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On two fronts: Ethics laws face challenges before Supreme Court and in Statehouse

Chip Brownlee | The Trace

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Alabama’s ethics laws are under attack on two fronts.

A bill moving through the Legislature would significantly loosen the state’s “toughest-in-the-nation” ethics rules, which govern the behavior of state officials, lawmakers, lobbyists and those who hire them. In the courts, though, another challenge is brewing.

Former Republican House Speaker Mike Hubbard — convicted on 12 felony ethics charges in 2016 for conflicts of interest and using his public office for private gain — is appealing his conviction up to the Alabama Supreme Court, where he and his attorneys are arguing that the laws were too strictly interpreted by lower courts.

The Alabama Court of Criminal Appeals upheld 11 of those charges in a ruling last year, but the Supreme Court has agreed to review his case, meaning a final decision on Hubbard’s conviction under the laws he once championed may not come any time soon.

In an opening brief filed Monday, prosecutors in the Attorney General’s Special Prosecution Divison argue that Hubbard repeatedly violated the law and that his convictions should be affirmed by the Supreme Court.

The attorney general’s prosecutors have asked for oral arguments before the court to, they said, “get the record straight.”

Among other charges, a Lee County jury found Hubbard guilty of soliciting and receiving $150,000 in investments into a failing printing business from four principals, soliciting and receiving valuable financial and business advice from a principal and receiving more than $300,000 in “consulting fees” from two companies who had business before the Alabama Legislature.

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Prosecutors said both companies “hired Hubbard to capitalize on his position as speaker.”

“Alabama’s Ethics Law helps prohibit conflicts of interest and promote Alabamians’ confidence in the integrity of their government,” said Attorney General Steve Marshall.  “As we explained in our brief, Mike Hubbard repeatedly violated those laws, and his convictions should be affirmed.”

Hubbard remains free on appeal bond — nearly three years after his conviction.

Paying full value for a thing of value

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On counts 16–19, the jury found Hubbard guilty of illegally soliciting four $150,000 investments into Craftmasters from several prominent Alabama businessmen including Great Southern Wood CEO Jimmy Rane, the state’s richest man.

Hubbard has argued, however, that the investments his printing business — Craftmasters — received weren’t, in fact, a thing of value because he paid “full value” for those investments.

In other words, Hubbard and the investors paid and received no more and no less than what the investment was worth, which is legal under the ethics laws, his attorneys argue.

The “paying full value” provision of the law ensures that lawmakers and officials can’t be prosecuted for buying things. Prosecutors said the investments were gifts and favors provided to divert Hubbard’s path away from “personal and political ruin.”

Craftmasters was on the track to insolvency.

“Hubbard received these $150,000 checks precisely for reasons related to his public service as a public official,” prosecutors argued in Monday’s brief. “Hubbard reminded business leaders … of all the good he had done building and sustaining ‘a 44 pro-business legislature,’ and he threatened to step down if they didn’t step up.”

Between investments Hubbard was accused of illegally soliciting for his Auburn-based printing company Craftmasters, consulting contracts he funneled through Auburn Network Inc. and clients he solicited using his public offices, prosecutors said Hubbard illegally made more than $2 million using his offices as speaker, representative and ALGOP chair.

“The Craftmaster transactions were not arm’s length, and no one was beating down Hubbard’s door to invest in his failing business,” prosecutors said, arguing the investments were not fair transactions, but instead provided because of Hubbard’s political office.

Principals or not?

Hubbard’s attorneys have argued the investors — big business executives — were not principals under the Ethics Law.

The argument is similar to their previous arguments that the investors were “friends” and thus covered under a friendship exemption present in the ethics laws, but it’s different because this reading of the law could have wide-ranging effects for the ethics laws as they are currently interpreted.

Hubbard and his attorneys argue that executives in companies and organizations shouldn’t be considered principals — even if their organizations retain armies of lobbyists. The companies themselves are the principals, not the individual, Hubbard argued, but that reading strays significantly from the wording of the law.

The Ethics Law defines “principal” as “[a] person or business which employs, hires or otherwise retains a lobbyist,” according to Ala. Code §36-25-1(24), and “person” can include a “group of persons.”

The business leaders Hubbard solicited and received contracts, payments and investments from — including Rane and Will Brooke, a BCA executive — did, in fact, hire lobbyists.

But Hubbard is arguing that a person isn’t a principal unless they have an individual contractual relationship with the lobbyist.

“At bottom, Hubbard is asking this Court to graft an exception into the statute that he and his former colleagues declined to enact in 2010,” prosecutors wrote, pointing out that other states have similar exceptions, but lawmakers chose not to include one in Alabama’s law.

“And this ‘Court must apply statutory law as the Legislature wrote it,’ not as Hubbard now wishes he had,” the brief reads, quoting from Hubbard himself.

Another thing-of-value exception

Another exception exists in the law that allows lawmakers and officials to receive money for business relationships are made under “circumstances that make it clear the thing is provided for reasons unrelated to the recipient’s public service as a public official.”

Hubbard is attempting to use that exception to call on the court to overturn two charges that he violated the law by receiving hundreds of thousands of dollars from APCI — a pharmaceutical cooperative — and Edgenuity.

Hubbard was being paid $5,000 a month by APCI for consulting. The money was being sent through his Auburn Network Inc. Hubbard received $210,000 from Edgenuity between April 2012 and July 2014.

While the former speaker is arguing the contracts fall under this exemption, the prosecutors said they are “flagrant violations” of the ethics law.

APCI’s president and CEO testified that Hubbard was hired because he was speaker, which gave him the ability to interact with legislators in other states.

Edgenuity’s president likewise testified that he hired Hubbard because he was speaker, and Hubbard lobbied legislators from other states on Edgenuity’s behalf.

“An ordinary person exercising ordinary common sense could conclude that when companies paid Hubbard huge salaries for little work because he was Speaker, those deals were not ‘in the ordinary course of employment’ and were not clearly ‘unrelated to [his] public service’ as Speaker,” the state’s attorney wrote in their brief.

The state prosecutors summed it up:

In sum, Hubbard asserts (at 20) that he was just trying to “make a living as other citizens do.” But private citizens cannot earn a living through jobs that involve minimal work and training over scotch. They cannot collect hundreds of thousands of dollars for occasionally calling a legislator. They cannot email lobbyists and expect riches. In short, private citizens cannot use a “public office … for private gain.” Ala. Code §36-25-2(a)(3). And under the Ethics Law, Hubbard could not either. Hubbard broke the law and betrayed the public trust. His convictions should be affirmed.

$10,000 a month to sell sippy cups

Hubbard was also found guilty of entering into a contract for $10,000 a month “ostensibly” to help a company sell sippy cups for Robert Abrams, the then-owner of CV Holdings and subsidiaries Capitol Cups and Si02.

He was found guilty of using his position, a state computer, state email account and his state staff to help Abrams sell his products and promote his business. He event got Abrams before Gov. Robert Bentley and the secretary of commerce.

Overall, he received at least $220,000 from Abrams between 2012 and 2014 for “minimal work” or “no discernible work” at all after a certain point.

Hubbard’s argument is that there was not enough evidence that, when he used his office to benefit Abrams, he did so because of the $10,000 monthly checks. The former speaker said the jury got it wrong — that those actions for Abrams had nothing to do with the money.

But the state argues that it presented “direct evidence” that Hubbard used his office and time for private gain in the form of those checks.

Hubbard’s former chief of staff, Josh Blades, testified in blistering testimony at trial that Hubbard said “he had 100,000 reasons” to use the office to “get this done” for Abrams.

“Other than a confession on the stand from Hubbard himself, there could hardly be clearer evidence that he used his chief of staff’s time for his own private benefit, which would materially affect his financial interest,” the state’s attorneys wrote.

On two fronts

If the Supreme Court agrees with any of Hubbard’s legal arguments in this case, barring some narrow ruling on a small inconsistency or problem in the case, such a ruling could have a weakening effect on the state’s ethics laws.

A good ruling for Hubbard could set future precedent for cases prosecuted under Alabama’s ethics laws.

Should the court agree that business executives aren’t principals, it could mean that lawmakers or their businesses could receive hefty cash injections simply because the executives writing the checks don’t have individualized contracts with lobbyists.

Should the court agree that the investments into Hubbard’s printing business were “paid for at full value” despite Hubbard not paying for the loans with money, that would open the door for any business leader to prop up a lawmakers’ failing business for political purposes through loans simply based on the idea that a loan provides a return on investment.

Should the court agree that Hubbard’s $10,000-a-month work selling sippy cups was separate and unrelated from his work for the same company using his state office, that would open the door to a wealth of similar arguments from lawmakers claiming to do a business a good as their elected representative while receiving side cash for a narrowly tailored consulting contract.

“In Hubbard’s view, a principal can put any or all legislators on its payroll precisely because they are legislators and those arrangements would not be ‘related to public service’ unless the contract is for ‘a quid pro quo,'” the state wrote.

At the same time Hubbard and the state are arguing their cases to the Supreme Court, lawmakers are considering an ethics bill that would drastically rein in Alabama’s existing ethics laws in similar ways.

The proposed bill removes the section of code that governs using a public office for personal gain.

It also allows for unlimited gifts from lobbyists or principals to public officials, changes the rules governing lobbyists and principals and more, as APR reported Monday.

The new ethics law would allow a company to designate any member of the organization as the principal. Even if the principal, in this case, say a secretary, was found guilty of committing a crime. The individual cannot be held criminally liable.

The burden of the offense is placed on the corporation, just as Hubbard and his attorneys argued it should be in their court filings.

Current law bans any gifts from lobbyists and principals to public officials over $25. Under SB230, that ban is lifted, allowing a lobbyist or a principal to give unlimited gifts, loans or other things of value to a public official or their family.

Attorney General Steve Marshall is opposing the bill.

New ethics law: A brief analysis

Hubbard will now be given 14 days to file a reply brief, and the Alabama Supreme Court will determine whether to schedule oral argument or decide the case based solely on the briefs.

 

Chip Brownlee is a former political reporter, online content manager and webmaster at the Alabama Political Reporter. He is now a reporter at The Trace, a non-profit newsroom covering guns in America.

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U.S. Supreme Court rules Alabama can ban curbside voting

“The District Court’s modest injunction is a reasonable accommodation, given the short time before the election,” the three dissenting justices wrote. 

Eddie Burkhalter

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The Supreme Court, in a 5-3 decision, allowed Alabama Secretary of State John Merrill to ban curbside voting, staying a district court injunction that had allowed some counties to offer curbside voting in the Nov. 3 election amid the COVID-19 pandemic.

The Supreme Court’s majority in its order declined to write an opinion, but Justices Stephen Breyer, Elena Kagan and Sonya Sotomayor’s five-page dissent is included.

The lawsuit — filed by the NAACP Legal Defense and Educational Fund, Southern Poverty Law Center, American Civil Liberties Union, ACLU of Alabama and Alabama Disabilities Advocacy Program — was brought on behalf of several older Alabamians with underlying medical conditions.

“The District Court’s modest injunction is a reasonable accommodation, given the short time before the election,” the three dissenting justices wrote. 

Sotomayor, who wrote the dissent, closed using the words of one of the plaintiffs in the case. 

“Plaintiff Howard Porter Jr., a Black man in his seventies with asthma and Parkinson’s disease, told the District Court, ‘[So] many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – We’re past that time,’” Sotomayor wrote. 

Alabama Secretary of State John Merrill on Wednesday applauded the Supreme Court’s decision. 

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“I am proud to report the U.S. Supreme Court has now blocked a lower court’s order allowing the fraudulent practice of curbside voting in the State of Alabama,” Merrill said in a statement. “During the COVID-19 pandemic, we have worked diligently with local election officials in all 67 counties to offer safe and secure voting methods – including through the in-person and mail-in processes. I am glad the Supreme Court has recognized our actions to expand absentee voting, while also maintaining the safeguards put into place by the state Legislature.”

“The fact that we have already shattered voter participation records with the election still being 13 days away is proof that our current voting options are easy, efficient, and accessible for all of Alabama’s voters,” Merrill continued. “Tonight’s ruling in favor of election integrity and security is once again a win for the people of Alabama.”

Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Education Fund, expressed frustration after the ruling in a tweet.

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“Another devastating loss for voters and a blow for our team fighting to ensure safe voting for Black and disabled voters in Alabama. With no explanation, the SCOTUS allows Alabama to continue making it as hard as possible for COVID-vulnerable voters,” Ifill wrote.

Curbside voting is not explicitly banned by state law in Alabama, but Merrill has argued that because the practice is not addressed in the law, he believes it to be illegal. 

A panel of federal appeals court judges on Oct. 13 reversed parts of U.S. District Judge Abdul Kallon’s Sept. 30 order ruling regarding absentee voting in the upcoming Nov. 3 elections, but the judges let the previous ruling allowing curbside voting to stand. 

In his Sept. 30 ruling, Kallon wrote that “the plaintiffs have proved that their fears are justified” and the voting provisions challenged in the lawsuit “unduly burden the fundamental Constitutional rights of Alabama’s most vulnerable voters and violate federal laws designed to protect America’s most marginalized citizens.”

Caren Short, SPLC’s senior staff attorney, in a statement said the Supreme Court’s decision has curtailed the voting rights of vulnerable Alabamians.

“Once again, the Supreme Court’s ‘shadow docket’ – where orders are issued without written explanation – has curtailed the voting rights of vulnerable citizens amidst a once-in-a-century public health crisis. After a two-week trial, a federal judge allowed counties in Alabama to implement curbside voting so that high-risk voters could avoid crowded polling locations,” Short said. “Tonight’s order prevents Alabama counties from even making that decision for themselves. Already common in states across the South and the country before 2020, curbside voting is a practice now encouraged by the Centers for Disease Control and Prevention (CDC). It should be a no-brainer to implement everywhere during a pandemic; the Alabama Secretary of State unfortunately disagrees, as does the Supreme Court of the United States.”

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Sean Worsley, Black disabled veteran arrested for medical marijuana, gets parole

The Alabama Board of Pardons and Paroles granted Worsley parole on Wednesday.

Brandon Moseley

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Sean Worsley (VIA ALABAMA APPLESEED)

Sean Worsley, the disabled Black veteran who spent eight months incarcerated for possession of legally prescribed medical marijuana, has been released on parole.

The Alabama Board of Pardons and Paroles granted parole on Wednesday for Worsley. Worsley served in the Iraq War where he received a Purple Heart. Unfortunately, he also returned from the war with injuries and chronic PTSD, which he treated with legally prescribed marijuana in his home state of Arizona.

In 2016, Worsley and his wife were driving through Alabama on their way to visit relatives in North Carolina, when they stopped for gas in Gordo. The Worsleys were apparently playing their music too loud so were approached by a Gordo police officer for violating the Gordo noise ordinance.

The Worsleys granted the officer’s request to search the vehicle. He found the marijuana, which Worsley claimed was legally prescribed.

Medical marijuana is legal in most of the country, but not in the state of Alabama. While Worsley did not have enough marijuana in his possession for a trafficking charge, the arresting officer charged him with possession of marijuana for other than personal use, a felony in Alabama. The assistant district attorney prosecuting the case agreed.

Worsley agreed to a five-year probation, including drug treatment, as part of a plea deal to avoid prison in 2017. Worsley claims that the VA would not let him get their drug treatment because he does not have a problem.

The district attorney’s office in Alabama told APR that Worsley was kicked out of the VA for failure to comply with the program. Alabama ordered Worsley to appear in court in Pickens County. Worsley claims that he did not know about this court date. The court charged him with failure to appear, revoked his probation, and declared him a fugitive from justice.

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Worsley was arrested in Arizona for possession of marijuana with an expired medical marijuana card.

Alabama asked that Worsley be extradited back to Pickens County where he was jailed. The trial judge ordered the disabled veteran to serve the full five years in prison. Due to the incredible overcrowding of the Alabama Department of Corrections and the coronavirus crisis, ADOC could not find the space for him, so left him in the Pickens County Jail for five months.

Worsley spent the last three months with ADOC in the aging Draper Correctional Facility. Worsley was denied Community Corrections because he has a nonviolent felony record in 2011 in addition to his Alabama offense.

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Civil libertarians, marijuana advocates, veterans advocates and justice reform advocates were horrified by Worsley’s treatment by the Alabama court system after Alabama Appleseed’s Research Director Leah Nelson first publicized the case.

Worsley’s bid for parole was supported by a coalition of advocates and service providers, including John Carroll, a retired federal magistrate judge and Vietnam War veteran who now teaches at the Cumberland School of Law; Beau Armistead, a Birmingham-based counselor who specializes in treating veterans like Worsley who live with PTSD and has offered to treat Worsley pro bono on his release; BLOX LLC, an architecture and manufacturing firm that has offered Worsley a job; the Dannon Project, a re-entry provider that will help guide Worsley’s transition out of prison; and dozens of veterans who signed a letter to the Parole Board supporting Worsley’s release.

Online supporters raised over $100,000 to cover legal costs and other financial consequences of his conviction, including his wife Eboni Worsley’s move to Birmingham.

“Sean Worsley, was shown compassion by the Alabama Board of Pardons and Paroles,” said Chey Lindsey Garrigan, executive director of the Alabama Cannabis Industry Association. “This is a commendable act that should be acknowledged.”

Garrigan’s group is lobbying the Alabama legislature to legalize medical marijuana in the state and to guarantee safe passage for travelers from other states, where marijuana is legal so that other visitors are not at risk of being jailed while passing through Alabama.

“My faith in THE MOST HIGH has been further solidified in the demonstration of the law functioning in Alabama to help and not harm individuals via the parole board,” Eboni Worsley said in a statement. “We’re grateful to be able to pick up the pieces and begin rebuilding our lives once Sean is released. I am very grateful to the Parole Board of Alabama for showing the public the heart of the warm welcoming spirit of the people I’ve met since transitioning to Alabama.”

Worsley’s situation attracted national attention in July following a blog post by the Alabama Appleseed Center for Law and Justice. APR picked up the story as well as The Washington Post and Fox News.

“After three months covering Sean’s case and learning about his life and his service to this country I am thrilled he will no longer be held in prison for the mistake of stopping for gas in Alabama with his legally prescribed medicine,” Nelson said. “At the same time, I can’t say justice has been served, because Sean should never have been arrested or jailed at all.”

“A extraordinary group of advocates finally achieved a good outcome for Sean, but until Alabama fixes its overly punitive marijuana laws, struggling people will continue to be harmed and precious state resources will be wasted on enforcement of laws that have no connection to public safety,” said Appleseed executive director Carla Crowder.

“The case of Sean Worsley deals with a convergence of several issues,” said State Rep. Neil Rafferty, D-Birmingham. “It deals with Alabama’s harmful marijuana laws, particularly concerning medical marijuana. It deals with our country’s misunderstanding and treatment of veterans returning home and transitioning to civilian life. And it deals with excessive policing – that put suspicion on a man doing nothing more than listening to the radio and playing air guitar to his wife.”

Rafferty is a post-9/11 veteran who advocated for Sean’s release.

“While the news of Sean’s parole is welcomed and to be celebrated, it only serves to highlight the legislative chamber’s duty to make right these wrongs and allow our criminal justice system to focus on crimes that actually endanger community safety,” Rafferty added.

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Lawsuit alleges “religious test” on Alabama voter registration form

Plaintiffs say the phrase “so help me God” amounts to a mandatory religious oath.

Micah Danney

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A lawsuit filed in federal court is challenging language on Alabama’s voter registration form, saying that the phrase “so help me God” amounts to a mandatory religious oath prohibited by the Constitution.

Alabama is the only state that requires voters to swear the truthfulness of their voter registration information by signing a form that includes those words without any option of a secular affirmation.

The lead plaintiff is Randal Cragun, an atheist who has sought to register to vote in Alabama since November 2019. He noticed that on the mail-in form that is downloadable from the secretary of state’s website, a warning states: “Read and sign under penalty of perjury,” and, “If you falsely sign this statement, you can be convicted and imprisoned for up to five years.” The declaration begins “I solemnly swear or affirm” and ends with “so help me God.”

Cragun contacted Secretary of State John Merrill’s office to ask how he could register without signing the declaration as it is written, according to the Freedom From Religion Foundation, which filed the suit on behalf of Cragun and three other plaintiffs. The next day, Cragun was told by the director of elections that no legal mechanism existed to provide an alternative, and that crossing out any portion would result in the application being rejected.

“It is deplorable that in our secular nation nontheistic citizens are encountering a religious test to register to vote,” said Annie Laurie Gaylor, co-president of FFRF. “No citizen should have to choose between their right to vote and their freedom of conscience.”

Before filing the lawsuit, the organization sent a letter to Merrill’s office saying that the oath violates the First Amendment. It cited Torcaso v. Watkins, in which the Supreme Court ruled that neither a state nor the federal government can force a person to profess a belief or disbelief in any religion.

Merrill declined to comment until his office has been served with the lawsuit, but according to FFRF, he has maintained that the registration forms are “prescribed by statute” and “that any changes would require legislative action.”

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The lawsuit alleges that his office has the authority to create and amend voter registration forms. In a statement, FFRF noted that in all other states, voters are provided either a secular registration form or are not required to submit an oath or affirmation.

The group added that government officials routinely allow people who must take an oath, including attorneys, jurors and witnesses, “to make a secular affirmation instead when they are unable to swear ‘so help me God’ as a matter of conscience.”

The plaintiffs are seeking a permanent injunction that prohibits the secretary of state from requiring voters who register to swear “so help me God” and that requires his office to provide voter registration forms that don’t include the phrase as a requirement. They are also asking for a declaratory judgment that Merrill has violated the Constitution by not providing a secular alternative.

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“The secretary of state has willfully excluded nontheist citizens from registering to vote and is coercing a statement of belief in a monotheistic god by requiring nontheists to swear a religious oath,” said Patrick Elliott, FFRF’s senior attorney in the litigation.

In its letter to Merrill, FFRF said that a constitutional ban on mandatory religious oaths is a “well-settled issue.” 

In a 1972 case, Nicholson v. Bd. of Comm’rs of Ala. State Bar Ass’n, the court ruled, “We hold that it is a violation of the Constitution for the state of Alabama to compel plaintiff to swear an oath invoking the help of God as a prerequisite to entering upon the practice of law.”

The suit’s three other plaintiffs are Chris Nelson, Heather Coleman and Robert Corker. 

It was filed in the U.S. District Court for the Northern District of Alabama, Southern Division. Steven P. Gregory, of the Birmingham-based Gregory Law Firm, is local counsel. FFRF associate counsel Liz Cavell is also involved in the case.

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Vestavia doctor sentenced to 30 years for producing child porn

A federal judge sentenced Ronald Tai Young Moon Jr. of Vestavia Hills, 56, to 30 years in prison.

Brandon Moseley

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A federal judge sentenced a former Vestavia Hills doctor to 30 years in prison for producing and possessing child pornography, U.S. Attorney Prim Escalona and FBI Special Agent in Charge Johnnie Sharp Jr. announced Thursday.

U.S. District Judge Annemarie Axon sentenced Ronald Tai Young Moon Jr. of Vestavia Hills, 56, to 30 years in federal prison.

“Unfortunately, this sentence will not undo the harm suffered by Moon’s victims,” Escalona said. “However, understanding that the consequences of this conduct is severe might discourage other sexual predators from victimizing innocent children in this district.”

Moon worked as a doctor at the Industrial Athlete clinic in Birmingham until his license was revoked earlier this year. Moon went to trial in February. After four days of testimony, a jury convicted Moon of possessing, producing and attempting to produce child pornography.

“I am proud of the effort put forth by my agents in order to ensure this defendant was brought to justice and will no longer be able to harm children,” Sharp said. “Moon serving the next 30 years in federal prison ensures there is one less predator victimizing the most innocent and vulnerable members of our community.”

Federal prosecutors presented evidence at trial proving that between the mid-1990s and 2012, Moon secretly recorded neighbors and guests in his own home including girls as young as 12 years old.

Some of those individuals were filmed naked, dressing and undressing. The footage was located on VHS videotapes found in the defendant’s locked private office with other pornographic VHS tapes, steps away from a TV and VCR set that was working and plugged in.

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Evidence of multiple hidden-camera devices was also found in the defendant’s office.

Moon will also serve five years of supervised release after he gets out and, by law, will also be required to register as a sex offender.

Assistant U.S. Attorney John Ward and First Assistant U.S. Attorney Lloyd Peeples III prosecuted the case.

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The United States attorney’s office also thanked members of the Drug Enforcement Administration and the Department of Health and Human Services Office of Inspector General for assisting in the investigation.

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