Alan over at Y’all recently reported Judge Wingate’s largely unreported denial of Paul Minor co-defendant John Whitfield’s motion for release pending Appeal, adding this link to the Order. Wingate hung his hat – or flipped his lid – guided by Rule 9(c) of the Federal Rules of Appellate Procedure:
The applicable provision in the instant case, Title 18 U.S.C. § 3143(b )(1), says that the defendant in this case shall be detained unless this court is able to find that the appeal raises a substantial question of law or fact…this court is not persuaded that the defendant has submitted any substantial question of law which would result in reversal or a new trial on all counts for which the defendant has been sentenced to prison. Therefore, the motion of the defendant to be released pending appeal is denied.
Earlier this week Whitfield filed an Appeal at the 5th Circuit and SLABBED was among the media outlets receiving a copy of the Appeal brief from his new counsel.
A review of the Appeal provides the opportunity to explore the basis for his appeal in the context of related information about applicable law, cases currently in litigation with similar issues, and the circumstances surrounding Mr. Whitfield’s relationship with Paul Minor and subsequent conviction.
In its review of Mr. Whitfield’s Motion for Release, the District Court applied the wrong standard in two instances, resulting in a flawed ruling that is clearly erroneous.
- Mr. Whitfield raised substantial questions of law or fact.
The standard does not require Mr. Whitfield to concretely establish that the lower court was in error, for that is the purpose of his primary appeal. Nor is he required to show that the appeals court will agree with him in every instance.
Instead, the arguments raised by the defendant must be such that such issues could be decided in the defendant’s favor.
The District Court used a different standard. It based its ruling on the fact that Mr. Whitfield was convicted – not that a substantial question was raised, but that those questions had already been resolved by the conviction. Such a standard would eliminate the possibility of any defendant ever being released on bond pending an appeal, as it is nothing more than a recognition that a criminal conviction has occurred.
- The District Court applied the wrong standard regarding the sentence result criteria in the statute.
In addition to raising a substantial question of law or fact, Mr. Whitfield has also demonstrated that these arguments are likely to reduce or eliminate his sentence or result in a new trial…
[O]nce the defendant has proffered a substantial question to the appeals court, it must be “likely” to result in one of four positive outcomes. “Likely” simply means “plausibly,” or as one case puts it “more probable than not.” Valera-Elizondo, 761 F.2d at 1025.
The District Court rewrote the statute to make the bar higher than Congress intended. In a conclusory one-sentence analysis, it held that “this court is not persuaded that the defendant has submitted any substantial question of law which would result in reversal or a new trial on all counts for which the defendant has been sentenced to prison.” Exhibit “A” at 5 (emphasis added).
In the District Court’s flawed analysis, a defendant must prove that the appeal will result in a full reversal or a new trial, the creation of a new disjunctive phrase not present in the statute. This analysis only addresses the difficult-to obtain subparts (i) and (ii) of the statute-indeed, it even alters and makes more difficult part (ii), which under the statute only requires “an order for a new trial.”
In the District Court’s formulation, one must prove that one will receive “a new trial on all counts for which the defendant has been sentenced to prison.”
This is not the law…The District Court created its own higher bar, which Congress did not intend, and which only the rarest of criminal appeals could meet.
Judge Wingate’s Order clearly does state the court was not persuaded that the defendant has submitted any substantial question of law… and continues with, “The defendant raises a dozen issues:
(1) failure to instruct quid pro quo;
(2) failure to reverse numerous critical evidentiary rulings;
(3) failure to dismiss charges under Title 18 U.S.C. § 666;(link added)
(4) failure to instruct the jury that criminal intent had to be proved by the Government;
(5) limiting cross examination of the witness Salloum;
(6) allowing Government witnesses to testify as experts;
(7) failure to dismiss the various indictments for prosecutorial misconduct;
(8) allowing jury to take an unredacted copy of an indictment into deliberations;
(9) failure to dismiss for selective political prosecution;
(10) error in admitting a summary chart into evidence;
(11) denial of several speedy trial motions; and
(12) imposition of an unreasonable sentence.
It certainly is difficult to believe Wingate found nothing “substantial” on this list – and even more difficult to believe he did not recognize the District Court itself ruled on the relevant issues in an analogous civil case. See USF&G Co. v. The Peoples Bank, et aI., Civ. No.
1:08cv0242HTW-LRA (S.D. Miss. 2008).
…[T]he District Court has already ruled that there are substantial questions of fact and law. After the convictions of Mr. Minor and Mr. Teel, the defendant in the civil case underlying the Government’s prosecution filed a civil case against both Mr. Minor and Mr. Teel. See USF&G Co. v. The Peoples Bank, et aI., Civ. No. 1:08cv0242HTW-LRA (S.D. Miss. 2008). The same District Court which presided over the criminal trial in this case presides in that civil case as well, and Mr. Minor filed a motion to stay the case pending the disposition of this Court’s decision in the criminal matter.
Simply put, Mr. Minor argued, if the Fifth Circuit finds him not guilty of a criminal offense, the civil action would necessarily fail. Mr. Minor argued a stay was proper pending the decision of this Court. The District Court agreed, and on January 16,2009, stayed all litigation “until the Fifth Circuit Court of Appeals rules on the criminal conviction of defendants Paul Minor, Walter S. Teel, and John Whitfield.”
In other words, the District Court has already implicitly recognized in related civil litigation that there are “substantial questions of law or fact” pending on appeal which might materially affect any related proceedings. This Order staying the USF&G case was also not referenced in the Order denying Mr. Whitfield’s motion for release, even though the logic and arguments resulting in the stay in the civil case are intimately related to the Defendant’s release on bond pending appeal. (emphasis added)
Whitfield’s effort to secure release while his case is on Appeal has a human side as well.
Mr. Whitfield has been fighting for release pending his appeal since October of 2007. He has filed three motions seeking release on the same terms and conditions ofhis pretrial bond during this time period. His most recent motion sat languishing in the District Court for seven (7) months before he received a ruling and only after numerous requests by counsel for such a ruling…
While I remembered his effort to remain free pending the outcome, I could not recall the details and obtained additional information from a search of articles online.
After the Sept. 7 sentencing, Whitfield said he would not try to remain free on bond.
Now, the former judge is asking to remain free on bond while he appeals his nine-year federal prison sentence.
The convicted former jurist is now requesting bond because his 15-year-old son asked him to, said Michael Crosby, Whitfield’s attorney and law partner.
Despite being “extremely hopeful” the conviction will be overturned on appeal, Crosby said there’s no guarantee that it will be. And, he said, it’s difficult for the youngster to understand that the family would have more time together later in life if Whitfield begins the sentence now.
“How do you say no to your kid,” Crosby said. “They lost their mother and now they’re losing their father for a long time.”
Whitfield’s former wife and the mother of his three children died last year of cancer.
In searching for the story, I found information that gave perspective on his relationship with Paul Minor.
In 1994, Whitfield was elected a circuit court judge, becoming the first African-American to hold the post. He served from January 1995 until December 2000 when he stepped down from the bench to open a Gulfport office for Phelps Dunbar, a prestigious, 150-year-old law firm based in New Orleans.
Minor was convicted of guaranteeing $140,000 in loans to Whitfield in 1998, then using cash, a third party and a backdated promissory note to try to conceal the fact that Minor paid off the loan.
One news story suggested Minor helped Whitfield obtain the job with Phelps Dunbar so he would be in a position to repay the loan.
Taken together, the various bits and pieces of information lend credibility to the claim made at both trials:
Minor and the judges contended at both trials that the multimillionaire attorney was simply trying to help friends when he secured $140,000 in loans for Whitfield and $25,000 for Teel in 1998, made cash payments on the loans and eventually repaid them through intermediaries because the judges were financially strapped.
In December 2001, a Legislatively established Study Commission on the Mississippi Judicial System recommended a $10,000 salary increase for district attorneys, chancery and circuit court judges, and Supreme Court Justices, and a $14,000 salary increase for Court of Appeals Judges.
Mississippi’s historically low salaries for public officials meant few qualified for traditional lending and gave rise to the practice of wealthy individuals serving as private banks. No longer acceptable, but not unlawful, the resulting problems were like many others – a homegrown result of the State’s generational poverty.
When the Commission released its report, judges in Mississippi were paid $17,485 less than the average salary for a judge in the other southeastern states.
The prosecution followed federal requirements in Minor’s 2005 trial to show quid pro quo in jury instructions. Specifically, the quit pro quo requirement demands proof that “monies were provided” and “unlawful favors received.”
….U.S. District Judge Henry Wingate made the fight easy…the second time around, allowing that “there need not be a mutual intent on the part of both the giver and the offeree or acceptance of the bribe,” according to Minor’s 2008 appeal.
Wingate also allowed the jury to find Minor guilty “even though you find that the (defendant judges’) rulings were legal and correct, that the official conduct would have been done anyway, that the official conduct sought to be influenced was lawful and required by law, and that the official conduct was desirable and beneficial to the public welfare.”
…Wingate sentenced Minor to 11 years and ordered him to pay an exorbitant fee of more than $4 million in fines—15 times the recommended amount in federal sentencing guidelines. Whitfield got nine years in prison. Teel got five.
There is much for the 5th to consider.