Mississippi Churning, Part XVII

Jury instructions regarding bribery (continued)

How did the defendants in the Paul Minor case get convicted in federal court based on state law?

Our first step is to recall that the two primary charges in the Minor case were federal-funds bribery and honest-services mail fraud. Racketeering and conspiracy also were charged, but those are essentially spinoffs of the first two charges. The case revolved around bribery and mail fraud.

The "confusion" over federal and state law, I believe, arose from the honest-services mail fraud charges. (Remember that this charge often is central to corruption cases. Twenty of the 30-some charges in Alabama against Don Siegelman were for honest-services mail fraud; seven of the 14 charges in the Minor case were for mail fraud.)

Our second step is to understand that Mississippi is part of the Fifth U.S. Judicial Circuit, along with Louisiana and Texas. (Alabama is in the 11th Circuit, with Georgia and Florida.) Evidently the Fifth Circuit Court of Appeals has included some judges who are dedicated members of the Federalist Society because they came up with a dandy little opinion known as U.S. v. Brumley, 116 F. 3d 728 (1997).

I don't see a problem with the final result in the Brumley case. But the opinion itself is a truly lousy piece of judicial handiwork. (More later on what makes this opinion so wrongheaded.) But for now the key point is this: The Brumley court found that, in an honest-services mail fraud case under 18 U.S. Code 1346, the services in question "must be owed under state law and that the government must prove in a federal prosecution that they were in fact not delivered." The court went on to say, "The statute contemplates that there must first be a breach of a state-owed duty."

The Fifth Circuit parted with almost all other judicial circuits on this point. The Fifth-Circuit judges, in their deep-fried Southern thinking, evidently were concerned about the federal "gubmint" interfering with Dixie's corrupt public officials. In their Federalist Society minds, I think, Brumley struck a little blow in the "state's rights" war. (Forget, Hell!)

Rational judges in other circuits have pointed out that the Brumley ruling is pointless because it has long been held that the duty of honest services owed by government officials derives from fiduciary duties at common law. There was no reason for the Fifth-Circuit judges to get their Federalist panties all wadded up. But they did, and so we have the Brumley case in the Fifth Circuit, which includes Mississippi.

What did that mean in the Minor trial? A review of court documents shows that government lawyers in the case were high on Brumley. When you read the transcript, you can almost hear the chants, "State law! State law!"

And those chants found a receptive ear with Judge Wingate.

But here is a critical point: Brumley never said that a mail-fraud case must be based on a violation of state law. It said it must be based on a duty owed under state law. What did the court mean by that? It doesn't say. But it seems simple enough. The duties of a judge are clearly stated in Article 6, Section 155 of the Constitution of Mississippi.

So even Brumley, as poorly reasoned as it was, did not say anything about a violation of state law. But with the prosecution chanting "state law, state law," Wingate evidently decided, "Hey, that sounds good."

And why did the prosecutors seem so interested in state law? Well, they weren't thinking about honest-services mail fraud (the subject of the Brumley case). They were thinking about bribery. They knew, I feel certain, that's the charge that would resonate with the jury--particularly since Paul Minor was a wealthy Democrat, of all things. And they knew that Mississippi's state bribery law is more loosely worded than the federal statute (and case law) on bribery.

The state law can be found in Section 97-11-11 of Mississippi Code of 1972. It involves some mind-numbing legalese, but the key point is this: The state law does not require a quid pro quo in order to convict on bribery. As we've noted in a previous post, federal law most definitely does require a quid pro quo--a "something for something" transaction.

Why would prosecutors want to avoid the quid pro quo standard of federal law. Remember that federal law requires a "corrupt act." And an act is done corruptly "if it is done intentionally with an unlawful purpose."

What would that standard mean for the prosecution? It would mean determining the lawfulness, the correctness, of the judge's rulings in the underlying lawsuits. It would mean allowing expert witnesses who could easily show that the rulings were indeed lawful. And as we've already shown, Wingate wanted nothing to do with expert witnesses.

And so an idea was hatched. Take the "state duty" language of Brumley, morph it into "state law" language, and apply it not to honest-services mail fraud (where it started) but to bribery (where it would be most effective for the prosecution).

A neat switcheroo. And it worked. Three men were wrongly convicted because of it.

Think I'm nuts? Well, I've read major chunks of the trial transcript. And Wingate, after allowing extensive argument about the jury instructions, plainly says that he will write the instructions on his own. And what does he come up with? An instruction that he states is based on Mississippi's state bribery law. Even cites several examples of state case law from Mississippi.

The defendants' attorneys all objected to the bribery instruction, preserving the issue for appeal. But Wingate and the prosecution were of the same mind, regardless of what federal law says. This is one blogger who finds it hard to believe that was an accident.