I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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The Fifth Circuit overturns all federal program bribery convictions in the Minor case

Update:  I’ve changed the hearing from “overturns all bribery convictions” to “overturns all federal program bribery convictions.”  The difference should become clear as you read the post.  The opinion overturns the bribery conviction under 18 USC §666 but leaves standing the mail fraud conviction– a component of which is a violation of a state law against bribery.

At 74 pages it’s a lot to absorb, but particularly given that what’s left is the mail fraud charges (see below what that matters), the Fifth Circuit’s opinion in the Minor case is a big thing both in terms of Minor’s case and the law relating to federal program bribery.

Federal program bribery (18 USC §666) requires proof that someone with authority over funds that come out of a pool containing federal funds made a decision about those fund while bribed by another person.  The courts have been very lax in what they’ve required the government to show about the connection between the federal funds and the pool– if federal money goes into the pool, that’s enough.

But the question here is what was required to show the judges had authority over money from the pool, and what was required to show the judge’s corrupt decision was in connection with their having authority over the pool.

In simplest terms, the Fifth Circuit ruled that, because a judge making a judicial decision isn’t making a decision that has anything to do with the pool of money, a judicial decision can’t be the basis of a federal program bribery charge.  And so the conviction of Minor, Teel, and Whitfield on that issue is reversed.  It’s over.

They reach 666 bribery on plain error grounds.  When a party doesn’t argue something on appeal, they have given up that argument unless the mistake is so bad it is “plain error.”  The court had to find plain error because the defendants had raised the issue of acting-as-agent issue at trial but not on appeal; on appeal they only argued the judges weren’t agents of the AO.  The Fifth Circuit found plain error because leaving the convictions stand would be an injustice because the crime was not proved.

I’m still reading the opinion, but it appears this also overturns the RICO conviction, because the jury found bribery and not mail fraud the predicate act, and that it will net out halving the sentences.

Of course, the Supreme Court heard argument this week on the honest services mail fraud cases, and seemed very hostile to the government’s case; that’s all that’s left of the Minor convictions.

There is much grist for the mill in this.  I’m posting from New Orleans, and will say more later.


I misread what the court says about RICO (which is not much).  In describing the charge, it says:  “Count Three charged Minor with racketeering in violation of RICO, 18 U.S.C. § 1962, the predicate acts being bribery and wire fraud.”  In describing the conviction it says:

In regard to the predicate acts underlying the Count Three RICO charges against Minor, the jury found that the Government had proved bribery as to the $100,000 loan to Whitfield and wire fraud as to the wire transfer made by Radlauer, but that the Government had failed to prove bribery as to the $40,000 and $24,500 campaign loans that Minor made to Whitfield and Teel respectively. Finally, the jury concluded that, for the purposes of the counts

The RICO count stands.

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