When Scruggs, now 66, pleaded guilty to seeking to improperly influence DeLaughter, he was serving a five-year sentence for his 2008 guilty plea to scheme to bribe Circuit Judge Henry Lackey of Calhoun City.
Both judges presided over Katrina-related legal fees lawsuits against Scruggs and others.
In today’s oral arguments hearing, Scruggs’ attorney Edward “Chip” Robertson Jr., with former Mississippi attorney general Michael Moore, insisted their client did not offer DeLaughter the required “anything of value” when he had the judge’s long-time friend and former boss, Ed Peters of Jackson, tell him Scruggs would suggest his name for a federal judgeship.
The government, represented by Robert Norman, insists the name suggestion is the thing of value.
Scruggs is free on bond while the appeal is considered. He’s completed his sentence in the Lackey affair.
The three-judge panel includes Chief Judge Charles Stewart, Judge Jerry Smith and Judge J.L. Wiener Jr.
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(Below is a running account from the 5th Circuit hearing. Please forgive the typos and glitches likely as I type rapidly. Some of this is paraphrase and in no way attempts to be all inclusive of remarks and questions.)
10:35 - Robertson opens for Scruggs
ROBERTSON – Cites Skilling ... criminalizes only bribery and kickback core of a (certain case). No other conduct falls within this section. I believe that most people would agree that if he had directly appealed, it would be overturned. Don’t rise to a quid pro quo bribe. Judge Davidson couldn’t find it. WE couldn’t find it ... in that information. If it does, we’re wasting your time. WE believe district court was without jurisdiction to decide. Scruggs had cause not to appeal. Prejudiced by not pleading guilty.
(QUESTION - Why not raised?) Raising them unsuccessfully. Could be .... we were concerned ... (Stewart - we see a lot of cases that raise lots of errors... to preserve for purposes of an appeal. Lo and behold, those who preserved it, had done so when opportunity came. How is this different from standpoint of not raising?) Your honor ... if court wants to continue to invite those things, so be it. (Raising no defense is foreclosed... simply preserving for appeal. How do we differentiate with other cases that appeals are foreclosed? How do I write around it to say it’s different?) We have jurisdictional questions. Cites various cases.... two kinds of indictment defects. One is technical issue, that’s Cotton. But Peter and Rosa Ortiz say if thing charged is no crime at all ... we think this falls into this category. Because this information, after Skilling, could only have stated bribe or kickback ... or factual basis something like that. WE suggest that those words just aren’t there.
In district court ... Davidson wrote ... about non-crime. In Rosa Ortiz, is opposite of what case states. When doesn’t constitute a crime and defendant is innocent ... (Wasn’t this argument rejected in Zach Scruggs case?) No, opinion was that he had committed misprision and was another crime. This is different ... a 1346 violation... bribe or kickback. No a crime under the laws of the U.S.
In Peter and Rosa Ortiz, no jurisdiction in district because crime isn’t cognizable by U.S. (question) Not familiar with George. Govt says we pled honest services violations. Skilling put it on another plane. Said it was unconstitutional to be guilty of something other than bribery or kickback. If it’s not there, it’s not there. Skilling put the onus on whether information pled this case. (Judge reads George to him.) Peter would disagree and I hope you would too.
Trying to put everything under Cotton, which draws a distinction. Skilling says no other conduct falls in. Altogether different.
We also say that 1st Amendment has some implications here. Whatever you think of this conduct - it was an endorsement to become a federal district judge. Indictment says quid pro quo was secret access to judge in turn for Lott’s call. Began August 2005, almost 9 months before Lott’s call and months before opening on court. When we’re dealing with right to speak on political matters... must be careful. That something has to be very specific. Indictment doesn’t charge that. Says Secret access were in return for the phone call, but the access began six months before. We have to be very careful to make sure ... that it is tied very tightly to the act. You know, people make phone calls.
You know people can’t say no to a judge for this favor. Was this a quid pro quo? Answer is no. In 1st Amendment, we have to be very careful... to say right to call a U.S> senator ... must be protected ... no evidence of explicit in this case.
Falls ... it is different than George. Falls under Peters. We are left where Mr. Scruggs has served five years concurrent with another, potentially to be in jail for something that is not a crime.
NORMAN - 10:50 - Disagree respectfully. Skilling did not decriminalize bribery. Quid pro quo is the key to the case... because makes it a paradigmatic bribe. Takes it outside the 1st Amendment. Quid Pro quo takes it outside.
Charge itself - information does not use words quid pro quo. If I were ti draft it post Skilling, I would use those words. It predates Skilling, so does Whitfield, a 5th Circuit case which was cited with approval of Skilling. What USSC used to describe what a paradigmatic bribe is. In Whitfield... words quid pro quo not used ... court says govt must prove exchange of something of value despite the official intent. Give and take. Precisely the argument counsel makes.
In this information, Mr. Scruggs in second guilty plea admitted he and legal team devised a scheme to defraud... they used the U.S. mail. Defraud includes honest services. That’s what’s alleged in the information. May only describe offense against the U.S. in language like the statute. Doesn’t use quid pro quo.
Looking at jurisdictional objections, I don’t now where Peters and Meacham stand after Skilling. But is clear they deal with offenses that aren’t violations of federal law. But Cotton, USSC says an indictment or information may not be artful ... but if it conveys the violation of law, jurisdiction remains. That’s what defendant defaulted when he didn’t appeal directly.
After that, he tried actual innocence. Skilling didn’t change the law... simply drew it into its core offenses to bribes and kickbacks. Not a sea=change in the law. Any defects ... fall within Cotton. Those who believe Bousley is unfair. Cites another precedent... defendant defaulted but wanted to pursue by habeas. Our district court judge held two-day hearing ... he took into account other guilty pleas (Langston, Patterson) to prove actual innocence. He found defendant totally failed. He also found Patterson not credible and Langston not credible.
Quid pro quo is critical. Takes many forms. Powerful testimony - Tim Balducci, spring 2006... conversation at the airport when Peters complained that DeLaugher had kept his end of the bargain and that Dickie Scruggs had not kept his end. Judge didn’t get an open seat. Shortly after, DeLaughter got the call from Lott. He said never indicated he was under consideration, just a courtesy, he didn’t tell DeL he was just joking because DeL wrote a letter next day to the senator, thanking him and gushing about how honored he was to be considered, etc. Created in mind of DeL exactly what defense wanted... made him feel it was his last best chance to become a federal judge. He was willing to sell his soul to get it. He did. He was a distinguished jurist and prosecutor. He sold his soul in his quest to become a federal judge.
He granted secret access to the court... via Peters... but entered rulings shading findings of fact to give Scruggs what he wanted. What they wanted in quantification order ... when filed, Team Scruggs felt it was objectionable. Asked court to set the value. But then realized it might be an opportunity. Had to know which way judge would go. That’s when they hired Peters with reverse contingency plan. ... most of us don’t get that opportunity.
Peters told them they should embrace it, then he provided last page showing zero additional funds owed to Mr. Wilson. Also knocked out punitive damages. It was a done deal. Wilson didn’t know he had been had. They embraced it and it saved Scruggs millions and millions of dollars. Wilson never knew what hit him.
That is what we’re trying to prevent (HEAVY SIGH) Long, arduous case. Goes to the heart of what we do for a living. Submit that charge before the court, even if not artful, jurisdiction vested in the court per Whitfield and Cotton... defendant failed to prove his actual innocence. Pled guilty to a scheme to defraud a sitting judge. trying to escape that liability with Skilling, but it did not change honest services fraud statute, only pared it down to core offense - this is one of them. It was set forth in the information with enough particularity .... 11:05.
ROBERTSON - Respectfully disagree. It was a sea-change. Skilling says it uniformly changes the statute. It was an ethical violation. But at no point did he say where in the information or factual basis it was “quid pro quo.” Peters says this: If everything in the information is proven, is it a crime? No, because of Skilling - there’s no crime. Doesn’t criminalize that. Norman asking 5th Circuit law that we don’t have to say in honest services what the violation is. He says not he would do it differently now. An Admission isn’t not there in 2006. Suggest it was a sea-change. It is not a crime. Difference between this and Cotton.
It is an ethical violation. This is the best one you’ll ever see. Absent interchange of money ... in a political endorsement ... says quid given 6 months before the pro, if you give it away free, you can’t do it later. At heart - is not what we do for a living. It’s more important. Core concept of liberty - people are charged with crimes passed by Congress and courts recognize. Not allow prosecutors to throw you in jail by saying you’ve committed a crime.
Absent a bribe or kickback, there is no crime. First thing 2255 says. 11:10