The Fifth Circuit panel considering Paul Minor’s appeal has asked, in a letter from the clerk, for supplemental briefing in Paul Minor’s case. This happens, but not that often.
This is very big news, because it telegraphs that the court is very close to reversing these convictions. The topic is very interesting, particularly so for ongoing federal bribery prosecutions.
The letter asking for supplemental briefs begins by noting that the statute involved in counts 11, 12, 13, and 14 of the indictment alleges violations of 18 U.S.C. §666, which is known to its friends as the Federal Program Bribery statute.
The focus here is ordinarily on the “bribery” part– prosecutors sort of skate over that “Federal Program” part, asserting that federal money is everywhere. This was an issue in Scruggs I, and will presumably be in play in the DeLaughter prosecution, as you’ll see as I work through the questions the court is asking.
The court’s letter begins by noting that the statute makes it a crime to “corruply solicit[ ] or demand[ ] … anything of value from any person intending to be influenced or rewarded in connection with any business, transaction or series of transactions of such organization, government, or agency….” [emphasis in original letter].
Note that the language seems to connect the giving of the bribe to the business with the agency getting the federal money. Thus it is called “federal program bribery.” Recall that what Minor is accused of having done is guarantying and then paying loans for judges who then decided state court cases for him. The federal program money was money paid the the Mississippi Administrative Office of Courts and did not relate in any way to Minor’s cases, except that perhaps a staple or two was purchased with money supplements from the federal government and then used to bind some of the orders involved.
The first question the court asks is what the evidence in the case shows about whether the judges “intended to be influenced or rewarded…were [in] a matter… in connection with any business of the Administrative Office of the Courts of Mississippi.”
This seems to me an almost self-answering question: The government’s case was that the judges were “influenced or rewarded” connected to Minor’s cases, not Misssissippi AO business.
The next question is what nexus is required to show “in connection with” AO business and the particular matter on which the judge was intended to be influenced or rewarded. Then, the court asks what proof there is of that nexus, and whether the judges and Minor raised this issue in the lower court.
Just so there’s no misunderstanding where these questions are headed, the letter concludes by asking what impact a reversal on counts 11, 12, 13, and 14 would have on the other counts of conviction, and whether there should be a resentencing if those other counts were not also reversed.
Briefs are to be 15 pages or less and due May 18th.
This issue was raised by Scruggs’s lawyer in the Scruggs I.
Update: Corrupted pdf replaced and fixed.
Seems to me, if the Fifth Circuit requires a direct nexus between federal program money and Minor’s cases, the case is dead. And if so, would this kill the case against DeLaughter (except maybe the false statements to the FBI claim, which seems to exist independently of the underlying offense (e.g. Martha Stewart)?
Would Dickie et al. have any basis for relief in that event?
Curious minds want to know …
After watching the gov’t show, in Scruggs, that Henry Lackey was a Mississippi judge, paid by the AO Miss. Courts, with an office in the Lafayette County courthouse, which county received more than the jurisdictional amount of federal funds, I thought the feds need to do some more work on their bribery of state officials statutes. That’s almost a laughably thin nexus.
CA5 will produce an opinion on this issue that will at least result in a split in the circuits so that the S. Ct. will grant cert. Or not.
I am having trouble with the pdf of the letter from the Clerk, can you repost. Thanks
Try it now. Somehow it was corrupted in the download from the Fifth Circuit’s docket.
Would Dickie et al. have any basis for relief in that event?
I don’t do criminal law, but I had thought that a guilty plea was pretty dang final.
Jim Hood suddenly develops a tremendous headache.
Anderson, I don’t either, which is why I asked. Even with a guilty plea, I would think you would be entitled to post-conviction relief if the statute under which you were convicted was suddenly found not to cover the acts for which you were indicted.
Of course, this wouldn’t prevent the Lafayette County DA from bringing his own indictment. And I wonder why that hasn’t already happened.
The letter from the Clerk, no doubt promulgated at the direction of the Court, demonstrates the fact that Appellate Judges, who sit in an “ivory tower”, are too far removed from reality to dispense “justice”. I would suggest that the Panel in this case (Benavides, Garwood and Haynes) should start their deliberations by reading the indictments, then the closing arguments, then the jury interrigatories, then the entire trial transcript, and then the appellate briefs. My guess would be that one or more of their law clerks did so, but that not one Judge has actually read all of what I have identified, and in the order I identified the reading materials. Minor and the two State Court Judges who he corrupted ACTIVELY CONCEALED his obvious bribes for “future favors” to them. If they weren’t bribes, then why the “cover-up”? I assume that the trial transcript contains evidence which was duly considered by the jury that the results in Minor’s cases before these Judges were something other than a “slam-dunk”, but slam-dunk Minor enjoyed in return for the generosirty he bestowed on the Judges, but then tried to hide. If such evidence was not presented by the Government, then shame on them. As to whether the Federal Program crime was committed, if a State Court or Judicial System, which receives Federal funds, was compromised and its judicial integrity shaken to its very foundations, then (I believe) a Federal crime was committed. I hope the three of them ROT in the Federal penitentiary.
Minor and the two State Court Judges who he corrupted ACTIVELY CONCEALED his obvious bribes for “future favors” to them. If they weren’t bribes, then why the “cover-up”?
Because they were stupid?
Ashton, believe anything you want–
but if there’s not connection to a federal program, there’s no bribery, no matter what happened.
You describe facts that point to corruption and illegality. That’s part of the picture. But only part. And this doesn’t resolve the mail fraud issues.
Ashton,
The Circuit Court here is not trying to determine whether Minor did something wrong or even whether he “bribed” the judges. They have to determine whether he violated the specific terms of a specific statute. Every criminal law can be broken down into specific items attorneys refer to as “elements.” If a statute has seven elements then the government must prove all seven. If they prove only six, then they have not proven THAT particular crime, although they may have proven another crime that requires only those six elements. For example, Maine has a statute called “Assault While Hunting.” It requires that a person (1) cause injury to (2) another person (3)with a dangerous weapon (4) while hunting. A person who causes injury to another person with a dangerous weapon while robbing a bank may be guilty of a lot of things but not this particular crime.
In this case the charges against Minor include the element “in connection with any business, transaction or series of transactions of such organization, government, or agency.” The Circuit Court apparently is having difficulty finding evidence of that particular element in the transcript (which they have probably read several times by now). While they may be able to find all of the things you mentioned in your post, (I don’t know enough about the case to even guess at that) it will make no difference to the decision on these particular charges. There must be evidence of this element. Again, Minor may be guilty of “bribery” under a bribery statute with other elements, for example a Mississippi state statute, but that is not the issue before this court at this time. Only the federal statutes under which Minor is presently charged are being considered now.
If the Government proves there was enough federal money in the program to buy those two staples, NMC, isn’t that enough? Can’t the Government prevail by arguing that taking federal money in any amount is akin to being “a little bit pregnant”? The program either did or didn’t, and a little bit of federal money would appear — from over here on the sidelines — to be sufficient.
NZS, the issue the 5th Cir raises isn’t about how many $s, but about the connection between the federal dollars and the decision on which the judges were illegally influenced. The money goes to help run the administrative office of the courts. The 5th Cir is asking: What is the nexus between the AO and the decisions in these cases?
If by chance the Government proves some nexus to a Federal Program, but did not make that connection before the Jury and the Court does that have any bearing on the 5th Cir. decision.
Again, Minor may be guilty of “bribery” under a bribery statute with other elements, for example a Mississippi state statute, but that is not the issue before this court at this time.
That’s the really important point here. The issue is whether the feds can appoint themeselves as the roving enforcers of justice, or whether they’re confined to enforcing actual violations of *federal* law.
The Diaz/Minor prosecutions made me wonder where all the states-rights, federal-state-separation conservatives went. Because they should have been having conniption fits at the feds, who managed to bump a sitting state supreme court justice off the bench for, what, 2 years — with an indubitable effect on state jurisprudence — on the flimsiest of charges.
To All: Thanks for the explanations. Obviously, I have a lot to learn about Federal Criminal Law. I just don’t see the “difficulty” which the Panel is having with proof of the elements of “Federal Program Bribery”. If the august body which administers the Mississippi State Judiciary received Federal funds to facilitate the administration, including the administration of justice by honest Jurists, and some &%#@$*’s conspired together to corrupt the Court System and its Judges, and to violate the public trust, then they are guilty of Federal Program Bribery and conspiracy to commit same in my book. This is NOT the time for the Fifth “Circus” to be parsing the clear meaning of words in the statute. These BUMS belong right where they are, for a long time.
Ashton: Assume this as an incontrovertible fact: the Administrative Office of Mississippi State Courts receives NO federal funding of ANY kind. None. Not a penny.
Now … where does that leave a federal prosecutor?
Are you going to say, “Well, the judge drives to work on highways constructed in part with federal funds. The judge uses communications systems subject to federal ‘ownership’ interests. The judge breathes air subject to federal environmental controls.”
How far are you willing to attenuate the federal nexus just to get a conviction in federal court?
The circuit court is engaging in precisely the kind of parsing that criminal justice demands.
Y’all have fleshed this out pretty well, but I reject the “two staples” argument and there is no need to make assumptions about hypotheticals. Minor wasn’t convicted on hypothetical evidence. We can assume the fact-finders, the jury, decided that these things were facts.
As to the “two staples”, the federal money going to the AO is to ensure that the entire state of Mississippi is well served by an honest judicial system, not just parts of it, but all of it. Imagine a $1,000 drug deal, and the $1,000 mark is what kicks off a federal crime. The dealer wraps the drugs into 10 bags, and the buyer pays with 10 $100 bills. The buyer counts out the bills and the dealer counts out the bags, and then they check each other (trust me on this, they always check each other). Under the “two staples” argument, if I was the dealer I could argue that “No, I didn’t sell $1,000 worth of drugs. I sold $100 worth of drugs, ten times. This is not a federal case”. The buyer could argue the same. A jury, being reasonable, rejects that argument. So, the question is did Minor intend to corruptly influence one particular case, one time, or did he intend to corruptly influence the entire justice system of the state of Mississippi through these two fellow defendants, one big time?
Anderson’s argument about states-rights is a two-way street. Without federal prosecution, we would have to rely upon judges who received loans from attorneys’ with cases before the judge without disclosing to the other side that, if the judge rules for the correct side, the judge will receive a free house. Combine that with a DA and AG, who also have beneficial financial relationships with said attorney, and the federal money given to the AO has become meaningless. Maybe we followed the law, but we cannot claim that justice was well served, which was the intent of giving federal money to the AO. I allow for the possibility that a gratuity prosecution, rather than bribery, especially in the case of Teel, is appropriate.
I can attenuate the federal nexus to the entire federal contribution to the AO. If you don’t want to lay down with the devil, don’t take federal money, else, go to a court that doesn’t take federal money.
WTBAL: But there is no evidence of federal money going to the AO of Miss. State Courts. The AO is funded solely by state appropriations. That’s the point here. The Fifth Circuit is saying to the federal prosecutors, “Show us the money … show us where or how the federal gov’t funds the Mississippi state court system.”
It’s not just a rhetorical issue. It goes to the jurisdictional core of the government’s case.
Ahhh, if the AO does not receive more than $5,000 of federal money, my previous argument is invalid.
But, my wife, who was a Chancery Court Administrator, just informed me that she, her judge, and law clerk were all paid by the AO. Hmmm. Interesting. How many hours did these cases take?
Also, add in court reporters, in part. A judge makes over $100K, clerk about $50K, administrator about $40K, a court reporter about $40K. Hmmmm.
Also too, my wife dealt with the yearly budget, and she says “in the back of her brain” there was federal money in the budget. Phone calls tomorrow, will report back then.
Using the “two staple” argument, you could excuse every judicial bribery event in every court involving two private parties.
To all, but patticularly to Ben: The letter from the Clerk distracted me from the wording of the statute. The statute specifies “such organization, government or agency”, and “an agent of an organization or of a State, local…government, or any agency thereof”. I’m from Louisiana, so I don’t know the Mississippi State Constitution. However, I will assume that the Judicial Branch of Government is a “true branch”, and is the State, just like the Executive or Legislative branches of State government. In short, the Judicial branch IS the State, or at worst (for the Federal government’s purposes) an agency of the State
To all, but particularly to Ben: The Clerk’s letter distracted me from the wording of the statute, which speaks in terms of “an agent of an organization or of a State, local…government, or any agent thereof”, and of “…such organization, government or agency”. Accordingly, the statute could be violated if the State or any agency thereof received Federal funds, regardless of whether the Administrative Office of the Courts of Mississippi received Federal Funds or not (I’d still like to know if the AO received Federal funds). The crime was a crime against the State government or agency thereof which received Federal funds, and was thus “Federal Program Bribery”. Frankly, this is precisely what I’d expect “Big Brother” to protect the public from, ie. conspiracies which attempt to corrupt an entire branch of State government which readily accepts Federal funds.(State and local government might not be so willing to prosecute filthy rich lawyers and prominent State Court Judges who protest that they were just “ear-wiggling”, not accepting bribes in exchange for favors which were never caught on wiretaps or confirmed by E-mail anyway). Agree or disagree?
I was present for the first Minor trial one day representing a potential witness, who was not called, but I sat in on the trial for a few hours. I remember one of the witnesses was asked does the AO receive Federal Funding directly or through any grants and the simple answer was yes. I may be wrong but I don’t recall a big brew ha being made about it, it was a fairly straight forward witness. Seems to me the Fifth Circuit is asking how did the “bribery” connect (nexus) the Federal funds? I am pretty sure part of the Judge’s salaries or at least their office funding comes from Federal grants here and there.
Raising the question, what is wrong with Miss. that it can’t pay its own judges?
No. We can’t. I was told the judges have not received a raise in 6 years and are ranked 50th. The Southeast average is no where close. Alabama judges apparently make 75% more than Miss. judges.
Is the pay difference due to Alabama judges having to do everything out in the open — isn’t it difficult to seal a case over there, rather than following our practice of sealing up the proceedings routinely, on the request of counsel?
No wonder that Scruggs thought $5000 and an “of counsel” slot would buy him a judge.
[...] a nexus to federal programs to trigger the application of the federal bribery statute. Tom Freeland explains (and has [...]
Every injustice perpetrated by the Bush administration despots need to be revealed especially politically motivated dirty tricks like has happened to Paul Minor. I hope this case turns out to be an opportunity for full revelations of truth so that a full picture of Rov-Bush attacks on democracy will outed.