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Will Jefferson Walk?

Former Congressman William Jefferson’s chances of winning his appeal got a big boost from the Supreme Court two weeks ago.

In Skilling v. United States, the justices narrowed the reach of the honest services statute. That law was behind most of the 11 counts Jefferson was convicted on. He was acquitted of the single substantive FCPA charge he faced but was found guilty on a conspiracy count that included both an FCPA and an honest-services element.

Jefferson, 63, was sentenced in November to 13 years in prison. He’s free pending appeal.

The former nine-term Congressman from New Orleans was the first and only U.S. public official to be charged under the FCPA since it was enacted in 1977. His case will always be remembered for the $90,000 in cash found in his freezer. The money was part of $100,000 given to him by government informant Lori Mody. Prosecutors said Jefferson planned to use it to bribe Nigeria’s then vice president, Atiku Abubakar.

According to a report in the Times Picayune, Judge T.S. Ellis III included in his definition of honest services fraud “concealed conflicts of interest.” The Supreme Court ruling narrows the statute’s use to exclude conflicts of interest. Jefferson’s lawyers are saying there’s no way to determine what role the conflicts allegations played in the honest-services guilty verdicts or other fraud counts, which should all be thrown out.

The honest-services object probably also dooms Count 1 of the indictment. It alleged three separate illegal conspiracies — to solicit bribes, deprive citizens of honest services, and violate the FCPA. We argued before the Skilling ruling that the FCPA-related conspiracy count against Jefferson should be tossed. The jury’s verdict form did not require it to specify which of the three illegal conspiracies the panel believed he engaged in. So his conviction on Count 1 may or may not have included a finding that he conspired to violate the FCPA. Jury accountability was lacking, and Judge Ellis himself said after the trial he regretted the way the verdict form was written.

The 4th Circuit Court of Appeals will now decide what to do with Jefferson’s case. The most likely scenario is a remand to Judge Ellis, for him to decide how to apply the Supreme Court’s ruling and perhaps to modify Jefferson’s sentence. The ex-Congressman’s lawyers are unlikely to be satisfied with anything less than a new trial.

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