Scruggs moved for release pending appeal, arguing the standards for release pending appeal– that he is not a flight risk, that a substantial issue is raised, and, that if he wins it, he will be released. Judge Davidson asked for a brief on jurisdiction, which the parties agreed he had.
He has now ruled that Scurggs can come home on posting a two million dollar bond.
Here’s the opinion.
I’ll post the motion and response in a bit, along with thoughts.
Update:
Here are my thoughts on the motion, reply, and response. Scruggs’s motion begins by noting that he was serving concurrent sentences in Scruggs I and II prior to November 6, 2012; after that, he was only serving the seven year sentence in Scruggs II (which gives him now about 20-21 months to go, I think).
By granting a Certificate of Appeallability, Scruggs argued, the district court had found a “substantial showing of the denial of a constitutional right;” given that, the motion invoked the standard for bail pending appeal where the appeal “presents a substantial question”.
He also invoke an issue he’d raised earlier, that he is suffering from Dupuytren’s contractor of the right hand, and that he had obeyed bond conditions pending trial.
The government responded with Fifth Circuit case law that the motion required a showing of a “high probability of success” on appeal, not merely a substantial issue.
United States v. Roberts, 250 F.3d 744 (5th Cir. 2001), a petitioner appealed the District Court’s denial of his motion for release on bail pending disposition of his 28 U.S.C. § 2255 appeal. The Court held that a 2255 petitioner should be released on bail “only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Roberts, p. 744.
Scruggs’s reply did not mention Roberts and essentially repeated the points made in the original motion, while noting the Governments (very halting) concession on jurisdiction. The judge’s opinion tracked the part of Scruggs’s motion noted above, and ignored both Scruggs’s rhetoric about the thinness of the Government case and the Governments’ statement of the standard.
Although I have not independently researched this, I will admit to being surprised by the result after having read the papers.
Here’s Scruggs motion for release, here is the Government response, and here is the Scruggs Reply.
The law in its majesty provides convicted criminals equal opportunity for release pending appeal: all are free to pony up a $2 million bond.
Here is the entire Roberts opinion; after reading it, I’m even more puzzled:
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Michael G. Roberts appeals the district court’s denial of his motion for release on bond pending the disposition of his 28 U.S.C. § 2255 motion. Release on bail should be granted to a prisoner pending post-conviction habeas review “only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.” Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974). Examples of “extraordinary circumstances” include the serious deterioration of the petitioner’s health while incarcerated, short sentences for relatively minor crimes so near completion that extraordinary action is essential to make collateral review truly effective, and extraordinary delay in processing a habeas petition. See id. at 702 n. 1.
Regardless of the merits of Roberts’ claims, on which the district court has not yet ruled, Roberts has failed to show the existence of any “extraordinary or exceptional circumstances” necessitating his release on bond to make the post-conviction remedy effective. Because Roberts’ allegations thus do not justify a grant of release on bail pending determination of the merits of his § 2255 motion, the district court did not err by denying Roberts’ motion for bond. See id. at 703.
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Possibly inadvertently, Judge Davidson is signaling some doubt about his decision to the Fifth Circuit, isn’t he?
(1) Neither the gov’t nor anyone else should ever tell the N.D. Miss. that the 5th Circuit has “obfuscated” anything. Looks like someone used a thesaurus without then looking up the word in a dictionary.
(2) The feds and the court are reading 18 USC 3143 very differently. The court says only that *if* the ruling is reversed, the defendant is likely to go free; the feds say “is likely” to be reversed.
(3) The feds are correct. The court quotes a 1990 5th Circuit case discussing the statute, but the language of the statute is: “the appeal … raises a substantial question of law or fact likely to result in” reversal, etc.
Pro tip, kids: you always need to know what the courts think a statute means, but you ALSO need to look at the statute. The district court erred by relying on the Clark decision – perhaps that is what the statute said in 1990 and it’s been amended since?
I was a little elliptical. Here’s the relevant part of the statute:
(b) Release or detention pending appeal by the defendant.
(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds–
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title [18 USCS § 3142(b) or (c)]; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in–
(i) reversal, etc.
Here’s how Clark described the statute:
To obtain release pending appeal, a convicted defendant must establish four factors: (1) that he is not likely to flee or pose a danger to the safety of others; (2) that the appeal is not for purpose of delay; (3) that the appeal raises a substantial question of law or fact; and (4) that the substantial question, if decided favorably to the defendant, is likely to result in reversal, in an order for a new trial, in a sentence without imprisonment, or in a sentence with reduced imprisonment. Fed.R.App.P. 9(c); 18 U.S.C. § 3143(b).
(The rule just describes how you move for this relief; it’s not substantive.)
… Also, your link to the initial motion takes us instead to a one-page Word doc, which looks like maybe someone’s note on the motion, not the motion itself.
Anderson, I think the judge is confusing the statutory basis for granting a Certificate of Appealability (COA) in a habeas case– that there is a “substantial issue” (something Judge Davidson had found, as would I) with showing substantial likelihood of success by clear and convincing evidence. VERY different.
That said, the standard for a COA is a source of great confusion.
Joy to the World, la-la-LA-la, dee dah, dee dum, dee DAH! And so on so on so forth.
But is 3143 the right statute?
“Fourth, they (Scruggs) reassert petitioner’s First Amendment right to bribe judges…”
Ms Adams, Northern District US Attorney, in the government’s response to the political speech argument of hiring Peters to do his specialty of judicial backdoor representation.
Yes, Anderson.
Anderson at 7:17: Yes, it was an RTF file of notes on the motion. The PDF of the motion is there now.
Well, you know I don’t do criminal law, but I don’t understand where the COA part comes in.
The court and the feds were both looking at section 3143(b), right? And the feds read it correctly, and the court didn’t, apparenly b/c the court relied on what the case law said about the statute. The statute requires a much stronger showing than Clark says it does.
Any further enlightenment you have time for would doubtless be appreciated by more than just y.t.
This order appears to be more a “Mississippi thang” than a
strict application of the statute — not, of course, that there’s anything wrong with that.
I think Clark’s reading of 3143 is correct: That interpretation was adopted in US v. Valera-Elizondo, 761 F2d 1020. There, the court “assign[ed] to “likely” its ordinary meaning of “more probable than not.” I think the Court may have missed the mark, however, because the Roberts and Clark cases are distinguishable on the procedural posture.
Roberts confronts bail with regard to a habeas appeal; Clark does not. for its standard, Roberts cites an 1974 5th Circuit habeas appeal case that in turn derives its standard (partially) from a Justice Douglas’ denial of bond in a habeas case in the 1960s. That Douglas opinion, Aronson v. May, 85 S.Ct. 3, states just why this distinction should, and does, exist:
This applicant is incarcerated because he has been tried, convicted, and sentenced by a court of law. He now attacks his conviction in a collateral proceeding. It is obvious that a greater showing of special reasons for admission to bail pending review should be required in this kind of case than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt. Cf. Yanish v. Barber, 73 S.Ct. 1105, 97 L.Ed. 1637 (1953). In this kind of case it is therefore necessary to inquire whether, in addition to there being substantial questions presented by the appeal, there is some circumstance making this application exceptional and deserving of special treatment in the interests of justice.
Though there was no judicial determination of guilt here, I think the reasons for differing standards is made clear and that the Court missed that distinction.
In my experience, COAs are not rare birds and in no way send a signal about a court’s confidence in its decision. To obtain a COA after a denial of habeas relief, a petitioner must demonstrate that reasonable jurists would find the district court’s disposition of his claims “debatable or wrong.” It has also been stated in another way- “that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Debatable is key-debatable includes the possibility that “every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” From what I remember, in reviewing whether it should be granted, courts conduct a minimal inquiry into the merits and the legal framework of the claim. I would not read too much into it.
Thanks for explaining the COA issue, Black Bear, tho I still can’t agree that Clark correctly interprets the statute as it now reads. The meaning of “likely” isn’t the issue; rather, it’s that Clark confines “likely” to “if the defendant wins,” making no judgment about whether it’s likely the defendant *will* win, whereas the statute says the substantial question has to be likely to result in reversal.
However, it does seem that the decision you cite is happy to assume that Congress didn’t mean what it plainly wrote.
“The statutory language requiring a finding that the appeal ‘raises a substantial question of law or fact likely to result in reversal or an order for a new trial’ cannot be read as meaning, as the district court apparently believed, that the district court must conclude that its own order is likely to be reversed.”
But that is what Congress wrote.
Ok, I’ve dug some more stuff out. 3143 does not apply to habeas cases:
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Coming at last to the merits, we point out first that the district court based both the May 21 and June 5 orders on the federal statute governing bail for persons accused of federal crimes. But that statute is inapplicable to a convicted defendant who is seeking postconviction relief, whether he is a state prisoner seeking federal habeas corpus under 28 U.S.C. § 2254, or, as here, a federal prisoner seeking relief under 28 U.S.C. § 2255, the habeas corpus substitute for federal prisoners. See Ballou v. Commonwealth of Massachusetts, 382 F.2d 292 (1st Cir.1967) (per curiam); United States v. Dansker, 561 F.2d 485 (3d Cir.1977) (en banc) (per curiam); 3A Wright, Federal Practice and Procedure: Crim. § 768, at p. 145 (2d ed. 1982); cf. Baker v. Sard, 420 F.2d 1342, 1343 (D.C.Cir.1969) (2-judge panel) (per curiam). Nevertheless, there is abundant authority that federal district judges in habeas corpus and section 2255 proceedings have inherent power to admit applicants to bail pending the decision of their cases, but a power to be exercised very sparingly. See In re Wainwright, 518 F.2d 173 (5th Cir.1975) (per curiam); Ostrer v. United States, 584 F.2d 594, 596 n. 1 (2d Cir.1978); cf. Jago v. United States District Court, 570 F.2d 618 (6th Cir.1978); Pfaff v. Wells, 648 F.2d 689 (10th Cir.1981). The reasons for parsimonious exercise of the power should be obvious. A defendant whose conviction has been affirmed on appeal (or who waived his right of appeal, as by pleading guilty, or by foregoing appeal after being convicted following a trial) is unlikely to have been convicted unjustly; hence the case for bail pending resolution of his postconviction proceeding is even weaker than the case for bail pending appeal. And the interest in the finality of criminal proceedings is poorly served by deferring execution of sentence till long after the defendant has been convicted.
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Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985)
Here's a Texas District court citing the standard:
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“[i]t is within the inherent power of a district court of the United States to enlarge a … prisoner on bond pending hearing and decision on his application for a writ of habeas corpus.” In re Wainwright, 518 F.2d 173, 174 (5th Cir.1975) (per curiam). Bail should be granted to aprisoner pending habeas corpus review only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974) (per curiam).
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United States v. Olis, CIV.A. H-07-3295, 2008 WL 620520 (S.D. Tex. Mar. 3, 2008)
I’ll explain what I see in this in the next post.
Ah – awesome, NMC. Thanks!
What these cases say is:
1) The bail statute does not apply for post conviction relief but the court has an inherent power as a part of habeas to give that sort of relief.
2) The standard for relief is that it is exceptional and that there must be a showing of “high probability of success” (which seems clearly greater than “likely success” to me).
I don’t see a distinction to be drawn between guilt pleas (an admission of guilt) and judicial determinations of guilt after trial, but maybe so. Maybe that should go in the “probability of success” calculus.
All that said, I think we are in the same place: Bond would require a judicial finding of (high!) probability of success, that the judge thought that the Fifth Circuit was likely to grant relief. I do not think Judge Davidson intended such a finding.
That does raise this question: What is “high probability of success” as opposed to “probability of success” and how short of “clear and convincing” is “high probability?” What is high probability (if you aren’t a mathematician). In harmless error analysis, it means a “sure conviction” the error was not prejudicial….
good now let him go try to get to some judges while he’s out. everyone else seemed to think he was a flight risk – but now he’s not. has to be jailed somewhere with no airports because he was a flight risk – but now he’s not. hmmmm.
confounded: Maybe *everyone* hopes and prays he’ll just take flight and leave, never coming back and never, ever, never being heard from or about again. And what a deal for *everyone* at just 2M of his many millions: cash, I presume?
Related question: Exactly how many bushels of sweet potatoes does it take to secure a 2M bond?
The weighted average retail price for sweet potatoes for the week ending 11/23/2012 was 46 cents per pound. It would take 86,957 bushels (4,347,826 pounds) of sweet potatoes to secure that bond.
So about 290 acres of good, irrigated farmland in Oklahoma,http://pods.dasnr.okstate.edu/docushare/dsweb/Get/Document-1098/F-6022web.pdf would do the trick?
Let’s see, ciphering about 60 man-hours of time per acre that would be, what, 17,397.4 man-hours of work for the whole-kit-an-kaboodle? At 2080 hours per FTE working 40 hours a week that’s about 8.3 persons working on ‘taters. Just for the bond.
Seems like a deal to me. We can use it as a stimulus project…we could call it a GetAmericaWorkingForScruggsChristmasHomecoming project, of sorts.
Whodathunkit? Ain’t America great?
Unfortunately, if he puts up the ‘taters, when he wins or loses the appeal, he gets them back on complying with the bond, Razor.
I say he gets out and stays out on condition that he makes a very substantial donation to a public university of his choice within 10 miles of Oxford.
Too late for Khayat to write him a letter to the court, Colonel. “Never mind those dead people, look at this wonderful donation!”
Scruggs didn’t leave behind any dead bodies, Anderson, that was Halat. But hey, for the right sized donation to Ole Miss, it does seem that we could forgive a lot of things.
NMC: I was using the planning assumption of him taking off upon release and forfeiting the ‘taters based on him previously being labeled as a flight risk.
CRS: I’m willing to bet that OM isn’t in the forgiveness business anymore, and damn sure ain’t forgetting, about the unpleasantries he was connected with.
Razor to CRS: I’m willing to bet that OM isn’t in the forgiveness business anymore, and damn sure ain’t forgetting, about the unpleasantries he was connected with.
I dare say: if Dick Scruggs offered Ole Miss “a generous donation” — go deep, make it $10-million or more — the university would rise like a trout to a fly, especially if the donation were payable to UMAA. Maybe give it a beneficent name … maybe “Scruggs Institute for Legal Ethics,” kinda like the “Trent Lott Leadership Institute,” or maybe “Scruggs Sports Safety Leadership Program.”
Bulldozers would be clearing land first thing tomorrow morning.
What title might a Dickie Scruggs memoir bear? “Zeus to Goose”? “Slickie’s Thugs: Appealing in a Theatre Near You”? “The Slick Tater of Torts”?
Right now, anyone who has followed the Bureau of Prisons website would say “Home for Christmas”
How about: “Money Talks, Dickie Walks”?
The government is just as crooked as these people. They should be in jail, too. That piece of you know what Lackey and Balducci need to do a little time, also. I am two-thirds through “The Fall of the House of Zeus”. Which reminds me of the old saying what goes around comes around. I wonder if that pompous Lackey can sleep at night? If he had been a true mentor of Balducci’s he would have schooled him on ethics and taught him how to live a life of truth. If the real truth was known Lackey is as crooked as all the rest of the players….in my opinion he was jealous and had a tremendous dislike for Scruggs. I would never trust an old white headed, bible toting, Baptist professing, and so-called deacon that claims he is a judge. I bet he had never seen so much money in his life.
These are my thoughts as I read about these events and they are worth two cents except to me. Thank you, susie
What crime, exactly, did Judge Lackey commit?
If you’re going to talk about throwing someone in jail, you should at least be kind enough to specify what for.