NEMS360 reports, “Longtime Hollywood insider Sam Haskell….has bought the television and film rights to Curtis Wilkie’s book, “The Fall of the House of Zeus”.
The project, said Haskell publicist Nathan Wells, “has the potential to spur a TV-film industry along in Mississippi, which has been one of Haskell’s goals since returning to Mississippi full time.”
“But for both Wilkie and Haskell, the book and the prospective movie also mean a chance to tell parts of the story that most press accounts could not…The story “has to be about redemption,” he added. “We all make mistakes; this was in the public eye in a way that created a perfect storm for misunderstanding.”
Redemption. Mistakes. Perfect storm for misunderstanding – ohdeargod, those words didn’t sit well with north Mississippi’s black- cloud just-us justice crowd. Late afternoon, however, Zach Scruggs rained on their parade – and redemption, mistakes, misunderstanding took on a different meaning.
“You know Lackey much better than I, but I don’t believe he was taken aback one whit. If anything, I think he expected Balducci’s Of Counsel “assurances.” Look at the other judges and officers who signed on before Lackey … he didn’t want to be excluded.”
However, the really different meaning to Judge Lackey’s role comes when it’s viewed in light of the Government’s lack of jurisdiction to make a federal case out of the state judges’ position – meaning the Government had no “color of official right” to lend to Lackey. It was this “color” that made a bribe of what otherwise have been Lackey’s extortion of money from Scruggs. Without jurisdiction, the government was not just without “color” to lend Lackey, it was also without the authority to obtain a wire tap order and Judge Biggers without the authority to issue same – and, folks, this “really different meaning” is going to make a great movie!
The 5th Circuit connected those dots when it reversed the “conspiracy to commit federal program bribery” conviction of attorney Paul Minor and the two co-defendant judges: ( pages 20-22)
As stated above, the purpose of the AOC [Administrative Office of the Court] is to “assist in the efficient administration of the nonjudicial business of the courts of the state.” Miss. Code Ann. § 9-21-1 (1972) (emphasis added). As a fundamental matter, Whitfield and Teel’s role in presiding over Marks and Peoples Bank involved the judicial business of the Mississippi courts.
As it stands, however, the bribes…clearly had no “connection with any business, transaction, or series of transactions” of the AOC. See 18 U.S.C. § 666(a)(1)(B), (2).
As a general rule, a party waives any argument that it fails to brief on appeal. See FED. R. APP. P. 28(a)(9)(A); Proctor & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004). However, this court has recognized an exception to this rule whereby we will consider a point of error not raised on appeal when it is necessary “to prevent a miscarriage of justice.” United States v. Montemayor, 703 F.2d 109, 114 n.7 (5th Cir. 1983). Indeed, the Federal Rules of Criminal Procedure grant us the authority to reverse a conviction on the basis of plain error, even though the defendant has not raised the issue on appeal. FED. R. CRIM. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”).
Similarly, in United States v. Musquiz, 445 F.2d 963, 966 (5th Cir. 1971), we reversed a conviction for insufficient evidence on a basis not urged below or on appeal, stating “We notice this error on our own motion, as we think we are required to do when the error is so obvious that failure to notice it would ‘seriously affect the fairness, integrity, or public reputation of judicial proceedings.’” (quoting the above passage from Atkinson quoted in Silber). See also, e.g., United States v. Gonzales, 259 F.3d 355, 359 (5th Cir. 2001) (“We may raise an issue sua sponte ‘even though it is not assigned or specified’ when ‘plain error is apparent,’” quoting United States v. Pineda-Ortuno, 952 F.2d 98, 105 (5th Cir. 1992). 15
We believe that this case presents just such an exceptional circumstance. … role as presiding judges…had no “connection with any business, transaction, or series of transactions” of the AOC. See 18 U.S.C. § 666(a)(1)(B), (2). Therefore, by its own plain language, section 666 applies neither to… acceptance of bribes nor to… offering of bribes in connection with those cases. The Government has cited no authority supporting a contrary conclusion. As such, we hold that the district court committed plain error when it denied appellants’ Rule 29 motions for judgment of acquittal on the section 666 counts of the indictment.
The 5th Circuit’s reversal followed the Court’s “review de novo the denial of Rule 29 motion for a judgment of acquittal. United States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008)…even though the defendant has not raised the issue on appeal”.
This Court lacks subject matter jurisdiction because the Government’s allegations do not constitute a federal crime under section 666...Judge Lackey is not an “agent” subject to the reach of the charged federal statute…Based on discovery and information provided by the Government, Defendants understand that the Government intends to prove that Judge Lackey is an agent of two separate entities that it believes have received the requisite $10,000 in federal funding: Lafayette County and the Mississippi Administrative Office of Courts (AOC).
For three separate and independent reasons, these counts must be dismissed as a matter of law.
First, Judge Lackey, by law, is not an agent of either entity. The Fifth Circuit has laid out a multi-factor test for determining whether an individual, for purposes of a section 666 indictment, qualifies as an “agent.” See United States v.Phillips, 219 F.3d 404, 410-13 (5th Cir. 2000); United States v. Moeller, 987 F.2d 1134, 1137-38 (5th Cir. 1993); see also United States v. Harris, 2007 WL 2028948 (S.D. Miss. July 11, 2007).
The Phillips test examines the nature of the government entity, the individual’s legal relationship to that entity, and the degree to which the entity and the individual can control or bind each other. Judge Lackey does not qualify as an “agent” of Lafayette County, or of the AOC. According to the Mississippi Constitution and Mississippi statute, Judge Lackey is not an employee of the AOC or Lafayette County. He is not under the legal control of either entity, and neither entity can discipline him or remove him from office.
Judge Lackey not only fails to control or administer any federal funds received by those entities, but as a circuit judge, he does not act “on behalf of” either entity with respect its funds at all. Most importantly, the role of the circuit judge in Mississippi is an independent one, elected by the people and set apart from the machinations of county government or the domination of any state agency. As such, Judge Lackey does not qualify as an agent under section 666(a)(2), and this Court lacks jurisdiction over any actions that might have been taken with respect to him.
Second, the purported bribe was not made “in connection with any business, transactions or series of transactions” of Lafayette County or the Administrative Office of Courts, as required by the statute. 18 U.S.C. § 666(a)(2). Even if that statutory language were read expansively, a circuit judge’s decision on a motion to compel arbitration is not the “business” of Lafayette County. Likewise, the provisions establishing the Mississippi AOC restrict its purview to the “nonjudicial business of the courts,” which does not include deciding civil motions. Miss. Code§ 9-21-1. If there is no connection between the allegation of bribery and the “business” or “transactions” of an entity that itself received requisite federal funds, then there is no federal crime. This is a jurisdictional flaw that independently requires dismissal.
Third, even if Judge Lackey is an “agent” for purposes of 666(a)(2), and the Government could prove that the requisite “agency” has received more than $10,000 in federal funds over a continuous twelve-month period, the use of this statute, as the Government would apply it to Defendants, is unconstitutional. Congress’s power to monitor and assure the integrity of federal funds derives from its Article I spending power and the Necessary & Proper Clause. But, as the plain language of the Tenth Amendment makes clear, the framers of the Constitution never intended that Congress’s power be limitless. While the United States Supreme Court has rejected a facial constitutional challenge to section 666(a)(2), see Sabri v. United States, 541 U.S. 600 (2004), here this Court is confronted with circumstances so attenuated, and so far removed from the disbursement of federal funds, that the statute cannot be constitutional as applied to Defendants.
The Court need not find that all three of these reasons warrant dismissal. If any of the Government’s jurisdictional prerequisites is not met, or if the application of section 666 to these to these Defendants would be unconstitutional, the section 666 counts must be dismissed now, regardless of what proof the Government might submit at trial…
Determining whether the allegedly bribed individual is an “agent” under the law is a necessary predicate to this Court’s exercise of jurisdiction over Defendants. See United States v. Lipscomb, 299 F.3d 303, 315-16 (5th Cir. 2002); Stewart, 727 F. Supp. at 1069. Thus, the key inquiry is whether the parties who were offered or accepted bribes were in fact agents of anentity that received the requisite federal funds. United States v. Moeller, 987 F.2d at 1136 (5th Cir. 1993). The requirement that the bribe be made “in connection with the business or transactions” of the entity receiving federal funds is also jurisdictional. McCormack, 31 F. Supp. 2d at 181 (describing it as a “threshold legal question”). Thus, If Judge Lackey was not an agent of either entity, or the alleged bribe did not pertain to the “business” of either entity, these counts must be dismissed.
Judge Biggers denied the Defendant’s motion – and did so from the bench when the Court heard arguments on the motion. Unfortunately, I haven’t been able to locate a copy of the transcript and the Order simply states, ” that the defendants’ motion to dismiss counts 2, 3, & 4 of the indictment is DENIED”.
At times I’ve wondered if the surprise Biggers expressed at Scruggs’ decision to enter a plea was more of shock – one that left him having denied motions with the possible expectation his decisions would be reversed on appeal. Such thinking is not so far-fetched – nor is the idea the good ol’ boys of the north Mississippi’s just-us justice system were trying to have a little “that’ll teach him a lesson” fun with Scruggs.
Nonetheless, any mention of the federal government’s lack of standing in the Scruggs case is sure to evoke cries of “but he was guilty and Mississippi’s Attorney General would never have filed the case”. General Hood had no case to file. Earwigging was an unethical, not unlawful, act. It only became a crime with federal “color” added.
In the black and white of 18 U.S.C. § 666 what we here is an old man, a judge with Jones v Scruggs in his court, asking his young friend to get some of Scruggs’ money to help him out of a bind – but “Old Judge and the Earwigger” is too Hemmingway to be the title of the movie, that like Wilkie’s book, will be “The Fall of the House of Zeus”.