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In comments, a question was raised whether the mail fraud statutes are designed to cover the sort of things charged in the DeLaughter indictment, which I thought an interesting question. The answer is that the statutes were amended with something like this in mind.

In 1988, in specific response to a US Supreme Court case, McNally v. United States, that held the mail fraud statutes did not cover denial of honest services of public officials, Congress added a section to the mail fraud statutes that says: “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” That statute, codified as 18 USC § 1346, is the engine that is driving Counts Two through Four of the indictment brought against Bobby DeLaughter.

The basic mail fraud statute, 18 USC § 1341, seems addressed to what we normally think of as fraud:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises … places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service … shall be fined under this title or imprisoned not more than 20 years, or both.

As noted, §1346 defines that phrase “defraud” as to include “depriv[ing] another of the intangible right of honest services.” Judge DeLaughter is charged with conspiring to do this– that is, he was part of a scheme that used the mails in a “scheme or artifice to defraud” that is, a scheme “to deprive another of the intangible right of honest services.”

The statute has been applied to include schemes involving judges and cases before them. In U.S. v. Long, 95 Fed. Appx. 483 (4th Cir. 2004), a municipal judge who was also mayor was fixing DUI cases by reducing the charges to reckless driving (with a fine substantially higher than that usual for reckless driving) and telling the drivers to contest their license spending before the DMV hearing, then ordering police officers on pain of firing not to show up at the DMV hearing so the defendants would get their drivers licenses back. In U.S. v. Frega, 933 F.Supp. 1536 (S.D. Cal. 1996), the indictment alleged that a pair of lawyers had lavished gifts on a judge (my favorite of the alleged gifts was $1,200 to pay someone to ghost write a novel for the judge). In U.S. v. Brumley, 116 F.3d 728 (5th Cir. 1997), the statute was applied to a Texas workers comp director who was taking “loans” (never repaid) from lawyers who were appearing before him. Brumley argued that the statute did not reach either ethical lapses or conduct that involved purely state concerns; the court rejected both arguments.

Note that in Long, the mayor wasn’t getting the money generated by the scheme– it was going to the town for which he was mayor.

I think it pretty clear that the 1988 amendment was designed to reach the sort of conduct alleged here.

With that, I’m going to comment on some possible defenses now that I’ve looked at some cases under the statute. There are some key words here:

Honest

Can Judge DeLaughter say that he wasn’t denying anyone “honest services” because he ruled correctly and how he should have ruled in any event, and therefore there’s no fraud?

If that’s a defense, that means that a trial would involve a trial-within-the-trial about the correctness of the rulings DeLaughter made, and possibly some expert testimony. If his rulings were even arguably correct, does he walk on mail fraud?

There’s a possible major flaw in this argument, though, noted below under the heading “concealment.”

Scienter

By definition, a fraud scheme involves knowing you’re committing fraud– that’s what is known as the scienter requirement for fraud. The 7th circuit case I mentioned states that this element requires the public official have notice of the illegality of their act. There’s a split among the courts as to whether there has to be a violation of free-standing legal obligations (the argument is made that mere ethical lapses don’t suffice, for instance, and that there has to be some violation of a stated duty), while other courts have ruled that there’s no such requirement.

It seems clear that the reason the DeLaughter indictment specifically cites Miss. Code Ann. § 97-11-53, which makes it a state crime to illegally influence a public official, is to cover this possible requirement and to make clear that DeLaughter was on notice he was acting illegality. Can the prosecutors also cite anti-earwigging rules for that purpose?

This is a place that the “honest” part recurs– if DeLaughter still meant to rule correctly, did he have the mental state (scienter) required for fraud? There are cases that support, and other cases that reject, these arguments DeLaughter could make about whether he was going to be “honest” and whether there was a denial of anything tangible if it didn’t effect his rulings.

Concealment

The off-the-record contact by Peters is critical. There are cases that hold that concealment of a conflict of interest will suffice to violate this statute. If the Government wants to push the envelope a little, it could argue that Peters’ off-the-record contact with DeLaughter funneling defense information to the judge all by itself denied the public of DeLaughter’s honest services, even if it did not affect his rulings.

It seems to me that allowing one side back-room against-the-rules-and-law access to the judge (in an information flow that was a two-way circuit, to boot) certainly denies the public of the honest services of a judge…

Proof

So what kind of proof issues does all this imply? If I were defending DeLaughter and worried about the whole problem whether he can testify (given the charge of a lie to the FBI agent, the grand jury testimony, and so on), I would try to get some expert testimony, and there are some obvious possibilities:

• An expert who perhaps could testify that DeLaughter’s rulings were at least arguably correct. This has the potential of having a (seemingly) neutral witness say what DeLaughter needs to tell the jury: That these rulings were honest. Thus no denial of honest services.
• The actual expert from the Wilson case. As I understand it, what DeLaughter did was reject a special master’s ruling that largely accepted the expert testimony advanced by the Wilson side and rejected that put forward by the Scruggs side. I’d be seriously considering calling that expert to say “Oh, yes, my testimony was honest and correct, and Judge DeLaughter was honest and correct to accept it.” If I’m correct about who this witness is, it is someone closely associated with Scruggs, so Scruggs’s guilty plea may be complicating here, but surely that expert would have to stand by their prior testimony.
• Scruggs’s lawyers other than Langston and Balducci. The indictment accepts the version of this tale that Scruggs decided in late ’05 / early ’06 to bring in Langston and Balducci to work Peters to dishonestly influence DeLaughter. Before that decision, Scruggs was represented by widely respected lawyers about whom there has not been a hint of impropriety in this case; presumably they were advancing the arguments on which Scruggs ultimately “prevailed”– the suggestion is not that Langston and Balducci brought new arguments to the table but rather went through the backroom to make sure the old arguments won.  Presumably, the earlier lawyers would have to say that they advanced arguments they thought legitimate and took seriously.

In some ways, these theories would make this trial more like a legal malpractice case than a fraud case, much less a normal criminal case!

If DeLaughter’s defense takes any of these tacks, it gives the defense the possibility of defending the honesty of DeLaughter’s decisions without DeLaughter needing to take the stand to defend them.

Will that be enough? This is where the issues I raised under the heading “concealment” become critical. If the backroom ex parte contact to influence a judge’s decisions suffice– without regard to whether the judge ruled correctly, the jury will be invited in the jury instructions to convict DeLaughter without regard to whether his rulings were correct.

Which, by the way, means that there may be another kind of expert testimony in this case: Testimony about the propriety of the backroom ex parte contact.

Do all these suggestions for how the defense can handle the case mean I no longer think that the judge has a hard row to hoe? Nope. I still do, but am now of the opinion that there are some interesting angles the defense can work in this case.

I’ll close out by noting that given all these issues, I would not be surprised to see a motion to dismiss from the defense side, arguing what’s called the rule of lenity– that this statute doesn’t sufficiently charge as a crime honest rulings made in a process involving back room conduct. I would expect such a motion to be a loser but serve to bring before the judge issues that will become key when the judge decides how to instruct the jury about all the issues described in this post.