Saturday, December 4, 2004
The memorandum opinion by U.S. District Judge Karon O. Bowdre rejecting the challenge by Richard Scrushy to the charges filed against him for violating the Sarbanes-Oxley CEO/CFO financial statement certification provision (18 U.S.C. 1350 as void-for-vagueness is (much belatedly--my apologies) here. The judge concluded:
Taking 18 U.S.C.A. §1350 in its entirety, as the court must, the court finds 18 U.S.C.A. §1350(c)(2) is both "sufficiently definite as to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden," and specific enough to prevent arbitrary or discriminatory enforcement under its terms. See City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999); Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). The court further finds 18 U.S.C.A. § 1350(c)(2) imposes punishment "only for an act knowingly done with the purpose of doing that which the statute prohibits, [so the defendant] cannot be said to suffer from a lack of warning or knowledge that the act which he [allegedly did was] in violation of law." See, Screws v. United States, 325 U.S. 91, 102, 65 S. Ct. 1036, 89 L. Ed. 1495, 1503 (1945)(plurality)(emphasis added).
The court further finds that counts brought in this indictment under 18 U.S.C.A. §1350(c)(2) are subject to the standard of proof described herein. These counts are, as are all counts in criminal cases, subject to challenge by motion under Rule 29 of the Federal Rules of Criminal Procedure should the proof at trial fail to meet the standard required. Fairness, materiality, and willfulness are fact intensive questions generally reserved for the jury. Whether the information contained in the periodic reports certified by Mr. Scrushy fairly presented, in all material respects, the financial condition and results of operations of HealthSouth are questions of fact for the jury and part of the Government’s burden of proof in this case. If the jury finds that the reports did not fairly present, in all material respects, the financial condition and results of operations of HealthSouth, the jury must then determine whether Mr. Scrushy willingly certified these reports knowing that the reports did not comport with the statute’s accuracy requirements. See, United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L.Ed. 2d 444 (1995) * * * .