As I’ve repeatedly said, I think the defendants in U.S. v. Minor won a large victory before the Fifth Circuit. And, to reach the dispositive issue, the Fifth Circuit had to rule that it would be an injustice to not decide the issue under its plain error rules.
But for almost all laymen and even some lawyers, those statements might obscure something important. What the Fifth Circuit opinion is about is the requirement the prosecution prove each element of a crime. And the element here– nexus to the use of federal funds– is jurisdictional– that is, it’s the part of the elements of the crime that allows the federal courts to have the power to act. Also, from the standpoint of a lawyer who appears before the Fifth Circuit and reads a lot of Fifth Circuit opinions, this is a rare victory: It is not often that the Fifth Circuit reverses a trial court by ruling that the prosecution failed to prove an essential element, and it is also rare for them to reach as plain error issues not raised in defendant’s brief. So most lawyers would read that as a big victory, I think.
But what that should not obscure is made clear by the statement of facts in the Fifth Circuit opinion: You have here a lawyer attempting to avoid campaign finance and disclosure law (or bribery law) by disguising gifts to the judge as “loans” the lawyer “guaranteed” and then “paid.” If these loans were what the seemed on paper, and the judge was so close to the lawyer that the lawyer would have done him these favors, what the judge must do is recuse himself from any of the lawyer’s cases or, failing that, fully disclose the odd arrangment to any party in any case involving the lawyer. What was done instead was Minor and judges Teel and Whitfield rigged the process so that a judge and not a jury was going to decide the case, then forced through a decision that was to Minor’s huge benefit, all without hinting that something dishonest might be afoot. (This is a place to point out that the obvious reason Oliver Diaz was acquitted was that he did recuse himself from Minor’s cases).
The disgust expressed in the Fifth Circuit opinion about what Minor, Teel, and Whitfield did is palpable, and I share it. And (striking a theme that has been constantly raised on this blog and its predecessor, Folo), I share the feelings of those who raise in comments the question of why state officials aren’t dealing with these matters, possibly not federal crimes, but that certainly ought to be against state law and the rules governing the behavior of bench and bar.
There was never any quid pro quo that could be articulated.
Bellesouth, the Fifth Circuit rule that the jury instructions were adequate to ask the jury to find the element of exchange required for bribery (that is, were adequate to require the jury to find a quid pro quo). The exchange was that Minor gave the loan guaranties and paid the loans in the expectation of future favors from Teel and Whitfield, and, with the unusual handling of the two cases, Teel and Whitfield proved their side of the exchange, which Minor confirmed by paying off the loans.
The best part of the argument Minor made on this was the change in jury instructions from trial one (where the jury hung) to trial two (where he lost). Unfortunately for him, the Fifth Circuit’s decision on this issue is that the jury instructions were adequate to charge the jury on this element.
What Minor does not argue is that there was no proof sufficient to go to a jury on quid pro quo. I’m not sure that would pass the laugh test.
The post you link on slabbed is a good example of the rubric that you cannot necessarily predict how a case will come out from questions asked at oral argument.
Great post, NMC
This is the reason that I read your blog, i.e. an honest assesment of both the law and, dare I say it, the moral thing to do.
We all know that Minor, Whitfield, and Teel, acted immorally. And, violated the laws of the state of Mississippi. Unfortunately, for the people in Mississippi, our AG, Jim Hood, considered Minor to be “family”, therefore he refused to prosecute him for the state crimes which were obvious to everyone, even Bellesouth. So, the feds had to step in (Thank God they did). The feds, even though we might not want to acknowlege it, do more to battle corruption in Mississippi than the people that we elect, whose job is to battle corruption.
BelleSouth?
Belle, please get real.
I do not share the all-too-evident antipathy of some commenters towards you, but let’s apply the golden rule here: would YOU have wanted to be in Teel’s or Whitfield’s court, with Minor representing opposing counsel? Would you have felt confident of getting a fair shake? And if so, for god’s sake, why would you have felt that?
Minor thought he was buying *something*. And to judge by the facts of the case, he got it.
Anderson, Bellesouth persistently fails F. Scott Fitzgerald’s test of a first rate intelligence.
No, it is a good example of a discussion of some obviously important and complex issues before the court so we can get a better understanding of them.
Bellesouth at 7:24. Minor et al. lost on all the issues raised in the oral argument quoted in the post you linked. As I said, “a good example of the rubric that you cannot necessarily predict how a case will come out from questions asked at oral argument.” See my comment, above, at 6:39.
Well you’re the one that said if the federal program bribery is gone, it’s over. That’s gone. I read your post, NMC. Why are you being hostile? Talk about F. Scott Fitzgerald’s test of a first rate intelligence. You’d think you would know the difference. Or do you just want to do the lazy man thinking?
I like your quote, NMC, hadn’t seen that before. A touch of Keats’s “negative capability,” though I suspect FSF of quoting one of his professors.
For some reason it reminds me of Schumpeter:
To realize the relative validity of one’s convictions and yet stand for them unflinchingly is what distinguishes a civilized man from a barbarian.
I’m trying to think what that makes Jim Hood.
Hi there. Was pondering your thought on your previous thread regarding Minor possibly not having sufficiently perfected the honest services issue. It is an interesting thought, and one that Horton blows right by in his typical excitement. However, as the 5th remanded for new sentencing on that count (counts?), shouldn’t Minor be able to move on that once back in front of the trial court and then be able to appeal from that? It appears to me there is a mechanism available to him, although it was a little sloppy not to have argued that better in the original appeal; those arguments were already being made by some members of the Federal defense bar at the time – it was no secret.
bmaz- IMO does not matter- if the Suupremes hold the statute unconstiutional then it is unconstitutional- at a minimum the ruling would apply to all pending cases-
remember the early 70s when the supremes held the death penalty u/c- everyone got off death row- even those whose convictions had been affirmed and who had failed to raise the constitutionality of the death penalty
and, at a minimum,the Supremes ruling will apply to all pending cases
Stephanie, you’re missing the effect of waiver rules.
This maybe a law flappy enough to over turn, yet powerful enough to graybar a person for years. ????? LAW, meaning: See its like this then its like that. Reading this and not being an attorney I guess we’ll all know with the outcome. One simple understanding with timing of all this. [ even talk that the reps, selective prosecution would be defeated ] In all the depth and sway of the court. Has anyone, say from areas of total Magical Jurisidiction having a friend or family person or more on the 5th bench. Maybe a certain group of attorneys made personal gains over all this. The puppet masters or wizzards expanding a G.O.B. network base could have done it, simply. because, because, because etc. ha! The fifth circuit and sub courts, just who are they serving? politics?
NMC- If there is a new SUBSTANTIVE rule ( as opposed to a procedural rule) then it applies retroactivley, whether or not the prisoner raised that issue at his trial or on his appeal. The prisoner is entitled to habeas relief- Minor is not going to spend 11 years in jail for violating a law the Supremes say is unconstituional- that is a substantive rule.
Waiver has nothing to do with it- that what a 2255 is for- to correct a sentence if there has been a substantive change in the law, i.e, the statute of conviction is unconstitutional
i have copied a paragraph frm a 5th cir case on this if it helps:
It is useful, in this regard, to contrast Castillo with Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). There, the Court interpreted the meaning of “use” in § 924(c)(1) to mean “active employment of the firearm by the defendant.” Id. at 143, 116 S.Ct. 501. The Court contrasted this definition with “mere possession of a firearm by a person who commits a drug offense.” Id. Unlike Castillo, Bailey therefore altered the substantive meaning of a key term in § 924(c)(1), as the federal courts quickly learned from the avalanche of § 2255 motions. Thus, Bailey necessarily applied retroactively on collateral review. Bousley, 523 U.S. at 620, 118 S.Ct. 1604.
. If the rule of Castillo is substantive, hence retroactive, Gonzales would be entitled to relief from sentence, because his sentence plainly violates the rule. Under Castillo, he was eligible for the thirty-year sentence only if his firearm was a machinegun, but this essential fact was not alleged in the indictment or contained in the jury instruction. See Castillo, 530 U.S. at 123, 120 S.Ct. 2090 (explaining that the fact must be alleged in the indictment and proved to the jury beyond a reasonable doubt).
I was not reaching that far down the line, my point was simply that even if there could be a waiver argument possibly applicable, that can be cured by raising the unconstitutionality at the time of resentencing as Minor has, at this point, effectively not been sentenced yet on that count.
Ms Bellesouth:
I am (we are?) still awaiting your response to Mr Anderson’s posed hypothetical. I think it would be educational.
NL
Anderson any relationship to Neo??
No relationship, alas. Oral argument would be a lot more entertaining if there were.
Fortunately, the Supreme Court appears on the verge of finally putting an end to this dangerous abuse of unchecked prosecutorial power.
Besides the link I posted earlier (h/t Nowdy in her post We are all captives of the picture in our head… – so, whose head pictured honest-services fraud? I have found Legal Schnauser‘s discussion of Paul Minor from today:
All that Schnauser is doing is re-weighing the evidence. Could the jury have found his way? Sure. Could it have found the way it did? Sure.
And, given the efforts of Minor to keep the loans secret, the weird choice of a bench trial in Marks’s case, and the spectacle of Teel, a debtor to People’s Bank, not recusing himself (or even putting the parties on notice) in a People’s case … the jury probably had an easier time finding the way it did.
(FWIW, I’ve read the briefs in Marks, and it certainly sounded at the least like he had a case to take to the jury. But it damn sure should not have been John Whitfield sitting as finder of fact.)
Went back & looked, and my favorite Whitfield moment did not involve Paul Minor. Felicia Burkes was counsel for Plaintiff in Harrison County Devel. Comm’n v. Daniels Real Estate, Inc. which contains the following pearl:
The 42 U.S.C. § 1982 decision: In addition to entering judgment on its findings of negligence, the circuit court also sua sponte found the Commission to be in violation of 42 U.S.C. § 1982. However, nowhere in any of the three complaints submitted by Daniels Real Estate or WJZD was such a claim raised. This Court does not find in the record before it any indication of an amendment to the pleadings that includes this claim, or of any indication that the Commission was on notice of such a claim. We have nothing before us to show that the Commission ever had the opportunity to offer evidence on its behalf.
¶ 22. The trial court committed reversible error in finding that the evidence supported a judgment that the Commission violated § 1982. That section states: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” A careful review of the record reveals no evidence before the trial court from which it could conclude that the Commission’s conduct was in any way motivated by an intent to racially discriminate against the plaintiffs. The mere facts of the racial composition of Daniels Real Estate or WJZD, and the Commission’s determination that Daniels was in breach of the deed’s construction obligations, simply are not sufficient proof of a § 1982 claim, and we reverse and render judgment in favor of the Commission on that issue.
Nothing quite like a sua sponte § 1982 judgment vs. your client to give your day that added special something.
I nominate James Traficant for the Posterboy to Victims of Federal Honest Services Prosecution.
The reference to “fingerprints” in the video is the prosecution’s hearsay claim that Traficant accepted $2500 monthly bribes from Allen Sinclair, an aide to Traficant. The bribes were allegedly slid under Traficant’s office door.
Found this stuck away in my Photobucket archives
http://i248.photobucket.com/albums/gg174/tr_gentry/lamptonweb1.jpg
T.G. looks like an am-way deal. Did someone draw this after the fact or did you discover a thoughtout plan to use Gov. power to get even? I’ve got doc’s stored at that site, now if only I could remember the pass word.
I watched Senator McCain’s hearings on the Abramoff scandal via C-SPAN back in the Summer of “05.” Only one of the witnesses was given an oath before testifying, and that was because the reluctant witness had to be subpoenaed.
Chief Martin did not appear as a witness before the committee, but he could be seen sitting in the gallery as the C-SPAN cameras panned the audience.
I always felt that McCain was protecting Abramoff.
Now what was the name of Senator McCain’s bus when he was on the campaign trail?
It was the Straight Talk Express, Sen.McCain did all he could to bring the Republican Party together after the extreme swing to the right brought about by Pres.Bush two and the Christian Right.
The Band of Choctaws fed money to Ralph Reed and the Christian Coalition in Alabama in hopes of keeping gambling from being legalized in AL.
Abramoff was the lobbyist.
Corporate run prisons need to be investigated, they are springing up over the South.
mississippi gal not a lawyer tho
December 18th, 2009
Corporate run prisons need to be investigated, they are springing up over the South.
I’ve heard a lot of horror stories from staff who work at the private Wackenhut Mental Facility West of Meridian near Lost Gap. Wackenhut is now owned by a UK corporation, I was told.
http://www.privateci.org/mississippi.htm#East Mississippi Correctional Facility
You know “Hot Shot” John’s in trouble when he’s seen with Joe LIEberman whispering in his ear.