We are all captives of the picture in our head… – so, whose head pictured honest-services fraud?

Prosecutors have used the following subterfuge with alarming success: Threaten a terrified white-collar defendant with a long jail term in a maximum-security prison with violent offenders, unless he or she pleads guilty to honest-services fraud. In return, the defendant will receive a much-reduced sentence in a relatively cushy federal prison camp.

In this way, prosecutors are guaranteed a conviction. They also don’t have to run the risk of a trial by jury. Even judges have become irrelevant, because they essentially rubberstamp the prison sentence the prosecutors recommend. Cagily, prosecutors, in effect, have usurped the entire legal process for themselves.

Although the columnist (h/t Huffington Post) used far fewer words, his take on honest-services fraud is a summary of the Motion to Dismiss the Indictment for Outrageous Government Conduct filed in USA v Scruggs – which, in turn, brought to mind the Lippman quote:

We are all captives of the picture in our head – our belief that the world we have experienced is the world that really exists.

Unflattering pictures of Dick Scruggs and Paul Minor held some very powerful heads captive.  All it took was for each to commit Continue reading “We are all captives of the picture in our head… – so, whose head pictured honest-services fraud?”

The Kings of Tort: Did Chapter Four (Paul Minor) provide honest service to the book’s readers? (part 2 of 2)

As the title indicates, the issue explored in this two-part post is how the recently published Kings of Tort treated the circumstances surrounding the indictment and conviction of Paul Minor and the co-defendants of USA v Minor.  On 10 December when the post was written, there was no Fifth Circuit opinion to distract and confuse readers as there is now that part one of the post has published.

Although the Fifth’s opinion has already answered the title question for some, the set of documents linked in part one – a Letter to Attorney General Holder and Minor’s Appellate Brief – provided a start point for developing a detailed and more easily documented response.   The differing jury instructions and the evidentiary issues documented in the Letter and Brief had a significant impact on the outcome of Minor’s second trial; but, there were other equally significant distinctions between the two trials:

…on August 12, 2005, after deliberating for one week, the jury announced a partial verdict, acquitting Mr. Minor on six counts (four mail fraud counts, one bribery count, and one extortion count), partly acquitting Judge Whitfield, and fully acquitting Justice Diaz. (D431 at 1453-58.) The district court declared a mistrial as to all other counts, including eight against Mr. Minor. (Id.)

Despite this failure to obtain a single conviction, the government decided to retry the remaining pieces of the case. On December 6, 2005, it filed a Third Superseding Indictment against Mr. Minor and Judges Whitfield and Teel, recharging those counts subject to the mistrial-racketeering, fraud, and federal program bribery-and adding three new charges: one against Mr. Minor and Judge Whitfield for conspiracy to commit mail, wire, and honest services fraud and federal program bribery under 18 U.S.C. § 666; a nearly identical conspiracy charge against Mr. Minor and Judge Teel; and a charge against Mr. Minor and Judge Whitfield for mail and honest services fraud. (D454.) Continue reading “The Kings of Tort: Did Chapter Four (Paul Minor) provide honest service to the book’s readers? (part 2 of 2)”