federal criminal-law standard for

state campaign finance. Whether to take such a stepwould have been discussed and debated, in Congressand elsewhere, if it was being contemplated. Surelyat least Congress would have told us what thestandard was, as to when campaign contributions arebribes under 666, if contributions were covered atall.

There can be a good debate over whether theselaws should cover campaign contributions, as amatter of policy and, if so, what the standardshould be. Some may support the Eleventh Circuit

standard as a matter of policy. Others may supportapplication of the laws to campaign contributions asbribes, but only in cases of truly spoken, express,quid pro quo. Others will see that the dangers ofprosecutorial discretion outweigh any benefits andthat too much constitutionally-protected campaignsupport will be chilled by the fear of prosecutorialaggressiveness. This is a debate that should happenin Congress; until it does, prosecution should notoccur under a court-generated standard in thisimportant and constitutionally sensitive area. The

Court should grant review on this second question aswell, to allow resolution of the case through a holding


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that declines to extend these laws to cover campaigncontributions.5

B. On the third question presented, the deci-sion below is contrary to the text of 1512(b)(3), is contrary to the decisions ofother courts, and is untenable in light ofthis Courts decisions in Fowler and Skil-ling.

The third question presented, about the reach of 18U.S.C. 1512(b)(3), also deserves this Courts consid-

eration. This would resolve a split in lower courtauthority, as shown below. But frankly the questionis so easily answered and the Eleventh Circuitstreatment of the issue is so devoid of reasoned atten-tion to the question that it could also be viewed as anecessary exercise in error-correction. The bottomline is that Governor Siegelman stands convictedunder 1512(b)(3) despite the fact that (evenaccepting the Eleventh Circuits portrayal of thefacts) there was not a bit of evidence that he had theintent that the statute covers.

5To be abundantly clear about our position: if the statutes at

issue in this case do cover campaign contributions, then theMcCormick standard plainly applies, for the very reasons thatMcCormick itself was decided. (If the Government disagrees,then that would make this Courts review all the moreimportant, since the disagreement would leave even moreconfusion in this area of law where there ought to be clarity.)We recognize that one logical implication of our argument onthe second question presented may be that this Court in

McCormick should not have read the Hobbs Act as coveringcampaign contributions at all. But this case does not presentthe question of whether McCormick should be overruled, sincethis case involves no Hobbs Act charges.


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The Court of Appeals upheld the conviction on thiscount, portraying the evidence as allowing theinference that Governor Siegelman engaged in aneffort to cover up an earlier, allegedly improper,payment from Lanny Young.6

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 requiresproof 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 any

evidence that Governor Siegelman even asked, muchless persuaded, Bailey to write this check.

This coverup, accord-ing to the Court of Appeals, consisted of the creationof documents, including the check that was thegravamen of this count. In what sense was it alle-gedly a coverup? According to the Court of Appeals,it was in the sense that it was an effort to convey theimpression that (rather than giving money to Gover-

nor Siegelman) Young had merely lent money toBailey 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 ofinformation relating to the commission or possiblecommission of a Federal offense. This statute, inother words, prohibits efforts to stop or keep people

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


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(by persuasions, threats, or trickery) from providinginformation to law enforcement, or at least to slowthem down from doing so. That is the plain meaningof the intent to hinder, delay or prevent portion ofthe statute.

There are other statutes that cover, more gener-ally, improper attempts to influence what people sayin certain contexts. See, e.g., 18 U.S.C. 1512(b)(1).Those statutes might cover efforts to induce people togive information to law enforcement that they wouldnot otherwise have given, but this is not such a

statute; Congress decided not to use the word influ-ence in 1512(b)(3). There are also other obstruc-tion statutes that cover misleading acts involvingdocuments in certain contexts. See, e.g., 18 U.S.C. 1512(c)(1). There are other obstruction statutesthat are drawn as catch-all provisions, but only incontexts that are inapplicable here. See 18 U.S.C. 1512(c)(2) (catch-all provision regarding corruptlyinfluencing an official proceeding). Congress knowshow to write the obstruction statutes it wants, tocover the behavior it wants to criminalize, 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.

All sorts of things might be called a coverup: tryingto throw someone off the scent, or to create a docu-

ment that gives a misimpression, or to hide some-thing. But that is not what this statute encompasses.Coverup is not a legal term, under federal law; it is


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a colloquial term that covers many sorts of things. Ifthere was a coverup in this case, was it of the sub-species that is based on keeping people from tellinglaw enforcement what they know? The Court of

Appeals did not say, and it cited no evidence that itwas.

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 statutes

plain text. In that, the Court of Appeals departedfrom the holdings of other courts. Consider, forinstance, United States v. Hertular, 562 F.3d 433(2nd Cir. 2009). There, the Second Circuit recognizedthat a conviction under this statute requires aspecific 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 enforcement not a perceived intent tocover up or avoid indictment in a more genericsense that makes this crime.

The decision below is also untenable under thisCourts decision inFowler v. United States, 131 S.Ct.2045 (2011). Addressing another subsection of 1512, this Court emphasized the necessity for prose-cutors to prove the particular sort of intent that thesubsections particular words require. Id. at 2049.

There was a wrinkle of difficulty in determiningexactly what that required element of intent was,in Fowler, under 1512(a)(1)(C), and this Court


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resolved it. Still, the fundamental point was clear:prosecutors must prove the particular intent that thesubsection requires. Here, the analogous matter ofinterpretation should not have presented anydifficulty: the words of 1512(b)(3) are clear. Yet theEleventh Circuit did not follow them.

This failure to follow the statutory language alsoimplicates the due process doctrine that this Courtreemphasized in Skilling, 130 S.Ct. at 2927, 2933 &n.44: due process requires fair, definite and specificwarning of what is made criminal. Where a court

departs from the language of the statute in favor of aloose and more expansive paraphrase, that fairwarning is lost. When responding to this Courtsorder that it reconsider the case in light ofSkilling,the Court of Appeals failed to adhere to this aspect of

Skilling.

The Eleventh Circuit did not suggest that therewas evidence to come within the actual words of theintent clause of the statute. There is absolutely nosuggestion, for instance, that Bailey would have

given information to law enforcement, such thatGovernor Siegelman formulated the intent to hinder,delay or prevent him from doing so. Nor is it plausi-ble to suggest that Governor Siegelman had thatintent as to Baileys counsel, the person allegedlymisled. There is simply no way that Baileys ownlawyer would have gone to law enforcement to incul-pate Bailey and Siegelman with information that hepossessed, such that Bailey and Siegelman wouldhave misled him in order to stop him; that is theantithesis 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 evidentiary


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foundation and unmentioned by the Court of Appeals,could bring the case within 1512(b)(3), once onefocuses (as the Court of Appeals did not) on the wordsof the statute.

This case involves a stark absence of proof ofanyintent to hinder, delay, or prevent communications tolaw enforcement. The absence of such proof was sostark that the Court of Appeals did not claim thatthere was such proof. Only by departing from theplain text of the statute could the Eleventh Circuitaffirm Governor Siegelmans conviction on this count.

For these reasons, we respectfully submit that thisquestion 3 is deserving of certiorari even on its own.But most assuredly, if the Court grants the writ as toquestions 1 and 2, then the Court should grant thewrit as to question 3 as well. Otherwise there wouldbe the troubling likelihood of a grave injustice: thatGovernor Siegelman would finally obtain exonerationon the core charges against him, only to face impri-sonment on an afterthought charge that was notactually supported by the law and the evidence.


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CONCLUSIONAll of the charges in this case represent a troubling

example of aggressive prosecutorial expansion of thecriminal laws, beyond what Congress has provided.By granting review, this Court would have the oppor-tunity to right an injustice, to exonerate 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. Forthe foregoing reasons, this Court should grantreview.

Respectfully submitted,

ROBERT D.SEGALLCOPELAND,FRANCO,

SCREWS &GILL, PA444 South Perry St.P.O. Box 347Montgomery AL 36104(334) 834-1180

REDDING PITT

FARRIS,RILEY &PITT, LLPMassey Bldg., Suite 4002025 Third Ave. NorthBirmingham AL 35203(205) 324-1212

SAM HELDMANCounsel of Record

THE GARDNER FIRM2805 31st St. NWWashington DC 20008(202) [email protected]

VINCENT F.KILBORN,III

DAVIDA.MCDONALDKILBORN,ROEBUCK&MCDONALD

Post Office Box 66710Mobile AL 36660(251) 479-9010

Counsel for Petitioner

Documents

Siegelman v. USA Cert Pet