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

Missing Posts: If you have a link to a post that's not here or are looking for posts from Summer of 2010, check this page.

BlogRoll

Fifth Circuit affirms Zach Scruggs’s appeal

The Government wins.

Higginbotham wrote the opinion.  It has a long statement of facts, including twice stating that Backstrom lied under oath about conversations with Balducci (and, in doing so, accepting Balducci’s account).  These statements are not couched in terms of the scope of review but more as factual observation– the court notes that […]

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

Zach Scruggs oral argument in the Fifth Circuit this morning

As I write this, Zach Scruggs’s oral argument is finishing up in the en banc courtroom at the Fifth Circuit Court of Appeals in New Orleans, before a panel of  Judges Jolly, Higgenbotham, and Dennis.

The Clarion Ledger states that the Daily Journal reported that  “some court-watchers say the Fifth Circuit of Appeals is interested […]

How is misprision of a felony like algae?

Folks interested in the arcana of the Scruggs cases and Zach Scruggs’s plea in specific might find this post on the Concurring Opinions blog interesting.  It’s about misprision of a felony, which the author correctly notes is a “pleading crime.”  He says its like the algae of the federal criminal code, “[b]ut, like algae, […]

Zach Scruggs Fifth Circuit brief is up on YallPolitics

Alan Lange has posted Zach Scruggs’s Brief of Appellant in the Fifth Circuit on YallPolitics.  I’ve skimmed a large part but not yet given it a careful read.  He devotes the vast majority of its length on Skilling and actual innocence (which certainly is a wise use of pages) but keeps a few pages […]

Judge Biggers grants Zach Scruggs a 3 issue appeal

Judge Biggers has granted Zach Scruggs a certificate of appealability on these issues:

a.  Whether Petitioner met the standard for proving his ‘actual innocence.’

b.  Whether Petitioner’s guilty plea was involuntary due to government misrepresentation.

c.  Whether Petitioner received ineffective assistance of counsel.

Recall that the standard is whether reasonable jurists might differ on how the […]

Zach Scruggs asked Judge Biggers to certify issues for appeal

Zach Scruggs has asked Judge Biggers for an appeal on what he identifies as 18 issues in his effort to set aside his guilty plea.  Under the law, Judge Biggers is to evaluate whether reasonable judges would differ on the issues, and grant an appeal on those where there might be a difference of […]

Judge Biggers’s memorandum opinion explains his ruling against Zach Scruggs

Judge Biggers’s memorandum opinion (like Gaul) is divided into three parts:  Skilling and actual innocence; ineffective assistance; and the claim of prosecutorial misconduct.

The actual innocence discussion represents the best factual summary of the events bribery scheme in Scruggs I that I’ve seen, with some additional information– that the phone calls Balducci said he’d made (and that Backstrom denied had occurred) are corroborated by phone records, that show Balducci did call the office at those times.   Obviously, there’s more to the known facts than Judge Biggers states, but he lays the ones he needs out pretty clearly.

For the ineffective assistance claim, he does a variation on the dog bite defense:  He rules Zach didn’t file it on time, there wasn’t a conflict (because any notion that Langston might be a hostile witness arose later), and there was no cause or prejudice from any asserted conflict.  Any one of those rulings causes his claim to fail.

The ruling on prosecutorial misconduct similarly rests on multiple foundations, with the central point that there was essentially no dispute that Zach Scruggs’s defense team had been informed of the actual fact– that Langston was not a witness against Zach Scruggs– before the plea.  He does make clear that he viewed what the prosecutor did as no more than negligence.

I’ll post some highlights in this and a couple of follow-ups.  Meanwhile, here’s the opinion.

Actual Innocence

The judge frames the actual innocence position of the parties.  Zach Scruggs argues he knew nothing of a bribe.  The Government responded by arguing that they could have used an alternative theory of wire fraud. The problem with that, Judge Biggers recognizes, is that the Government didn’t really spell out in its factual basis what crime Zach Scruggs was failing to disclose:

It is not evident from reviewing the factual basis and information supporting Petitioner’s plea that the Government intended to charge Petitioner for misprision of a conspiracy to commit wire fraud on a money/property theory. This issue would be simplified if the Government had set out in its factual basis or information what felony Petitioner had misprisioned, but the factual basis and information state only that Petitioner committed misprision of a felony without referencing the underlying felony.

Judge Biggers then declined to decide the Governments fraud claim:

The court, however, declines to reach the merits of  the Government’s money/property theory of the case, although it is arguably viable, finding that it is not necessary to determine this issue in order to resolve the case.

Why not? Because a jury could have concluded that Zach Scruggs knew about the bribery scheme.

Continue reading Judge Biggers’s memorandum opinion explains his ruling against Zach Scruggs

Zach Scruggs lost his motion to set aside guilty plea

Here’s the Order.  The memorandum opinion is 44 pages long, about which more in a bit.

Update: link to order fixed.

Judge Biggers denies Zach Scruggs motion to reconsider

When Judge Biggers partially denied Zach Scruggs’s motion for summary judgment on his habeas claim, Zach Scruggs moved for reconsideration just before the hearing.  Judge Biggers has now shot down that effort, ruling, first, that the argument he must grant summary judgment because of the Government’s inadequate response is wrong, and, second, that the […]