DOCUMENT 779

ELECTRONICALLY FILED
8/12/2016 5:04 PM
43-CC-2014-000565.00
CIRCUIT COURT OF
LEE COUNTY, ALABAMA
MARY B. ROBERSON, CLERK

IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

STATE OF ALABAMA,

)
)
)
)
v.
)
)
)
)
MICHAEL GREGORY HUBBARD, )
)
Defendant.
)

CASE NO.

CC-2014-000565

STATES RESPONSE IN OPPOSITION TO HUBBARDS MOTIONS FOR

A NEW TRIAL OR JUDGMENT OF ACQUITTAL
Hubbard is not entitled to a judgment of acquittal, a new trial, or an
investigation into juror misconduct. As this Court already concluded in denying
Hubbards earlier motions for judgment of acquittal, the State presented evidence
sufficient to support the jurys finding of guilty beyond a reasonable doubt on counts
5, 6, 1014, 1619, and 23. Nor is the jurys verdict on those counts contrary to the
law or the great weight of the evidence. And Hubbard has failed to produce
admissible evidence of any juror misconduct. This Court should deny Hubbards
motions.
APPLICABLE LAW
Under Alabama law, a court should grant a motion for judgment of acquittal
only if the evidence is insufficient to support a finding of guilty beyond a reasonable
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doubt. Ala. R. Crim. P. 20.1(a), 20.3. And a defendant is not entitled to a new trial
unless the verdict is contrary to the weight of the evidence or the defendant has
not received a fair and impartial trial. Ala. R. Crim. P. 24.1(c). Such motions are
addressed to the sound discretion of the trial court. Wesson v. State, 644 So. 2d
1302, 1315 (Ala. Crim. App. 1994) (internal citations omitted).
Hubbards motion for judgment of acquittal calls for this Court to evaluate the
sufficiency of the evidence that was presented to the jury. In doing so, a court should
consider whether there was legal evidence before the jury, at the time the motion is
made, from which the jury by fair inference could find the defendant guilty beyond
a reasonable doubt. Underwood v. State, 834 So. 2d 819, 821 (Ala. Crim. App.
2001). When determining whether sufficient evidence supports a jurys verdict,
courts view the evidence in the light most favorable to the prosecution. Breckenridge
v. State, 628 So. 2d 1012, 1018 (Ala. Crim. App. 1993).
ARGUMENT
The State presented evidence sufficient for the jury to find Hubbard guilty
beyond a reasonable doubt of counts 5, 6, 1014, 1619, and 23. Hubbard has failed
to show that the jurys verdict is contrary to law or the great weight of the evidence.
He argues against precedent that the States expert on the Ethics Laws should not
have been permitted to testify. And he has failed to produce any admissible evidence
of juror misconduct. Furthermore, the jurys split verdict shows that it carefully
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considered the charges and evidence before it. None of Hubbards arguments,
including the ones in earlier filings that this Court already denied, entitle him to
relief.
I.

The evidence is sufficient to support the jurys finding of guilty

beyond a reasonable doubt, and Hubbard has not shown that the
jurys verdict is contrary to law or the great weight of the evidence.

The evidence is sufficient to support the jurys finding that Hubbard is guilty
beyond a reasonable doubt of counts 5, 6, 1014, 1619, and 23. None of Hubbards
various legal arguments show that the verdict is contrary to law or to the weight of
the evidence. Ala. R. Crim. P. 24.1. Hubbards principal arguments disregard the
plain words of the statute and the common-sense testimony of Jim Sumner, and the
evidence was sufficient to show that Will Brooke, Jimmy Rane, Rob Burton, and
Sterne Agee were principals from whom Hubbard solicited and received things of
value. Hubbard also misconstrues the thing of value exceptions; the evidence is
sufficient to support the jurys conclusion that his conduct did not fall within the
friendship, pays full value, or compensation exceptions to the definition of thing
of value. The evidence is sufficient to show that Hubbard voted on legislation with
a conflict of interest, and the jurys verdict on count 5 is not contrary to law. And
the evidence is sufficient to support the jurys verdict on counts 1114.

DOCUMENT 779

A. The evidence was sufficient to support the jurys finding that Brooke,
Rane, Burton, and Sterne Agee are principals, and that conclusion is
not contrary to law.
Hubbard attempts to write new limitations into Alabamas definition of
principal to undo his convictions on Counts 1619 and 23. A principal is [a]
person or business which employs, hires, or otherwise retains a lobbyist. Ala. Code
36-25-1. This Court so instructed the jury. And the jury heard expert testimony
from Sumner, who explained that principal includes decision-makers at the top of
a business. (Sumner Tr. 169, 17273). Such people include a president, a vice
president, a chair, vice chairs, immediate past chairs, that kind of thing. (Id. at 173).
These top decision-makers are the people who actually employ, hire, or retain the
lobbyists, or who supervise subordinates who employ, hire, or retain the lobbyists.
They are ultimately responsible for their lobbyists compensation and actions on
behalf of their business or organization.
Limiting principal to the entity who contracts with the lobbyist is contrary
to the plain language of the statute. If the legislature had wanted to make its
definition of principal more specific, it could have. The legislature could have
limited its definition of principal to include only the entity that contracts with a
lobbyist. And that interpretation makes little practical sense. If only the business
itself is a principal under the Ethics Law, then the CEO of a business that employs
lobbyists could give thousands of dollars to legislators, and legislators could accept
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thousands of dollars from that CEO, with impunity. This interpretation would not
serve the Ethics Laws purpose of making public officials independent and
impartial. See Ala. Code 36-25-2(a)(1).
In addition to Sumners testimony, the jury heard evidence that Will Brooke,
Jimmy Rane, and Rob Burton are people who employ, hire, or otherwise retain
lobbyists. As this Court already concluded, whether those men are principals is a
factual question for the jury. As a chair and immediate past chair of the Business
Council of Alabama, Brooke served on the BCAs executive committee. As a
committee member, he had ultimate control over the employment and activities of
the BCAs lobbyists. The BCAs lobbyists are supervised by Billy Canary (also a
registered lobbyist), and Billy Canary reports to the executive committee of the
BCA. (Brooke Tr. 20). Jimmy Rane is the President of Great Southern Wood. Rane
testified that he hired Great Southern Woods lobbyists. (Rane Tr. 3 (Well, the
company hired Fine and Geddie. And Im the President of Great Southern, so I guess
the answer would be, I did.)). And Rob Burton is the President of Hoar
Construction. As he put it, I am boss. (Burton Tr. 5). Burtons company also hired
lobbyists. (Id. at 910). The evidence is sufficient to support the jurys finding of
guilty beyond a reasonable doubt on counts 16, 18, and 19.
And all of Hubbards arguments about the definition of principal are irrelevant
to his conviction on Count 17. The jury heard from Steve French that Hubbard
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wanted to meet with James Holbrook, the CEO of Sterne Agee, about investing in
Craftmaster. (French Tr. 23, 25). The jury saw Sterne Agees check for $150,000 to
Craftmaster Printers. (States Ex. 420). And Sterne Agee was a registered principal.
(States Ex. 673). In his motion, Hubbard acknowledges that this count may be
different, but argues that he did not solicit the investment from Sterne Agee.
(Motion for New Trial at 13.) But he does not and cannot dispute that he certainly
received the investment from Sterne Agee. And his argument illustrates precisely
why CEOs and top decision-makers are principals. Hubbards conduct would have
been no more excusable if James Holbrook had written a personal check. Hubbard
solicited an investment from Holbrook. And when Holbrook instead sent him a
check from Sterne Agee, Hubbard accepted it, just like he accepted Brookes check,
Ranes check, and Burtons check.
This Court has already concluded that Hubbards arguments about the
definition of principal concern the sufficiency of the evidence, and the Court has
rejected these arguments by denying Hubbards motions for judgment of acquittal
after the States case and after the close of the evidence. (See Order (Feb. 2, 2016)
(The Defendants remaining challenges were in the nature of sufficiency of the
evidence challenges which would best be made at the close of the States case at
trial.)). The jury heard evidence sufficient to support its verdict of guilty beyond a
reasonable doubt that Brooke, Rane, Burton, and Sterne Agee are principals from
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whom Hubbard solicited or received things of value. Hubbard is not entitled to a

judgment of acquittal or a new trial based on his principal argument.1
B. Hubbard misconstrues the thing of value exceptions.
As this Court properly instructed the jury, a thing of value is [a]ny gift,
benefit, favor, service, gratuity, tickets or passes to an entertainment, social or
sporting event, unsecured loan, other than those loans and forbearances made in the
ordinary course of business, reward, promise of future employment, or honoraria or
other item of monetary value. Ala. Code 36-25-1(34)(a). The Ethics Law provides
certain statutory exceptions to the definition of thing of value, among them things
given under circumstances that make clear that the gift was motivated by friendship,
not the recipients office (the friendship exception); things for which the recipient
pays full value (the pays full value exception); and compensation paid under

Hubbard characterizes Ted Hosp and Edward ONeal as prominent observers who
made remarks about the Hubbard trial in the Birmingham Business Journal. (Motion for New
Trial at 1718). In reality, Hosps observations first appeared on the Maynard Cooper & Gale firm
blog. See The Hubbard Verdict: Some Initial Thoughts on What Businesses Need to Know,
Maynard
Cooper
&
Gale
(June
15,
2016)
(available
from
http://www.maynardcooper.com/blog/hubbard-verdict-some-initial-thoughts-what-businessesneed-know) (compare with the Business Journal date of June 16, 2016). Moreover, Hosp is the
registered lobbyist and defense attorney who requested the Patricia Todd opinionthe same Ethics
Commission opinion that Hubbard heavily relied upon in his Motion to Dismiss. Until the
Commission withdrew that opinion, it would have permitted the Human Rights Campaign, a
principal with interests before the legislature and Hosps lobbying client, to pay Rep. Todd to
lobby. The Ethics Commissions withdrawal of Hosps requested opinion, Rep. Todds subsequent
resignation from HRC, Sumners testimony at trial, and, most importantly, the jurys verdict in
this case, all call into question Hosps opinions about the propriety of financial dealings between
principals and legislators, especially as his opinions do not address all of the relevant facts of this
case.
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circumstances that make clear that the compensation is received for reasons
unrelated to the public officials position (the compensation exception). Hubbard
attempts to recast the friendship, pays full value, and compensation exceptions in
order to fit his criminal conduct into these exceptions. But the evidence is sufficient
to support the jurys verdict of guilty beyond a reasonable doubt and its
determination that Hubbards conduct did not fall within any of these exceptions.2
i.

The friendship exception to thing of value does not immunize

criminal conduct between friends.

Hubbard argues that his criminal conduct in counts 16, 18, 19, and 23 is
excusable because he did it with friends. But friendship does not mean what he thinks
it means. Under the friendship exception, a thing of value does not include:
Anything given by a friend of the recipient under circumstances which
make it clear that it is motivated by a friendship and not given because
of the recipients official position. Relevant factors include whether the
friendship preexisted the recipients status as a public employee, public
official, or candidate and whether gifts have been previously exchanged
between them.
Ala. Code 36-25-1(34)(b)(3). (See also Jury Inst. Tr. 74).
Sumner explained that this exception is meant to allow people who are longterm friends to continue going on vacations together without worrying about who

Hubbard did not even request a jury instruction on the pays full value and compensation
exceptions. And despite receiving a jury instruction on the loan exception, he does not now argue
that it applies.
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would pay for which part of their beach vacation or hunting trip. (Sanderson/Sumner
Tr. 105). It covers situations where both people essentially brought something to
the equation and they didnt want to be concerned about who paid for what. (Id.
at 10506). In such a situation, the circumstances would make it clear that the
friendly interactions were motivated by friendship. Because the friendship exception
covers gifts and shared vacations between friends, it makes little sense to say that
something like an investment could given by anyone under the friendship
exception.
In any event, this Court properly left this question to the jury. And the jury
concluded that Hubbards criminal conduct in counts 1619 and 23 did not occur
under circumstances that made it clear the principals or lobbyists gave him things
motivated by friendship. On count 17, the jury heard no evidence that Hubbard was
friends with James Holbrook; Hubbard himself does not make that argument. On the
remaining counts, the jury heard self-serving evidence that Brooke, Rane, and
Burton are Hubbards friends. But the jury also heard evidence that Hubbard
frequently spoke of how business-friendly he was and how his so-called dire
financial situation could lead him to step down as Speaker. Hubbard asked Brooke
for a financial turn-around plan for his business in order to avert his personal and
political ruin. (Ex. 478 (Thank you . . . for your willingness to provide me with
some advice. . . . I will be anxious to hear your thoughts, but I believe if I take the
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reins of the business, rIse (sic) the capital necessary to eliminate the debt and most
importantly take care of the tax debt I can turn the company around. Failure is not
an option as it means personal and political ruin.)). And Hubbard asked Brooke,
Rane, and Burton to invest in a business that was deeply in debt. There was plenty
of evidence from which the jury could conclude that these men gave Hubbard things
of valueinvestments in his business at $150,000 each and a financial turnaround
plan from an expert in that fieldnot because they were friends with him but
because they did not want to lose their pro-business Speaker. The circumstances did
not make it clear that these investments and the financial turn-around plan were
gifts of friendship. The evidence is sufficient to support the jurys verdict of guilty
beyond a reasonable doubt on counts 1619 and 23.
ii.

Hubbard never asked for a pays full value exception jury

instruction, and it does not apply to the facts of this case.

Hubbard also attempts to fit his criminal conduct in counts 6, 10, and 1619
into the pays full value exception. He did not request a jury instruction on that
exception, and his counsel did not bring it up during their closing arguments. And
this Courts instructions appropriately left out that exception because it has no
application to this case.
The pays full value exception simply states that a thing of value does not
include [a]nything for which the recipient pays full value. Ala. Code 36-251(34)(b)(9). Hubbard gives several examples of items sold by principals: tickets,
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light bulbs, gasoline, cable tv service, Apple computers, lumber, tires, and air
conditioners. (Motion for New Trial at 11). The point of the pays full value
exception is that any of these things are not things of value when the public official
receives them in exchange for full payment. But if, for example, a public official
received a computer from Apple for free or $1, the exception would not apply. And
in Hubbards own examples, the recipient is the public official.
Defying logic and straying from his examples, Hubbard argues that Sterne
Agee, Brooke, Rane, and Burton are recipients who received full value for their
investments in Craftmaster, and APCI and Edgenuity are recipients who received
full value for their consulting contracts with Hubbard. But there is no reason for
principals or lobbyists to be considered recipients. The Ethics Laws do not prohibit
principals or lobbyists from soliciting receiving things of value. The Ethics Laws
prohibit public officials and employees from soliciting or receiving things of value.
For that reason, it makes no sense to read recipient to include principals or
lobbyists. Under Hubbards reading, to use one of his examples, Apple would have
to give a public official a full computer before receiving the computers full price.
This is absurd.

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iii.

The compensation exception to thing of value does not

apply to Hubbards criminal conduct.

Nor is Hubbards criminal conduct in counts 6 and 10 excused by the

compensation exception. Under the compensation exception, a thing of value does
not include:
Compensation and other benefits earned from a non-government
employer, vendor, client, prospective employer, or other business
relationship in the ordinary course of employment or non-governmental
business activities under circumstances which make it clear that the
thing is provided for reasons unrelated to the recipients public service
as a public official or public employee.
Ala. Code 36-25-1(34)(b)(10). Again, Hubbard did not request a jury instruction
on this exception, and this Court appropriately did not give such an instruction.
Sumner explained that this exception simply means that a legislator or public
official would be able to do their public service and receive their paycheck from their
employer. (Sumner Tr. 10708). Like the friendship exception, the compensation
exception applies only if the circumstances make it clear that the thing is provided
for reasons unrelated to the recipients public service. Ala. Code 36-251(34)(b)(10). Hubbard has consistently attempted to rewrite this exception, saying
the exception applies unless the State proves that the compensation was related to
his public service. (See, e.g., Motion for New Trial at 22). But that is not how the
law is written. A public official or employee may take a thing of value under this

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exception only if the circumstances make it clear that it is compensation unrelated

to his public service.
For example, this exception could apply if a person were a State Farm
insurance agent for a number of years and later became a legislator. If, after
becoming a legislator, he remained employed as an insurance agent with State Farm,
he could continue accepting his paycheck from State Farmeven though State Farm
is a principalbecause those circumstances would likely make it clear that the
paycheck is provided because of that persons work, not because of his public
position.
Hubbard ridicules Sumners vacuum cleaner salesman example, but Sumner
did not offer the example to explain the compensation exemption. If, for example, a
vacuum cleaner salesman became a legislator, his paycheck for selling vacuums
would not suddenly become a prohibited thing of value once he was elected; it would
be compensation for work unrelated to his legislative position. Instead, Sumner
offered the vacuum salesman example to explain why sometimes, depending on the
type of work, it may matter whether the work is in-state or out-of-state. (Sumner Tr.
116). A legislator who sells vacuums door-to-door would have influence over those
people . . . in that community or in that district, and those people might feel that
[they] needed to buy a vacuum cleaner from that individual. (Id.) By compelling
people to buy vacuums because of his legislative position, the legislator would be
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using his office for personal gain. See Ala. Code 36-25-5(a). But if that legislator
sold vacuums in Montana instead of Alabama, there would be absolutely no risk that
the potential buyers would feel compelled to purchase the vacuums because the
legislators office would be irrelevant to potential vacuum customers in Montana.
(Id. at 11617). This does not mean the Ethics Laws stop applying to Alabama
officials at the State line; it means that the specific facts of a given case dictate the
answers to questions like whether a person used his office for personal gain or
whether he received something because of bona fide work unrelated to his office.
All this illustrates the fact-specific nature of these questions. The jury had
before it sufficient evidence to support its verdict of guilty beyond a reasonable
doubt, including that the circumstances did not make it clear that the money Hubbard
received pursuant to his consulting contracts was unrelated to his public service. On
count 6, the jury heard why the President of APCI hired Hubbard: Being Speaker
of the House in Alabama, he servedand I cant recall the organizationbut [he
was] president of a Speaker Association and knew the speakers and legislators from
other states. (Hamrick Tr. 74). And he hired Hubbard on the recommendation of
APCIs lobbyist, Ferrell Patrick, who also handled much of Hubbards contract
negotiations. (Id. at 75; Sanders Tr. 12425). Further blurring the line between
Hubbards public position and his consulting position, APCI thanked Hubbard for
adding the necessary language to the 2014 general fund budget that would have
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made APCI the sole pharmacy benefit manager if one were implemented. (Hamrick
Tr. 8788, Ex. 297). And that occurred while Hubbard was receiving $5,000 per
month from APCI. The circumstances were not clear that the $95,000 he received
from APCI was not given because of his public office. (See Ex. 661, 679).
Similarly, the jury heard from the Executive Vice President of
Edgenuity/E2020, who manages lobby services. (Humphrey Tr. 180, 182). He
testified that he thought Hubbard could give him access to meet legislators or
leaders in other states to talk about Edgenuity/E2020. (Id. at 194, 219). And
lobbyist Patrick also participated in Hubbards contract negotiations with
Edgenuity/E2020. (Id. at 19495; Ex. 629). Pursuant to these discussions,
Edgenuity/E2020 hired Hubbard for $7,500 per month. (See, e.g., Ex. 661, 679).
Internal emails at Edgenuity/E2020 describe Hubbard as our contact for house
speakers in all 50 states. (Ex. 319). As such, Hubbard reached out to the South
Carolina Speaker to discuss a Edgenuity/E2020 deal in Charleston. (Humphrey Tr.
231). Hubbard called the North Carolina Speaker about a bill that was bad for
Edgenuity/E2020. (Id. at 239). The circumstances were not clear that the $210,000
Hubbard received from Edgenuity/E2020 was not given because of his public office.
(See Ex. 661, 679).
The evidence is sufficient to support the jurys determination beyond a
reasonable doubt that the money Hubbard received from APCI and Edgenuity/E2020
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was a thing of value he could not accept from those principals. See Ala. Code 3625-5.1(a). This is not because consulting contracts are necessarily more suspicious
than other work. (Motion for New Trial at 23). Rather, the evidence in this case
indicates that Hubbard received these consulting contracts not because he was a
consultant but because he was a legislator who could use his office to benefit his
employer. Selling ones public office is more than suspiciousit is illegal.
C. The evidence is sufficient to support the jurys verdict on count 5 for
voting on legislation with a conflict of interest.
Plenty of evidence supports the jurys verdict on count 5, that Hubbard voted
on legislation with a conflict of interest. His conviction on that count is legally
sound. Under the Ethics Law, [a] member of a legislative body may not vote for
any legislation in which he or she knows or should have known that he or she has a
conflict of interest. Ala. Code 36-25-5(b). Hubbard voted for SB143, a general
fund bill containing language that would give APCI a monopoly if Alabamas
Medicaid Agency implemented a pharmacy benefit manager. And he voted for that
bill while receiving $5,000 per month from APCI. APCI valued his actions on its
language; APCI specifically thanked him for his efforts about its language, even
though the language ultimately did not become law.

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i.

Section 36-25-1(8) contains the definition of conflict of interest for

the Ethics Laws.
The Ethics Laws contain two definitions of conflict of interest. One appears

in the definitions section at Section 36-25-1(8), and the other appears in Section 3625-5(f). The plain text of the Ethics Laws, considered as a whole, shows that Section
36-25-1(8) applies to the entire Ethics Law, while Section 36-25-5(f) is a specific,
non-exclusive definition of conflict of interest that may or may not apply in any
given case. This Court instructed the jury on both, and the jurys verdict on count 5
is consistent with the law.3
The conflict of interest definition in Ala. Code 36-25-1(8) applies to all of
the Ethics Laws. Section 36-25-1 specifically states that the definitions in that
section apply to all of the Ethics Laws: Whenever used in this chapter, the following
words and terms shall have the following meanings. Ala. Code 36-25-1. And this
section defines a conflict of interest as:
A conflict on the part of a public official or public employee between
his or her private interests and the official responsibilities inherent in
tan office of public trust. A conflict of interest involves any action,
inaction, or decision by a public official or public employee in the
discharge of his or her official duties which would materially affect his
3

Hubbard notes that the State, during the hearing on the first motion for judgment of
acquittal, indicated that Section 36-25-5(f) was the definition of conflict of interest for Section 3625-5. (Mot. Tr. at 42). But the prosecutor simply misspoke. The State has consistently maintained
in its written filings that the appropriate definition of conflict of interest for the entire ethics law
is found in Section 36-25-1(8). And at the charge conference, the State maintained that Section
36-25-1(8) was the appropriate definition and requested such an instruction. Ultimately, this Court
instructed the jury on both definitions.
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or her financial interest or those of his or her family members or any

business with which the person is associated in a manner different from
the manner it affects the other members of the class to which he or she
belongs.
Ala. Code 36-25-1(8). Because this definition applies to conflict of interest
[w]henever used in this chapter, this definition applies to Section 36-25-5. The
legislature could havebut did notuse limiting language. For example, the
legislature could have said, Except where otherwise provided, the following words
and terms shall have the following meanings. Because Section 36-25-1 has much
broader language, it should be interpreted in accordance with its plain meaning:
these definitions, including Section 36-25-1(8)s definition of conflict of interest,
apply to the entire chapter.
Section 36-25-5, however, contains an additional, more specific definition of
conflict of interest. It provides:
A conflict of interest shall exist when a member of a legislative body,
public official, or public employee has a substantial financial interest
by reason of ownership of, control of, or the exercise of power over any
interest greater than five percent of the value of any corporation,
company, association, or firm, partnership, proprietorship, or any other
business entity of any kind or character which is uniquely affected by
proposed or pending legislation; or who is an officer or director for any
such corporation, company, association, or firm, partnership,
proprietorship, or any other business entity of any kind or character
which is uniquely affected by proposed or pending legislation.
Ala. Code 36-25-5(f). This section does not include any language showing that this
subsection is the exclusive definition of conflict of interest for Section 36-25-5 or
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otherwise overriding the broad application of Section 36-25-1. Instead, Section 3625-5(f) uses language creating a rebuttable presumption about a particular kind of
conflict of interest: [a] conflict of interest shall exist when someone bound by the
Ethics Laws has a specific kind of interest. Ala. Code 36-25-5(f).
Ultimately, this Court instructed the jury on both conflict of interest
definitions. The jury could determine whether Hubbard had a conflict of interest
under either. And the great weight of evidence supports the jurys determination that
Hubbard voted on APCIs legislation with a conflict of interest.
ii.

The jurys verdict on count 5that Hubbard voted on legislation with

a conflict of interestis supported by the great weight of the evidence.
The jury heard ample evidence showing that Hubbard voted on SB143, the

2014 general fund budget, with a conflict of interest because SB143 contained
language specifically benefiting APCI, which was paying him $5,000 per month at
the time. Hubbard attempts to confuse the issue by saying the language was a small
part of a big bill and arguing that the bill just tasked Medicaid with studying
pharmacy benefit managers. But APCI did not think the language was so
insignificant, and neither did Hubbard.
The jury heard testimony about the 2014 general fund budget, a significant
piece of legislation. In 2013, each house of the legislature considered the 2014
budget in turn. Then-Rep. Greg Wren, along with lobbyist Ferrell Patrick and others,

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worked to place certain language into SB143 that would benefit APCI. That
language provided:
The Alabama Medicaid Agency, in order to implement a pharmacy
benefit manager program, must seek a pharmacy benefit management
organization or manager that will: (i) act in fiduciary capacity and
perform its duties in accordance with standards of conduct applicable
to a fiduciary, including the allocation of all drug manufacturer rebates,
discounts, and incentives to the State General Fund; (ii) establish a
maximum allowable cost list; and (iii) operate a group purchasing
function with a purchasing base for generic drugs consisting of at least
30% of the retail pharmacies in Alabama.
(See Ex. 367 at 2) (emphasis added). And the important languageas several
witnesses testifiedwas subsection (iii), because APCI was the only organization
who could meet its criterion.
Hubbard knew about this language, and he knew it was in SB143. In fact, Josh
Blades told the jury that he warned Hubbard about voting on the budget because he
was concerned that Hubbards APCI contract created a problem. (Blades Tr. 34). In
his words: I told Mr. Hubbard that he should not vote on the language. (Id. at 35).
But instead of listening to Blades, Hubbard directed him to remove the language.
(Id. at 3536). Not because the language was actually bad for the State, or bad for
Medicaid, or because it would cost too much moneybut because Hubbard got
caught taking money from APCI and did not want anyone else to find out. And even
though Hubbard knew Blades was unable to remove the APCI language before the
House vote on SB143, Hubbard voted for SB143 anyway. (Id. at 3940).
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This vote led the jury to convict Hubbard of voting on legislation with a
conflict of interest. Hubbards private interest in being paid by APCI conflicted with
his official responsibilities to act in the best interests of the people of Alabama. Ala.
Code 36-25-1(8). Based on the evidence, the jury concluded that Hubbards
decision to vote on the bill with APCIs language was an action which would
materially affect his financial interest or the interests of a business with which he
is associated. Id. Hubbard received a total of $95,000 from APCI. Continued receipt
of that $5,000 per month was in his financial interest, and supporting APCIs
interests was a way to ensure that the money kept coming. And APCI thanked
Hubbard specifically for his efforts in getting their language into the general fund
bill, showing that APCI believed the bill would affect its interests. Based on the
evidence, the jury could reasonably conclude that APCI was a business with which
Hubbard was associated as an employee, based on his $5,000 per month contract.
See Ala. Code 36-25-1(2). The great weight of the evidence supports the jurys
verdict on count 5.
D. The evidence is sufficient to support the jurys verdicts on counts 11
14.
The jurys verdicts on counts 1114 were also consistent with the law and the
great weight of the evidence. Hubbards wishful characterization of his criminal
actions as governmental efforts to help a manufacturing employer in his county
do nothing to contradict the evidence showing that Hubbard used his official position
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to obtain a total of $220,000 from Robert Abramss companies, in violation of

Section 5(a); lobbied Governor Bentley and Secretary Canfield on behalf of these
companies while receiving $10,000 per month, in violation of Section 36-25-1.1;
and directed Josh Blades to further the interests of those companies on state time
using state resources, in violation of Section 36-25-5(c).
During the relevant time period, Abrams was the CEO and majority owner of
a company called CV Holdings, Inc. Part of CV Holdings was a company called
Capitol Cups. (See Abrams Tr. at 2). SiO2 Medical Products was also part of CV
Holdings at that time, although it ultimately became a separate entity with Abrams
as president and CEO. (Id. at 56). In September 2012, Hubbard and Abrams signed
a contract, under which he would receive $10,000 per month, ostensibly for advice
about sales and marketing of [Capitol Cups] products. (Ex. 308).
The jury heard one of Abramss employees explain that Hubbard put her in
contact with a potential buyer at Publix. (Abrams/Belfance Tr. at 62). But Hubbard
did not know precisely who the potential buyer was, so he emailed a request for a
meeting between Publix and a company here in Auburn (my district) that
manufactures high quality plastics called Capitol Cups. (Ex. 309 at 3). He never
mentioned that he worked for Capitol Cups, instead saying: It would be a huge
favor for me if you could help arrange a meeting with these folks with a decisionmaker at Publix in Lakeland. (Id.). His email, including a signature line with the
22

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title Rep. Mike Hubbard, had precisely the desired effect: one of the recipients
forwarded it to others at Publix, explaining that Mike Hubbard is the Speaker of the
House of the Alabama State House of Representatives. He sent the email below on
behalf of a constituent of his, USA Kids. (Ex. 309 at 2). The Publix employees did
not discuss a potential meeting with Capitol Cups because a consultant for Capitol
Cups contacted them; they discussed meeting with Capitol Cups because Speaker
Mike Hubbard contacted them. This, along with other evidence, is sufficient to
support the jurys verdict of guilty beyond a reasonable doubt on count 11 that
Hubbard used his office for personal gain.
The jury also heard evidence that Hubbard represented Abrams and his
companies before Governor Bentley and Secretary Canfield. Hubbard tries to split
hairs by saying that his actions in lobbying Governor Bentley and Secretary Canfield
happened because of his obligation to look after the interests of his constituents.
(Motion for New Trial at 35). But he glosses over the fact that this particular
constituent was paying him $10,000 per month. He arranged meetings for this paying
constituent with Governor Bentley and Secretary Canfield to ensure funding for a
training facility. (See Abrams Tr. at 9, 1213; Ex. 314). The jury heard sufficient
evidence to convict Hubbard beyond a reasonable doubt on counts 12 and 13.
Hubbard relies on United States v. McDonnell, 136 S. Ct. 2355 (2016), to no
avail. In that case, the U.S. Supreme Court narrowly construed federal statutes
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DOCUMENT 779

regulating the behavior of state officials, basing its narrow construction on

federalism principles: A State defines itself as a sovereign through the structure of
its government, and the character of those who exercise government authority. That
includes the prerogative to regulate the permissible scope of interactions between
state officials and their constituents. Id. at 2373 (internal quotations and citations
omitted). For that reason, the Supreme Court made clear that the States, not the
federal government, should set[] standards of good government for local and state
officials. Id. (internal quotations and citations omitted). As a result, McDonnell
supports Alabamas efforts to regulate the conduct of public officials like Hubbard,
including his setting of meetings with executive officials on behalf of a person whose
company paid him $10,000 per month for his services.
And those services included using State equipment, facilities, time,
materials, human labor, or other public property under Hubbards control, as the
jury found by convicting Hubbard on count 14. See Ala. Code 36-25-5(c). In his
Motion for New Trial, Hubbard does not dispute that he used state property and
employee time for his own benefit and the benefit of Abrams and his company. (See
Motion for New Trial at 3637). Hubbard directed Blades, on work time, to find a
contact in the federal government to get a patent printed for Abrams. Abrams
testified that although his patent had been allowed, the Government Printing Office
had not yet printed it. In fact, the GPO did not know where the patent was or who
24

DOCUMENT 779

had it. (Abrams Tr. at 16). Because it had not been printed, Abrams could not use it
to resolve a lawsuit. (Abrams Tr. at 1617). When Abrams reached out to Hubbard,
Hubbard directed Blades to find a way to get the patent printed. He contacted Blades
several times, finally telling Blades that he had 100,000 reasons to get this done.
(Blades Tr. 55). Understandably, this made Blades uncomfortable because he
thought Hubbard was talking about money, and he asked Hubbard to take over. (Id.
at 57). Bladess inference was reasonable; around the time Hubbard said this, he had
received about $100,000 from Abramss company. (See Ex. 293, 679). Hubbard
clearly thought using State resources would benefit him personally, and the jury
thought so, too. The great weight of the evidence supports the jurys verdict on count
14.
II.

This Court properly permitted Jim Sumner to testify as an expert

on the Ethics Laws.

Hubbard challenges the testimony of Jim Sumner, the former long-time

Executive Director of the Ethics Commission. But the Alabama Court of Criminal
Appeals has made clear that testimony from experts on the Ethics Law is admissible.
Stone v. State, CR-14-0497 at *25*28 (Mem. Op. Ala. Crim. App. Aug. 5, 2016);
Fitch v. State, 851 So. 2d 103, 11619 (Ala. Crim. App. 2001). Trial courts may
properly admit testimony from an expert on Alabama ethics law and applying that
law to specific fact situations. Stone, Mem. Op. at *27. Hubbards attempt to
distinguish Fitch fails: on the day Hubbard filed his motion, the Court of Criminal
25

DOCUMENT 779

Appeals plainly stated, in Fitch this Court found that [the Ethics Law experts]
testimony was admissible. Id. This court properly permitted expert testimony on
the Ethics Law during trial.
And Hubbard argues that the State was required to give notice that it planned
to call Sumner as an expert. But he failed to cite any authority for such a requirement.
There is none. Ala. R. Crim. P. 16.1(d) requires that the State permit defendants to
inspect and copy any expert reports, but Sumner did not make any. Rule 16.3s
continuing disclosure requirement, the only law Hubbard cites to support this
argument, only applies if there was a duty to disclose in the first place. Ala. R. Crim.
P. 16.4. And Hubbard himself called Sumner as an expert during pretrial
proceedings.4
III.

Hubbards juror misconduct allegations are unsupported by

admissible evidence or law.

Hubbard also alleges that he is entitled to a new trial based on his claims of
juror misconduct. In support of his motion for investigation of juror misconduct,
which he incorporated into his motion for new trial and judgment of acquittal,
Hubbard submitted an affidavit from a juror. (Hubbards Motion for Investigation

Hubbard argues this issue was compounded because he was not permitted to question
former Governor Bob Riley about his intent in supporting and signing the 2010 Ethics Reforms.
But the defense did not even attempt to qualify Riley as an expert on the Ethics Laws. Nor could
they; Sumner and Hugh Evans have been qualified as experts based on their years of experience
interpreting the Ethics Laws as employees of the Ethics Commission. Riley has no such
experience.
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DOCUMENT 779

by Lee County Sheriff into Juror Misconduct, 43-CC-2014-00565 (Jul. 8, 2016)

(under seal)). The juror alleged that conversations took place before the case was
submitted to the jury. (Motion for Investigation, Exhibit A (under seal)). But these
alleged conversations all concerned information intrinsic to the trial. Because the
evidence was intrinsic to the trial, it is inadmissible under the Rules of Evidence.
In general, a juror cannot testify about the deliberative process of the jury:
Upon an inquiry into the validity of a verdict or indictment, a juror may
not testify in impeachment of the verdict or indictment as to any matter
or statement occurring during the course of the jurys deliberations or
to the effect of anything upon that or any other jurors mind or emotions
as influencing the juror to assent to or dissent from the verdict or
indictment or concerning the jurors mental processes in connection
therewith. . .
Ala. R. Evid. 606(b). This rule specifically excludes juror testimony about any
internal influences on the jury. Perkins v. State, 144 So. 3d 457, 494 (Ala. Crim.
App. 2012). Such internal influences include whether jurors engaged in premature
deliberations or made up their minds before hearing all the testimony. Id. at 49394.
Construing Rule 606(b), the Court of Criminal Appeals explicitly held that jurors
should not [be] permitted to testify regarding the jurys deliberations. Id. at 493.
That kind of testimony is inadmissible and should not [be] considered. Id. at
494.
In his motion for investigation, Hubbard relies on Hartley v. State, 516 So. 2d
802, 804 (Ala. Crim. App. 1986), and Hayes v. State, 467 So. 2d 11, 14 (Ala. Crim.
27

DOCUMENT 779

App. 1994). But those cases were decided before Rule 606(b) was adopted on
January 1, 1996. As a result, Perkins controls, not the pre-1996 cases Hubbard cites.
Under Rule 606(b), jurors may testify about deliberations for only one reason:
if there is evidence of an extrinsic influence on the jury. Ala. R. Evid. 606(b) ([A]
juror may testify on the question whether extraneous prejudicial information was
improperly brought to the jurys attention or whether any outside influence was
improperly brought to bear upon any juror.). Examples of extrinsic influences
include publicity received and discussed in the jury room, matters considered by
the jury but not admitted into evidence, and communications or other contact
between jurors and outside persons. Ross v. State, 41 So. 3d 106, 110 (Ala. Crim.
App. 2009) (quoting United States v. Rodriquez, 116 F. 3d 1225, 1227 (8th Cir.
1997) (internal quotations deleted). But there are no such allegations here.
Instead, Exhibit A concerns allegations that jurors commented on testimony;
expressed an opinion of Hubbards guilt; kept track of Hubbards contract amounts;
discussed who would testify, including Governor Bentley specifically; and discussed
Hubbards greed. (Motion, Exhibit A (under seal)). All these allegations concern
internal discussions and thought processes of the jurors during the course of the trial.
The affidavit contains no allegation that extrinsic influence affected the jury. As a
result, these allegations are inadmissible under Rule 606(b).

28

DOCUMENT 779

Hubbard contends that information about the identity of witnesses could only
have come through extrinsic influences. But during voir dire, the entire venire heard
the names of all witnesses the State and the defense might call. And during opening,
the State specifically identified Governor Bentley as a witness. (Hart Opening Tr.
105). And all the jurors heard and saw all the witnesses who testified. This
information was intrinsic to the trial. Evidence about a discussion of witnesses is
inadmissible, and Hubbard suffered no prejudice if such a discussion occurred.
Exhibit A also includes one allegation about voir dire. But this allegation is
insufficient to demonstrate prejudice. The affiant claims that an unnamed juror
mentioned an answer to an individual voir dire question, smiled, and said, yeah,
right. (Exhibit A 10). Hubbard argues that he was plainly prejudiced by this
allegedly false answer. That claim is absurd. This statement in the affidavit is hearsay
and lacks sufficient specificity or context to demonstrate reliability. And evidence
properly before this Court in the form of the split verdict clearly demonstrates that
Hubbard was not prejudiced in this case.
The rules of evidence, including hearsay rules, apply to post-conviction
proceedings. Hunt v. State, 940 So. 2d 1041, 1051 (Ala. Crim. App. 2005). The voir
dire allegation in the affidavit is offered for its truththat the unspecified juror
implied that a voir dire answer was falseand is, therefore, inadmissible hearsay.
See Ala. R. Evid. 802. The hearsay rules ensure that an out of court statement is not
29

DOCUMENT 779

admitted into evidence if it does not bear an adequate indicia of reliability. James
v. State, 723 So. 2d 776, 779 (Ala. Crim. App. 1998). A nebulous statement such as
yeah, right is subject to various interpretations based on the context and the
manner in which it was said. And the allegation is unreliable because the affiant fails
to identify by name or role the person who allegedly made the statement, despite
specifically identifying by first name the people who allegedly made the statements
claimed elsewhere in Exhibit A. This voir dire allegation is inadmissible under Rule
of Evidence 802.
But even if the allegation were admissible, the split verdict reached by the jury
in this case shows that the jury was not biased against Hubbard. The Eleventh Circuit
persuasively explained that the careful weighing of the evidence inherent in a split
verdict makes the verdict itself evidence that the jury reached a reasoned conclusion
free of undue influence and did not decide the case before the close of the evidence.
United States v. Dominguez, 226 F. 3d 1235, 1248 (11th Cir. 2000). The jurors
affidavit is not the only evidence of the jurys actions. The Court can look to the
verdictwhich included 11 acquittalsand determine that the jury reached its
verdict free of undue influence and bias.
IV.

Hubbard is not entitled to relief on any of his other arguments.

In his motion, Hubbard also incorporates all of his other written filings. This
Court has already rejected Hubbards arguments and should do so again. The State
30

DOCUMENT 779

also incorporates all of its responses to Hubbards filings, including filings

demonstrating why Hubbard was not entitled to another continuance.
Furthermore, defense counsels performance during trial belies the statement
that adequate trial preparation was impossible. Defense counsel cross-examined
witnesses, introduced exhibits, made arguments, and showed a knowledge and
understanding of the case against their client. And their accusation about the States
late production of certain documents is misleading: pursuant to this Courts ruling,
those documents were not used during trial.
And finally, Hubbards claim that he did not receive due process is baseless.
This Court indulged his pretrial investigation into the prosecution (which turned up
no misconduct), his requests for management of discovery (which validated the
States process), and his many pretrial filings. This Court gave him every
opportunity to argue his points, considered his arguments along with the States
responses, and followed the law. This Court ensured a fair trial for Hubbard.
CONCLUSION
For all this reasons, this Court should DENY Hubbards motion for a new trial
and judgment of acquittal.

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DOCUMENT 779

Respectfully submitted this 12th day of August, 2016.

W. VAN DAVIS
ACTING ATTORNEY GENERAL
/s/ Megan A. Kirkpatrick
Megan A. Kirkpatrick
Assistant Attorney General
mkirkpatrick@ago.state.al.us
OF COUNSEL:
W. Van Davis
Supernumerary District Attorney
Acting Attorney General
423 23rd Street North
Pell City, AL 35125
vandclaw@centurylink.net
Miles M. Hart
Deputy Attorney General
mhart@ago.state.al.us
John D. Gibbs
Deputy Attorney General
jgibbs223@outlook.com
Michael B. Duffy
Deputy Attorney General
mduffy@ago.state.al.us
Katie Langer
Assistant Attorney General
klanger@ago.state.al.us
Megan Kirkpatrick
Assistant Attorney General
mkirkpatrick@ago.state.al.us
Kyle Beckman
Assistant Attorney General
kbeckman@ago.state.al.us
OFFICE OF THE ATTORNEY GENERAL
STATE OF ALABAMA
501 Washington Avenue
P.O. Box 300152
Montgomery, AL 36130
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DOCUMENT 779

CERTIFICATE OF SERVICE
I hereby certify that I have, this the 12th day of August 2016, electronically
filed the foregoing using the AlaFile system which will send notification of such
filing to the following registered persons, and that those persons not registered with
the AlaFile system were served a copy of the foregoing by U. S. mail:
William J. Baxley
Joel E. Dillard
David McKnight
Baxley, Dillard, McKnight, James & McElroy
2700 Highway 280
Suite 110 East
Birmingham, AL 35223
bbaxley@baxleydillard.com
jdillard@baxleydillard.com
dmcknight@baxleydillard.com
R. Lance Bell
Trussell, Funderburg, Rea & Bell, P.C.
1905 1st Avenue South
Pell City, AL 35125
lance@tfrblaw.com
Phillip E. Adams, Jr.
Blake Oliver
Adams White Oliver Short & Forbus, L.L.P.
205 South 9th Street
Opelika, AL 36801
padams@adamswhite.com
boliver@adamswhite.com
/s/ Megan A. Kirkpatrick
Assistant Attorney General

33