How, you might ask, is it fair if there hasn’t been a [...]]]> I noted in my last post about Judge Davidson’s rulings that Judge Davidson’s just released opinion essentially told Dickie Scruggs that he was going to get a hearing but he wasn’t going to win.  My heading here describes that as “fair warning.”

How, you might ask, is it fair if there hasn’t been a hearing yet?  I’ll explain.

First, as Judge Davidson notes, Scruggs has the burden to prove actual innocence to set aside his guilty plea (he can’t prove “cause” for not acting earlier because the Skilling result was predictable, as Judge Biggers had already ruled.  There are two arguments to set aside a plea based on Skilling, which is what Scruggs is attempting:  Either that there is a good reason he didn’t raise the legal issue in Skilling, which he can’t show because the argument recognized in Skilling was being raised before that decision, or that he is actually, factually innocent).

Second, Judge Davidson analyzes the evidence about whether Scruggs is innocent.  This analysis begins by noting that there need not be an explicit agreement for there to be a quid pro quo.  That has been the law for eons.  Next, Judge Davidson notes that the quid need not be cash– it can be anything of value (“”The term ‘anything of value’ … is broad in scope and contains no language restricting its application to transactions involving money, goods, or services.” The term “includes transactions involving intangible items.” “This broad interpretation is based upon a recognition that monetary worth is not the sole measure of value.” cites omitted).  Judge Davidson then turns to the actual facts:

Petitioner has admitted that he contacted his brother-in-law, then a United States Senator from Mississippi, to recommend DeLaughter for consideration for a vacant federal district judgeship. The Senator has testified that Petitioner asked him to call DeLaughter. DeLaughter received the Senator’s call and knew that Petitioner had recommended him for the federal judgeship. All of this occurred while the Wilson case against Petitioner was pending before DeLaughter and proceeding to a final resolution. Petitioner has admitted that the Wilson case was ultimately resolved in a way favorable to him. Petitioner argues that recommending DeLaughter to the Senator and having the Senator contact DeLaughter regarding consideration for a judgeship are not “things of value.” Petitioner contends that “[a]ny supposed benefit conferred by Petitioner, a private citizen endorsing a circuit court judge for consideration for a position on the federal bench, is so remote and theoretical as to prove illusory. Petitioner was just a well-connected private citizen, with no power or discretion to appoint Bobby DeLaughter.” Pet’r's Mem. in Support of Mot. to Vacate [126] at 24. Petitioner’s argument for a narrow construction o f the term “anything o f value” finds no support in case law.

Judge Davidson then notes how broadly the notion of “anything of value” has been interpreted.

I’ll note here something I’ve said since the facts in this case emerged:  It is going to be really hard to convince a federal judge that consideration by a Senator for a position as a federal judge is not of value.  Judge Davidson continues:

Petitioner argues that “[a]t most, the Government only gestures towards the idea that there may have been an implicit quid pro quo in this case” and “provides no evidence in support of such an implicit agreement.” Id. at 3. Petitioner contends that “[t]he Government’s wishful idea of a quid pro quo is based on nothing more firm than its own speculation.” Id. The exhibits submitted by the Government in this case, and the Court’s own records, however, provide more than speculation and a “wishful idea of quid pro quo.” The Court has reviewed the exhibits submitted by the Government, consisting of the following: the October 23, 2008, grand jury testimony of Joseph C. Langston; the October 21,2008, grand jury testimony of Ed Peters and exhibits thereto; the October 2, 2008 deposition of Senator Trent Lott in In re: Inquiry Concerning a Judge, Case No. 2008-022, Mississippi Commission of Judicial Performance; the June 10, 2009, deposition of Timothy R. Balducci in Eaton Corporation, et at v. Jeffrey D. Frisby, et ai., Cause No. 251-04-642 CIV, Circuit Court of Hinds County, Mississippi, and exhibits thereto; the June 18, 2009, deposition of Steve Patterson in Eaton Corporation, et ai. v. Jeffrey D. Frisby, et ai., Cause No. 251-04-642 CIV, Circuit Court of Hinds County, Mississippi; and a letter dated March 30, 2006, from Judge Bobby DeLaughter to Senator Trent Lott. The Court has also reviewed the court file in Cause No.1 :08CR003, styled United States of America v. Joseph C. Langston, in the United States District Court for the Northern District of Mississippi, which the Court has ordered incorporated into the record of the case sub judice, pursuant to its authority under Rule 7(a) of the Rules Governing Section 2255 Proceedings. The numerous exhibits submitted by the Government and the court’s file in Cause No. 1:08CR003 create a genuine issue as to whether Petitioner aided and abetted in a bribery scheme.

That language:  ”create a genuine issues as to whether Petitioner aided and abetted in a bribery scheme” is pretty much fatal given the standard quoted in the opening of the opinion:  The petitioner has to show that the Government did not have the facts to justify any reasonable juror to concluded Scruggs was guilty, and mere insufficiency of the evidence won’t establish that.*

Having said all that, and pretty well finished off the petition, Judge Davidson explains why he is granting an evidentiary hearing:

Rule 7 of the Rules Governing Section 2255 Proceedings states that the Court must give the party against whom additional materials are offered an opportunity to admit or deny their correctness. The Court finds that the best way to test the evidence and the credibility of the witnesses is through an evidentiary hearing.

As I read this, Judge Davidson is ruling:  I have ordered that the Langston plea be part of this proceeding, and the petitioner should get a chance to respond that.  We will have a hearing to allow that to occur.

Here’s Judge Davidson’s opinion.

__________________

*I’m going to note that, while this is the standard as expressed in the leading Supreme Court case, I am having trouble discerning the boundary between “a reasonable juror could find” and “insufficiency of the evidence,” mere or otherwise.  I don’t think this logical problem will provide any argument for the petitioner…

The opinion is primarily a response to Scruggs’s motion for judgment [...]]]> I think the upshot of Judge Davidson’s ruling today on Dickie Scruggs’s petition to set aside his guilty plea in Scruggs II is pretty simple:  ”Well, you’re going to lose, but I’ll give you a hearing first.”  And that seems a reasonable response.

The opinion is primarily a response to Scruggs’s motion for judgment on the pleadings, which asserts that he had a First Ammendment right to inveigle his brother-in-law (Senator Lott) into whispering sweet nothings into Judge DeLaughter’s ear, while handing off a million bucks to DeLaughter’s buddy-and-mentor Ed Peters, all in a quite successful to rig the result in a case before Judge DeLaughter, Wilson v. Scruggs.

Scruggs contended if if ain’t cash it’s just trash (talk), and made an argument that all talk is First Amendment protected so sweeping as to possibly permit shouting fire in a crowded theater, all kinds of fraudulent schemes, and perhaps even a verbal contract to hire a hit on one’s nemesis.*

Judge Davidson does not show much patience with this argument:

Indeed, the constitutional guarantee of freedom of speech does not immunize “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S. Ct. 684, 93 L. Ed. 834 (1949). And “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Id at 502, 69 S. Ct. 684. Discussing promises that may be declared illegal without constitutional difficulty, the Supreme Court has stated:

No body politic worthy of being called a democracy entrusts the selection of leaders to a process of auction or barter. And as a State may prohibit the giving of money or other things of value to a voter in exchange for his support, it may also declare unlawful an agreement embodying the intention to make such an exchange. Although agreements to engage in illegal conduct undoubtedly possess some element of association, the State may ban such illegal agreements without trenching on any right of association protected by the First Amendment. The fact that such an agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited. agreement necessarily takes the form of words does not confer upon it, or upon the underlying conduct, the constitutional immunities that the First Amendment extends to speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and may properly be prohibited.

Brown v. Hartlage, 456 U.S. 45, 54-55, 102 S. Ct. 1523,71 L. Ed. 2d 732 (1982). “Neither the right to associate nor the right to participate in political activities is absolute in any event.” U.S. Civil Servo Comm ‘n v. Nat’l Ass ‘n o f Letter Carriers, AFL-CIO, 413 U.S. 548, 567, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973). “Offers to engage in illegal transactions are categorically excluded from First Amendment protection.” United States V. Williams, 553 U.S. 285,297, 128 S. Ct. 1830,170 L. Ed. 2d 650 (2008). See Ill., ex reI. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612, 123 S. Ct. 1829, 155 L. Ed. 2d 793 (2003) (“[T]he First Amendment does not shield fraud.”); R.A. V v. City ofSt. Paul, 505 U.S. 377,420, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) (Stevens, J., concurring) (“Although the First Amendment broadly protects ‘speech,’ it does not protect the right to ‘fix prices, breach contracts, make false warranties, place bets with bookies, threaten, [or] extort.’ “); United States v. Barnett, 667 F.2d 835, 842 (9th Cir. 1982) (,’The [F]irst [A]mendment does not provide a defense to a criminal charge simply because the actor uses words to carry out his illegal purpose.”); United States v. Quinn, 514 F.2d 1250, 1268 (5th Cir. 1975), cert. denied, 424 U.S. 955, 96 S. Ct. 1430, 47 L. Ed. 2d 361 (1976) (“[E]xtortionate speech has no more constitutional protection than that uttered by a robber while ordering his victim to hand over the money, which is no protection at all.”); United States v. Marchetti, 466 F.2d 1309, 1314 (4th Cir. 1972), cert. denied, 409 U.S. 1063,93 S. Ct. 553,34 L. Ed. 2d 516 (1972) (“Threats and bribes are not protected simply because they are written or spoken; extortion is a crime although it is verbal.”); United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970) (“[S]peech is not protected by the First Amendment when it is the very vehicle of the crime itself.”). “[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” United States v. 0 ‘Brien, 391 u.s. 367,376,88 S. Ct. 1673,20 L. Ed. 2d 672 (1968).

Despite Petitioner’s arguments to the contrary, enforcement of the honest services fraud statute does not criminalize “simply engaging in political speech” and mere political advocacy….

Next: How Judge Davidson told Dickie Scruggs he was likely to lose but would get a hearing.
________________
*The examples are my own, but consistent with the examples in the parentheticals in Judge Davidson’s opinion.

He also rules that there will be an evidentiary hearing about Scruggs’s alleged innocence.

In doing so, Judge Davidson tosses a nice dart at [...]]]> Judge Davidson has ruled on Dickie Scruggs’s motion for a judgment on the pleadings, in which Scruggs asserted his conduct with regard to Judge DeLaughter was protected by the First Amendment.

He also rules that there will be an evidentiary hearing about Scruggs’s alleged innocence.

In doing so, Judge Davidson tosses a nice dart at Scruggs’s lawyer, noting their selective editing of quotations.  They argued that quid pro quo involves the exchange of money, and, since Judge DeLaughter didn’t get any money, Scruggs is necessarily innocent.  Judge Davidson swats down as misleading their ellipses in one quote:

Petitioner twice cites Let’s Help Florida as stating: “[T]he sole Governmental interest that the Supreme court recognized as a justification for restricting [speech] was the prevention of quid corruption between a contributor and a candidate.” Pet’r's Reply Mem. in Support of J. Pleadings [151] at 4; Pet’r's Mem. in Support of Mot. to Vacate [126] at 29. The actual quote from Let’s Help Florida is as follows: “The sole governmental interest that the Supreme Court recognized as a justification for restricting contributions was the prevention of quid pro quo corruption between a contributor and a candidate.” 621 F.2d at 199 (emphasis added). Petitioner’s substitution ofthe word “speech” in a decision that only addresses campaign contributions is not innocuous.

The understatement there is appealing, and I’m going to have to remember it for future use.

More about this in a bit.

My reading [...]]]> Dickie Scruggs filed a motion to clarify the record, insinuating that the Government had somehow made misleading statements about whether there was a quid pro quo in Scruggs II (the case involving Judge DeLaughter, Ed Peters, the federal bench opportunity and several million dollars paid to Peters to secretly work Judge DeLaughter).

My reading of the motion was that it was pretty unlikely and that it argued way beyond any record support for the position it took.

Judge Davidson was not impressed with the motion.  In denying it today, he ruled:

The Court takes note of the issues raised by Petitioner’s motion to clarify in regard to Ed Peters’ grand jury testimony, but declines to clarify or modify the record as requested by Petitioner. The record speaks for itself, and the undersigned, who has presided over this case since its inception, is quite capable ofreviewing the record to determine whether there is evidence of a quid pro quo. The motion to clarify should be and is hereby DENIED.

There are a number of responses and replies to various motions that I’ve not blogged about yet; more about all that later.

Here’s US v Scruggs II clarify order.

The Government responds with about the same level of ridicule that Anderson used in commenting on the motion:

For the petitioner [...]]]> Dickie Scruggs’s lawyers filed a motion for a judgment on the pleadings, saying that the scheme to illegally influence Judge DeLaughter was protected by the First Amendment.  I wrote about the motion here.

The Government responds with about the same level of ridicule that Anderson used in commenting on the motion:

For the petitioner to argue that the First Amendment protects his “right” to bribe a judge is ludicrous.

The Government also notes that this bridge was already crossed by Judge Davidson prior to Judge DeLaughter’s guilty plea in Scruggs II:

This Court’s previous decision, holding that the indictment sufficiently alleged bribery and holding that a federal judgeship is clearly a thing of value, coupled with the evidence highlighted in the government’s response to the petitioner’s motion to vacate, clearly establish that the petitioner did far more than merely engage in political speech, protected by the First Amendment.

I fully expect a reply from the Scruggs camp saying that the Government has somehow failed to respond to their argument and therefor Scruggs wins.  Because that is how they roll.

Here’s the Government response.

Do folks remember Ashton O’Dwyer?  He’s [...]]]> Dickie Scruggs has filed a motion for a judgment on the pleadings.  Because it is so miscellaneous, this post will, also, be a bit that way.  But it does begin to tie together unexpectedly diverse strands that have come up since I began blogging about the Scruggs cases.

Do folks remember Ashton O’Dwyer?  He’s the former lawyer in New Orleans who had several run-ins with the federal courts and bar authorities, leading to his banishment from the District Court building in New Orleans (and ultimately his banishment from comments here).  He was also, briefly, nationally famous when his decision to stay home after the ordered evacuation after Katrina lead to his arrest in the temporary prison at the bus depot that is also memorably described in the book Zeitoun.

The lawyers for Dickie Scruggs have filed a motion for a judgment on the pleadings on their effort to set aside his guilty plea in Scruggs II.  And they cite O’Dwyer’s recent Fifth Circuit victory in the case where his prosecution for cussing out federal judges was dismissed:

Just a few weeks ago, on September 27, 2011, the Fifth Circuit affirmed a district court’s dismissal of an indictment, in which the Government sought to criminalize speech. U.S. v. O’Dwyer, Slip Op, 2011 WL 4448739 (5th, 2011). There, the Government at least used an unambiguous statute, 18 U.S.C. § 875(c), which criminalizes the interstate communication of certain threats. Dwyer sent an email to the chambers of a federal bankruptcy judge, trying to influence him to grant certain relief, including the following language: “suppose I become ‘homicidal’? Given the recent ‘security breach’ at 500 Poydras Street, a number of scoundrels might be at risk if I DO become homicidal.” Id., at *1. The trial court and the Fifth Circuit held that even this scary language designed to influence a judge was protected by the First Amendment, such that the Government’s indictment must be dismissed. O’Dwyer was granted a judgment on the pleadings.

Notice the creative twist there– “this scary language designed to influence a judge…”  It’s not so obvious to me that a contingent threat–“if not for your grey hairs, I would tear your heart out” –is the same as an offer to help someone get a very desirable job.

I am reasonably certain that I learned that contingent threats weren’t actionable (in the context of the law of assault) in the first year of law school.  That principle is the basis for the Fifth Circuit decision in O’Dwyer‘s case that Scruggs cites:

A communication rises to the level of an unprotected threat, within the meaning of 18 U.S.C. § 875(c), only if “in its context [it] would have a reasonable tendency to create apprehension that its originator will act according to its tenor.” Morales, 272 F.3d at 288 (internal quotation marks omitted).

We agree with the district court that O’Dwyer’s statement is not a true threat as a matter of law. His statement is hypothetical and conditional: “[S]uppose I become ‘homicidal’ . . . a number of scoundrels might be at risk if I DO become homicidal.” See Watts v. United States, 394 U.S. 705, 708 (1969) (statement not a true threat considering in part its “expressly conditional nature”). Moreover, as the district court correctly observed, O’Dwyer’s e-mail did not threaten bodily harm to any particular individual.

“Designed to influence a judge” is a pretty humorous gloss on this.

The motion also makes reference to the right to depict on video the crushing of small furry animals:

Arguably, the defendant in Stevens should have known that his behavior, involving videotaping the crushing of small animals, was wrongful, but the statute was struck down nonetheless.

(I’ll note here this isn’t exactly right– that the cited case involves dog fighting while the statute that was struck down apparently was designed to prevent video depictions of crushing small furry animals).

At this point, the argument refers to a newspaper article about Georgia case, and cites as an exhibit the indictment in that case (although the indictment is not provided with the motion). There is no opinion to cite, just a pending motion, response, and the newspaper story.

Here’s what occurred:  A Georgia state judge named Blitch plead guilty to a scheme where he was being contacted, ex parte, by a political operative who was essentially getting him to fix cases and promising to drum up votes for the judge at election time. Judge Blitch has moved to set that guilty plea aside based on Skilling, and the United States Attorney has agreed he is entitled to set the plea aside.

The indictment contained other charges– that Blitch had a scheme with a local lawyer where the local lawyer would get to be a youth court judge, the local lawyer’s wife get business conducting required marital counseling that was part of divorce cases, and Blitch would get free legal service from the local lawyer, and other benefits.  Blitch plead not guilty to those charges, and they were dismissed at the time of the guilty plea about the case fixing with the political operative.

On the theory there was no bribery on the count to which he plead, Blitch moved to set aside his conviction.  The U.S. attorney has agreed to this relief in a short response.

If there were an opinion to cite, this would be getting closer but still not quite the same:  The count to which Blitch entered a guilty plea did not involve the exchange (attorneys fees for jobs for the lawyer and wife) other than efforts to drum up votes.  It is interesting that the U.S. Attorney did not make the argument the Government is making in Zach Scruggs case, that other illegal conduct will save the plea.

The thrust of the new Scruggs motion is about the First Amendment. Scruggs’s pleadings try to make an equivalence between supporting candidates in judicial races and what occurred here: back-channel ex parte contact, communicating to the judge an effort to get him placed on a list for the federal bench.  I would expect that, just as First Amendment cases distinguish a contingent threat (“If you weren’t so old, I would punch you now”) and a direct one (“I am going to punch you NOW!”), a court will see the distinction between political activity and the scheme between Peters, DeLaughter, and Scruggs.

Here’s Scruggs motion for a judgment on the pleadings.

Here’s the US v Blitch indictment

Here’s the Blitch motion to set aside the plea.

Here’s the Blitch government response.