First, a big SLABBED welcome to Larisa Alexandrovna of Raw Story and an equally big thank you for including a transcript of Paul Minor’s Appeal in her post on the story.
Had the transcripts not been available, I would have been left to puzzle over the concept of subject matter jurisdiction: The power of a court to hear and determine cases of the general class to which the proceedings in question belong; and, 18USC.666: Theft or bribery concerning programs receiving Federal funds.
The panel of Fifth Circuit judges hearing Paul Minor’s Appeal, however, came to my rescue with a really interesting discussion of the issues. In doing so, they not only helped this non-lawyer understand one of the controversial aspects of Minor’s case, but one that is also a factor in USA v DeLaughter and was in USA v Scruggs as well.
In his Motion for Bill of Particulars, Judge DeLaughter asked the USA to:
- Identify with specificity the particular “state and local government” entity of which Judge DeLaughter is alleged to be an agent.
- Identify with specificity the “government and judicial agency” that allegedly “received in a one-year period benefits in excess of $10,000 under a federal program…”
Although the question of quid pro quo was the primary focus of DeLaughter’s Motion to Inspect Grand Jury Minutes, the underlying issue of there incorporates concerns about “666” – the shorthand reference to this section of the Code.
This fear that the Grand Jury returned an indictment on an improper basis or was otherwise improperly influenced is, indeed, real…
The applicability of the 666 Code section was also raised in the Defendant’s Motion to Dismiss Counts 2, 3, and 4 of the Indictment in USA v Scruggs.
First, 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)… But Judge Lackey, by law, is not an agent of either entity…
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… 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…
The Defendant’s Motion concluded with this summary.
The federal funds bribery statute, section 666, is not limitless. It is bounded both by the plain language of the statute and by the constitutional barriers of the Tenth Amendment.
Obviously, the Motion to Dismiss was denied; but, a look at the Response filed by the USA opposition is instructive in light of questions posed by the Fifth Circuit panel hearing Minor’s Appeal.
Clearly, Judge Lackey is authorized to act on behalf of the Administrative Office of Courts. The Administrative Office of Courts is the state agency that provides office operating allowances to the circuit courts of the state. Those operating expenses include, for example, $40,000 per year for each circuit judge to hire support staff. The Office also provides $4,000 per judge for office operating expenses and $4,000 per year for rent should the judge’s base of operations not provide office space. Judge Lackey is one of the judges in the state who utilize at least a portion of this additional money. How those funds are spent is left to the discretion of the circuit judge and will be fully developed at trial.
It appears the Fifth Circuit panel may have a different opinion.
JUDGE GARWOOD: I wish you would address at some point the 666. You assume that Mr. Whitfield was an agent of the administrative office of courts of Mississippi. Is the transaction in which he acted one of the administrative office of courts as I read the 666 to apply the — the statute says that it’s a last section of the — of part of the statute says that the bribe must be in connection with any business transaction or series of transactions of such organization, which is the organization in this case being the administrative office of courts according to the jury finding. It frankly is hard for me to see how a ruling in a civil case between two groups is a transaction of business of the administrative office of the courts.
MR. LUCAS: And that is one that gave us great difficulty at trial as well, Your Honor. As the court is well aware the record is replete with our objections to the use of testimony from the administrative office of the courts in Mississippi which receives federal crime and using that as a jurisdictional Culp to incorporate 666 — to use the 666 statute when neither Judge Whitfield nor Judge Teel who I represented at trial had any control whatsoever on the crimes that came from the federal government through the administrative office of the courts, ultimately.
JUDGE GARWOOD: Can you even if someone was to call Judge Teel an agent of the office of the courts, the bribe was paid to get a favorable ruling in a civil case that was pending between two parties before him, was pending before him.
MR. LUCAS: That’s correct, Your Honor.
JUDGE GARWOOD: And I read the statute to say that it only applies to bribes that are given in connection with any business or transaction of the agency receiving federal funds. And the suit between these two private persons had nothing to do at least as I could tell, with the business of the administrative office of the courts.
MR. LUCAS: And that is exactly right, Your Honor. It had nothing to do with the business of the administrative office of the courts and for that reason we objected and — behalf of the administrative office of the courts or who were employed of the administrative office that testified in the case.
MR. LUCAS: That’s correct, Your Honor. There was testimony —
JUDGE GARWOOD: Did they give any testimony about whether rulings in cases that were pending before the courts was part of their business or would fit into that part of the statute or not?
MR. LUCAS: The testimony that came from the administrative office of the court was merely that money came from the federal government, was thrown into a big pot of money that contained money from the federal government and the state government and ultimately used to pay expenses of the courts. That was the only jurisdictional hook that had any claim to 666. There was never any allegation that anything that the judges did in the cases that were cited inside this case had anything to do with that fund of money. In fact, I think one of the sources of money for Judge Whitfield?
JUDGE GARWOOD: I’m not talking about the money. I understand that this offense does not require that the defendant have taken any money from the federal government or even get into the particular — the federal funds. But it does require that the bribe relate to something which is a part of the business of the organization that received the federal money.
MR. LUCAS: And that is correct. Once again, that is what we objected to and moved for dismissal under rule 29 that the rulings made by these district court judges had nothing to do with the money that came from the federal government.
JUDGE GARWOOD: Did it have anything to do with the business of the administrative office of courts in Mississippi.
MR. LUCAS: Only insofar as the administrative office of the court is a court that pays secretaries pays for office supplies, the courts of Mississippi.
The panel returned the discussion of quid pro quo and began questioning USA Collery. However, Judge Garwood came back to the section 666 issue:
JUDGE GARWOOD: Could you sometimes think about this problem that I have with the 666 that whether the bribery has to be — it does in the statute in relation to a transaction of the government agency receiving money.
As I understand, the jury in this case found that the government agency receiving money was the administrative — the Mississippi administrative office of the courts.
How is a ruling in a civil case which the administrative law Mississippi is not a party directly or indirectly a transaction or of the Mississippi department of the courts or administrative office of the courts.
MS. COLLERY: Let me first say I state I’m going to answer that question, but that argument has not been raised on appeal. The question hasn’t been briefed.
JUDGE GARWOOD: It was. It was raised in Mr. Minor’s I mean Mr. Whitfield’s brief.
JUDGE HAYNES: You mean a 158 pages.
MS. COLLERY: That — the claim that was raised was that the judicial defendants were not agents of the administrative office of the courts.
JUDGE GARWOOD: They got to be agents. I know they said they were not. But the statute very clearly also says that the transaction — it says in connection with any business or transaction or series of transactions of in this case, the Mississippi department of the courts.
MS. COLLERY: The administrative office of courts.
JUDGE GARWOOD: And I’m just wondering, how is the ruling of the judge in these civil cases a part of the business of the administrative office of courts or whatever it is.
MS. COLLERY: If you look at the Mississippi statutes that you find the role of the administrative office of courts as assist and improving the administration of justice in the state of Mississippi.
JUDGE GARWOOD: They buy them supplies and they allocate them a certain amount of money for law clerks and secretaries. They don’t have anything to do as I would understand it just as I hope our administrative office doesn’t with how we decide the cases.
MS. COLLERY: They don’t have anything to do with how you decide the cases.
JUDGE GARWOOD: Or what decisions we make.
MS. COLLERY: But the case deciding business of the individual courts is the business of the administrative office of the courts. They among other things, Your Honor, they keep statistics on — they don’t just provide money. They keep statistics on cases in Mississippi courts.
JUDGE HAYNES: But you are saying the judge couldn’t do a job without a secretary and a stapler and these kind of things and by providing that they are facilitating the decision making.
JUDGE BENAVIDES: Is that the business of this administrative office? Are they assist the business of the individual judge and does that mean that this is — that this transaction involves the business of the administrative office of the courts?
MS. COLLERY: Yes, I think it does for a number of different reasons. The employees of the judge — I’m sorry.
JUDGE GARWOOD: They don’t promulgate ethical rules, do they, or jurisdictional rules or anything like that.
MS. COLLERY: I don’t believe that they promulgate ethical rules, but they do collect statistics on cases in the courts. They provide the employees —
JUDGE HAYNES: Do they provide additional education? In other words, CLEs for judges?
MS. COLLERY: I don’t think so.
JUDGE HAYNES: Go ahead.
MS. COLLERY: They gather statistics on what happens in courts. They provide employees who work in the courts and —
JUDGE GARWOOD: They don’t hire them. They give the money for it. The truth — the judges hire the clerks and the secretaries and administrative office the money flows through it is what it amounts to but I mean, it’s…
As the hearing was ending, Mr. Lucas made brief remarks that included a clarification related to the section 666 issue requested by Judge Benavides.
JUDGE BENAVIDES: If you could just kind of clear up, counsel, for the government as indicated that it was not a briefing. The issue wasn’t briefed with respect to the positions or the questions that were asked by Judge Garwood with respect to an — a business of an organization.
MR. LUCAS: Your Honor, Mr. Minor’s brief on pages 81 to 84 included that material as well as I believe Judge Whitfield’s brief include that material. We incorporated that in our reference our brief, although we have not had a separate section on that.
Hopefully, the Fifth Circuit will address 18USC.666. Someone needs to!