The U.S. Fifth Circuit Court of Appeals, currently reviewing the Minor case, has asked the federal government for materials that show it had grounds for getting involved in the case.
According to a report by Larisa Alexandrovna at Raw Story, the government based its case on the notion that state judges are "agents" of the Mississippi Administrative Office of Courts, which receives federal funds. But the appellate court now seems to be questioning whether the government had jurisdiction to bring the primary charge in the case--federal funds bribery under 18 U.S. Code 666.
The federal funds bribery statute applies only when:
. . . the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
Dunn Lampton, the Bush-appointed prosecutor who brought the case, argued that state judges Wes Teel and John Whitfield were agents of the Administrative Office of Courts, which receives federal funds. But Alexandrovna reports:
The reality, however, is that judges are not in charge of buying staplers and office furniture, or training clerks in using a computer system. These functions are all administrative and do not involve the judges themselves, who in the state of Mississippi are elected to the bench. The use of the 666 statute has therefore raised many eyebrows, including those of the three-judge panel of the US Fifth Circuit Court of Appeals.
Federal funds bribery also was at the heart of the Don Siegelman case in Alabama. But as governor of a state that receives federal funds, Siegelman clearly fell under the statute--even though evidence strongly indicates neither he nor codefendant Richard Scrushy violated the law.
In the Minor case, because it involved state judges who did not administer federal funds, the government might never have had jurisdiction to bring a 666 case. And yet, three men remain in federal prison as we write this because of a prosecution that now appears to be largely ungrounded in law.
The Minor convictions also included counts of honest-services fraud and conspiracy. But those long have looked shaky at best.
A fundamental element of honest-services fraud is that the public must actually be deprived of honest services. But the underlying lawsuits in the Minor case were correctly decided based on the facts and the law, so honest-services fraud could not be present.
And conspiracy is essentially a "piggyback" charge that must ride on the tails of some other count. Without a bribery or honest-services fraud conviction, the conspiracy conviction cannot stand.
Scott Horton, legal-affairs contributor for Harper's magazine and a professor at Columbia University Law School, tells Alexandrovna the Fifth Circuit's questions do not appear to bode well for the government:
“It's always problematic speculating about what thoughts are behind a question. But in this case, the questions are certainly bad news for the prosecution. They suggest that the panel is having problems understanding how the conduct alleged by the prosecutors is actually a crime. . . . The questions also suggest that there is some sensitivity on this panel to the issue of selective prosecution--they are a head-on attack on the good faith of the prosecution itself. That's very rare in an appellate case like this, but in this case, the prosecutors ran into a buzzsaw during oral argument, so perhaps it's not so surprising."
The Siegelman and Minor cases long have been seen as "companion pieces," two Deep South prosecutions that spotlight corruption in the Bush Justice Department. But they now seem to be on very different appellate tracks.
While the Fifth Circuit (based in New Orleans) seems to be raising serious questions about the Minor case, the 11th Circuit (based in Atlanta) already has upheld most of the convictions in the Siegelman case. During oral argument, as Horton notes, the Minor prosecutors ran into a "buzzsaw." But the appellate panel in Atlanta asked almost no substantive questions of prosecutors in the Siegelman case.
Siegelman has filed a petition seeking an en banc review of the entire 11th Circuit. But one must wonder why an appellate court seems to be on the right track in the Minor case, while another appellate court is upholding unlawful trial-court findings in the Siegelman case.
We have been studying the 11th Circuit's finding in the Siegelman case, and we soon will be showing in detail how the three-judge panel butchered the appeal.