I. INTRODUCTION
Through a letter from this Court to counsel for all parties dated April 22,
2009 (hereinafter “April 22 letter”), the Court directed the parties to provide
supplemental briefs on various issues pertaining to the 18 U.S.C. § 666 charges
against the Defendants.1 A copy of the April 22 letter is attached to this
Supplemental Brief as Exhibit 1.
The April 22 letter sets forth five issues to be addressed by the parties. The
issues pertain to proof required to uphold the § 666 counts, and the effect on the
remaining counts if the § 666 counts are reversed. Mr. Teel anticipates that the
Supplemental Briefs filed by Appellants Paul Minor and John Whitfield will
address the first three issues in a manner that will also apply to Mr. Teel.
Accordingly, under the provisions of Rule 28(i) of the Federal Rules of Appellate
Procedure, Mr. Teel adopts by reference the arguments presented by Mr. Minor
and Mr. Whitfield on the first three issues.
Mr. Teel will provide his own responses to the fourth and fifth issues
presented in the April 22 letter. Additionally, Mr. Teel adopts by reference the
arguments presented by Mr. Minor and Mr. Whitfield on these two issues.
Issues four and five state:
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?
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?
April 22 letter, unnumbered p. 3. Mr. Teel’s analyses of issues four and five are
presented below.
II. Arguments.
A. 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?
1. Background.
Mr. Teel respectfully asserts that to the extent that the “nexus” issue was
adequately raised by either Mr. Whitfield or by Mr. Minor, the issue was also
adequately raised and preserved by him. On November 17, 2004, Mr. Teel filed a
pleading titled Motion and Praecipe to Join in Motions by Defendants Minor,
Whitfield, Diaz and Mrs. Diaz (hereinafter “Motion to Join”). The Motion to Join,
which was filed in district court under docket entry number 314, is attached hereto
as Exhibit 2. It states in relevant part “[i]t is Teel’s intent to join all motions by
defendants that are relevant to his case.” (Motion to Join (attached as Ex. 2), p. 1, ¶
3.) The the district court granted Mr. Teel’s Motion to Join through an Order filed
on May 9, 2005, under docket entry number 407.
Also, at trial all parties and the district court agreed that an objection to an
issue by any of the three Co-defendants was considered an objection to the issue by
all Defendants. (Tr. 2nd Trial at 1971.)
2The Motion requests information from the Government regarding how “the alleged bribe
‘related’ to the administration of a federally funded program, funds and/or monies” (Motion
(attached as Ex. 3), p. 2, ¶1(f)) and arguing that the charges should be dismissed because “the
conduct alleged in the indictment is not an offense within the scope of 18 U.S.C. § 666” (id. at p.
2, ¶ 4, see also, Motion at p. 3, ¶¶ 6 & 7; p. 6, ¶ 10; pp. 7-11, ¶¶ 12-21).
3The § 666 issue is the only issue addressed in the three pleadings filed by Mr. Minor.
In the context of the § 666 charges against the Defendants, the nexus issue
was raised by Mr. Whitfield in a Motion to Dismiss filed in district court on
January 14, 2004, under docket entry number 115 (attached hereto as Exhibit 3).2
The issue was also raised by Mr. Minor in the following three pleadings: Motion to
Dismiss filed under docket entry number 485 (attached hereto as Exhibit 4); Brief
in Support of Motion to Dismiss filed under docket entry number 486 (attached
hereto as Exhibit 5); and Brief in Support of Rule 29 Motion to Dismiss filed under
docket entry number 570 (attached hereto as Exhibit 6).3 Also, at the trial of this
case, Mr. Minor’s Rule 29 motion regarding the § 666 charges included an
argument that the alleged illegal conduct “is not a transaction of the board of
supervisors or of the administrative office of the courts of Mississippi.” (Tr. 2nd
Trial at 4073-74.) This argument effectively raised the subject nexus issue to the
district court.
Also, the nexus issue was raised by Mr. Minor in his Appellate Brief to this
Court. On pages 84 through 86 of his Brief, Mr. Minor asserted an argument
focusing on the proposition that federal jurisdiction for the § 666 counts, as well as
successful prosecution of the § 666 counts requires the Government to prove a
nexus between the alleged bribes and the agency receiving federal funds. In Mr.
Teel’s Appellate Brief, he specifically adopted Mr. Minor’s argument on this issue.
Brief for Appellant Teel, p. 12.
2. Analysis – An objection raised by a co-defendant preserves the
issue for appellate review for other co-defendants.
In addition to the district court’s granting Mr. Teel’s Motion to Join, this
Court in United States v. White, 589 F.2d 1283, 1290 n.14 (5th Cir. 1979)(citation
omitted), held “[w]e believe objection by codefendant’s counsel is sufficient to
preserve any error” on appellate review. See also United States v. Love, 472 F.2d
490, 496 (5th Cir. 1973)(citation omitted)(holding that when a co-defendant
objects to an issue, and further objection by another co-defendant would be a mere
“useless formality,” then the the issue is preserved for appellate review for all
defendants); United States v. Westbrook, 119 F.3d 1176, 1185-86 (5th Cir. 1997).
This is consistent with the practice in other circuits. See eg. United States v.
Lindsey, 200 Fed. App’x 902, 910 (11th Cir. 2006)(citing White, 589 F.2d at 1290
n.14). Because Co-defendants Minor and Whitfield raised the nexus issue on
multiple occasions, the issue is also preserved for appellate review by Mr. Teel.
3. Analysis – An objection need not be raised with precise specificity
to preserve the issue for appellate review.
Mr. Teel contends that the nexus issue called into attention in the April 22
letter was specifically addressed in the pleadings referenced above in section
II.A.1. of this Brief, as well as at trial. However, even if this the Court finds that
the nexus issue was not raised with precise specificity, it was raised with sufficient
specificity to preserve the issue for appellate review. See United States v. Ocana,
204 F.3d 585, 589 (5th Cir. 2000)(holding that a “general objection” is sufficient to
preserve an issue for appellate review if the objection is such that it enables the
district court to address the issue); United States v. Hernandez, 64 F.3d 179, 181
(5th Cir. 1995)(holding that an issue is preserved for appellate review so long as an
objection “alert[s] the district court to the issue before it.”); United States v.
Pineiro, 470 F.3d 200, 204-05 (5th Cir. 2006).
Based on the pleadings before the district court, as well as the Rule 29
argument made at trial, the district court was well aware of the subject § 666 nexus
issue. That is, based on the pleadings and objections, the district court was
equipped to address Defendants’ contention that no legal nexus existed between
the Administrative Office of the Courts of Mississippi on the one hand, and the
matters for which Mr. Minor intended to reward and influence Judges Teel and
Whitfield via that alleged bribes on the other hand. Because the district court was
made aware of the nexus issue by way of pleadings and a motion during trial, the
issue is preserved for appellate review.
4. Analysis – The nexus issue is jurisdictional, thus the Court can
consider the issue even if it was not preserved for appellate review
by Mr. Teel.
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian
Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673 (1994). Even if no
parties raise “the issue of subject matter jurisdiction, this court must consider
jurisdiction sua sponte.” E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 467
(5th Cir. 2009)(citation omitted).
The Plain language of § 666 states that for a bribe to be actionable under
federal law, it must be “in connection with any business, transaction, or series of
transactions” of the government entity in issue. See also United States v. Moeller,
987 F.2d 1134, 1137 (5th Cir. 1993)(holding that in the context of § 666 charges
“there must be some connection between the criminal conduct and the agency
receiving federal assistance”). That is, without the “in connection with” or
“nexus” requirement, no federal jurisdiction over an alleged bribery crimes exists.
In short, the nexus issue strikes at the heart of whether federal subject matter
jurisdiction exists in this case. Therefore, the issue should be considered by this
Court, even if the Court finds that Mr. Teel did not properly preserve it for
appellate review.
5. The issue should be reviewed de novo.
It cannot be disputed that the nexus issue involves a question of law.
Questions of law are reviewed de novo. United States v. Severns, 559 F.3d 274,
282 (5th Cir. 2009)(citation omitted). This Court may sua sponte review questions
of law that implicate a federal court’s subject matter jurisdiction, as the subject
nexus issue does. Samaad v. City of Dallas, 940 F.2d 925, 930 (5th Cir. 1991); see
also Urban Developers LLC v. City of Jackson, Mississippi, 468 F.3d 281, 292
(2006)(citations omitted). Further, persuasive case law indicates that a question of
law should be reviewed de novo, regardless of whether or not the issue is based on
jurisdiction. See United States v. Rivera, 357 F.3d 290, 294 (3d. Cir. 2004); Henry
v. Gov’t of the Virgin Islands, 340 F.Supp.2d 583, 586 (D. V.I. App. Div.
2004)(holding that “a question of law [is] subject to plenary review,
notwithstanding the defense’s failure to raise the issue below.”)(citing Rivera).
For these reasons, a de novo standard of review should apply.
6. In the alternative, the issue should be reviewed under a plain
error standard.
Based on any of the following, a de novo standard of review should apply to
the nexus issue: (1) the district court’s granting of Mr. Teel’s Motion to Join (see
supra, section II.A.1. of this Supplemental Brief); (2) the agreement between the
district court and all parties that an objection raised by one Defendant stood as an
objection by all Defendants (see supra, section II.A.2.); (3) the objection was
raised with adequate specificity (see supra, section II.A.3.); (4) the nexus issue is
jurisdictional (see supra, section II.A.4.). If the Court rejects these four arguments,
then in the alternative, a plain error standard of review should apply.
Rule 52(b) of the Federal Rules of Criminal Procedure states “[a] plain error
that affects substantial rights may be considered even though it was not brought to
the court’s attention.” In the recently decided case of United States v. Weatherton,
__ F.3d __, 2009 WL 1162580 (5th Cir. May 1, 2009), this Court articulated the
four requirements that must be met before an issue to which no objection was
raised in district court can be reviewed on appeal under Rule 52(b).
First, there must be an error or defect – some sort of deviation from a
legal rule – that has not been intentionally relinquished or abandoned,
i.e., affirmatively waived, by the appellant. Second, the legal error
must be clear or obvious, rather than subject to reasonable dispute.
Third, the error must have affected the appellant’s substantial rights,
which in the ordinary case means he must demonstrate that it affected
the outcome of the district court proceedings. Fourth and finally, if
the above three prongs are satisfied, the court of appeals has the
discretion to remedy the error – discretion which ought to be exercised
only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.
Id. at *1-*2 (emphasis added)(citing Puckett v. United States, __ U.S. __, 129 S.Ct.
1423, 1429 (2009)).
In the subject case, factors one and three are considered together. Mr. Teel’s
substantial rights are implicated because no § 666 conviction could be validly
entered against him if no legal nexus existed between the Administrative Office of
the Courts of Mississippi on the one hand, and the matters for which Mr. Minor
intended to reward and influence Judges Teel and Whitfield via that alleged bribes
on the other hand. This satisfies factor three. Further, factor one is satisfied
because failure of the nexus requirement is legal in nature, and Mr. Teel never
waived this issue, affirmatively or otherwise.
The second factor requires that the issue must be clear and obvious. Based
on the arguments presented in district court, the arguments presented in this
Supplemental Brief, and the arguments presented in Co-defendant’s Supplemental
Briefs, this factor is met.
The fourth factor requires the error to seriously affect the fairness and
integrity of the proceeding. Again, if no nexus exists, Mr. Teel could not have
been convicted of violating § 666. The inherent unfairness of convicting Mr. Teel
of a § 666 violation without establishing the nexus requirement is obvious from
this Court’s order to provide further briefing on the issue. Factor four is met.
Under the provisions of Rule 52(b) and the case law set forth in Weatherton,
this Court should, at a minimum, review the nexus issue on a plain error standard.
7. Conclusion.
The “nexus” issue addressed in the April 22 letter was raised by Codefendants
in at least four pleadings, and by Co-defendant Minor at trial through
his Rule 29 motion for judgment of acquittal. The district court was aware of the
issue and had an opportunity to address it. Applying the holdings in White, Love,
Westbrook and Lindsey to the facts of this case, the issue was also preserved for
appellate review by Mr. Teel, even if he may not have raised the issue. This is
especially true given the fact that the parties agreed at trial that an objection by one
of the Defendants stood as a valid objection by all three Defendants. Alternatively,
if the Court finds that Mr. Teel failed to adequately preserve the nexus issue for
appellate review, it should be considered nevertheless because it is a jurisdictional
issue that can and should be taken up by the Court sua sponte.
B. 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?
1. Background.
Mr. Teel was charged and convicted of violating counts 2, 9, 10 and 13 of
the Indictment. (Third Superseding Indictment, R. at 702-08, 718-22; Jury Verdict,
R. at 813-20.) A summary of the four counts for which Mr. Teel was charged and
convicted follows.
count 2: Conspiracy with Mr. Minor to – (a) commit mail fraud in violation of
18 U.S.C. §§ 2, 1341 and 1346, (b) commit wire fraud in violation of
18 U.S.C. §§ 2, 1343 and 1346, (c) corruptly accept a thing of value
with intent to be influenced in the business of the government in
violation of 18 U.S.C. § 666(a)(1)(B), and (d) corruptly give a thing of
value with intent to be influence the business of the government in
violation of 18 U.S.C. § 666(a)(2) – all in violation of 18 U.S.C. §
371.
(Third Superseding Indictment, R. at 702-08.)
counts 9 & 10: Two counts of devising a scheme with Paul Minor to deprive the State
of Mississippi of the honest services of Wes Teel through mail fraud,
in violation of 18 U.S.C. §§ 2, 1341 and 1346. The alleged acts of
mail fraud were: (a) subpoenaing witnesses in the Peoples Bank case
via U. S. mail; and (b) sending settlement checks to Paul Minor in the
Peoples Bank case via commercial carrier.
(Third Superseding Indictment, R. at 718-20.)
count 13: Corruptly accepting a thing of value with intent to be influenced in the
business of the government, in violation of 18 U.S.C. § 666(a)(1)(B).
(Third Superseding Indictment, R. at 721-22.)
The district court imposed the following sentence on Mr. Teel.
• Seventy months on count 13 and sixty months on counts 2, 9 and 10, all to
run concurrent for a total of seventy months imprisonment. (Judgment, R. at
892.)
• Two years supervised release on all counts, to run concurrently. (Judgment,
R. at 893.)
• $400 special assessment; no fine; restitution of $1,500,000. (Judgment, R. at
895.)
It is important to note that the only count for which Mr. Teel was sentenced to
seventy months was the § 666 related count, which was count 13. On all other
counts, he was sentenced to serve concurrent 60 month periods of incarceration.
4A copy of the Jury Verdict form is attached hereto as Exhibit 6.
2. Analysis – What affect would reversal of the conviction on the §
666 count (count 13 in Mr. Teel’s case) have on the conviction on
the remaining three counts (counts 2, 9 and 10 in Mr. Teel’s case).
a. Under the jury’s verdict, reversal of the conviction on the §
666 count (count 13), mandates reversal of the conviction on
count 2 as well.
18 U.S.C. § 371 makes it a crime to conspire to commit offenses against the
United States or conspire to defraud the United States. Count 2 of the Indictment
alleged that Mr. Teel violated § 371 by conspiring with Mr. Minor to:
(1) commit mail fraud in violation of 18 U.S.C. §§ 2, 1341 and 1346;
(2) commit wire fraud in violation of 18 U.S.C. §§ 2, 1343 and 1346;
(3) corruptly accept a thing of value with intent to be influenced in the
business of the government in violation of 18 U.S.C. § 666(a)(1)(B); and
(4) corruptly give a thing of value with intent to be influence the business
of the government in violation of 18 U.S.C. § 666(a)(2).
(Third Superseding Indictment, R. at 702-08.)
Regarding the form of the jury verdict for count 2, the jury was asked a
series of four questions (Jury Verdict, R. at 814-15).4 The first two questions
asked the jury to find whether the Government proved that Mr. Teel and Mr. Minor
conspired to defraud the United States by violating 18 U.S.C. §§ 2, 1341, 1343 or
1346. (Id. at 815) The jury found that the Government failed to prove its case
regarding these alleged conspiracy violations. (Id.) The final two questions asked
the jury to find whether the Government proved that Mr. Teel and Mr. Minor
5Under Rule 28(i) of the Federal Rules of Appellate Procedure, Mr. Teel adopts Mr. Minor’s
arguments on this issue.
conspired to defraud the United States by violating 18 U.S.C. §666. (Id.) The jury
found that the Government proved its case regarding the conspiracy charges based
on § 666.
To summarize, the only acts for which the jury found Mr. Teel guilty under
count 2 were conspiracy with Mr. Minor to violate § 666. Therefore, if the § 666
conviction against Mr. Teel is reversed, then the conspiracy conviction under count
2 must be reversed as well.
b. Counts 9 and 10 should also be dismissed.
In Mr. Minor’s Supplemental Brief in response to the April 22 letter, he
provides a detailed description of the interrelated nature of the § 666 counts and
the other counts in the Indictment.5 He describes how the Government’s theory of
the case as stated in the Indictment, the Government’s presentation of proof at trial
and even the district court’s comments to the jury blurred the line between the §
666 counts and the remaining counts. Therefore, under the manner in which this
case was charged, tried and presided over over by the district court, failure of the §
666 count against Mr. Teel (count 13) requires reversal of the entire conviction
against him, including the convictions on counts 2, 9 and 10.
Of particular importance to this issue is an analysis of the jury’s verdict
regarding the count 3 bribery charge against Mr. Minor, as compared to the verdict
regarding the counts 9 and 10 honest services charges against Mr. Teel. Under
counts 9 and 10, Mr. Teel was convicted of depriving the State of Mississippi of
his honest services as a judge by way of mail fraud. (Jury Verdict, R. at 718;
Indictment, R. at 718-20.) The honest services charges against Mr. Teel were, of
course, based on mail transfers pertaining to the allegedly fraudulent loan from Mr.
Minor to Mr. Teel. (T. Tr. 2nd Trial at 4779 (district court instructing the jury that
the mail fraud in counts 9 and 10 pertain to the loan that “Minor arranged for and
personally guaranteed … to Defendant Teel”).) Therefore, for the honest services
charges to survive, there must have a finding that Mr. Minor offered, and Mr. Teel
accepted a fraudulent loan, i.e., a valid conviction requires a finding that a bribe
was offered and accepted. Otherwise, nothing illegal was transmitted through the
mail.
A review of the Jury Verdict clearly reveals that the jury found that the loan
from Mr. Minor did not involve bribery. The jury was asked to determine whether
“Racketeering Act Two: (Bribery involving $24,500 loan to Water W. “Wes”
Teel)” was “PROVED” or “NOT PROVED”. (Jury Verdict, R. at 816 (emphasis
added).) The jury found that bribery involving the loan from Mr. Minor to Mr.
Teel was “NOT PROVED”. (Id.)
In summary, because the bribery relating to the loan from Mr. Minor to Mr.
Teel was not proved, no illegal wire transfer pertaining to the loan could have
occurred. That is, if the loan was legal, then any mailings pertaining to the loan
were legal as well. This requires reversal of the convictions for counts 9 and 10
against Mr. Teel.
The above scenario typifies the complex and interrelated nature of the
charges against Mr. Teel, the interrelated nature of the jury instructions in this case,
and the interrelated nature of the jury’s findings. In both a factual and legal
context, it was impossible to separate the charges. For these reason, as well as the
reasons set forth above, convictions on all counts against Mr. Teel should be
reversed. In the alternative, the case should be remanded for a new trial.
3. Analysis – Resentencing is required if convictions on any counts
against Mr. Teel survive appellate review.
a. If the convictions for counts 2 and 13 are reversed and the
convictions for counts 9 and 10 are affirmed, then the case
should be remanded to district court for a complete
resentencing.
Under what many courts refer to as the “bundled sentence theory,”
[w]hen a defendant is convicted of more than one count of a
multicount indictment, the district court is likely to fashion a
sentencing package in which sentences on individual counts are
interdependent. When, on appeal, one or more counts of a multicount
conviction are reversed and one or more counts are affirmed, the
result is an “unbundled” sentencing package. Because the sentences
are interdependent, the reversal of convictions underlying some, but
not all, of the sentences renders the sentencing package ineffective in
carrying out the district court’s sentencing intent as to any one of the
sentences on the affirmed convictions.
United States v. Bass, 104 Fed. App’x 997, 1000 (5th Cir. 2004)(citations omitted);
see also United States v. Brown, C.R. No. H-03-363, 2008 WL 80706 at *2-*3
(S.D. Tex. Jan. 7, 2008).
Under the bundled sentence theory, if convictions on two of the four counts
for which Mr. Teel was convicted are reversed, then this Court should remand that
case for sentencing anew. The charges against Mr. Teel, as well as the resulting
conviction and sentence were clearly “interdependent” on one-another, as
envisioned by this Court in Bass. Therefore, under the well-reasoned analysis in
Bass, Mr. Teel’s sentence should be vacated, and the case should be remanded for
re-sentencing.
b. At a minimum, the seventy month sentence imposed on Mr.
Teel should be vacated, and this Court should enter an
Order and Judgment imposing a sixty month sentence.
As set forth above in section II.B.1. of this Brief, the district court ordered
Mr. Teel to serve sixty months sentences on counts 2, 9 and 10, and to serve
seventy months on the only § 666 count – count 13. The sentences were ordered to
run concurrent, for a total of seventy months in prison. If the conviction on count
13 is reversed, and if this Court finds that a complete resentencing of Mr. Teel is
not required, then this Court should render a ruling that Mr. Teel’s sentence is
reduced from seventy months to sixty months.
III. CONCLUSION
Based on the arguments presented above, as well as the arguments presented
in Mr. Teel’s prior Briefs, his conviction and sentence should be vacated.
