A federal appeals court in Washington appears unlikely to allow Michael Scanlon, a public relations consultant charged in the Jack Abramoff lobbying scandal, to amend his plea deal with federal prosecutors.
Scanlon's attorney, Stephen Braga, today urged a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit to give Scanlon the chance to amend his deal with the government.
Judge Ellen Segal Huvelle of U.S. District Court for the District of Columbia sentenced Scanlon in February to 20 months in prison and ordered him to pay more than $20 million in restitution for his role in a fraud scheme.
Braga, a Ropes & Gray partner in Washington, argued today that the U.S. Supreme Court’s decision June 2010 in Skilling v. United States, where the high court narrowed the scope of honest services fraud criminal conduct, gutted part of Scanlon’s plea arrangement with prosecutors.
Braga pitched a “mutual mistake” argument in the D.C. Circuit today, imploring the panel judges to give Scanlon a chance to amend the terms of his deal to remove honest services conduct. The honest services portion of the plea deal made up the bulk of the restitution Scanlon owes.
The appeals court seemed troubled by the proposition and didn't appear likely to send the dispute back to the trial account.
Chief Judge David Sentelle, sitting with Senior Judge Harry Edwards and Judge David Tatel, pressed Braga to explain the source of a judge’s authority to remake a plea deal. “Where does the court get the power to do that?” Sentelle asked at one point. The judge later said the appeals court is bound to affirm the plea deal.
Sentelle noted in court that Scanlon’s attorneys did not ask the trial court to withdraw the plea deal to start over—either through renewed plea negotiations or through a trial. Under that scenario, Tatel said, perhaps the government would have asked for a greater prison sentence in exchange for a reduced amount of restitution.
In court papers, Braga said that in the government’s view, a person could plead guilty to an offense that is not a crime at all but still be punished for it because there was a plea agreement.
Justice Department Civil Division lawyer Demetra Lambros only used up a minute or two of her ten-minute argument time before sitting back down. She said Scanlon wants to “strip out the heart” of the plea agreement.
Lambros also said the restitution for the victims of the scheme—a group of Native American tribes were bilked—was mandatory. The restitution order requires Scanlon to reimburse Greenberg Traurig for the money the firm paid to settle actual or threatened suits over the fraud scheme.
Scanlon earlier this year unsuccessfully challenged the restitution, arguing that Greenberg Traurig is not entitled to collect reimbursement from Scanlon. Lawyers for Greenberg Traurig, represented by Williams & Connolly, argued then that Scanlon was unfairly trying to shirk paying any restitution at all.
The D.C. Circuit judges today appeared content to rely on the government’s brief in support of upholding the plea agreement.
Describing the Justice Department position, Tatel said Scanlon simultaneously wants the benefit of the negotiated sentence—20 months—but not to be burdened by the restitution order.
The appeals court did not immediately rule this morning.