United States Court of Appeals,
Eleventh Circuit.
No. 95-6260.
Harold Guy HUNT, Petitioner-Appellant,
v.
Kenneth TUCKER, Winifred Smithson, John S. Nettles, Judith C.
O'Connor, Louie S. Grimes, Respondents-Appellees.
Aug. 29, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV-94-N-1851-NE), Edwin L. Nelson, Judge.
Before TJOFLAT, Chief Judge, and RONEY and CAMPBELL*, Senior
Circuit Judges.
PER CURIAM:
This is an appeal from the denial of a petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254. In his petition,
Harold Guy Hunt, former Governor of the State of Alabama,
challenged the constitutionality of his conviction in state court
for violating the Alabama Code of Ethics for Public Officials,
Ala.Code § 36-25-5 (1975).
Hunt argues the district court erred by rejecting his
contention that the sole charge upon which he was found guilty
should have been barred by the statute of limitations under Alabama
law, and that the contrary holding that the offense was not
completed within the statutory period denied him constitutional due
process. We affirm.
Hunt was elected Governor of the State of Alabama on November
4, 1986. After his election, a number of accounts were opened in
*
Honorable Levin H. Campbell, Senior U.S. Circuit Judge for
the First Circuit, sitting by designation.
separate banks for the stated purpose of funding either the
expenses attendant to his inauguration or to fund his political
campaign. The flow of money into and out of the various accounts
from November 1986 until December 1989 is detailed in both the
state court appellate decisions, Ex Parte Hunt, 642 So.2d 1060
(Ala.1994), and Hunt v. State, 642 So.2d 999 (Ala.Cr.App.1993), and
the federal district court's decision, Hunt v. Tucker, 875 F.Supp.
1487 (N.D.Ala.1995).
Hunt was indicted for violating the state Ethics Act as a
result of the handling of these accounts. Although Hunt was
charged with twelve additional counts, specifically six counts of
theft, three counts of receiving stolen property, and three counts
of conspiracy, all those counts were dismissed because the state
trial court found that the applicable statute of limitations had
run. It explained the theft offenses are complete when the
defendant knowingly obtained or exerted unauthorized control over
property, which occurred outside the limitations period, while a
violation of the Ethics Act requires the added element of obtaining
direct personal financial gain, an element which the district court
held was not present at the time Hunt simply took control of the
accounts.
On April 22, 1993, a jury returned a guilty verdict on the
Ethics Act charge, which was affirmed by both the Alabama Court of
Criminal Appeals and the Alabama Supreme Court. Hunt then filed
his petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254, which the district court denied without an evidentiary
hearing. Hunt is not incarcerated, but is serving his sentence by
performing community service and paying restitution as conditions
of his probation.
The indictment charged that Hunt violated Alabama's Ethics Law
as defined in Section 36-25-5 of the Code of Alabama. The section
of the Act Hunt allegedly violated states in part:
(a) No public official or employee shall use an official
position or office to obtain direct personal financial gain
for himself, or his family, or any business with which he or
a member of his family is associated unless such use and gain
are specifically authorized by law.
A violation of the Ethics Act is a felony subject to a three-year
statute of limitations. Ala.Code § 15-3-1 (1975); Britain v.
State, 518 So.2d 198, 201 (Ala.Cr.App.1987), cert. denied, 486 U.S.
1008, 108 S.Ct. 1736, 100 L.Ed.2d 199 (1988).
Hunt was indicted by the grand jury on December 28, 1992, so
the State was required to prove that the offense giving rise to the
indictment in this case was committed on or after December 28,
1989.
The particular accounts around which the statute of
limitations question revolves were opened on February 14, 1987. On
that date, the "Friends of Guy Hunt" account (# 15385-8) was opened
in the Cullman Savings and Loan Association with Hunt and others as
signatories. Deposited into that account were funds raised for
Hunt's inauguration and transition as governor. A personal savings
account titled "Guy Hunt or Mrs. Guy Hunt" (# 15386-6) was also
opened in the same savings and loan. Guy Hunt was the sole
authorized signatory on this account. On November 12, 1988, Hunt
received from the savings and loan a single or consolidated
signature card, showing "Guy Hunt or Mrs. Guy Hunt" as the name on
the two accounts and carrying forward Guy Hunt as the only
authorized signatory on the two accounts. The two accounts, #
15385-8 and # 15386-6, held separate funds.
On December 29, 1989, the last withdrawal was made from the
Friends of Guy Hunt account, account # 15385-8, in the amount of
$11,700. Taken out in the form of a cashier's check made payable
to Guy Hunt or Mrs. Guy Hunt, it was deposited into Hunt's personal
checking account at the AmSouth Bank and then immediately used to
cover a $16,297.23 check drawn on the personal account to make
payment on a note and mortgage on Hunt's farm.
Hunt has asserted throughout this litigation that the
prosecution against him was barred by the three-year statute of
limitations because the offense was completed and the statute of
limitations commenced running on November 12, 1988, the date that
he became the sole signatory on the # 15385-8 account, which
contained the money he was accused of misusing. The Supreme Court
of Alabama held, however, that under the Alabama Ethics Law, there
was no "direct personal financial gain" until the funds in the
inaugural fund account were actually used by Hunt. The court
stated:
The crime was not complete when Hunt became the sole signatory
on the account containing funds raised for his inauguration.
The offense for which he was convicted was not committed until
the inaugural funds were spent for an improper purpose and
Hunt thereby obtained a direct personal financial gain.
....
In keeping with the intent of the legislature in reenacting
the Ethics Act of 1975, we conclude that, upon Hunt's gaining
exclusive control over the Cullman Friends account, the crime
defined in terms of the receipt of a "direct personal
financial gain' was incomplete. Although Hunt was in control
of the funds at that time, he had not received an improper
"direct personal financial gain.' Only when Hunt, on December
29, 1989, transferred, by check, the $11,700 from the former
Cullman Friends account to his personal account to cover a
$16,297 payment on a note secured by a mortgage on his farm,
did he receive a direct personal financial gain within the
meaning of § 36-25-5.
Ex Parte Hunt, 642 So.2d at 1067.
Simply stated, the law of Alabama is that funds earmarked for
inaugural and transition expenses of the governor do not lose their
character as such merely because they are in an account upon which
the governor is the sole signatory. Therefore, he had received no
direct personal financial benefit by virtue of his sole control
over the account which held those designated funds.
Although it could be fairly argued that he received
sufficient financial gain to violate such a statute when he
obtained exclusive control of the accounts, federal courts must
follow the interpretation of Alabama law made by the highest court
of that State absent a constitutional violation. McCoy v. Newsome,
953 F.2d 1252, 1264 (11th Cir.) (state court's interpretation of
state statutes is binding on federal courts), cert. denied, 504
U.S. 944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992); Estelle v.
McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991);
Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984)
(a federal court may not issue the writ on the basis of a perceived
error of state law).
Hunt argues that the Alabama Supreme Court decision is
inconsistent with prior Alabama law which would hold that he could
have been convicted of violating the statute when he became sole
signatory on the account, and that this departure constitutes an
"unexpected and indefensible" enlargement of the statute in
violation of his due process right to fair notice of what conduct
is proscribed. Bouie v. City of Columbia, 378 U.S. 347, 354, 84
S.Ct. 1697, 1703, 12 L.Ed.2d 894 (1963) ("If a judicial
construction of a criminal statute is unexpected and indefensible
by reference to the law which had been expressed prior to the
conduct in issue, it must not be given retroactive effect."). That
interpretation of the statute would mean that Hunt should get the
benefit of the statute of limitations defense, the time beginning
to run at the earliest time that he could have been convicted under
the statute.
Hunt's constitutional argument that his case falls within the
Bouie principle must fail. First, Hunt's premise that the Alabama
Supreme Court relied upon retroactive application of Lambert v.
Wilcox County Comm., 623 So.2d 727 (Ala.1993), as the basis for its
holding that the crime was not complete until Hunt spent the money,
is erroneous. In Lambert, private citizens brought an action for
declaratory and injunctive relief to determine whether it was
appropriate under the Ethics Act for a member of the county
commission, who was also employed as a school bus driver, to vote
on a measure to levy a sales tax, the proceeds of which were to be
used to refinance a school bond issue. Lambert, 623 So.2d at 728.
The court held that the commissioner did not obtain any "direct
personal financial gain" for himself, as the measure "neither
affected [him] as an individual or as a member of a small group nor
affected him in a way different from the way it affected other
members of the class to which he belonged." Lambert, 623 So.2d at
731.
After its brief discussion of prior case law, the Alabama
Supreme Court in Hunt stated that its discussion of legislative
intent and history in Lambert "should dispel any doubt" about the
court's interpretation of the type of private interest meant by the
term "direct personal financial gain." 642 So.2d at 1067. Neither
the holding in Lambert nor the Court's reference to it in dicta
signals any break from prior law. Lambert did not make punishable
conduct that was previously legal, nor did it overrule any prior
case. Rather, the Alabama Supreme Court cited its discussion of
the legislative history and intent in Lambert as confirmation of
its prior interpretation of the statute.
Second, the state courts' application of the Act to Hunt does
not represent a departure from precedent, but rather is wholly
consistent with the cases addressing Ethics Act violations. Hunt
argued that prior case law "interpreted the Ethics Act violations
in a manner which treated an alleged offense as being complete at
the earliest possible date," citing two cases: Chandler v. State
615 So.2d 100 (Ala.Cr.App.1992), cert. denied, Ex Parte Chandler,
615 So.2d 111 (Ala.1993), and Allen v. State, 380 So.2d 313
(Ala.Cr.App.1979), writ denied, Ex Parte Allen, 380 So.2d 341
(Ala.), cert. denied, 449 U.S. 842, 101 S.Ct. 121, 66 L.Ed.2d 49
(1980). The cited cases dealing with Ethics Act violations address
the question of sufficiency of the evidence to sustain a
conviction. In Chandler v. State, the court held the evidence
sufficient to prove defendant used his position as mayor for his
direct personal financial gain when he received $50,000 of city and
county money for his private property, even if the property was
worth more than he sold it for and he did not make a "profit" on
the sale. The Court in Hunt specifically rejected Hunt's reading
of Chandler that all the elements required to violate the Act were
present when the money was received rather than when it was spent.
642 So.2d at 1067.
In Allen v. State, the court held as sufficient evidence that
defendant used her position as state treasurer for personal gain by
obtaining loans that benefited her in exchange for depositing State
treasury funds in the bank.
In a third case involving an Ethics Act violation, Britain v.
State, 518 So.2d 198 (Ala.Cr.App.1987), the court, on a charge that
defendant used his official position as maintenance supervisor for
his direct personal financial gain, held as sufficient that he had
used the labor and services of state employees that he supervised
for work at his personal residence.
These cases differ from Hunt only in that under the particular
circumstances of each, the defendants personally benefited
simultaneously with the receipt of that money. These cases would
all seem to indicate support for the Alabama Supreme Court's
holding that Hunt had no "direct personal financial gain" until he
converted the money to his own use or "spent" the money from the
Cullman accounts under the circumstances of this case. As the
district court noted, the funds were ostensibly raised for a proper
purpose to pay Hunt's transition and inaugural expenses as governor
in 1987. Until the funds were actually taken from the Cullman
Inaugural Account, the possibility remained that they would be used
for a lawful purpose.
The Alabama Supreme Court's interpretation of the statute,
albeit not the only one possible, is consistent with the statutory
language and prior Alabama case law.
Hunt also asserts the district court erred: (1) in finding
that the funds at issue were not campaign funds and therefore Hunt
was not subject to selective prosecution in violation of the Equal
Protection and Due Process Clauses; (2) in rejecting his
contention that the state trial court's instruction to the jury
that it was unlawful to use excess campaign funds for personal use
denied Hunt due process and constituted a judicial ex post facto
law violating Article I, § 10 of the United States Constitution;
(3) in finding that even though the indictment under which Hunt was
charged was "fatally defective," it did not violate the Sixth and
Fourteenth Amendments by failing to include essential elements of
the offense, i.e., that the offense was committed knowingly and
willingly; and (4) by finding there was sufficient evidence
presented to justify the guilty verdict.
Having studied the briefs and oral argument, we affirm as to
each of those issues without opinion.
AFFIRMED.