Judge Wingate gets it – will Judge Biggers? UPDATED

“Minor and former Harrison County judges Wes Teel and John Whitfield must be resentenced because a federal appeals court vacated their bribery convictions in 2009. The appeals court upheld other convictions, including honest services fraud convictions against each of the men and Minor’s racketeering conviction. Now Wingate is considering motions to vacate the remaining convictions because higher courts have limited the scope of honest services fraud.”

The Sun Herald reports, “U.S. District Judge Henry Wingate delayed the resentencing Monday in Jackson so he can take more time to consider pending motions seeking to throw out all of the convictions in the case.

Judge Wingate gets it! I suspect a lot of others, including a lot of lawyers, don’t – or, more likely, don’t want the law applied in USA v Minor or USA v Scruggs. Minor’s attorney, David Debold of the Washington, D.C., law film Gibson, Dunn & Crutcher…said he knows it’s not easy for a judge to reverse a case this late but it’s the right thing to do in the wake of the high court decision limiting the honest services statute”.

Initially, Minor et al were also convicted of federal funds bribery under 18 U.S.C. § 666. Former Missouri Supreme Court Chief Justice Edward “Chip” Robertson cited the reversal of those convictions in a brief recently filed on behalf of Zach Scruggs:

…contrary to the Government’s naked assertion, the fact that Judge Lackey was not an agent for federal grant is properly before the Court because that means that Petitioner is “actually innocent” of the 18 U.S.C. § 666 crime alleged in the Indictment See Petition, D.E. 303 at 10-11 (discussing Whitfield v. U.S., 590 F.3d 325 (5th Cir., 2009)).

Both of these cases were very painful for members of the legal profession.  However,  the legal profession’s deafening silence in the face of the 5th Circuit and USSC decisions is painful to those up us who believe none are above – or below – the law.  Equal justice is not a popularity contest!


UPDATE 3-24-11

Memorandum of Law in Support of Defendant Paul S. Minor’s Motion to Vacate Convictions (12/17/10)

Defendant Paul S. Minor’s Submission of Supplemental Authority Regarding Motion to Vacate (3/14/11)

Government’s Response to Defendant Paul S. Minor’s Submission of Supplemental Authority Regarding Motion to Vacate (3/17/11)


“Will the April 25th hearing become the trial that never happened”?

Bullseye! Patsy Brumfield hit dead center with Zach Scruggs hearing could unveil additional information for NEMS360.com. A look at the transcript of Zach’s plea hearing indicates Zach’s Motion to Vacate, like Brumfield’s take on the case,  is right on target.

I didn’ t conspire to bribe Judge Lackey in connection with an arbitration order, and I would have stopped it had I known.

However, I did have some knowledge that Tim Balducci had a close personal relationship with Judge Lackey, and that he used that personal relationship to have improper ex parte contacts with the judge regarding the order. Such improper contacts, left unchecked, can – – and in this case did – – deprive the people of the state of Mississippi of fair and honest services.

Nowadays, two significant events make Zach’s “crime” what it was at the time – an ethical violation. The first of these events was Continue reading ““Will the April 25th hearing become the trial that never happened”?”

BREAKING NEWS – Zach files reply: Cites 5th Circuit and argues what Government

Will update later today.  Just stopping by to link Zach’s [Defendant’s] Reply Memorandum in Support of His Motion to Vacate His Conviction – safe to say he knows his Skilling – and list the points he argues the Government  contest and “therefore effectively conceded”

The Government’s Response in Opposition (D.E. 309) has dramatically narrowed the issues in this case. See, U.S. v. Branch, 91 F.3d 699, 752 (5th Cir., 1996)(where Government’s brief “did not contest” a point raised by a Petitioner, it “therefore effectively conceded that point”). Pursuant to 5th Circuit doctrine, the following claims are no longer contested issues:

•That, under Whitfield v. U.S., 590 F.3d 325 (5th Cir., 2009), the Petitioner is innocent of the three counts of federal programs bribery alleged in the Indictment under 18 USC § 666. With these three counts legal nullities, all that can remain are the honest services counts – and after Skilling v. U.S., these require beyond-a-reasonable-doubt proof that Petitioner bribed or conspired to bribe Judge Lackey.

•That, under U.S. v. Skilling, 130 S.Ct. 2896 (2010), the Court had no jurisdiction to accept a guilty plea nor pass sentence on the misprision of felony to which Petitioner pleaded guilty.

•That the Government misled the Court when it assured the Court that it had 404(b) testimony from Joey Langston that “implicated” Petitioner in any attempt to bribe Judge DeLaughter, a representation that it never sought to correct for two and a half years despite countless opportunities to do so. Continue reading “BREAKING NEWS – Zach files reply: Cites 5th Circuit and argues what Government”

USA tells Judge Biggers more time needed for response to Zach Scruggs

After pulling a truckload of briefs in the various qui tam cases last week, my desktop was so loaded that I skipped my routine Friday evening check.  One more confession while I’m in this tell-all mood — I actually welcomed the notice of “routine maintenance” that made the PACER system inaccessible most all weekend as I’d begun to feel like the computer version of  of Shel Silverstein’s television-watching Jimmy Jet:

“He watched till his eyes were frozen wide,
And his bottom grew into his chair…
And grew a plug that looked like a tail…”

In my eagerness to avoid Jimmy Jet’s fate, I didn’t catch the latest item on the docket of USA v David Zachery Scruggs before I got out of my chair for the weekend.  Patsy Brumfield, however, somehow got word and posted Prosecutors ask for time in Zach Scruggs’ appeal in today’s NEMS360.com”:

“Federal prosecutors in Oxford say they need more direction from Washington before they respond to Zach Scruggs’ motion to vacate his 2008 conviction.”
Hoping the “beach brief”  makes “my butt look smaller”, I raced to the tuned-up PACER and picked up the USA’s Motion for Extension of Time that appears in full below the jump.  Before we go there, let’s examine the USA’s argument that additional time to respond is needed because Zach cited “the United States Supreme Court’s recent Skilling opinion” and:
“… the Department of Justice has promulgated guidelines to federal prosecutors regarding Skilling responses, the undersigned prosecutor has submitted to the Department of Justice an outline of the government’s proposed response, and is awaiting approval…”
Skilling, while opening the door for Zach Scruggs to file his motion, is not the only matter DOJ should consider.  The USA falsely claimed the jurisdiction needed to build a case against Dick Scruggs –  SLABBED explained but it was the 5th Circuit that declared there must be a “nexus between the criminal conduct and the agency,” administering the federal funds: Continue reading “USA tells Judge Biggers more time needed for response to Zach Scruggs”

Supremes decision on Minor more relevant to Siegelman case than motion filed by Zach Scruggs

If attaching an “apologist” label on SLABBED was the only error, I’d be getting ready for this weekend’s big family gathering and cooking, not typing.  However, brief though this post will be, it is important to clarify the distinctions between Paul Minor’s appeal and Zach Scruggs’ motion to vacate his conviction.

Former Alabama Governor Don Siegelman’s case is the shortcut to that clarification as political contributions central issues in both Siegelman and Minor. Immediately following the USSC decision in Skilling, the Supreme Court ordered a new review of the Siegelman’s conviction:

The court’s brief order vacated the decision of the 11th U.S. Circuit Court of Appeals, which had upheld their convictions, and ordered it to review their appeals in light of a ruling that went against what is known as the “honest services fraud” law…

Siegelman attorney Sam Heldman, who handled the former governor’s case before the Supreme Court, called the court’s decision Tuesday “a massive victory”…Siegelman and Scrushy were convicted of swapping $500,000 in campaign donations for a spot on the state health board that decides if hospitals can add beds or new services. Lawyers for the men have argued that what happened was normal politics and not criminal…

Lawyers for both men contend there was no deal to swap donations for an appointment and say prosecutors failed to prove an explicit “quid pro quo” agreement, which is required in federal bribery cases. The defense also argued that U.S. District Judge Mark Fuller of Montgomery did not adequately instruct jurors that such an agreement was necessary.

These defenses are common to both the Siegelman and Minor cases but are not mentioned in nor relevant to Zach Scruggs’ motion to vacate.  Therefore, despite the claims of some otherwise, the Supreme Court’s decision on Minor’s case cannot be seriously considered as one that would significantly impact Zach’s significantly different case.