You are on page 1of 13

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 1 of 13 PageID #: 314

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF MISSISSIPPI
UNITED STATES OF AMERICA
VS.

CRIMINAL CASE NO.: 1:08CR003

JOSEPH C. LANGSTON

PETITION FOR WRIT OF ERROR CORAM NOBIS


RELIEF VACATING CONVICTION
Joseph C. Langston, through his undersigned counsel, pursuant to the All Writs Statute,
28 U.S.C. 1651, petitions for a writ of error Coram Nobis relief to vacate his criminal
conviction of conspiracy to violate 18 U.S.C. 666 (federal program fraud) entered on
December 16, 2008 [Docket #28] for the reason that subsequent decisional law establishes there
was no federal jurisdictional nexus between the alleged bribery of a state judge in connection
with his performance of his judicial function in a state civil case and any agency receiving
federal funds and in support, submits the following:
Background
On January 7, 2008, the Petitioner, Joseph C. Langston (Langston) entered a plea of
guilty [Docket #4] to one count criminal information charging a conspiracy (18 U.S.C. 371) to
violate 18 U.S.C. 666 [Docket #3]. The plea was entered pursuant to a plea agreement [Docket
#1]. The Rule 11(c)(1)(C) plea agreement provided for sentence of no more than three (3) years
if the plea agreement was acceptable to the Court.
Langstons sentencing was delayed while he fulfilled the terms of the plea agreement.
On December 16, 2008, Langston was sentenced to three (3) years incarceration, a fine of
$250,000, a $100 special assessment and three (3) years supervised release [Docket #28]. He
reported to the designated federal correction institute on April 16, 2009. On April 17, 2011,

PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 2 of 13 PageID #: 315

Langston was released from incarceration to six (6) months house arrest. Then on October 17,
2011, Langston was released from house arrest to three (3) years of supervised release. His
supervised release was completed on April 17, 2014 when he was discharged.
Criminal Information
The one count criminal information charged Langston with conspiring with Richard
Dickie Scruggs, Steven A. Pattersonand with othersto commit offenses against the United
States as follows:
a.

To corruptly give, offer, or agree to give anything of value to any person with the
intent to influence or reward an agent of a state or local government in connection
with any business transaction or series of transactions of such government or
agency involving anything of value of $5,000 or more, when such state or local
government or agency received in any one year period benefits in excess of
$10,000 under a federal program in violation of Sections 666(a)(2)(b) and Section
2 of Title 18 of the United State Code.

Continuing the information succinctly set out the facts supporting the federal program
fraud conspiracy. It describes the conspiracy as an attempt to influence Circuit Court Judge
Robert Bobby Delaughter by providing a thing of valueto obtain rulings in favor of Richard
Dickie Scruggs in the lawsuit styled Wilson v. Scruggs pending before Judge Delaughter.
[Docket #3 at page 1 of 3]. In providing the factual bases for the plea after elaborating on the
conduct to influence the state court judge, the Governments counsel stated on the jurisdictional
nexus issue, Hinds County Circuit Court is a state or local government or agency receiving in
anyone year period in excess of $10,000 under a federal program related to the judicial branch.
[Docket #47 at page 18 of 23].
The source of federal program fraud (18 U.S.C. 666) federal jurisdiction over state or
local officials conduct of their duties is a connection between the agency receiving federal funds
and the criminal conduct of state or local government officials. While broad in reach, Section
666 only encompasses local officials who may administer federal funds. See United States v.

2
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 3 of 13 PageID #: 316

Westmoreland, 841 F.2d 572, 577 (5th Cir), cert. denied, 488 U.S. 820, 1095 at 62 (1988).
Although the conduct at issue does not have to be shown to have had actually affected the federal
funds, there must be some nexus between the criminal conduct and the agency receiving federal
[funds of $10,000 or more in a 12 month period]. See United States v. Moeller, 987 F.2d 1134,
1137 (5th Cir. 1993). Here, the alleged criminal conduct explicitly set out in the criminal
information and the plea factual bases is a corrupt attempt to influence Circuit Court Judge
Delaughter, a state court judge, to give favorable rulings in performance of his judicial function
in Wilson v. Scruggs, a state court civil case.
A later Fifth Circuit decision in United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009)
held that Section 666 does not apply to bribes offered to a state court judge in connection with
his judicial decision. See Memorandum Opinion at page 5, fn 2. United States District Court
Judge Neal B. Biggers, United States v. David Zachary Scruggs, U.S. District Court for Northern
District of Miss., Cr. Case 3:07-cr-00192, August 3, 2011 [Docket #400]. Section 666 does not
apply to conduct set out in the instant criminal information because there is no jurisdictional
nexus between the agency administering federal program funds and a state court judge
(Delaughter) exercise of his judicial function in the state court case (Wilson v. Scruggs).
Whitfield Decision
In Moeller, the Fifth Circuit citing from the legislative history of 18 U.S.C. 666 notes it
was designed to create new offenses to augment the ability of the United States to vindicate
significant acts of fraud and bribery involving Federal monies that are disbursed tostate and
local governments pursuant to a Federal program. supra, United States v. Moeller, 987 F.2d at
1136. The underlying bases for federal jurisdiction over the conduct of state and local officials is
federal funds disbursed through a Federal program to their agency or department. The existence
of some Federal program funding alone did not satisfy the jurisdictional requirement, there had

3
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 4 of 13 PageID #: 317

to be some nexus between the criminal conduct and the agency receiving the federal
assistance. Id. 987 F.2d at 1137.
In Whitfield, a lawyer, Paul Minor, was charged with having provide undisclosed
outstanding campaign loans to two separate Mississippi state court judges before whom he was
handling civil cases. United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009). The state court
judges were Circuit Court Judge John H. Whitfield and Chancery Court Judge Walter W. Teal.
Neither Minor nor judges disclosed the campaign loans to the opposing party in the damages
case pending before each judge. Minors clients obtained favorable rules from both judges in
their respective cases.
Among other charges, the state court judges and Minor were charged with, and later
convicted of, violating the federal program federal statute 18 U.S.C. 666 and conspiracy to
violate Section 666. To establish the requisite jurisdictional connection to the administration of
federal program funds, the Government contended the two judges were agents of the
Mississippi Administrative Office of Courts (AOC), which is a Mississippi state agency charged
with assist[ing] in the efficient administration of nonjudicial business of the courts of the state.
Miss. Code Ann. 9-21-1 (1972) Id. 590 F.3d at 344. The Fifth Circuit stated, As a
fundamental matter, [the state court judges] role in presiding over [their respective state cases]
involved the judicial business of the Mississippi courts. Id. at 346. The Fifth Circuit concluded
the role as presiding judge in a state civil case had no connection with any business, transaction
or series of transaction of the AOC. Therefore, by its own plain language, section 666
applies neither to Whitfields and Teels acceptance of bribes nor to Minors offering of bribes in
connection with those cases. Id. at 347 (emphasis added).
Here, the charged federal program fraud set out in the instant criminal information is
virtually identical to the Section 666 charges in Whitfield. Both charge a corrupt attempt to

4
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 5 of 13 PageID #: 318

influence state court judges to make favorable rulings in state court cases. Both lack a nexus
between the agency administration of federal program funds and the alleged criminal conduct
essential to provide federal jurisdiction. Without this jurisdictional nexus, there is no violation of
Section 666.
Here, there is no federal violation because there is no nexus between any jurisdictional
bestowing administration of federal program funds and the state court judge exercise of judicial
decision authority in the state civil case. Without this essential connection, this court lacked
the jurisdiction to enter a judgment of conviction. Accordingly, Langstons conviction must be
set aside.
Error Coram Nobis
In this Courts recent Opinion in Ken Nowlin v. USA, the writ of error coram nobis was
discussed extensively. See Memorandum Opinion, Ken Nowlin v. USA, U.S. District Court for
the Northern District of Mississippi, Case No. 3:07-cr-00108, January 29, 2015 [Docket #134]
(referenced Nowlin Opinion); ___ F.Supp. 3d ___, 2015 W.L. 363868 (N.D. Miss. January 29,
2015) (cited here as 2015 W.L. 363868). This petition draws heavily from this Courts Nowlin
Opinion.
In Nowlin, this Court noted an error coram nobis is a post-sentencing phase of the
original criminal prosecution giving rise to the challenged conviction. Nowlin Opinion at 6;
2015 W.L. 363868 at 10 (citations omitted).

After discussing the procedural aspect and

background for seeking error coram nobis relief, the Court noted there were conflicting opinions
on the requirements for obtaining coram nobis relief. The Court then stated: [T]he remedy (of
error coram nobis) is generally available to a defendant if : (1) the ground for relief involves
fundamental error; (2) no other judicial remedy, such as relief under 28 U.S.C. 2255, is
currently available; (3) the defendant can show valid reason for failing to seek relief earlier; and

5
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 6 of 13 PageID #: 319

(4) as a result of the conviction, the convicted person is suffering or threatened with adverse
collateral consequences. Id. Nowlin Opinion at 6; 2015 W.L. 363686 at 10 (citing Postconviction Remedies and Relief Handbook 2:20 (Donald E. Wilkes, Jr.)). As shown in the
discussion below, Langston satisfied each component, thus is entitled to coram nobis relief:
(1) Fundamental Error
Having a conviction, where a plain reading of the charging information enlightened by
intervening decisional precedent, demonstrates the conduct did not meet the essential
requirement to give the court jurisdiction to adjudicate guilt, is a fundamental error. Because
an assertion that a conviction as based on conduct not covered by a criminal statute is of
fundamental character, the court concludes that [Petitioner] has established fundamental
error. United States v. Bioudi, 2014 W.L. 1301144 (E.D. Pa 2014) citing United States v.
Osser, 864 F.2d 1056, 1059 (3rd Cir. 1988).

([I]t appears to us that an assertion that a

conviction was based on conduct not covered by a criminal statute class is of a fundamental
character to be addressed by writ of error coram nobis.) In Bioudi, the Petitioner filed for writ
of error coram nobis following the Supreme Court decision in Skillings v. United States, 561
U.S. 358 (2010). Significantly, the Government did not dispute the Skillings decision established
the Petitioners honest services fraud convictions were no longer valid.1
In United States v. David Zachary Scruggs, Judge Neal Biggers addressed allegations of
violations of Section 666 by judicial bribery similar to the instant criminal information. 2011
W.L. 1832769 (N.D. Miss. 2011). At the time, Zack Scruggs was seeking to set aside his plea to
Misprison of a Felony. As part of seeking relief, Zack Scruggs had to persuade the court he was

1 Ultimately, Bioudi was denied relief because he failed to submit additional evidence requested by the

court to show he suffered from continuing collateral consequences from his honest services conviction where his tax
evasion convictions remained intact. Id., affd United States v. Bioudi, 2015 W.L. 310489 (3rd Cir. 2015) (affirmed
District Court denial of writ based on Petitioners failure to submit additional evidence of adverse impact for honest
services fraud conviction where his tax evasion conviction remained.).

6
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 7 of 13 PageID #: 320

innocent of the charges in the original indictment that were dismissed as part of the plea
agreement. The original indictment had alleged violations of Section 666 by judicial bribery
involving a state court judge. Specifically, it alleged the state court judge was an agent of a
subdivision of the judicial branch of the state government of Mississippi which received benefits
in excess of $10,000 in any one year period for each of the years 2006 and 2007, from federal
program . 2011 W.L. 1832769 at 13. In discussing Whitfield, Judge Biggers noted, The
[Fifth Circuit] stated the judges roles in presiding over the court cases related to the bribery
scheme involved the judicial business of the Mississippi courts and had no connection with
any business, transaction or series of transaction of the AOC. [United States v. Whitfield, 590
F.3d 325,] 346 (5th Cir. 2009) (citing 18 U.S.C. 666( a)(1)(B). Id. at 14. The government
argued Whitfield provided legal innocence, not factual innocence. Judge Biggers held, however,
a reasonable juror properly instructed in accordance with Whitfield would not have found
Zachary Scruggs guilty of Section 666 federal program fraud based on judicial bribery theory.
Id. at 14.
There can be no dispute here that the instant criminal information in light of the Fifth
Circuit decision in Whitfield does not set out criminal conduct connected with the administration
of federal program funds essential to jurisdiction under 18 U.S.C. 666. Since Langstons
conviction was based on conduct not covered by Section 666, the conviction constitutes
fundamental error.
(2) No other relief available
As set out above, Langston was discharged from supervised release on April 17, 2014;
accordingly, he is no longer in federal custody. A pre-requisite for post-conviction relief under
28 U.S.C. 2255, is the defendant must be in custody. See, United States v. Marcello, 876 F.2d
1147, 1149 fn 2 (5th Cir. 1989). Since Langston is no longer in custody, a writ of error coram

7
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 8 of 13 PageID #: 321

nobis is the only appropriate vehicle for relief from his no longer valid conviction for violating
18 U.S.C. 666. See, Nowlin Opinion at 6; 2015 W.L. 363868 at 10.
(3) Sound reason for not seeking relief earlier
It is automatic that subject matter jurisdiction can never be forfeited or waived. See e.g.
United States v. Wilson, 699 F.3d 789, 793 (4th Cir. 2012), United States v. Cotton, 535 US 625,
630, 122 S.Ct. 1781, 1785 (2002). Thus, generally, a jurisdictional issue of the nature we have
here constitutes a fundamental error and cannot be forfeited. As this Court noted, The Fifth
Circuitheld that there are limits to the scope of subject matter jurisdiction under 666 holding
that, [a]lthough the conduct prohibited by Section 666 need not actually affect the federal funds
received by the agency there must be some nexus between the criminal conduct and the agency
receiving the federal funds. Nowlin Opinion at 17; 2015 W.L. 363868 at 15 (citing U.S. v.
Moeller, 987 F.2d 1134, 1137 (5th Cir. 1993)). As this Court held in Nowlin, [c]learly, if the
court had proceeded in the absence of subject matter jurisdiction, then it would have made a
fundamental error. Nowlin Opinion at 9; 2015 W.L. 363868 at 11.
Drawing from this Courts Nowlin Opinion, subject matter jurisdiction requires
examination of the two facets of subject matter jurisdiction: (1) whether the allegations are
sufficient to support a finding of subject matter jurisdiction (facial validity) and (2) whether the
facts support subject matter jurisdiction are accurate (factual validity). Nowlin Opinion at 13;
2015 W.L. 363868 at 13. In utilizing this approach in Nowlin, the Court noted the two most
important facts regarding subject matter jurisdiction in a Section 666 charge were (1) (the
agency) received more than $10,000 per year in federal program funds for each year in question
and (2) that there was a nexus between (the) criminal conduct and the agency. These two facts
together established subject matter jurisdiction. Nowlin Opinion at p. 13-14; 2015 W.L.
363868 at 13. In Nowlin, this Court found that since Nowlin mounted a factual challenge to

8
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 9 of 13 PageID #: 322

subject matter jurisdiction, he has identified a fundamental right. Nowlin Opinion at p. 18;
2015 W.L. 363868 at 16. There, this Court addresses the factual jurisdiction issue, even in
absence of Nowlin telling why he did not seek relief earlier, because it involved a fundamental
right.
In Nowlin, this Court found under Whitfield that the essential nexus jurisdictional
component connecting the criminal conduct with the agency (county board of supervisors)
receiving federal program funds was satisfied. Here, however, an examination of the critical
jurisdictional nexus factor shows the Court did not have jurisdiction to enter a conviction for
conspiracy to violate Section 666 against Langston. The Whitfield decision established that there
is no connection between the charged criminal conduct of judicial bribery of a state court judge
and the agency receiving and administering the federal program funds to satisfy the jurisdictional
nexus requirement of Section 666.

In Whitfield, the Fifth Circuit examined the nexus

(connection) requirement in detail. The Fifth Circuit then held the role of presiding judge in a
Mississippi court civil case had no connection with any business or transaction of the
Administrative Office of the Courts of Mississippi. Whitfield, supra, 590 F.3d at 347.
As stated by this Court, Whitfield held as the AOC operated independently from the
judiciary itself, and there was no nexus between the criminal conduct (taking bribes and issuing
tainted orders) and the agency receiving the federal funds (the AOC). Nowlin Opinion at 16;
2015 W.L. 363868 at 15. This Court pointed out this nexus must exist to establish jurisdiction
over the subject matter of the case. Id. This lack of jurisdictional nexus means that Langstons
conviction for the conduct set out in the instant criminal information is not covered by Section
666. Accordingly, this Court lacked factual jurisdiction to enter the conviction in this matter.
This is precisely the type of fundamental error for which coram nobis relief is appropriate
irrespective of the timing.

9
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 10 of 13 PageID #: 323

Secondly, the Whitfield decision for the first time defined the jurisdictional reach of
Section 666 in the context of the judicial business of Mississippi courts. This decision came long
after Langstons plea while he was incarcerated. By the time he learned of the decision, the one
year limitation for filing a 2255 habeas corpus had run. Given the timing, coram nobis relief was
only the practical avenue left to litigate the fundamental error exposed by this watershed
decision.
The Whitfield decision was not widely predicted.

To illustrate this decision was

unanticipated, one need look no further than the circumstances leading to the decision itself. In
Whitfield, the Fifth Circuit, at its own initiative, directed the parties to provide supplemental
briefs on the fundamental issue of whether there was a connection between the judicial rulings in
private party civil lawsuits and any business or transaction of the agency receiving the federal
funds. Id. at 344. In doing so, the Fifth Circuit rejected the Governments argument the
defendants/Appellants had waived the issue by failing to notice it for appeal. As an exception to
the waiver rule, the Fifth Circuit noted it will consider a point of error when it is necessary to
prevent a miscarriage of justice. Id. at 346 (citation omitted). Clearly, a conviction for
conduct not covered by the criminal charge is a miscarriage of justice.
Since the Fifth Circuit on its own initiative had to instruct the parties to brief on this
fundamental issue, it is obvious even the defendants/Appellants in Whitfield, whose liberty was
directly at stake, had not appreciated the fundamental error or anticipated the ruling. In short, the
defendants/Appellants in Whitfield failed to fully appreciate this jurisdictional flaw with the
Section 666 charge of judicial bribery of state court judges. Similarly in this case, neither
Langston nor the Government anticipated the Fifth Circuit decision in Whitfield that there was
no nexus between the criminal conduct (taking bribes and issuing tainted orders) and the
agency receiving the federal funds (the AOC). Nowlin Opinion at 16; 2015 W.L. 363868 at 15.

10
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 11 of 13 PageID #: 324

Where fundamental errors are involved, waiver rules should not prevent a court from
review of such errors to avoid miscarriages of justice. Otherwise, the Fifth Circuit would not
have taken the initiative to raise the issue in Whitfield by directing the parties to brief it. As
noted above in Nowlin, this Court recognized the nexus must exist to establish jurisdiction over
subject matter of the case. And the absence of this jurisdictional nexus goes to a fundamental
right of the defendant. It would be a miscarriage of justice to not address this fundamental
error by granting the requested coram nobis relief.
(4) Continuing Adverse Consequences
In the Nowlin Opinion, this Court held, As Nowlin has alleged loss of his Second
Amendment right to keep and bear armshe has shown sufficient adverse consequences (loss of
civil rights) to support the instant petition for a writ of coram nobis. Nowlin Opinion at 9; 2015
W.L. 363868 at 11. Since Langstons conviction is a felony, he suffers the same loss of civil
rights as the petitioner in Nowlin.
Conclusion
There cannot be a reasonable dispute that Joey Langston stands convicted of an offense
where the factual bases establish the requisite nexus to establish jurisdiction over the subject
matter of the case does not exist. The ruling in Whitfield for the first time established that
Section 666 federal program fraud did not cover state court judges performing the judicial
business of Mississippi courts. That decision in turn exposes the fundamental error in conviction
of Langston. It is miscarriage in justice to sustain the onerous burdens a conviction imposes on
his civil rights, where his conduct did not fall within the broad sweep of Section 666.
Accordingly, this Court is requested to grant the writ of error coram nobis and grant the
requested relief by vacating his conviction of conspiracy to violate 18 U.S.C. 666.

11
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 12 of 13 PageID #: 325

THIS the 15th day of April, 2015.


Respectfully submitted,
PHELPS DUNBAR LLP

BY: /s/ Frank W. Trapp


Reuben V. Anderson, MB #1587
Fred L. Banks, MB #1733
Frank W. Trapp, MB #8261
4270 I-55 North
Jackson, Mississippi 39211-6391
Post Office Box 16114
Jackson, Mississippi 39236-6114
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: reuben.anderson@phelps.com
fred.banks@phelps.com
frank.trapp@phelps.com
ATTORNEYS FOR JOSEPH C. LANGSTON

12
PD.16846483.1

Case: 1:08-cr-00003-MPM-DAS Doc #: 51 Filed: 04/15/15 13 of 13 PageID #: 326

CERTIFICATE OF SERVICE
I hereby certify that on April 15, 2015, I electronically filed this document with the Clerk
of the Court using the ECF system, which sent notification of such filing to all counsel of record.

/s/ Frank W. Trapp


FRANK W. TRAPP

13
PD.16846483.1