Here at Legal Schnauzer, we've known for a long time that the Minor case is a travesty, with prosecutors gaining convictions only because a corrupt federal judge issued bogus jury instructions. And the U.S. Fifth Circuit Court of Appeals recently muddied the waters by throwing out the convictions on bribery but maintaining the ones for fraud.
The crux of the prosecution's case against Minor was that the Gulf Coast attorney provided favors for state judges Wes Teel and John Whitfield in exchange for favorable rulings. But now we have the U.S. Supreme Court essentially saying that, even if the charges against Minor were true, his actions are protected by the First Amendment.
In other words, Minor was convicted for doing what our system encourages him to do.
The irony of the Citizens United ruling was not lost on Abbe Lowell, one of Minor's attorneys. In fact, Lowell supplemented Minor's motion for reconsideration with new argument based on Citizens United. In a letter to the clerk of the Fifth Circuit, Lowell states:
Pursuant to Federal Rule of Appellate Procedure 28(j), Paul Minor notifies the Court of the Supreme Court's recent decision in Citizens United v. FEC, No. 08-205 (Jan. 21, 2010). That decision clarifies that the jury instructions in this case, which allowed the jury to convict the defendants of honest services fraud for campaign contributions made with only an intent to influence and without any quid pro quo, violate the First Amendment.
Minor already had an overwhelmingly strong appeal. But now the John Roberts-led U.S. Supreme Court has stepped in to essentially say that trial judge Henry Wingate's jury instructions violated Minor's First Amendment rights.
Moral of the story: What right-wing judges giveth, right-wing judges can taketh away.
Here is Lowell's full letter to the Fifth Circuit. He's essentially telling the Fifth Circuit, "We know you got it wrong, and now the U.S. Supreme Court agrees with us." Touche:
Mr. Charles R. Fulbruge III
Clerk of Court
U.S. Court of Appeals for the Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130-3408
Re: United States v. Paul S. Minor, No. 07-60751
Case Argued on April 1, 2009 Before Judges Garwood,
Benavides and Haynes
Dear Mr. Fulbruge:
Pursuant to Federal Rule of Appellate Procedure 28(j), Paul Minor notifies the Court of the Supreme Court's recent decision in Citizens United v. FEC, No. 08-205 (Jan. 21, 2010). That decision clarifies that the jury instructions in this case, which allowed the jury to convict the defendants of honest services fraud for campaign contributions made with only an intent to influence and without any quid pro quo, violate the First Amendment. In the context of campaign contributions, the Court held that the government's interest in preventing corruption or the appearance of corruption, is limited to quid pro quo corruption. (Slip op. at 43.) The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt: Favoritism and influence are not . . . avoidable in representative politics . . . . It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Id. at 43-44 (quoting McConnell v. FEC, 540 U.S. 93 (2003) (Kennedy, J., concurring and dissenting)). Reliance on a generic favoritism or influence theory . . . is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle. (Id. at 44.) Ingratiation and access . . . are not corruption. (Id. at 45.)
The jury instructions in this case allowed Mr. Minor to be convicted for making campaign contributions with the intent to influence official actions by the judges he supported, without their being a quid pro quo, and even if the jury found the judges rulings legal and correct. In doing so, the instructions transformed protected First Amendment contributions made to influence elected officials to follow their judgment, rather than betray it, into a crime. That is constitutional error of the greatest magnitude, which requires the honest services convictions be reversed as part of the pending proceedings before this Court.
Abbe David Lowell