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Zach Scruggs oral argument in the Fifth Circuit: A difficult day for the Government

Interesting Fifth Circuit argument.  Edward Robertson, arguing for Zach Scruggs, did an excellent job.  Things did not go quite so well for John Alexander, arguing for the Government.

The upshot is this:  Skilling does matter, at least from the panel’s questions.  The panel focused on the information to which Zach Scruggs plead guilty.

For laymen:  An “information” is a charging document not brought by the grand jury; when there is a guilty plea, the Government uses an information to precisely charge what the crime on which there is to be a plea, and the defendant waives being (re)charged by a grand jury.  In  the argument, the panel frequently uses “indictment” and “information” interchangably.   At the time of the guilty plea, the Government has to state a “factual basis,” that is, the facts they would prove to establish guilt.

The information charged misprision of a felony– concealment of a felony.  Scruggs is arguing that you can’t tell what the felony is from the information alone, you have to look through to the factual basis to find out, and then you discover that the felony is “honest services” fraud, which was no longer a crime after Skilling.  

The Government response is that Scruggs would have had to raise this issue either by direct appeal– appealing the guilty plea, arguing “I plead guilty to something that is not a crime.”   Alternatively, he would have had to within a year file a collateral attack on the guilty plea.  He did neither, and so he is “procedurally barred”– his claim is barred because he did not follow the procedure for raising it by doing so in a timely manner.

Scruggs’s response is that the defect is jurisdictional– that, if you look at the information and the factual basis together, it fails to charge a federal crime and therefore fails to give a federal court jurisdiction– and jurisdictional defects are not procedurally barred.  The Government’s response to that is you can look at the information by itself and see that it fully charges a federal crime, misprision of a felony, and thus the information confers jurisdiction without reference to the factual basis.

During the argument, the Government conceded that the factual basis, because it does not mention bribery, fails to describe facts that constitute a federal crime.  Scruggs’s lawyer conceded that Scruggs’s claim was procedurally barred but for the jurisdiction issue.  While the panel far more closely questioned the Government, during Scruggs’s rebuttal, the questions made clear they were looking closely at both sides.  There’s a Supreme Court case, Bousley, that gave Scruggs the most trouble, and an 11th Circuit case, Peter, that was close to a train wreck for the Government.

Those two cases really do provide a dividing line that will decide this case.  In each, the defendant had entered a plea to what, subsequently, the Supreme Court held was not a crime.  Bousley had plead to a crime involving “use” of a firearm in connection with another crime and the Supreme Court later held that mere possession does not constitute use.  The information to which he plead just alleged use, and you had to go beyond the information to the factual basis to see that the government was merely charging possession.  The United States Supreme Court held that, because Bousley had not raised the issue on direct appeal, he could only raise it if he showed actual innocence.  Peters had plead to a RICO violation involving fraud in obtaining state licenses, and the Supreme Court had held that state licenses were not a “property” interest and therefore did not provide the predicate crime for the RICO charge.  The 11th Circuit held that, because the Government’s information charged that the property interest was state licenses, the information was explicitly charging something that was not a crime and was thus jurisdictionally defective.  In other words, because you could actually see the defect in the information in Peters, Bousley did not apply.

Apparently, the line between Bousley and Peters is this:  If the information “papers over” the flaw in the government proof by alleging the crime in conclusions without the detail, Bousley says the Government wins absent a defense showing of actual innocence.  If the defect is clear in the information, Peters says the Government loses.  Scruggs argued for a middle position, that you couldn’t tell what the crime was from the information and you had to go to the context– the factual basis and the plea colloquy– where you learn about the defect.  The Government said, no, because our information alleged enough, Bousley says you get to stop there.

Oddly enough, no one actually resorted to quoting the information to show what it did or did not do.  The information is short and simply alleges that Zach Scruggs concealed a felony, without suggesting what that felony might have been.  Here it is.  Seems like the pleadings in Bousley rather than Peters to me.  On the other hand, the factual basis makes clear that the concealed crime was honest services fraud, which Skilling holds is not a crime.  Here it is.

If Bousley says you stop at the information (that is, that defects from outside the information don’t defeat jurisdiction), and I think it implicitly does, the Government wins.  Scruggs’s argument is that you can’t tell what the crime is here without resort to the factual basis.  My take-away is this:  if the information itself is adequate to charge a crime (which it is), then flaws only visible by going beyond the indictment don’t create jurisdictional problems.

However, because of the quality of Scruggs’s argument, the persistent questions from the court, and the lack of clarity on the Government side, this was Zach Scruggs’s best day in court.  It seems to me a close one.

There were no questions whatsoever about ineffective assistance or the issue about the Government misrepresentation.  Alexander mentioned those issues at the end of his argument, almost in passing, and Robertson very briefly mentioned the later at the end of his rebuttal.

Here’s the recording of the oral argument.

My notes on the argument are below the fold.

Continue reading Zach Scruggs oral argument in the Fifth Circuit: A difficult day for the Government

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