Boastful Statements Furthered Conspiracy

In bribery, mail fraud and conspiracy trial of former Alabama Governor (Don Siegelman) regarding the selling of a seat on a state board to the founder and former Chief Executive Officer of HealthSouth Corporation (Richard Scrushy) in exchange for a campaign contribution, boastful statements by a corporate lobbyist to the chief financial officer were admissible as statements in furtherance of the conspiracy, in United States v. Siegelman, _ F.3d _ (11th Cir. May 10, 2011) (per curiam) (No. 07-13163)

The Eleventh Circuit recently considered the remand from the Supreme Court in the public corruption prosecution of case of former Alabama Governor Don Siegelman and founder and former Chief Executive Officer of HealthSouth Corporation Richard Scrushy. On June 29, 2010, the Supreme Court granted the petitions for certiorari, vacated the judgment and remanded for reconsidered in light of Skilling v. United States, 561 U.S. _ (2010) (construing and narrowing the honest services fraud theory). See Order List (Nos. 09-167, 09-182).

One evidence issue in the case involved the admissibility of statements by an outside company lobbyist to the chief financial officer at a company retreat. At trial, the CFO testified that the lobbyist “was bragging about the fact that he was able to get [company HealthSouth] a spot on the [state Certificate of Need Review Board] CON Board with the help of the [Integrated Health Services] check.” Siegelman, _ F.3d at _.

The Eleventh Circuit on remand again found the statement was properly admitted as a co-conspirator statement under FRE 801(d)(2)(E). The circuit explained that the lobbyist’s “bragging to [the CFO] about purchasing the CON Board seat ‘with the help of’ the IHS check informed [CFO] Martin that their plan had worked and that Martin’s involvement had helped.” Siegelman, _ F.3d at _. The statement furthered the conspiracy by confirming “that their plan had worked” and that the CFO conspirator’s contributions helped, and “to affect the co-conspirators’ future dealings” concerning an anticipated second donation. Siegelman, _ F.3d at _ (citing United States v. Ammar, 714 F.2d 238, 252 (3d Cir. 1983) (“[s]tatements between conspirators which provide reassurance, serve to maintain trust and cohesiveness among them, or inform each other of the current status of the conspiracy further the ends of the conspiracy . . . .”); United States v. Caraza, 843 F.2d 432, 436 (11th Cir. 1988) (statement admitted to help ensure final acts of conspiracy)). The conclusion was consistent with the “liberal standard” used in the circuit to decide whether a statement was in furtherance of a conspiracy. (citing United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002) (“The statement need not be necessary to the conspiracy, but must only further the interests of the conspiracy in some way.”)).

During the earlier 2009 circuit opinion, we previously reviewed the claims of juror misconduct based on exposure to extrinsic evidence and alleged emails sent between jurors. See Reversal Despite Juror Exposure To Internet Information, Media Accounts And E-mail. This portion of the opinion was unchanged in the 2011 opinion following remand from the Supreme Court.

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