Mark Twain said the difference between the right word and the almost right word is the difference between the lightning and the lightning bug. If you’re former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy, it might also be the difference between freedom and prison.
On Tuesday the 11th Circuit Court of Appeals upheld all but two counts in the federal conviction of Siegelman and Scrushy. The court found the connections alleged in one scheme, for unlawful self-dealing between the CON Board members and HealthSouth, was too tenuous to meet the burden of proof for two counts. Specifically, the court found little to no proof that Siegelman understood that the CON board appointments would make specific decisions that benefited the company Scrushy led at the time.
However, the decision leaves in place convictions on seven counts against Siegelman and six against Scrushy, and much of the decision seems to turn on a single word.
In its ruling, the 11th Circuit and the trial jury found sufficient evidence of an explicit, meaning clearly understood, agreement between Siegelman and Scrushy. The agreement did not need to be express, meaning spoken or written, the court said.
The court wrote:
Since the agreement is for some specific action or inaction, the agreement must be explicit, but there is no requirement that it be express,” the court wrote. “To hold otherwise, as Justice Kennedy noted in Evans [vs. United States], would allow defendants to escape criminal liability through “knowing winks and nods.”
The court remanded the case back to the trial court for resentencing. The defendants have indicated that they will exhaust all opportunities to appeal.
Meanwhile, the decision might not bode well for the remaining defendants in the bingo corruption case scheduled to begin trial early next month. In that case, U.S. District Court Judge Myron Thompson has said that arguments already made by the defendants would depend on the outcome of the Siegelman – Scrushy case. In particular, Thompson said it was unclear under what circumstances a campaign donation would constitute a bribe, if it could at all.
In today’s ruling, the court seems to say that campaign donations, when made with explicit agreements, can in fact be bribes.