The honest services dog that didn’t bark in Paul Minor’s case
Updated twice, below.
Reading through the Paul Minor opinion yesterday, I was struck by the issue that wasn’t there– the dog that didn’t bark– a question about “honest services” mail fraud.
Recall that there’s a statute that says that denial of honest services can be the basis of a mail fraud conviction, and that the lower courts have held that violation of various state law duties can establish denial of honest services. This statute was passed to overturn a 1980s Supreme Court case holding that denial of an intangible interest like honest services was not enough under the existing mail fraud statute to support a conviction. Recall also that the U.S. Supreme Court has before it several cases that raise the invalidity of that honest services statute–raising the question of whether the statute is clear enough that a defendant would know when conduct did or did not violate the statute.
Such a ruling by the Supreme Court could mean that the basis for both parts of the convictions in the Minor have flawed bases– the straight bribery conviction is flawed because, as the Fifth Circuit ruled yesterday, there’s no nexus between the judicial decisions and the use of federal funds and therefore no “federal program bribery, and the mail fraud conviction is flawed because “denial of honest services” doesn’t work.
But as I’ve said, I don’t see anything about that “honest services” issue in the Minor opinion. And this may be why: I don’t see anything about that issue in Minor’s briefs. I can’t upload to the blog the major brief, which is a 147 page document and therefore 10mb; my blog’s document size limit is 8! Here’s Minor Reply Brief.
Is he going to be able to get the benefit of those cases before the Supreme Court if the government loses? I’m thinking maybe not.
Update:
Reading the Clarion Ledger today, I see Jerry Mitchell extensively quoting defense lawyers who expect to get the benefit of the Supreme Court honest services ruling:
Hiram Eastland Jr. of Greenwood, one of Minor’s attorneys, said the vagueness of that law regarding the deprivation of honest services to citizens “has created a legal twilight zone and nightmare that no citizen or public official would want to be faced with defending, whether they be Democrat or Republican.”
McCarty said “a lot of people smarter than me believe there is a consensus on the Supreme Court that the honest services law is unconstitutional. If that’s the case, there’s a possibility the entire case would be vacated.”
Lowell said they’re hopeful the Supreme Court will overturn the honest services statute, and “we’re mostly hopeful that the trial judge, when he follows the 5th Circuit and resentences our clients, will take into consideration all that they have said and all that has occurred and provide the means for all our clients to come home.”
I’m even more puzzled. Just so everyone else can see some of what I’ve seen, I’ve split out the questions presented and summary of the argument from Minor’s main brief. The only issue on which he says charges should have been dismissed is the jurisdictional issue involving nexus of federal funds (sort of– the court said the issue of whether the judge’s were an agent was raised, not the exact nexus issue). There’s no hint that he should have won because of the invalidity of the honest services part of the mail fraud conviction.
Update 2:
Scott Horton, who has consistently blogged that the Minor case is a miscarriage of justice, writes that he sees this reversal combined with the Supreme Court’s likely decision in the honest services cases to point toward a likely trip home for Minor, Teel and Whitfield:
Federal prosecutors who brought a controversial corruption prosecution against trial lawyer Paul Minor and two Mississippi judges, Wes Teel and John Whitfield, suffered a one-two punch in federal courts this week. The result is that Minor, Teel, and Whitfield are now all likely to be freed.
An opinion handed down in the Fifth Circuit Court of Appeals in New Orleans struck down convictions for bribery, finding that the charges, even if true, did not actually constitute a crime. …
The Court of Appeals decision left the remaining counts, based on the honest services fraud statute, standing. … [I]f the Supreme Court follows the course suggested at oral argument, the remaining counts against Minor, Teel, and Whitfield will also fall.
I’m still where I started on this post– what if Minor et al. didn’t raise this issue? I just did a word search for “honest” in the Fifth Circuit opinion, and can say with certainty there’s not a hint of the issue in the opinion.
I’ll also note that I’m not buying Horton’s characterization of the loan payment scheme here:
The Bush-era Justice Department’s case was an attempt to criminalize campaign funding practices in which an attorney supported the election campaign efforts of Democratic judges. No comparable cases were ever brought against Republican judges or those who financed them. The charges took the novel view that campaign contributions and campaign finance assistance can be viewed as bribes paid to judges.
I don’t understand, NMC. How can you say, “I don’t see anything about that issue in Minor’s briefs.”
From the reply brief.
Oops! Links don’t work.
Nothing in that footnote says a word that suggests that the honest services statute is invalid, Bellesouth.
So on appeal you have to argue that the statute is invalid? I thought you were saying since he didn’t appeal on the honest services conviction that if that statute is overturned then he wouldn’t be able to use it.
if you want to win on an issue (“the statute is unvalid”) you almost always have to raise it on appeal. And, as I was saying, he didn’t seem to raise on appeal that the honest service state is invalid.
Having read the quotes from defense counsel, I too was struck by the lack of any apparent connection between the honest services SupCt cases and this decision. I have not read the briefs. If the defendants did raise it at all and the district court gave an instruction which allowed the jury to convict based on honest services bribery/fraud, then perhaps the SupCt cases might affect the outcome. It appears, however, that the instructions discussed by the fifth circuit required more that a denial of honest services. Perhaps this would explain why the issue was not raised, of that is the case.
As I understand the prosecution’s case, Mike, the charge was mail fraud committed by the denial of honest services via the bribery scheme.
Fascinating, maybe even malpractice?
But I confess I don’t know what happens if the SCOTUS strikes down the honest-services statute.
Does everyone in jail for that offense get released or get a new sentencing hearing (if they committed other offenses too)? Or can they stay in jail for however many years? What about people who paid fines — do they get those back?
This seems like a run-of-the-mill legal question, but such is my ignorance of criminal law, I have no clue what the answer is (and, being too lazy to find out, obviously hope that some commenter will race to my rescue).
Anderson wrote:
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Does everyone in jail for that offense get released or get a new sentencing hearing (if they committed other offenses too)? Or can they stay in jail for however many years? What about people who paid fines — do they get those back?
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I'm going to think outloud some because I've not done research to back up these thoughts. I would appreciate hearing the thoughts of others.
Once a decision is final, there are limits to the benefit one gets from a new rule. I've not much experience with post-conviction challenges to federal convictions (on challenges to state convictions, the rules against using new decisions to overturn state court decisions predating the new rule are pretty onerous).
Here, someone in jail on an honest services charge would be able to make a claim of actual innocence (assuming the Supreme Court case comes out as predicted), I guess, although an odd sort of innocence ("yes, I may be a sleaze but I'm an innocent sleaze! Taking that money isn't a federal crime, buster!"). But I'd still say people whose decisions were final would have a hard row to hoe, and people who did not raise this issue on appeal would have to depend on plain error (with the 666 part of Minor's case a helpful precedent).
Minor is in a twilight zone between "pending" and "final"– his case has been briefed, argued, decided, and is awaiting whether anyone files for rehearing before a mandate issues. The honest services issue has been brewing all year (remember Scalia's dissent from cert denial in March); what will Minor's lawyers saw about why they didn't at least try to raise it pre-opinion?
Here's a dilemma: If they raise it now, the court could make one of several responses: 1) "Under the law of our circuit, the honest services statute is valid. You lose." In which case, Minor can petition for cert and get a Supreme Court grant/vacate/reverse if the honest services cases come out right. Best possible result for Minor. 2) "You haven't previously raised this issue and you therefore waived it. You lose." In which case, the Supreme Court can deny cert to Minor because there are independent jurisidictional grounds (the waiver) to reaching the honest services issue (and those independent jurisdictional grounds would be a serious problem in any postconviction challenge).
It's a sticky situation where the moves to make are pretty tricky.
Finally, I have trouble calling "failure to anticipate cutting edge thinking and changes in the law" malpractice.
Here’s some language from an 11th Circuit case about raising a US Supreme Court sentencing case (involving the right to trial by jury on certain types of issues) for the first time in supplemental briefs and in rehearing.
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We explained that the long-standing rule in this circuit has been that we do not consider issues or arguments raised for the first time on petition for rehearing. Id. at 1242 (citing inter alia United States v. Martinez, 96 F.3d 473, 475 (11th Cir.1996)); Scott v. Singletary, 38 F.3d 1547, 1552 n. 7 (11th Cir.1994); United States v. Fiallo-Jacome, 874 F.2d 1479, 1481 (11th Cir.1989). Levy applies this rule in the context of a Blakely claim raised for the first time in a petition for rehearing after an appellate decision on the merits.
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Levy and the cases relied upon therein based their decisions upon the equally long-standing rule in this circuit, as well as in the federal rules themselves, that issues not raised by a defendant in his initial brief on appeal are deemed waived. See also United States v. Ford, 270 F.3d 1346, 1347 (11th Cir.2001) (“[O]ur well established rule is that issues and contentions not timely raised in the briefs are deemed abandoned”); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.2001) (“[S]ince Wilkerson did not raise this issue until her supplemental reply brief, we deem it abandoned….”); United States v. Ardley, 242 F.3d 989, 990 (11th Cir.2001) (“[W]e apply our well-established rule that issues and contentions not timely raised in the briefs are deemed abandoned”). See also Fed.R.App.P. 28(a)(5) (parties must submit all issues on appeal in their initial briefs); 11th Cir. R. 28-1, I.O.P.-5 (supplemental briefs may be filed only with the court’s permission, which will be granted only when intervening decisions or new developments related to an issue already properly raised in the party’s initial brief).
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This rule does not apply differently in a case, such as this, where the motion is to file a supplemental brief raising an issue for the first time prior to a decision on the merits of the direct appeal. We have so held in the context of an Apprendi-based claim raised for the first time in supplemental briefing prior to the decision on the merits. United States v. Nealy, 232 F.3d 825, 830 (11th Cir.2000). In Nealy, the defendant raised one sentencing issue in his initial brief. Shortly thereafter, the Supreme Court decided Apprendi, and we ordered supplemental briefing regarding the effect of Apprendi on defendant’s previously raised sentencing claim. In his supplemental brief, defendant attempted to assert a totally new, but Apprendi-based, attack on his sentence. We refused to consider the newly-asserted claim, even though it was raised under Apprendi, because “[p]arties must submit all issues on appeal in their initial briefs.” Id. We made clear then that an appellant abandons any claim, including an Apprendi claim, not raised in his initial brief. Id. See also Wilkerson, 270 F.3d at 1322; United States v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir.2001).
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Curtis’ motion requires us to decide if this long-standing rule that issues not properly raised in an initial brief are deemed abandoned applies in the context of a Blakely-based claim sought to be raised by way of supplemental briefing. We hold that it does. In this appeal of his conviction, Curtis raised no issue whatsoever with respect to his sentencing in his initial brief. He now seeks to file a supplemental brief attacking that sentence for the first time based upon the Supreme Court’s decision in Blakely. Inasmuch as he failed to raise this issue in his initial brief, he has waived the right to do so now. Levy, 379 F.3d at 1241; Ford, 270 F.3d at 1347; Nealy, 232 F.3d at 830. We also discern no miscarriage of justice that would result on account of Curtis’ inability to raise his proposed Blakely issue. See Levy, 379 F.3d at 1243 n. 3.2 Accordingly, the motion to file a supplemental brief raising a Blakely claim will be denied.
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NMC, you covered the hell out of direct appeal. I’ve spent some time with collateral attack through habeas corpus, so I’ll toss in on the Minor trio’s likelihood of benefitting from a hypothetical new rule once direct appeal concludes.
Y’all are correct in identifying two, separate hurdles the Minor appellants would have to clear for post-conviction review under 28 U.S.C. §2255, the habeas statute for federal prisoners: procedural default, and retroactivity of a new rule.
ISSUE ONE: PROCEDURAL BAR resulting from waiver through failure to preserve, which follows them for collateral review. It’s an affirmative defense available to the government, who can raise it at any point of the petition’s progress, as it’s “quasi-jurisdictional.” The court can (but I can’t think of an instance where they did) raise it sua sponte.
It also requires the petitioner raise the issue on direct appeal–so it must be in both the trial and appeal records. Raising it at trial is not enough. It’s a threshold question that would result in summary dismissal by the District Court if the Petitioner fails to adequately explain WHY he/she bypassed court review on direct appeal.
There are two means through which to circumvent procedural default. One lies with the nuclear option of an Ineffective Assistance of Counsel claim, which is notoriously difficult to meet, but at least gets them in the door for review of the merits.
The other exception requires the petitioner to meet the Sykes “cause and prejudice” standard. “Cause” for procedural default usually means some objective factor external to the defense prevented preservation. Here’s where Minor could get in there: if the claim was truly novel at the time of appeal, meaning no existing precedent supported the claim during direct appeal, the court may lift the procedural bar and get to the merits of the issue. Minor et al could try to demonstrate novel claim if SCOTUS cans the honest services statute.
The “prejudice” prong just means that the error infected his/her entire trial, sentencing, or continued incarceration with with an error of “constitutional proportions.” A sentence predicated on an unconstitutional statute would surely qualify as a constitutional error.
Another sidebar to the cause/prejudice test is a federal prisoner’s ability to circumvent procedural bar with a showing that by a preponderance of the evidence, but for the unpreserved constitutional error, no rational judge or jury would have convicted. This could work, too.
ISSUE 2: TEAGUE NON-RETROACTIVITY DOCTRINE precludes retroactive application to final convictions EXCEPT where a USSC decision: 1. Places certain kinds of primary, private individual conduct beyond the power of the state to proscribe, or 2. “Watershed” rules of criminal procedure that seriously call accuracy of state criminal process into question. The dissolution of the honest services statute would constitute a change in substantive criminal law, and would fall under prong 1. The conduct isn’t considered criminal anymore.
And if all THAT fails, there’s one more option: Collateral attack to execution of a sentence on PRE-conviction issues, such as jurisdiction, travel under 28 U.S.C. § 2241, which is the original form of the Writ of Habeas Corpus and lacks the severe restrictions imposed by AEDPA in § 2255. For § 2241 to be used by federal prisoners in this way, the petitioner must show that relief available under § 2255 is an “inadequate or ineffective remedy,” or simply unavailable.
Army_vet, what I’m reading you to say is habeas from federal convictions works about like it does from state convictions, which I’d have expected.
Yep. There are some procedural differences and some of the little factors/tests get modified from one to the other. Even where a test looks different under one, it’s really all the same substance. But you know that already.
It’s very easy to understand how someone with the best intentions could sink their battleship with one little misstep–what a minefield! I have a great deal of respect for those who wade in on collateral attack, especially since so much of the work is pro bono.
I’ve never dealt with Mississippi’s State Post-Conviction Review process, but I’m assuming all the collateral attack avenues probably function similarly within their own procedural sandboxes. That ruling yesterday really piqued my interest and I’ve been thinking about it all day.
Regarding Anderson’s excellent question about repayment of fines. I’m pretty sure they would not be repaid following collateral attack, as that challenges the petitioner’s custody / incarceration. But what about direct appeal? Is the challenge to conviction based on the total putitive measures imposed, or only the liberty interest?
I’m still puzzled about the procedural default, though. Not in a gossipy, sewing-circle way, but for my own education. I understand the challenge to § 666 wouldn’t have exactly leaped out at them as an issue with a high probability of success. On the other hand, that statute has been heavily criticised in dicta for unconstitutional vagueness since Congress first poked SCOTUS in the eye with it. If there was a strategic decision involved, I’m interested to hear about it. I’m not sharpshooting. I assume they retained high-caliber counsel and I’m genuinely curious.
This has great potential for drama. “Kings of Honest Services.” I’d read it.
NMC- i don’t think it matters if minor failed to raise the fact that the honest services statute is unconstitutional (i don’t know one way or the other)becuase if the Supremes hold the statute is unconstitutional then it is unconstitutional- to say otherwise would be to say that back in the 70s all the people on death row whose convictions had been affirmed could have been executed after the Supremes ruled the death penalty unconstitutional -
at a minimum the if the Supremes hold the statute to be unconstitutional it is going to apply to all pending cases
looks like most prosecutors thinnk the honest services statute is going to be ruled unconstituional- in Ill the prosecutors have announced they are going to seek a new indictment agaisnt Blogo b/c they realize good chance honest services statute is going to be stricked down- in Memphis the case agasint willie herenton is likely to be dropped (per commercial appeal) for the same reason
the commercial appeal quotes some law professors who say that in these cases unless the feds can prove a different underlying crime (say 666 bribery) then they will not bring these cases any longer. And in minor and scruggs, the “underlying” federal crime was 666 bribery- which we now know does apply b/c the circuit court does not receive federal money
Finally, I have trouble calling “failure to anticipate cutting edge thinking and changes in the law” malpractice.
Sure, but as you say, this issue was pretty widely discussed well before Minor filed his briefs.
I doubt it would support a real malpractice case, but it does make me wonder what the heck Minor’s counsel was thinking.
Substantive changes are retroactive- procedural changes are not- if the Supremes hold that the law is unconstitutional it is retroactive- that is a substantive change-
think of minors (not paul- chldren) being executeed, retarded people being executed, lopez gun cases, etc
Stephanie, the rules have changed a lot since the 70s– a mid-80s case called Teague holds that newly announced rules aren’t available in federal habeas. (I had a client whose death sentence was overturned because he was not proved to be the triggerman making the death sentence violate the 8th amendment; that result would have been different several years later). This rule was made statutory (and worse) by mid-90s legislation. So new rules aren’t available on habeas.
And substantive changes can still be waived, as noted in the two long comments I made above about waiver.
I’d be surprised if at Minor’s new sentencing hearing, if it is after the USSC overturns the honest services statute [if it does] that they sentence him to years in jail based on a law that would be now unconstitutional. Talk about honest services! How about the honest services on the part of these federal prosecutors?
check out what they did to this guy. Wow! its a true shame. see it at http://www.honestservicefraud.com
This passage from Schriro v. Arizona Dept. of Corrections, 542 US 348 (2004), encapsulates the issue well:
It appears to me that a decision by the Supreme Court holding the statute under which one is convicted unconstitutional automatically entitles one to habeas corpus relief. So what that the defendant did not challenge the constitutionality of the statute in his own appeal? Unconstitutional is unconstitutional. To hold otherwise is to allow someone to be wrongfully convicted and denied redress.
exactly somslawyer- i posted essentially the same thing in another thread- thanks for clearing that up
Roam we were thrown for a loop. The Bush era D.O.J. did in fact push their B.S. on all of that department. And MS. got its share of that sh*t. Which is what it was. Bush took interest in the entire 5th, Heck ya’ll Bush probably has a house in Madison County behind that big fence. But then he wouldn’t be the only crook living there now, would he?
[...] cases before the Supreme Court. Recall that I’d posted about that issue as a “dog that didn’t bark” in Minor’s briefing and the panel opinion. Here’s the footnote: The Supreme Court is [...]