SUPPLEMENTAL BRIEF OF APPELLANT
JOHN H. WHITFIELD
COMES NOW the Appellant, John H. Whitfield, and files this his
Supplemental Brief in accordance with this Court’s April 22, 2009, letter, and in
support hereof the Appellant would state, aver and reply as follows:
PRELIMINARY STATEMENT
This Honorable Court has properly seized upon the key substantive issues
that have been raised by this Appellant throughout this prosecution. The issues
presented in the Court’s letter focus squarely on the fundamental issue of federal
question subject matter jurisdiction. Take away the allegations that 18 V.S.C.
§666 was violated and the Government’s entire case crumbles. Without §666, the
other federal claims cannot survive.
Your Appellant raised these specific issues as early as January 14, 2004, in
his Motion to Dismiss the Indictment (D#1151) and continued to assert them
throughout the prosecution and in his post trial motions. Whitfield again raised
these issues on appeal asserting them in his principal brief as part and parcel of his
Jurisdictional Statement, Questions Presented, Summary of Argument and in great
detail in his Argument, specifically, Sections LB. and LC.
In raising his jurisdictional objections to the §666 charge, Whitfield is not
1 With each superceding indictment, a Praecipe was filed by Whitfield renewing all
previous motions. The district court required this mechanism rather than allowing
the refiling of individual motions. (See D#s 167, 172, 349 & 519.)
challenging the constitutionality of the statute. Appellant is challenging the
statute’s application, jurisdictionally, to the specific and very unique facts of the
case now before this Court. As a matter of law the Government failed to prove (by
any standard, let alone beyond a reasonable doubt) the key jurisdictional elements
of §666. Consequently, a decision to vacate the convictions herein will be
expressly limited in scope and will be confined to the very unique facts of this case
and the unusual structure of the Mississippi court system.
Should this Honorable Court agree with the Appellant that the jurisdictional
prerequisites of §666 were not proven then the Government’s entire case fails, not
just the §666 count. This is the linchpin to federal question jurisdiction herein.
Without it, the conduct complained of is at best state ethical or misdemeanor
violations. Therefore, upon consideration herein, Appellant Whitfield would
respectfully urge this Court to vacate the convictions herein and to render a
judgment of acquittal with prejudice on all counts.
QUESTIONS PRESENTED AND RESPONSES
Question #1: What evidence shows that the matter or matters
respecting which Judge Whitfield or Judge Teel intended to be
influenced or rewarded, were a matter or matters in connection with
any business or transaction of the Administrative Office of the Courts
of Mississippi? Similarly, what evidence shows that anything of value
which Minor gave with intent to influence or reward Judge Whitfield
or Judge Teel was in respect to any action taken or to be taken in
connection with any business or transaction of the Administrative
Office of the Courts of Mississippi?
Question #2: Describe the nexus that the “in connection with” clause
requires between the relevant governmental agency – here the
Administrative Office of the Courts of Mississippi – and the particular
matter respecting which the “agent” defendant (here Judge Whitfield
or Judge Tee!) is intended to be influenced or rewarded.
RESPONSE #1 AND #2:
There is no evidence that shows that the matter or matters respecting which
Judge Whitfield is alleged to have been influenced or rewarded, were a matter or
matters in connection with any business or transaction or series of transactions of
the Administrative Office of the Courts of Mississippi (hereinafter referred to as
the “AOC”). To the contrary, the proof at trial clearly established that no such
business or series of transactions took place between your Appellant, the office he
held and the AOC.
Viewed in the light most favorable to the Government, the alleged reward
from Minor to Whitfield had no connection whatsoever to the AOC or the business
of the AOC or any federal funds received by the AOC. Whitfield’s “favorable
ruling” had no connection to any business or transaction of the AOC. The business
or transactions of the AOC in no way touched the Appellant or his official duties
nor did they have any connection to the Appellant’s decision in the maritime case
of Archie Marks v. Diamond Offshore. The Government repeatedly argued that
the AOC paid the support staff and for office supplies as if the salaries and
expenses were paid by federal funds. However, Mississippi state law specifically
provides that these expenses were paid from the state general funds and only from
the state general fund as appropriated. No federal funds were ever used for the
purposes as alleged by the Government for the Appellant’s court or for any
purpose associated with the Appellant’s office. The entire time the Appellant
served on the bench his court never received any federal funds.
The Government’s failure to prove the jurisdictional prerequisite or nexus
regarding the “in connection with any business, transaction, or series of
transactions of such organization, government, or agency,” language of the statute,
specifically, the AOC, as it relates directly to the decision in the Archie Marks v.
Diamond Offshore case, requires this Court vacate the §666 conviction of this
Appellant and to render a judgment of acquittal regarding the same. As expressly
set forth on pages 17 and 18 of Appellant Whitfield’s brief and in his Motion to
Dismiss the Indictment (D# 115), the Government was required, as a jurisdictional
prerequisite to invoking federal question subject matter jurisdiction pursuant to
§666, to prove beyond a reasonable doubt, the following:
(1) That John H. Whitfield is an agent of an organization, agency or
governmental unit that received, in 1998, 1999, and 2000 (anyone year
period), benefits in excess of $10,000 under a Federal program
involving a grant, contract, subsidy, loan, guarantee, insurance, or other
form of Federal assistance.
and
(B) That John H. Whitfield corruptly accepted or agreed to accept,
anything of value from Paul Minor, intending to be influenced or rewarded
in connection with any business, transaction, or series of transactions of
such organization, government, or agency (specifically, the Mississippi
Administrative Office of the Court) involving any thing of value of $5,000
or more. (emphasis ours.)
Put another way, the Government was required to prove that your Appellant was
(1) an agent of the AOC, (2) that as an agent he, or the office in which he served,
received benefits in excess of $10,000 in federal grants or other federal assistance,
and (3) that he accepted or agreed to accept a thing of value in excess of $5,000 as
a reward or intending to be influenced in connection with some specific matter the
Government claimed he was rewarded or intended to be influenced in, i.e., Archie
Marks v. Diamond Offshore, that in some way was in connection with some
business or transaction of the AOC.
The Government simply failed to establish either of the aforementioned
jurisdictional prerequisites, i.e., agency, receipt of federal funds or that the matter
the Government claimed was the focus of the reward or corrupt influence in any
way affected any business, transaction or series of transactions of the AOC.
Consequently, this Court should vacate the §666 conviction herein and render a
judgment of acquittal.
This Court has consistently held that “[T]here must be some nexus between
the criminal conduct and the agency receiving federal assistance.” U.S. v. Phillips,
219 F.3d 404, 412-414 (5th Cir. 2000); U.S. v. Moeller, 987 F.2d 1134, 1137 (5th
Cir. 1993)2. This Honorable Court has required proof of three very important, yet
equally distinct, aspects of §666 (all three of which must be present in order to
properly invoke federal question subject matter jurisdiction pursuant to §666) to
determine if the jurisdictional prerequisites or nexus were properly established.
The first of these jurisdictional prerequisites is that of agency. This issue
has been adequately set forth in the briefs of your Appellant and Appellant Minor
(whose arguments thereon this Appellant hereby adopts).
The second jurisdictional prerequisite or nexus is the federal funding issue.
§666 requires that the public official claimed to have violated the statute must
(within one year prior to the alleged corrupt act and/or within one year following
the same) receive federal funding or benefits in excess of $10,000. 18 V.S.C.
§666(a)(I)(B). No such federal funding and/or benefits or assistance were ever
received, requested or applied for by Appellant Whitfield or the office he held.
As thoroughly briefed and argued by Whitfield as early as April of 2004, the
four federal grants/contracts awarded to the AOC by the federal government were
specific purpose federal assistance grants/programs. (See D#244; Whitfield’s
Brief, pp 15-38; Whitfield’s Reply Briefpp 17-22). The evidence presented by the
Government at trial only established that the AOC received the required federal
funding as reflected by the jury verdict. There was no proof offered by the
2 Without repeating what has already been briefed, please refer to pages 22-25 of
the Appellant’s Brief.
Government that the thing of value that Whitfield is alleged to have accepted from
Paul Minor had any connection with any business, transaction, or series of
transactions of the AGC as no such evidence exists. Appellant Whitfield’s alleged
wrong was to rule in favor of Minor’s client, a ruling that all agree was legally
correct. That alleged wrong had no connection whatsoever with any business of
the AGC. In that same vein, the decisions of your Appellant with regard to any
civil suit had no bearing on or connection to the AGC.
The Government relies on a weak connection between the office held by
John Whitfield and the AGC, that is, the AGC handled certain finances for the
court system. Said reliance is fatal to the Government’s case as both the law and
the facts do not support their position that this weak link established the federal
funding perquisite or nexus of §666, without which there is no federal question
subject matter jurisdiction.
It is an undisputed fact that the Mississippi Legislature passed public
appropriation laws in 1997, 1998, 1999 and 2000 which specifically provided that
the funding for the office held by the Appellant, to include the salaries for his
office staff, his office operating allowance and travel expenses, came from the
State General Fund. The language of the appropriations legislation3 passed in 1997,
3 1997 Session of the Mississippi Legislature House Bill 1804 (See D# 244 and
the attachments/exhibits made a part thereof, said attachments being the full text of
the Mississippi Appropriation laws for the years involved herein).
1998, 1999 and 2000 is clear “it is hereby appropriated out of any money in the
State General Fund” and “not more than the amounts set forth below shall be
expended for the respective major objects or purposes of expenditure”. The “not
more than the amounts set forth … shall be expended” language clearly provides
that federal funds could not have been used to fund the office held by Appellant
Whitfield as is alleged by the Government.
The appropriations bills passed by the Mississippi Legislature clearly stated:
“Of the funds appropriated . . . Two Million Eight Hundred Twenty Thousand
Dollars ($2,820,000.00) is provided (or the purpose of employing support staff in
an amount not to exceed Forty Thousand Dollars ($40,000.00) per fiscal year
per judge.” The language of the appropriation law is clear and, as a matter of
Mississippi law, the AOe could not use any of the federal funds it received to fund
the office held by Appellant Whitfield or any of the office expenses. As a matter
of federal law, the AOe could not use the federal funds it received for any purpose
other than the stated purpose of the grant or contract. (See 42 use § 3795.) The
Government’s case is not supported by the law or the facts since no federal funds
ever reached Appellant Whitfield or his court.
Finally, the last jurisdictional prerequisite or nexus this eourt has required
the Government prove is that the conduct complained of must directly impact some
business, transaction, or series of transactions of the organization receiving the
federal funds. 18 V.S.C. §666(a)(1)(B). This particular prerequisite, just as the
two which preceded it, stands alone. That is, each must be proven beyond a
reasonable doubt. As a matter of law, if anyone of the three are not properly
established, federal question subject matter jurisdiction of §666 does not exist.
Appellant Whitfield addressed this issue in his Brief and Reply Brief by
explaining in great detail the duties, responsibilities and enabling mechanisms of
the Mississippi Supreme Court, the circuit courts, the chancery courts and the
AGC. The same clearly establishes that there is no “business, transaction or series
of transactions” engaged in by and between the circuit courts of Mississippi and
the AGC outside of the AGC’s management of the Mississippi General Fund
monies appropriated by the Mississippi Legislature to fund the operating
allowances, travel expenses, commodities and salaries of law clerks, paralegals
and/or secretaries of the chancellors and circuit judges.
Admittedly, had Appellant Whitfield’s office received federal funds from
the AGC this third jurisdictional prerequisite would make the call closer because to
receive such federal funds from the AGC, in and of itself, would have created the
type of business relationship that Congress intended to protect when it enacted
§666. However, the Government would still bear the burden of proving that the
conduct in question (Whitfield ruling favorably for Minor’s client in a civil case)
directly impacted the specific “business, transactions, and/or series of transactions”
of the AOC, i.e., the specific grants. No such evidence was offered as none exists.
The legal precedent is clear. There must be a direct threat to the integrity of the
federal funds at issue. U.S. v. Ollison, No. 010609 FEDS, 07-11029 at page 11 (5th
Cir. January 6, 2009); U.S. v. Lipscomb, 299 F.3d 303, 310 (5th Cir. 2002); U.S. v.
Marmolego, 89 F.3d 1185, 1190 (5th Cir. 1996). No such threat ever existed.
Neither Appellant Whitfield nor the office in which he served received any
federal assistance, funds or benefits. He engaged in no business, transactions or
series of transactions with the AOC and his decision in the Marks case had no
bearing on or connection to any business, transactions or series of transactions of
the AOC. Whitfield had no authority or responsibility with respect to the
administration, control or expenditure of the federal funds involved in the four
federal grant/contract programs that were introduced as evidence by the
Government in this case. Neither Whitfield nor the office he held benefited from
the federal grant monies. The federal monies awarded to the AOC had no impact
on his office and had no connection with any case he heard, let alone with the
Marks case and vice-a-versa. The Appellant was not authorized by the Mississippi
Constitution, statute or otherwise to act on behalf of the Mississippi Supreme Court
or the AOC, nor was he an employee, partner, director, officer, manager or
representative of either governmental organization or agency. Any decision the
Appellant made in the Marks case affected the business of the parties to that
lawsuit and the parties alone.
Question #3: What is the proof of such nexus with respect to the
convictions under counts 11, 12, 13 and 14?
RESPONSE #3:
As it relates to Appellant Whitfield there is no proof whatsoever of any
nexus regarding the “in connection with” clause, required to be proven as a
jurisdictional prerequisite, between the AOC and the particular matter (the Archie
Marks v. Diamond Offshore civil case) respecting which the “agent” is alleged to
have intended to be influenced or rewarded. Additionally, an even more
problematic statutory interpretation and analysis occurs when one is asked to
analyze §666 and the “in connection with” language when there are minimal
contacts or interaction between the agency in question and the defendant/agent
(assuming the agency hurdle has been cleared). It is the International Shoe
analysis of statutory interpretation that results in tremendous uncertainty as to what
is in and what is out, not to mention the additional problem of adequate notice of
what conduct is proscribed, as the government continues to expand the application
of §666 to conduct never contemplated by Congress when it enacted §666.
However, that is not the case presented today. The record is wholly devoid
of any evidence that Appellant Whitfield’s decision in Marks impacted the AOC or
the federal funds in question or that Whitfield was an agent of the AOC. There is
absolutely no evidence whatsoever that Whitfield received any federal funds.
There is present no nexus that creates a challenge or threat to the integrity of any
federal funds. It is this nexus that must exist before the Court is put to the task of
asking whether an official sought to be rewarded or influenced. The Government’s
case fails for lack of jurisdiction and jurisdictional issues are always open for the
Court’s consideration.
As stated in the Appellant’s principal brief and reply brief, without §666 the
government’s case fails as the allegations at issue are at best ethical or
misdemeanor violations of the laws of the state of Mississippi, thus the judgment
of convictions should be vacated and a judgment of acquittal rendered on each
count with prejudice.
Question #4: As to each appellant was a lack of such nexus adequately
raised below and on appeal? If not adequately so raised, what authority
would allow the court to consider the nexus in the present appeal?
RESPONSE #4:
Appellant Whitfield has continually argued the non-existence of the
jurisdictional nexus of §666. His pretrial, post trial and appellate briefs are replete
with these arguments. The issue has been properly preserved and raised on appeal. 4
4 As to all defendants the lower court ruled that the filing or objection on behalf of
one defendant was applicable to all unless a defendant/appellant expressly opted
out of the same. (Tr. 2nd Trial at 1971.) The procedure applied to trial motions,
objections and Rule 29 motions. The only time the “opt out” was exercised during
the pendency of this prosecution was with respect to the motions for continuances.
However, should this Court conclude that the issue has not been properly
preserved and raised on appeal, it is nevertheless authorized and obligated to
adjudicate the same pursuant to the Court’s inherent judicial powers, consistent
with Rule 52(b) of the Federal Rules of Criminal Procedure and the doctrine of
plain error. U.S. v. Olano, 507 U.S. 725, 731-737 (1993); U.S. v. Jones, 484 F.3d
783, 792 (5th Cir. 2007). Jurisdiction is a threshold requirement that must be
addressed, even in the first instance on appeal, because the court of appeal is
obliged to satisfy itself of its own jurisdiction before proceeding to the merits of
the appeal. “Federal courts are courts of limited jurisdiction ‘hav(ing] only the
authority endowed by the Constitution and that conferred by Congress.’I’ United
States v. Hazlewood, 050508 FED5, 07-50827; citing Save the Bay, Inc. v. U.S.
Army, 639 F.2d 1100, 1102 (5th Cir. 1981); See Northwest Airlines, Inc. v.
Transp. Workers Union of Am., 451 U.S. 77, 95, 101 S.Ct. 1571, 1582, 67 L.Ed.
2d 750 (1981).
Whether an issue is properly raised and preserved and presented for the
Court’s consideration is measured in a manner of degrees by notice. But to what
manner of degree does the ends of justice lie? Overreaching by federal prosecutors
when they know that federal jurisdiction does not properly exist does not lead to a
filed by Minor or Teel with which Appellant Whitfield chose to assert his right to
speedy trial, that was clearly violated by the Government when it caused a nonexcludable
delay of at least 114 days.
just result. It may result in a statistical victory, but not justice … it may result in
the advancement of a political agenda or one’s political career, but not in justice …
it may result in the personal, professional or financial ruin of the subject target of
the overreaching, but this too, is not justice. Justice Thomas, joined by Justice
Scalia, warned of this type of prosecutorial overreaching and the threat to
federalism it creates in his dissent in Fisher v. United States, 529 U.S. 667 (2000).
Your Appellant has challenged jurisdiction from the start, not on a
constitutional basis, but on the basis that as a matter of law, the Government’s case
as articulated in each and every indictment obtained herein and as put forth at trial
failed to establish, the jurisdictional prerequisites necessary to invoke federal
question subject matter jurisdiction. This disconnect creates the Great Divide that
cannot be bridged by the Government based upon either the facts or the law.
Question #5: If the court determines one or more of counts 11, 12, 13
and 14 should be reversed, what effect, if any, would that have on the
proper action to be taken on any of the other counts of conviction, and
what effect, if any, would that have with respect to whether there
should be resentencing on any of the other counts of conviction even
if the convictions on those other counts were not to be reversed?
RESPONSE #5:
As your Appellant has already set forth on pages 2, 30, 38 & 96 of his
principal brief and pages 21, 22 & 25 of his Reply Brief, if the §666 count is held
for naught the Government’s entire case falls. There can be no mail fraud without
a substantive honest service conviction pursuant to §666 because this is what
makes the mailings in question fraudulent or part of a scheme to defraud. Without
it, the mailings are not fraudulent as a necessary element of proof to sustain such
convictions cannot be proved. Again, this is a case of strictly local concern. The
Government engaged in creative overreaching to force the facts of this case into
the perimeter of §666 thereby obviating the need to establish the necessary
jurisdictional requisites. The issues as to resentencing is moot in that no proper
interpretation of the law and the facts of this case can sustain the remaining
convictions once the §666 charge is reversed.
CONCLUSION
In conclusion, the Government has failed to prove, not just by the standard
of “beyond a reasonable doubt” but by any standard, the necessary jurisdictional
prerequisites of §666. Therefore, this Honorable Court should vacate the judgment
of conviction pursuant to §666 and render a judgment of acquittal as a matter of
law. The Government having clearly failed to prove the jurisdictional linchpin of
its case, i.e., §666 fraud or a scheme to defraud pursuant thereto, which is the basis
for claiming the conduct herein complained of creates a “federal case,” your
Appellant further urges this Court to vacate the remaining convictions and likewise
render judgments of acquittal as to each such count with prejudice.
Pursuant to Rule 28(i) of the Federal Rules of Appellate Procedure,
Whitfield adopts by reference the arguments presented by Mr. Minor and Mr. Teel.
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