Did Alabama's GOP Governor Commit a Crime?

When the Montgomery Independent reported recently on Governor Bob Riley's effort to interfere with a decision of the Alabama Supreme Court, it stated that such a communication "violates all kinds of judicial ethics rules and laws."

But here is a bigger question: Did Riley commit a crime?

The answer almost certainly is yes--if it is proven that Riley did indeed place one or more phone calls to members of the Supreme Court in order to overturn a ruling by Chief Justice Sue Bell Cobb in a gambling-related case.

What crime would it be? Honest-services wire fraud, 18 U.S. Code 1343 and 18 U.S. Code 1346.

That is pretty much identical to honest-services mail fraud, which was central to the Don Siegelman/Richard Scrushy case in Alabama and the Paul Minor case in Mississippi. The primary difference between the statutes is that mail fraud involves use of the U.S. mails in "furtherance of a scheme to defraud," while wire fraud involves use of the federal wires (phone lines, computer lines, etc.).

We captured the essence of both crimes in a post titled "Mail Fraud: A Primer."
Here are the key components:

A person commits mail or wire fraud if he has (A) Perpetuated a scheme to defraud that includes a material deception; (B) with the intent to defraud; (C) while using the mails in furtherance of the scheme. Neder v. U.S., 527 U.S. 1 (1999).

An intent to defraud is at the heart of the crime:

What is intent to defraud? Courts have defined it as "a willful act by defendant with specific intent to deceive or cheat." U.S. v. Stephens, 421F.3d 503, (2005)

One of the most recent honest-services fraud cases in the 11th Circuit is U.S. v. Walker, 490 F. 3d 1282 (2007). Here is how the court described the key elements of the crime:

The scope of conduct covered by the honest services mail fraud statute is extremely broad. . . . Nevertheless, even if a public official engages in "reprehensible misconduct related to an official position," his conviction "for honest-services fraud cannot stand where the conduct does not actually deprive the public of its right to [his] honest services, and it is not shown to intend the result." Id. (emphasis added). Conversely, once the government establishes a scheme formed with the intent to defraud, the honest services fraud is complete "regardless of how that intent manifests itself in execution." United States v. Antico, 275 F.3d 245, 264 (3d Cir.2001); deVegter, 198 F.3d at 1328 ("A public official's undisclosed conflict of interest . . . does by itself harm the constituents' interest in the end for which the official serve—honest government in the public's best interest." (emphasis added); United States v. Jain, 93 F.3d 436, 441 (8th Cir.1996) (finding that for a successful prosecution following the showing of intent, "[t]he scheme to defraud need not have been successful or complete.")

Riley's scheme was not successful; the Supreme Court voted to uphold Cobb's ruling. But based on the Montgomery Independent's reporting, it appears the "intent to deceive" was there. And that is the crux of the offense.

As long as the Obama administration allows Leura Canary to remain as U.S. attorney in Montgomery, Riley has nothing to worry about. And it's yet to be shown that corrupt Republicans have anything to fear from the Obama administration anyway.

But if a tough, competent prosecutor somehow gets appointed in Montgomery, Bob Riley could have some uncomfortable days ahead.