United States v. Scruggs: The Fifth Circuit Creates a New Method To Determine What Constitutes a “More Serious” Charge

Richard “Dickie” Scruggs first found notable success as a plaintiffs’ attorney in asbestos litigation.  Not long after, Scruggs found massive success as one of the key plaintiffs’ attorneys in tobacco litigation.  Scruggs became a subject of national media attention, even finding himself as a character in the Academy Award-nominated motion picture The Insider, Hollywood’s take on the epic legal fight against the tobacco industry.  However, behind the scenes, Scruggs continuously found himself embroiled in fee-sharing disputes with cocounsel.  In particular, Roberts Wilson, Scruggs’s cocounsel in asbestos litigation, filed suit against Scruggs for unpaid fees.  Mississippi Circuit Court Judge Robert “Bobby” DeLaughter was assigned to the case.  Scruggs, having recently lost a similar fee-sharing suit, decided to put into motion a scheme to avoid the same fate twice.  Scruggs hired Ed Peters, a close friend of DeLaughter, as a covert go-between to deliver an offer from Scruggs to DeLaughter:  if DeLaughter tipped the scales in Scruggs’s favor, Scruggs would speak with his brother-in-law, Trent Lott, a United States Senator, and recommend DeLaughter for a federal district court judgeship.  DeLaughter, who openly coveted a federal judgeship, began to work on his end of the corrupt bargain to favor Scruggs. After the case with Wilson settled, the Scruggs-DeLaughter scheme was exposed by members of Scruggs’s legal team who were cooperating with the government’s investigation of a separate judicial bribery scheme.  Scruggs was indicted on three counts of aiding and abetting honest-services mail fraud.  Scruggs pled guilty to a superseding bill of information that charged him with one count of aiding and abetting honest-services mail fraud.  In response to Scruggs stating his plea of guilty to the United States District Court for the Northern District of Mississippi, Judge Glen H. Davidson, sitting in the same seat that DeLaughter so ardently craved, stated on the record, “The Romans had a proverb which said that money was like seawater.  The more you drink, the thirstier you become.  In looking back at your situation, I think that’s certainly applicable, and it’s sad.”  In June 2010, the United States Supreme Court handed down Skilling v. United States.  Addressing the constitutionality of 18 U.S.C. § 1346, the Court clipped the wings of the honest-services statute, limiting its applicability to kickback schemes and bribery only.  In response to the Skilling decision, Scruggs filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, arguing that he did not admit to bribing Judge DeLaughter and thus could not be guilty of violating § 1346 as it is now defined under Skilling.  The district court found that by pleading guilty, Scruggs had procedurally defaulted on the claim.  The court denied Scruggs’s § 2255 motion after finding that Scruggs could not show actual innocence or cause and prejudice.  Scruggs appealed, challenging the court’s subject matter jurisdiction in light of Skilling, in addition to arguing that he did not procedurally default on his claim.  The United States Court of Appeals for the Fifth Circuit held that the district court had subject matter jurisdiction and that Scruggs was required, and failed, to show actual innocence of all three forgone honest-services counts in the original indictment.  United States v. Scruggs, 714 F.3d 258 (5th Cir.), cert. denied, 134 S. Ct. 336 (2013).