Mixed Fifth Circuit decision in Minor-Teel-Whitfield appeal

by Walter Olson on December 12, 2009

The Fifth Circuit has overturned (PDF) that portion of the convictions of Mississippi trial lawyer Paul Minor and two judges based on what is known as federal program bribery, while upholding the trio’s convictions for mail fraud and racketeering based on violations of state bribery law. The latter set of convictions, however, could be undermined should the U.S. Supreme Court strike down as unconstitutional the concept of “honest services” fraud. [ABA Journal, Freeland and more and yet more, Y'AllPolitics; our earlier, extensive Minor coverage]

Harper’s commentator Scott Horton and New York Times editorial commentator Adam Cohen have long defended Minor as the target of a supposed political prosecution premised on “vague allegations”, contending (to quote Cohen) that his crime “does not look much like a crime at all” and is based on things that “everyone” does in the Mississippi legal system. But the Fifth Circuit sharply rebukes this view of the case, laying out in some detail (quoting the ABA Journal) the nature of the corruption involved:

Structured as a short-term “balloon” loan that had to be renewed every six months, after the accumulated interest was paid, “the arrangement allowed Minor to keep Whitfield on a string while Minor held the bank at bay,” states the 68-page opinion, explaining the government’s theory of the case concerning this one judge. Minor directly or indirectly made the vast majority of the payments on the $140,000 in loans to Whitfield, the opinion notes, and little or none of the money apparently was spent on Whitfield’s judicial campaign.

Minor also repaid the $25,000 loan he arranged for Teel, which was deposited into the judge’s campaign account. However, neither judge reported the loans as required on campaign disclosure forms, the opinion states.

Each judge subsequently made rulings in a case that allegedly may have been influenced by their financial relationship with Minor. However, the legally required connection between federal funds the judges received [emphasis added] and their rulings was not established, the 5th Circuit found.

There are indeed plenty of legitimate questions — which hardly raised their heads for the first time in this case — about the armory of powers that federal prosecutors have developed over many years in their efforts to go after state-level corruption. But that this was an episode of grotesque corruption, and that Minor’s misconduct went far beyond anything remotely defensible as politics as usual, should by this point be apparent even to Harper’s and the Times.

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PointOfLaw Forum
12.12.09 at 9:58 pm

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1 Max Kennerly 12.12.09 at 11:12 pm

The real lesson here is — excuse the pun — that prosecutors shouldn’t make a federal case out of everything. The 18 U.S.C. § 666 prosecution was a stretch, since the bribery had diddley-squat to do with an agency receiving federal funds. Little wonder the Fifth Circuit booted it.

There’s no doubt Minor committed bribery under Mississippi law, since he gave things of value to an official “with intent to influence his vote, opinion, action or judgment on any question, matter, cause or proceeding which may be then pending, or may be thereafter subject to vote, opinion, action or judgment” of the official. Miss. Code Ann. § 97-11-11 (1972). The problem comes when you add on additional federal issues, such as that pesky “specific intent to give or
receive something of value in exchange for an official act” language in Sun-Diamond.

Frankly, I’d be surprise if the SCOTUS really trashed “honest services” convictions. In the past few years, the Court has several times reaffirmed the broad language of RICO, laying the blame for any excessive coverage at the feet of Congress. I’m betting they’ll do the same in the upcoming cases.

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