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“it would be tooth-fairy odd … in the absence of a quid pro quo.” Notes on Dickie Scruggs’s Fifth Circuit Appeal, Part 3

The record makes manifest that the petitioner passed out search warrants like popsicles in July to a person whom he knew had no legitimate use for them. Common sense strongly suggests that the petitioner—who risked his reputation, his job, and his liberty by conspiring with Fosher—must have received some sort of emolument to make his trouble worthwhile. The law does not require a court to blind itself to the obvious, and it would be tooth-fairy odd for the petitioner to have handed out blank warrants in the absence of a quid pro quo.

United States v. George, 676 F.3d 249, 258 (1st Cir. 2012) (emphasis added).  The quote is from a case that one of the judges on the Fifth Circuit panel quoted during Dickie Scruggs’s oral argument, asking Robertson if he could distinguish it, placing Robertson in the difficult situation of being asked to distinguish a case he’d not read.  The highlighted language certainly put me in mind of Dickie Scruggs’s case.

This is the third 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 and part two is here.
Scruggs’ lead argument in both his Fifth Circuit brief and argument was a jurisdictional one, that Skilling established a requirement (the quid pro quo) and that a federal court had no juridiction if that requirement was not met.  George seems to make short work of that argument:
Skilling did not invalidate the definition limned in 18 U.S.C. § 1346 (“[T]he term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”); it merely clarified that prosecutions under statutes incorporating that definition require evidence of bribes or kickbacks. 130 S.Ct. at 2933–34.  …
Viewed from this perspective, the petitioner’s argument is very narrow. He does not say that no bribes or kickbacks occurred; he merely says that the record before us contains no such evidence. He does nothing to dispel the obvious concern that the conspiracy in which he was involved may have entailed conduct still criminal under Skilling.
George, 676 F.3d at 257, 260.  If I was trying to distinguish George, this last paragraph might be where I would start.  Unlike George, in Dickie Scruggs case, the record does contain the evidence of whether a bribe occurred.  Unfortunately for Scruggs, though, that record resulted in a factual finding by the district court that there was evidence of a bribe.
The bottom line is that Skilling has little or nothing to do with the jurisdictional inquiry. The opinion in Skilling merely clarifies that to convict someone of honest-services fraud, a factual showing of bribery or kickbacks is compulsory. While this holding rendered the instant information factually insufficient, see Skilling, 130 S.Ct. at 2933–34, it did not divest the district court of subject matter jurisdiction over the case. See Cotton, 535 U.S. at 631, 122 S.Ct. 1781; Lamar, 240 U.S. at 64–65, 36 S.Ct. 255; González–Mercado, 402 F.3d at 300–01.
George, 676 F.3d at 257.  This seems fatal to Scruggs’s jurisdictional argument, and Robertson pretty well conceded that (not having read the case) at argument when he said he hoped the court would not follow George.
The opinion then goes on to characterize why what the petitioner sought in George was inequitable (“a miscarriage of justice”) in ways that also do not sound good for Scruggs:
It is difficult to understate either the wrongfulness or the criminal character of what the petitioner himself admits to having done. That conduct comprises a clear violation of his obligations under the oath taken by him as an official of the Massachusetts court system. The conduct—handing over blank warrants for improper purposes on at least two separate occasions—also comprises a brazen and reprehensible misuse of his official authority. It in all likelihood violated a number of state criminal statutes, and it also violated the federal fraud statute as its honest services component was understood at the time (even if one further likely fact—the bribe—was not included in the plea agreement and colloquy because not then deemed necessary). Granting relief in these circumstances would be both a misuse of our authority under the All Writs Act and a perversion of the writ of error coram nobis. In the end, the writ is designed to do justice, not to facilitate a miscarriage of justice.

George, 676 F.3d at 259.

All that said, there was a more fundamental way that George bit Robertson on the rear end. Robertson cited two cases in his argument. Rosa-Ortiz, was, like George, a First Circuit case. I mentioned in the prior case why I think this doesn’t precisely deal with the question at hand.

Robertson was asked about George very shortly after he had cited Rosa-Ortiz.  The petitioner in George had attempted to use Rosa-Ortiz essentially the same way Robertson did.  The author of the George opinion gave this the back of their hand:

Rosa–Ortiz cannot carry the weight that the petitioner loads upon it. That opinion dealt with an instance in which the indictment was factually insufficient. Id. at 36–42. Supreme Court precedent makes transparently clear that an indictment’s factual insufficiency does not deprive a federal court of subject matter jurisdiction. See Cotton, 535 U.S. at 630–31, 122 S.Ct. 1781; Lamar v. United States, 240 U.S. 60, 64–65, 36 S.Ct. 255, 60 L.Ed. 526 (1916) (Holmes, J). “[A] district court has jurisdiction of all crimes cognizable under the authority of the United States[,] and the objection that the indictment does not charge a crime against the United States goes only to the merits of the case.” Cotton, 535 U.S. at 630–31, 122 S.Ct. 1781 (quoting Lamar, 240 U.S. at 65, 36 S.Ct. 255) (alterations and internal quotation marks omitted); accord Vanwinkle v. United States, 645 F.3d 365, 369 (6th Cir.2011); United States v. Todd, 521 F.3d 891, 894–95 (8th Cir.2008); United States v. Delgado–Garcia, 374 F.3d 1337, 1341–42 (D.C.Cir.2004). Viewed in this light, the Rosa–Ortiz court’s statement must be regarded as an awkward locution. That locution used the word “jurisdiction” to refer to what the court considered a non-waivable defect, see United States v. Ceballos, 302 F.3d 679, 691–92 (7th Cir.2002), not to the district court’s power to adjudicate the case.
George, 676 F.3d at 259-60.  It would seem that, since George cites Rosa-Ortiz, and says that it is not really a jurisdiction case at all, and is from the same circuit, George would have been a predictable pitfall should one plan to cite Rosa-Ortiz at argument.  That George was a big surprise is even odder because it also cites the other case explicitly mentioned at argument by Scruggs’s lawyer, Peter. 
After argument, Scruggs’s lawyers wrote a 28j letter attempting to distinguish George.  First, they noted, correctly, that George was a coram nobis which presented a standard that was more difficult for the petitioner.  While that is true, it is not clear how that distinguishes the damaging legal principles laid out in the case.  Second, they cited a Fifth Circuit case stating that “outreageous conduct alone does not confer federal jurisdiction,” apparently to answer the long passage in George noting how reprehensible the defendant had been. Third, they described “the George court’s radical notion that federal courts now have jurisdiction to punish individuals even where the Government alleges no behavior that is a federal crime.”  I’m supposing that Judge Selya (and most readers) would be startled by this characterization of the notions underlying that opinion.

George is pretty much a churn case.  All of the elements line up, and Scruggs’s lawyers are left with arguing that it is wrong.  To use more common language, it’s a case on all fours, that is, a case in all respect identical.

I once had a law clerk announce that he had found a case on all fives.  Not only were the legal principles all identical (and supporting our position), the opposing party was the same.  The other case raised by the panel in oral argument is close to that– not involving Dickie Scruggs, but involving his son, and arising out of the same prosecution (and the same appellate lawyers).  Perhaps on all four and three quarters.

In Zach Scruggs’s case, the Fifth Circuit affirmed Judge Biggers’s denial of relief from Zach Scruggs’s guilty plea for misprision of a felony.  In the Dickie Scruggs argument last week, one of the judges on the panel asked whether Robertson’s jurisdictional argument had already been shot down by the Fifth Circuit:

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.

Here’s what the Zach Scruggs opinion said about jurisdictional claims:

…Regardless, Scruggs’s “jurisdictional” claim fails on its merits. Scruggs urges that the facts he admitted at the time of his guilty plea and the facts that everyone understood to underlie his plea established only that he knowingly concealed Balducci’s attempt to use personal influence to deprive the State of Judge Lackey’s honest services—pre-Skilling honest services fraud—and not that he knowingly concealed any bribery. This argument would have considerable purchase as a challenge to the validity of his plea, but as a challenge to the district court’s subject matter jurisdiction, it is insufficient.
Scruggs in essence confuses a failure of fact with want of power to adjudicate. Under 18 U.S.C. § 3231, “[t]he district courts of the United States … have original jurisdiction … of all offenses against the laws of the United States.” As the Supreme Court reaffirmed in United States v. Cotton, this means that the district court’s subject matter jurisdiction extends to “ ‘all crimes cognizable under the authority of the United States.’ We determine whether a district court had subject matter jurisdiction in a criminal case by looking at the indictment or information. “To confer subject matter jurisdiction upon a federal court, an indictment need only charge a defendant with an offense against the United States in language similar to that used by the relevant statute.”

United States v. Scruggs, 691 F.3d 660, 666-68 (5th Cir. 2012) (footnotes omitted). I do not understand how this is not fatal to Dickie Scruggs’s argument.  What it is saying is that, if the indictment or information alleges a crime, the federal court has jurisdiction, regardless of whether the stated underlying facts establish the crime.

To put it as simply as possible:  If the indictment says, “On a certain date, John shot Sue with malice aforethought,” a crime is alleged, and the court has jurisdiction.  The fact that the government in the end couldn’t prove John shot Sue does not undermine the court’s jurisdiction.  What the Fifth Circuit held in Zach’s case was that the allegations of the crime (failure to disclose a felony) are there, and so the fact question of whether the underlying crime could be proved (did Zach know it was a bribe or just corruption?) did not effect the court’s jurisdiction.

What Dickie Scruggs is arguing is that Skilling establishes that a quid pro quo is an essential element of the crime that must be alleged to confer jurisdiction.  George holds it is not, that it has to do with the facts that have to be proved.    As I noted in the last post, the information to which Scruggs entered a guilty plea clearly alleged the crime of honest services bribery, that Scruggs conspired with others to deprive the state of the honest services of Judge DeLaughter in a conspiracy to corruptly influence DeLaughter by paying Peters a large sum of money and by Scruggs calling Trent Lott to recommend DeLaughter for a position on the federal bench.  The statutory elements were alleged.

Reading these cases, it seems pretty clear that the panel was demanding answers about why the gloss on jurisdiction in George and Zach Scruggs’s case was not fatal to that argument.  Robertson’s argument is that the indictment or information must do more than allege the statutory elements, it must say “there was a quid pro quo” to confer jurisdiction.  George holds that Skilling is about the facts that must be shown, not the allegations made to require jurisdiction, and Zach Scruggs’s case holds that inadequate factual allegations don’t make a jurisdictional challenge.

To return to the other major arguments:  it seems clear that the panel was not sympathetic to the argument Scruggs could not have raised the Skilling issue pre-Skilling, and it’s hard to see Scruggs defeating Judge Davidson’s fact finding that there was evidence of a quid pro quo.

9 comments to “it would be tooth-fairy odd … in the absence of a quid pro quo.” Notes on Dickie Scruggs’s Fifth Circuit Appeal, Part 3

  • And Scruggs is paying these lawyers *how* much?

    In these days of case-law databases, there’s no excuse for a lawyer who undoubtedly has a flat-fee Westlaw/Lexis contract not to walk into oral argument familiar with every court of appeals case on the relevant topics. (District-court, even, but I would spot him a district-court op.)

    Am I too harsh? Decisions applying Skilling are few enough, surely, that the researcher would not be swamped under a tide of 10,000+ hits.

  • NMC

    In Westlaw, the search Skilling and (quid /2 pro /2 quo) turns up 24 circuit court cases. The 17th is George. The search Skilling /p jurisdiction turns up 17 cases, at least a spurious (not criminal cases involving folks named Skilling) but the first is Zach’s case and the 7th is George. Skilling has been cited in 162 reported cases in the federal court system. I’m not sure exactly what Westlaw’s “Depth of Treatment” indicator means, but 51 of those cases score highly for that.

  • Chuck Mullins

    That’s totally uncool for an appellate judge to ask about a case that neither side has addressed in briefing. I’ve had it happen to me before the 5th Circuit and it’s not fun to be on the receiving end. Some of these judges forget what it’s like to be a trial lawyer (assuming they ever were one).

  • “That’s totally uncool for an appellate judge to ask about a case that neither side has addressed in briefing.”

    Oh my stars. The court has the duty to decide the case according to the law, not according to the briefs.

    “Some of these judges forget what it’s like to be a trial lawyer”

    More proof, if it were needed, that trial lawyers do not always make good appellate lawyers (the reverse is also true). Knowing ALL the relevant law is what’s expected of an appellate lawyer.

    … Maybe it was a deliberate tactic? If you find a bad case for you and you absolutely can’t distinguish it, just pretend you don’t know about it if the panel asks? Not terribly effective, but a move worthy of the appellant in question.

  • P.B. Pike

    Seems to me the more incumbent research is to make sure the appellate court that cited the case you like — here, Rosa-Ortiz — has not distinguished it in a relevant way or otherwise given it negative treatment. Sounds like a decent shepardizing of Rosa-Ortiz would’ve turned up George and its problems.

  • P.B. – yeah, all the moreso. In Lexis, if you pull up Rosa-Ortiz and click the yellow triangle, you find “Criticized by United States v. George.”

    This is a great example for folks teaching 1Ls the Legal Writing & Research course.

  • P.B. Pike

    NMC, Correct me if I’m wrong, but isn’t this the appeal on which Judge Davidson released Scruggs on bond, and won’t Scruggs have to return to prison if he loses?

  • NMC

    Yes and yes, with two years to serve, roughly.

  • Tim Holleman

    Everyone has been there when an Appellate Judge has brought up some case not cited by anyone, but this instance is inexcusable. All cases cited and particularly the primary cases relied upon should be Shepardized before argument for any followup cases supportive or against. Obviously the Judge did it!!!! So the Judge was more prepared than the high priced lawyer. Ouch!!!!

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