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Judge to stay for Scrushy sentencing

By Bob Johnson
Associated Press Writer

MONTGOMERY — A federal appeals court has refused to order U.S. District Judge Mark Fuller to step down from presiding over the sentencing hearing for former Alabama Gov. Don Siegelman and former HealthSouth CEO Richard Scrushy.

A three-judge panel of the 11th U.S. Circuit Court of Appeals denied the request from Scrushy’s attorneys in a ruling made public Thursday. But the judges said the issue could be raised again when Scrushy and Siegelman appeal their convictions in a government corruption case.

The ruling was issued less than a week before Fuller is scheduled to sentence Siegelman and Scrushy at a hearing Tuesday at the federal courthouse in Montgomery.

Siegelman and Scrushy were convicted in June 2006 of bribery, conspiracy and mail fraud following a two-month trial.

Siegelman was also convicted of a separate obstruction of justice charge.

Scushy’s attorneys argued that Fuller has a conflict because he owns stock in a South Alabama company that has a contract with the Air Force and that one of the prosecutors, Steve Feaga, is a colonel in the Air Force Reserve.

Fuller issued an order in April refusing to step down from the case. He said he is impartial and that owning stock in a company that might benefit financially from contracts with the government is no reason for him to step down.

The Atlanta-based 11th Circuit panel was made up of Circuit Judges Stanley Marcus, Stanley Birch and R. Lanier Anderson.

The judges ruled that Scrushy had not shown “a clear and indisputable right to the relief he seeks.” The judges said in the three-paragraph order that they were expressing “no opinion on the merits of the recusal issue” and that Scrushy could pursue it on appeal.

Appeal planned

A spokeswoman for Scrushy, Kristen Hainen, said the ruling is good news because it allows Scrushy to pursue the issue on appeal. “This way we can tell the whole story,” she said.

Chief prosecutor Louis Franklin said the appeals court made the correct ruling.

“To rule otherwise would have made Judge Fuller ineligible to rule on any case where the government is a party,” Franklin said.

Also Thursday, Fuller refused to throw out a subpoena asking the captain of Scrushy’s 92-foot yacht to appear at Tuesday’s sentencing hearing.

An attorney for Bill Kurtz said it would be a hardship for the yacht captain to travel from his home in West Palm Beach, Fla., to Montgomery for the hearing.

Prosecutors in April attempted to have Scrushy’s bond revoked because he traveled from Palm Beach to Miami on the yacht when he was supposed to be on a family vacation to Disney World. Kurtz was subpoenaed for a hearing on that motion, but was not called to testify.

U.S. Magistrate Judge Charles Coody declined to revoke Scrushy’s bond, but ordered him to wear an electronic device if he travels outside the middle or northern districts of Alabama.

Prosecutors have asked Fuller to sentence Siegelman to 30 years in prison and Scrushy to 25 years. Both Siegelman and Scrushy have asked to be placed on probation.

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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