The Fifth Circuit overturns all federal program bribery convictions in the Minor case
Update: I’ve changed the hearing from “overturns all bribery convictions” to “overturns all federal program bribery convictions.” The difference should become clear as you read the post. The opinion overturns the bribery conviction under 18 USC §666 but leaves standing the mail fraud conviction– a component of which is a violation of a state law against bribery.
At 74 pages it’s a lot to absorb, but particularly given that what’s left is the mail fraud charges (see below what that matters), the Fifth Circuit’s opinion in the Minor case is a big thing both in terms of Minor’s case and the law relating to federal program bribery.
Federal program bribery (18 USC §666) requires proof that someone with authority over funds that come out of a pool containing federal funds made a decision about those fund while bribed by another person. The courts have been very lax in what they’ve required the government to show about the connection between the federal funds and the pool– if federal money goes into the pool, that’s enough.
But the question here is what was required to show the judges had authority over money from the pool, and what was required to show the judge’s corrupt decision was in connection with their having authority over the pool.
In simplest terms, the Fifth Circuit ruled that, because a judge making a judicial decision isn’t making a decision that has anything to do with the pool of money, a judicial decision can’t be the basis of a federal program bribery charge. And so the conviction of Minor, Teel, and Whitfield on that issue is reversed. It’s over.
They reach 666 bribery on plain error grounds. When a party doesn’t argue something on appeal, they have given up that argument unless the mistake is so bad it is “plain error.” The court had to find plain error because the defendants had raised the issue of acting-as-agent issue at trial but not on appeal; on appeal they only argued the judges weren’t agents of the AO. The Fifth Circuit found plain error because leaving the convictions stand would be an injustice because the crime was not proved.
I’m still reading the opinion, but it appears this also overturns the RICO conviction, because the jury found bribery and not mail fraud the predicate act, and that it will net out halving the sentences.
Of course, the Supreme Court heard argument this week on the honest services mail fraud cases, and seemed very hostile to the government’s case; that’s all that’s left of the Minor convictions.
There is much grist for the mill in this. I’m posting from New Orleans, and will say more later.
Update:
I misread what the court says about RICO (which is not much). In describing the charge, it says: “Count Three charged Minor with racketeering in violation of RICO, 18 U.S.C. § 1962, the predicate acts being bribery and wire fraud.” In describing the conviction it says:
In regard to the predicate acts underlying the Count Three RICO charges against Minor, the jury found that the Government had proved bribery as to the $100,000 loan to Whitfield and wire fraud as to the wire transfer made by Radlauer, but that the Government had failed to prove bribery as to the $40,000 and $24,500 campaign loans that Minor made to Whitfield and Teel respectively. Finally, the jury concluded that, for the purposes of the counts
The RICO count stands.
Yes, the idea that the RICO conviction stands is puzzling, if both predicate acts must be proved (I know nothing about RICO … wasn’t he in a Barry Manilow song?)
Slip op. at 37:
the bribery and wire fraud charges involving Whitfield and Teel constituted the predicate acts underlying the
substantive RICO count brought against Minor
That certainly *does* make it sound like the RICO was predicated in part on the bribery charges.
And yet, the court is unequivocal in saying the RICO count stands. Looks like we’re going to see a motion to clarify or correct ….
NMC, It is quite a stretch to call this a “victory” for Minor. The Fifth Circuit judges lay out Minor’s payoffs of Judges Teel and Whitfield in great detail for the world to see. I suspect that Judge Wingate will not be shortening the sentence, but we shall see.
If the RICO conviction is overturned then why do they say that they are affirming his RICO conviction?
Emphasis in the original
Didn’t know Santa Claus was now sitting on the 5th Circuit!
Sailor, it’s a very reasonable decision — “federal program” bribery for state court judges was always a reach.
The facts section of the op will leave no one with the impression that these were 3 innocent guys wrongly prosecuted by a vindictive Republican DOJ. (Well, almost no one.)
… Tho as someone working at the Court while the Marks case was up there, I always wonder what happened to it on remand … did they settle, or was there ever a new trial?
BelleSouth, I’ve corrected the post.
Am I correct that if the RICO charge stands and at some predicate act other than honest services bribery stands, then the conviction will stand, even if the Supreme Court makes a ruling that would result in the reversal of the honest services bribery?
Did any of you get this same thing? (Everyone please check your email.) Alan Lange sent me a junk email spinning the decision as a “reaffirmation” of Minor’s conviction. The fact is Lange’s book has a big hole in it and it ain’t a donut. He even wished me a Happy Holiday.
So the upshot:
This is a big deal, and if the Supreme Court rules for the defense in the mail fraud cases, Minor may walk. (It’s suddenly dawning on me that the opinion goes on and on about a different issue on mail fraud– the government contended that there was mail fraud via dishonest service because the judge was bribed; the opinion goes on about whether there was a quid pro quo requirement for the bribery part. I may have missed it but I don’t remember a discussion about honest services on the lines of the cases before the Supreme Court. I may have to check back and review the briefs on this…).
These arguments are not technical ones– the question here is whether these people committed the crime they were charged at all. To put it in simplest terms, suppose in a justice court trial for speeding, the officer did not prove how fast the car was going. That’s not a loss on a technicality, that’s “they didn’t prove the case.”
It’s also a big deal because of the principle it lays out in an important area of law. I would expect Minor to move for en banc consideration on the quid pro quo issue (and lose on that one, which is an instruction error issue. And what about honest services??), and the government on the connection-with-use-of-federal-funds issue Minor won on. Then loser seeks cert.
commentor, the issue before the supreme court is a statute that makes “dishonest services” satisfy the fraud requirement for mail fraud. It should (if the arguments were made by Minor et al) put the mail fraud convictions in play.
This is confusing because the charge they threw out is “federal program bribery” and the charge they kept is “mail fraud by dishonest services in the form of being bribed.”
Question: What about Peoples Bank — the client itself, not Minor?
They knew they had a loan out to Judge Teel.
They knew they were in Judge Teel’s court.
Did they disclose that loan to the other side? Did they ask Minor how this could even conceivably be okay? Did USF&G move to recuse? Can you really have a case tried by a judge who owes one side a lot of money?
I don’t have enough facts to criticize Peoples Bank, but I would like to know answers to my questions.
Don in NO:
The RICO charge may allow Judge Wingate to stay with the same sentence, but this is a big legal victory for Minor et al. The question is what the consequences will be.
What it’s not (as Anderson points out, more or less) is a moral victory– the descriptions of the sleazy arrangements and how Minor benefited from them with inside access and questionable rulings from Tell and Whitfield make that clear.
As I understand it, Anderson, regulators raised really serious questions about these loans and the bank called them. I’m sure they were sweating in a big way about all this for a good long while.
But hoo-boy the notion of indicting a bank!? What a mess!
denis: i received it. nmc: what will langston and others convicted on dishonest services be able to do now?
Exactly, NMC. Your headline for this post, and the article appearing in the Jackson Free Press, makes it appear to the casual reader that Minor didn’t bribe judges! He did, as the opinion makes quite clear. And the opinion gives no credence to any theory that the charges against Minor were a conspiracy hatched by the Bush Administration and Karl Rove, which is the spin Huffington Post has trotted out to the public.
Certainly, no reasonable person could have wanted to be on the other side of Teel/Whitfield & Minor on the facts of the 5th Cir. opinion.
But hoo-boy the notion of indicting a bank!? What a mess!
Not near so easy as indicting a sitting justice and keeping him and his vote off the bench for a couple of years.
As I recall, there was testimony about Minor being quite put out with one or both of these judges not paying their loan obligations. Maybe this was all a show, but the fact is this case leaves open the possibility that any big contributor could go to jail.
Personally I’d like to see these people set loose, but that’s just me.
Since I haven’t read Lange’s book, I’d sure like to hear more about the “big-donut hole” blown into their story. Does this decision point to maybe overzealous prosecution by the feds? Dawson? (Or as we call him around here, Dollar Signs Dawson.
Or as Oliver Diaz opined yesterday:
Wonder how balducchi feels now about pleading to a crime that was not a crime-
Yet you are a reviewer of it on Amazon. Too funny.
I didn’t review it. I just commented about the authors, James Hendrix. And as it turns out — this ruling affects Scruggs and Delaughter’s cases against them as well — that the authors clearly have egg on their faces now. Wrong on the facts and wrong on the law.
Rebelyell @ 6:47 pm: And what do you make of Minor’s strutting around, as some have said, bragging in a loud voice that he “owns” the judges in Mississippi?
So Scruggs and his buds never tried to bribe any judges?
[...] Tom Freeland at NMissCommentor.com quotes the Fifth Circuits ruling today, saying: In regard to the predicate acts underlying the [...]
So Scruggs and his buds never tried to bribe any judges?
No, the point is, they didn’t commit a federal crime.
Kingfish, both of these statements could be true (and, if the Fifth Circuit is correct are true):
1. Paul Minor bribed judges by guarantying loans for them and paying them off.
2. Paul Minor did not violate 18 USC §666, the federal program bribery statute.
As it stands now, Paul Minor’s conviction for bribery as a part of a mail fraud scheme still stands, so he in fact is still convicted of bribing a judge.
And if the honest services conviction isn’t upheld by the USSC?
i find it facinating that the Scruggs case for the alleged bribing of judge lackey was NOT a federal crime- unbelievable
Upon further analysis as to how this case affects Scruggs:
(1) Scruggs was a 6 count indictment. Count 1 was a conspiracy to violate 666 and the honest services wire fraud statute;
(2) counts 2, 3 and 4 were substantive 666 charges;
(3) counts 5 and 6 were honest services fraud charges based on interstate (?) use of the wires (2 emails from Oxford to New Albany)
So- 1/2 of Count 1 is not a federal crime;
Count 2 is not a federal crime;
Count 3 is not a federal crime;
Count 4 is not a federal crime
Counts 5 and 6 are honest services fraud counts based on the use of wire (emails) in interstate commerce
It appears very likely that the US Supreme Court is going to rule that the honest services fraud statute is unconstitutional (oral arguments held on Tues)- if so, that means that the entire Scruggs case is no federal crime;
In addition, even if the Supremes uphold the honest services statute the viability of the honest service fraud counts in Scruggs is hinged on whehter a intrastate email (from oxford to new albany) was sent in interstate commerce. Maybe that email was routed from Oxford, then out of state, then back to new albany, but maybe not- Either way, a fair assessment of this jurisdictional element is that to base a federal prosecution on interstate commerce- when the email was an intrastate email from oxford to new albany- really shows a reach by the prosecutors
Bottom line- VERY good chance the entire Scruggs case ends up being NO FEDERAL CRIME
Regardless of which side you were “rooting” for in this case (and some really believe this was a political prosecution) the irony of this is of monumental proportions
What all of this emphasizes is that prosecutors and the attorney general of Mississippi have consistently and egregiously failed to pursue judicial bribery as a crime. These arguements would all be moot if ANY of these bribery cases had been prosecuted on a local or state basis. Hinds county and coast courts have been a sordid cesspool of misbehavior for decades and this state is still unwilling to do anything about it.
Upon further analysis as to how this case affects Scruggs:
(1) Scruggs was a 6 count indictment. Count 1 was a conspiracy to violate 666 and the honest services wire fraud statute;
(2) counts 2, 3 and 4 were substantive 666 charges;
(3) counts 5 and 6 were honest services fraud charges based on interstate (?) use of the wires (2 emails from Oxford to New Albany)
So- 1/2 of Count 1 is not a federal crime;
Count 2 is not a federal crime;
Count 3 is not a federal crime;
Count 4 is not a federal crime
Counts 5 and 6 are honest services fraud counts based on the use of wire (emails) in interstate commerce
It appears very likely that the US Supreme Court is going to rule that the honest services fraud statute is unconstitutional (oral arguments held on Tues)- if so, that means that the entire Scruggs case is no federal crime;
In addition, even if the Supremes uphold the honest services statute the viability of the honest service fraud counts in Scruggs is hinged on whehter a intrastate email (from oxford to new albany) was sent in interstate commerce. Maybe that email was routed from Oxford, then out of state, then back to new albany, but maybe not- Either way, a fair assessment of this jurisdictional element is that to base a federal prosecution on interstate commerce- when the email was an intrastate email from oxford to new albany- really shows a reach by the prosecutors
Bottom line- VERY good chance the entire Scruggs case ends up being NO FEDERAL CRIME
Regardless of which side you were “rooting” for in this case (and some really believe this was a political prosecution) the irony of this is of monumental proportions
Our attorney general does not have access to wiretaps thanks to the legislature.
I completely agree with the first two sentences of your comment, chmba
So is there anything stopping Hood from prosecuting Minor for the bribery stated in the Court’s opinion?
Question: “So is there anything stopping Hood from prosecuting Minor for the bribery stated in the Court’s opinion?”
Answer: Yes, that’s part of his “family.”
Paraphrasing Ben, Forget it CHMBA (Jake), it’s Miss’ssippi (Chinatown.)
May I just point out that the decision was made by the Bush Justice Department to pursue the prosecutions of Minor, Diaz, and Scruggs through the federal system, and none of you had any objections at the time? If you’re unhappy now, you should take it up with the U.S. Attorney’s office.
Kingfish @ 11:29 am:
Yes, potentially statute of limitations for some offenses.