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“Defendants all over the country were raising these kinds of claims.” Notes on Dickie Scruggs’s Fifth Circuit Appeal, Part 2

This is the second of three posts about Dickie Scruggs’s Fifth Circuit appeal of the denial of relief from his guilty plea to bribery of Judge DeLaughter.  Part one is here.

Dickie Scruggs’s Fifth Circuit appeal is about the case involving Bobby DeLaughter.  The question on appeal is, essentially, whether admittedly corrupt or unethical contact with Judge DeLaughter amounted to a federal crime.

Everyone (including Dickie Scruggs’s lawyers) agrees there was grossly unethical ex parte contact with the judge.  But was it a federal crime?

The issues on appeal track those in the trail court.  The issues turned around a recent holding by the United States Supreme Court in one of the Enron cases (Skillingthat federal bribery prosecutions required a quid pro quo, an exchange.  Recall that the Latin phrase translates, roughly, as “a thing for a thing.”

I’m having a moment of trouble making clear to a lay audience what, exactly, changed with Skilling.  Bribery would seem to imply a quid pro quo— “I’ll give you this for that.”  Federal cases allowing prosecutions for “the denial of honest services” were pushing well beyond that point, toward prosecutions that were more on the order of “this doesn’t look quite right.”  Skilling brought a halt to that, and limited prosecutions to cases where the Government could prove an exchange.

Scruggs’s major brief on appeal raises, first, that, because Skilling holds that, under the federal statute, bribery is not a crime unless there is a quid pro quo, there was no crime in the interaction between DeLaughter, Scruggs, Peters, and Langston, because there was not an exchange.  Without a federal crime, Scruggs argues, a federal court had no jurisdiction.  Second, the Scruggs brief argues that Skilling was such a clear break with precedent that Scruggs had cause not to appeal and raise this issue pre-Skilling. It is this failure to raise the issue in Skilling (before that case was decided) that produced most of the questions on oral argument, and Scruggs’s lawyer deflected the questions by backing up to the first, jurisdictional issue.  He really had no answer to the central point from the bench:  That lots of people were raising this issue pre-Skilling, and Scruggs could have, too.

In his argument for the Government, Bob Norman drove the point home by noting that prior to Scruggs’s guilty plea (in fact, 2 weeks after the indictment in this case), Justice Scalia had dissented from a denial of certiorari and outlined exactly the argument the Supreme Court accepted in Skilling.

The third issue Scruggs raised is that the district court applied the wrong standard for Scruggs to prove actual innocence, and the fourth was that Scruggs’s shenanigans (which the brief admits were seriously unethical, an admission repeated at oral argument) were protected by the First Amendment.

It seems that the admission that there was “ethically nefarious” behavior but that, nevertheless, there was First Amendment protected speech depends on an effort (not stated out-loud) to de-link Scruggs’s call to Trent Lott (which Scruggs’s lawyers say was a First Amendment protected contact) from the “nefarious” ex parte contact, although, in argument, it’s hard to take Scruggs’s lawyer’s reference to Langston’s testimony– that once a judge before whom you have a case asks for such a call, you can’t say no– as supporting such a de-linking.

Scruggs has three independent ways to win:  his jurisdiction argument, his cause argument, and his actual innocence argument.  The government has excellent answers to each.  On jurisdiction, the response is that Scruggs is really complaining about whether there were facts to show the offense, not whether an offense was charged, and thus not raising a jurisdictional defect in the charge.

I’ve already noted the Government response on cause– that this issue was already being raised, and even written about at the Supreme Court level.  On actual innocence, the Government answers with fact findings from Judge Davidson. Fact findings are much harder to overturn on appeal than legal conclusions.

Scruggs does argue another point, about the First Amendment.  It’s not a jurisdictional argument, though, and, without the actual innocence win or the cause win, it’s hard to see how that is an independent path to a win for him.

Here’s some notes on the argument before Judges Carl Stewart, Jerry Smith, and Jacques Wiener, with my attempts to identify the voices on the recordings.  My habit in note-taking of appellate arguments is to focus on the questions from the bench unless the lawyers say something remarkable or something that was not in their briefs.   It’s a hard habit to break.  You can listen for yourself here.

Early on, there was a series of questions about Scruggs’s failure to raise the argument about the requirement of a quid pro quo:

Judge Smith: Defendants all over the country were raising these kinds of claims.  I don’t understand why they weren’t raised.

Judge Weiner:   Is that not a conscious determination that it ain’t worth it and I’m not going to do it.

Judge Weiner: I was talking about your response to Judge Smith.

Judge Stewart:  We’ve had legions of cases that raise Apprendi issues out into infinity and raise Booker issues out into infinity,   … We had prisoners who raised them, knowing they would not get relief.  Others who didn’t, and they were shot out of luck.  How does this differ?

I’m pretty sure I heard “shot out of luck”…  What Judge Stewart is saying here is that defendants had raised sentencing issues that were losers at one time but that the Supreme Court eventually vindicated, and those folks got relief, while those who did not bother to raise the issues were out of luck.  He is stating that he does not know how to distinguish those cases from Scruggs’s case.  Not getting much of a response, he repeated the point:

Judge Stewart:  To do what you are asking to do, how do we differentiate from the sea of cases where the issue have been raised.  … Even if I agreed with you, how do I write around that.

Scruggs’s lawyer Robertson completely refused to engage on these questions, talking around them and then ducking to say that he didn’t have to treat them because of the jurisdictional issues he was raising.  What that means is that, effectively, he was abandoning his “cause” point and relying on jurisdiction and actual innocence to win.

The barrage of questions died down, and Robertson began arguing about defects in the indictment. He argued that there are two kinds of indictment issues.  One kind is waived if you don’t appeal.  He said that two cases–Peter and Rosa-Ortiz– say that if the thing that is charged is not a crime at all, then there is no jurisdiction.

Peter is cited throughout the Brief of Appellant.  It involved a guilty plea to a mail fraud charge in which the defendant was alleged to have committed fraud in obtaining a state license.  The Supreme Court had held that such licenses were not the sort of property that could be the subject of a mail fraud prosecution.  So, what Peters had was an information that alleged something that was definitely not a crime.  Thus, the court had no jurisdiction.

The 11th Circuit opinion distinguished cases where the flaw was one of omission:

Peter’s innocence of the charged offense appears from the very allegations made in the superseding information, not from the omission of an allegation requisite to liability.

United States v. Peter, 310 F.3d 709, 715 (11th Cir. 2002). In other words, the Supre Court had held that mail fraud can’t be based on state licenses, the case involved was alleged fraud involving state licenses, and, thus, “the very allegations” established Peter’s innocence.  It seems that language pretty well distinguishes Peter from Scruggs’s case.  The information to which Scruggs entered a guilty plea clearly alleged the crime.  It alleged that Scruggs conspired with others to deprive the state of the honest services of Judge DeLaughter, it alleged a conspiracy to corruptly influence DeLaughter, and alleged that the conspiracy operated by paying Peters a large sum of money and by Scruggs calling Trent Lott to recommend DeLaughter for a position on the federal bench.  It may not use the phrase quid pro quo or explicitly assert that the call was in exchange for the influence, but that’s what any intelligent reader would conclude, and it is clear that the statutory elements are alleged.  The problem isn’t that the information alleges a non-crime (what occurred in Peters) but that facts about the crime aren’t explicitly alleged.

The other case cited by Robertson in his argument, United States v. Rosa-Ortiz, 348 F.3d 33 (1st Cir. 2003) doesn’t seem to deal directly with the whole question.  It involved a charge that Rosa-Ortiz had assisted in the escape of a federal prisoner.  The prisoner was being held as a material witness, and the question was whether a witness was the sort of prisoner whose except fell within the federal statute.  It did not, so there was no federal crime and Rosa-Ortiz’s guilty plea was set aside.  What is not clear in the opinion is whether this defect was apparent on the face of the indictment.

Rosa-Ortiz was also explicitly distinguished in a later case (involving honest services!) in a way that is not helpful to Scruggs’s position.

At this point, Robertson drew a question:

Q.  Wasn’t this argument specifically rejected last year in the Zach Scruggs case?

Robertson:  I beg to differ because in Zach Scruggs case, Judge Higgenbotham’s opinion was that he had plead to misprision of a felony and that is a cognizable crime.

I want to come back to this point in more detail in a separate post, rather than side-track my account of the argument.  For now, I’ll just say that I think the opinion in Zach’s case does specifically reject what Robertson was asserting. Judge Smith asked about another case:

Smith:   Would we be creating a conflict with the First Circuit in US v. George if we follow the rule you advance?

Robertson: A conflict already exists because of Peter, and I’m not familiar with George.  …

Smith:  let me read you a quote from George that you are not familiar with: “Skilling merely clarifies that to convict someone of honest services fraud, a factual showing of bribery or kickback is compulsory, and the fact that the charging document does not allege the bribe does not effect subject matter jurisdiction.”

Robertson:  Peters would not agree and I hope you don’t, also.

George explicitly distinguishes Rosa-Ortiz, which was one of two cases Robertson mentioned in his argument, and, unlike Rosa-Ortiz, is actually an honest services bribery case involving the impact of Skilling. Once again, I am going to discuss George in a subsequent post because there’s a lot to talk about there.

Robertson then turned to arguing the facts, that the secret access (the “quo” part of the exchange asserted by the Government) began months before the call from Trent Lott (the “quid” part).  He moved from there to his First Amendment argument, saying that the quid pro quo had to be very specific because the call to a Senator was political speech.

Robertson:  If we are going to load down the First Amendment with potential criminality, we have to be very careful to make sure that that is tied very directly to the act.  Each of you know because you have been made federal judges that people make phone calls, and as the testimony in this case repeats for Mr. Langston, you can’t say no when a judge asks for this sort of favor when he wants to move up when you have a case pending, but was there a quid pro quo, because that is what Skilling requires. …The right to call a United States Senator, even when he is your brother in law, has to be protected.

I’d be curious to reactions about whether the first part I highlighted was a good argument for Robertson to be making.  I’m thinking the second highlighted part strongly implies an exchange, particularly where the judge is giving the “calling” party a benefit they should not have.

There were no questions during the Government’s argument.  It started:

Norman:  The quid pro quo is the key to the case, not only because that makes this a paradigmatic bribe that survives Skilling and it also takes this case outside the First Amendment. 

The strongest part of Norman’s response was to remind the court of Balducci’s testimony of a meeting at the airport, where Peters says that Judge DeLaughter had been holding up his end of the deal, but was beginning to feel that Scruggs was not upholding his end, and reminding Langston about a judicial position that had been opened and filled.  Scruggs’s call to Lott, and Lott’s to DeLaughter, was within a week of that.

When he stood up in response, Robertson repeated that there was six months between beginning of improper conduct and the call from Trent Lott.  He did not mention or attempt to reconcile the conversation Balducci had described.

There were no questions during Robertson’s close. As I noted, the panel was on the cold side, not asking a huge number of questions.  The argument from Robertson did not directly address either some of the questions from the court or the argument made by Norman; it seems even weaker once one looks at the cases that were actually cited during the argument, about which I will write in the next post.

This is the second of three posts about Dickie Scruggs’s Fifth Circuit appeal of the denial of relief from his guilty plea to bribery of Judge DeLaughter. Part three is here.

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