*

Honorable Levin H. Campbell, Senior U.S. Circuit Judge for

the First Circuit, sitting by designation. 

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
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.