In the immediate prior post, I described what I saw in the Minor case oral argument. This post supplements that with some notes about what Minor’s brief said about the jury instructions at issue. This case is about these jury instruction issues and not the political issues that have been the focus of press reports.
Recall that Minor was tried twice, the first trial resulting in a hung jury. Minor in his brief makes much of the fact that in the hung jury trial in 2005, “the court instructed the jury that bribery required a quid pro quo— a finding that Mr. Minor provided loan guarantees to the judge with a ‘corrupt intent’ and that the judges simultaneously received the loans with the ‘specific intent to take a bribe.’ At the 2007 trial, however, the court specifically refused to require any quid pro quo or mutual intent between Mr. Minor and the judges.” Additionally, in 2005 the jury was told it could acquit “if it found that Mr. Minor provided the loan guarantees ‘out of friendship’ or ‘for a motive wholly unrelated to influence over official action’.” That’s in the Minor principal brief at 26.
In the second trial, Minor submitted an instruction that the Government had to prove the thing of value was given and received “in order to influence or induce a specific official act” and that there had to be an “explicit promise… Vague expectations of some future benefit are not sufficient to make a payment a bribe.” That’s in the brief at 42-43. Instead the court gave this instruction:
…the government must prove… that the particular defendant entered into a corrupt agreement for Paul S. Minor to provide the particular judge with things of value specifically with the intent to influence the action or judgment of the judge on any question, matter, cause or proceeding which may be then or thereafter pending subject to the judge’s action or agreement. To constitute the offense of offering a bribe, there need not be a mutual intent on the part of both the giver and the offeree or accepter of the bribe.“
Brief at 44. The last sentence is where the instruction goes off the rails, according to Minor’s argument. The brief also argues that this case is about a bribe, not a gratuity, and that is is the quid pro quo, the explicit exchange, that distinguishes the two.
For a related bribery statute, the Fifth Circuit has distinct pattern jury instructions for briber and bribee. For briber, the pattern instruction requires the jury to find this: “That the defendant did so corruptly with intent to influence an official act by the public official [persuade the public official to omit an act] [persuade the public official to do an act] in violation of his lawful duty.” For the bribee, the pattern instruction requires the jury to find this: “That the defendant did so corruptly in return for being influenced in his performance of an official act [persuaded to omit an act in violation of his official duty] [persuaded to do an act in violation of his official duty].”
It seems to me that this instruction, by delinking bargained for exchange, invites the jury to convict both briber and bribee if only one had the requisite corrupt intent. It seems to me that to convict both, both the briber must have “corruptly intended to inflence” and the bribee must “corruptly accept with the intent to be influence” and this instruction with that last sentence may let the Government off the hook on that part of the requirement.
I’m not making a prediction here about who I think will win, but am pretty convinced that this jury instruction issue is a good one.
If you want to read through all 144 pages of Minor’s brief, here is the very large PDF. When/if I can, I’ll note how this argument was answered by the Government.