Friday, December 2, 2011

11th Circuit rejects Siegelman, but will it issue a feared "mandate" that could expedite Siegelman's return to prison?

On the left, Bobby Lowder. On the right, former Alabama governor Don Siegelman. (AP photo)
Then-governor Siegelman watches an Auburn basketball game with 
longtime  backer,  Bobby  Lowder, in better times for both men.

               One of Don Siegelman's ever-diminishing avenues of avoiding a return to prison has been closed.
               On Nov. 9, the Atlanta-based 11th Circuit Court of Appeals denied the former Alabama governor's request for a "Rehearing En Banc" -- the legal term for a litigant's request that an entire appeals court consider an adverse ruling by a panel of the court.
               Though he still has several balls in the air, a decision likely to come soon from the same court could lead to Siegelman's going back to prison before conclusion of his seemingly endless appeals process.
               This represents my best effort to explain some of the various challenges facing Siegelman. First, let me disclose that I am not an expert on appellate law or anything close to it. For example, until the other day, I wasn't familiar with the word mandate, or rather, was unfamiliar with it in the context of appellate law.
               I have to believe that, right now, "mandate" is much on Siegelman's mind.
               Here's why, necessary background first.
               On May 5, a three-judge panel of the 11th Circuit denied an appeal by Siegelman and his co-defendant, former HealthSouth CEO Richard Scrushy. They were asking the court to overturn findings of guilt against the pair by the jury that considered their 2006 trial.
               In most cases, appeals are considered, not by the entire court, but by three-judge panels, but when you lose before a panel, you have the right to seek the above-described "Rehearing En Banc."
               It was a given that Siegelman would do so. His lawyers filed this request  three weeks after the panel's decision. Such requests are rarely granted. But considering the history of this case -- we are now more than five years past the trial -- there was a sense that anything could happen.
               Scrushy did not seek a Rehearing En Banc. His decision not to do so marked a diversion of sorts, since the pair's appeals have closely paralleled each other. Scrushy chose not to seek a rehearing because it's in his interest for the appeals process to move swiftly, whereas delay is fine with Siegelman.
               Scrushy, as followers of this saga know, has been in prison since the summer of 2007.  Siegelman was released on bond nine months after going to prison at the same time as Scrushy. For an appeal to do Scrushy any good, in terms of limiting his time behind bars, it must be completed, and in his favor, sooner than later. (He is presently due to be released in January 2013.)
               This is where "mandate" comes in.
               For assistance, Wikipedia:

               After an appeal is heard, the mandate is a formal notice of a decision by a court of appeal; this notice is transmitted to the trial court and, when filed by the clerk of the trial court, constitutes the final judgment on the case...

               Once the clerk of the Middle District Court in Montgomery receives that mandate, the wheels begin turning for Siegelman's return to prison. For obvious reasons, he doesn't want that.
               Now, more of that pesky background: In 2009, the same panel of the 11th Circuit removed two counts against Siegelman, and, in its May ruling, it removed two related counts against Scrushy. That's important because it means that both must be re-sentenced, since both have two fewer charges on their slate then when they were sentenced -- Scrushy to just less than seven years, Siegelman to some months north of seven years.
               On June 10 -- exactly one month after the panel's ruling -- the 11th Circuit issued its mandate for Scrushy. As a result, the process of re-sentencing Scrushy has begun. He is to be released from prison, if temporarily, in January, to return to Alabama for his re-sentencing hearing.
               He hopes to be ordered released on time served or, lacking that, to have a chunk of time removed from his sentence and thus be allowed to return to freedom before January 2013.
               Among the effects if not the true purpose of Siegelman's request for a hearing before the full-court was that it postponed the the possibility of a mandate for him.
               On Nov. 9, the 11th Circuit announced that not one of the judges on the court favored giving Siegelman a hearing before the full court. The next act was issuance of a mandate for Siegelman.
               Siegelman's lawyers moved fast. Six days later, they filed a Motion to Stay Mandate. They surprised no one by announcing their intention to appeal the 11th Circuit's decision to the U.S. Supreme Court. To "stay mandates," appellants must convince an appeals court that there is a reasonable chance that the Supreme Court will consider their appeal.
               Each year, the Supreme Court receives thousands of appeals, called a Petition for Writ of Certiorari. Of those, it agrees to consider about 1 percent. It generally selects cases involving laws that, in the eyes of the court, require clarification.
                Purely on the law of averages, Siegelman's chances are remote. But the same odds applied in 2009. That year, the 11th Circuit did stay his mandate. Had it not, Siegelman would have been sent back to Montgomery for re-sentencing and he'd almost certainly be watching his appeal play out from a prison cell.
               Sam Heldman, Siegelman's D.C.-based appellate lawyer, stressed the court's 2009 stay in his Nov. 15 motion. He argued that now, as then, the Supreme Court has an interest in reviewing cases involving the "honest services" statute, which weighs heavily in Siegelman's case. 
              In fact, Siegelman's 2009 appeal to the Supreme Court was not rejected, though neither was it granted Writ of Certiorari. Rather, it was sent back to the 11th Circuit with orders that the appeals court reconsider the case in light of a landmark ruling by the Supreme Court on the honest services statute, and arising out of on an appeal by former Enron executive Jeff Skilling.
               The 11th Circuit did reconsider it's prior decision, but as the ruling in May testified, that did Siegelman no good. Scrushy, though, did see his two charges removed, and because of the Skilling ruling.
               Litigants who lose at the federal appeals court level -- as Siegelman now has -- have 90 days to file their appeal to the Supreme Court. Heldman noted that Siegelman's certiorari petition is due in early February; and that, in all likelihood, the Supreme Court will decide by June -- the end of its 2011-2012 term -- whether or not to consider Siegelman's petition.
               "So, an order withholding the mandate will not cause any undue, extreme, or indefinite delay," wrote Heldman. "For the foregoing reasons, the Court should withhold the mandate, and should allow Governor Siegelman to remain in his current release status, pending the filing and disposition of a certiorari petition."
               He noted that "if the mandate were to issue, the District Court could move forward to a resentencing" -- that being the doomsday scenario for Siegelman.
               In its reply, filed Nov. 23, the government noted that Siegelman has been out on bond for more than three and a half-years. It argued that the 11th Circuit's ruling reconsidered the Siegelman case in light of the Skilling ruling, as instructed by the Supreme Court, and still upheld the remaining charges against Siegelman. As such, there is little reason to believe the Supreme Court will agree to hear Siegelman's appeal.
               The government stated that there "is no reason to stay the mandate and delay resentencing any further."
               If the court refuses to stay the mandate and Siegelman's re-sentencing moves forward, that would not impact his appeal to the Supreme Court.
          My sense is that the 11th Circuit will "stay the mandate." I believe the court will take the view that, though unlikely, it is not inconceivable that the Supreme Court will consider Siegelman's appeal. I also believe that the Supreme Court will decline to consider Siegelman's case, and once that happens -- such as in late spring or early summer -- that will, or so it's my understanding, shortly thereafter trigger the mandate.
               In my next blog -- coming soon! -- I will examine a Nov. 1 order by trial judge Mark Fuller regarding Scrushy's re-sentencing situation, and explain why it bodes ill for Siegelman.

      NOTE: On Monday (Dec. 5), the 11th Circuit web-site posted notice of a ruling made Thursday by one of its judges, James C. Hill, to Stay the Mandate. The upshot is that the process of re-sentencing Siegelman will not proceed until resolution of Siegelman's appeal to the U.S. Supreme Court. That appeal, as noted above, has not been filed. It is due in early February.