Former Jack Abramoff business associate and close friend Michael Scanlon cannot change the terms of his plea agreement with federal prosecutors, an appeals court in Washington ruled today.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously said the trial judge who presided over the Scanlon prosecution did not have the power to unilaterally change the terms of plea.
Scanlon pleaded guilty in 2005 in U.S. District Court for the District of Columbia for his role in a bribery conspiracy that generated tens of millions of dollars. Scanlon cooperated with the U.S. Justice Department.
The one-count information filed against Scanlon charged him with a conspiracy that had three objects, including bribery, wire fraud and honest services fraud.
Before he was sentenced, Scanlon’s lawyers at Ropes & Gray asked U.S. District Judge Ellen Segal Huvelle to modify the plea agreement in light of the U.S. Supreme Court’s decision in Skilling v. United States, which narrowed the scope of honest service fraud.
Scanlon’s attorneys, including Stephen Braga, argued that the honest services in the plea deal should be voided. Striking that part of the plea deal would have reduced Scanlon’s restitution liability.
Huvelle rejected Scanlon’s request. Scanlon was sentenced last year to 20 months in prison and ordered to pay about $20 million in restitution.
Prosecutors said in the D.C. Circuit that the appeals court and Huvelle do not have the power to amend or modify Scanlon’s plea agreement.
The appellate court agreed. But it did not take a position on Scanlon’s argument about the effect the Skilling decision has on his agreement with the government.
“First, the court is prohibited from participating in plea agreement discussions,” Sentelle said. “Furthermore, after the plea agreement has been finalized between the government and the defendant, the court, when considering a plea agreement like the one at issue here, is limited to accepting the plea, rejecting it, or deferring a decision. Modification of the agreement by the court is not an option.”
Sentelle said Scanlon “is unable to cite any case in which a plea agreement was amended or modified by the court at the unilateral request of one of the parties.”
Braga, a Ropes & Gray white-collar defense partner, was not immediately reached for comment this morning.
The D.C. Circuit said in its ruling that Scanlon, months ago, could have filed court papers to back out of his plea deal.
“If Scanlon had filed a motion to withdraw on the basis of the holding in Skilling and the district court had denied his motion, then he could have appealed the denial and the Skilling issue might be properly before us,” Sentelle said.
Much of the restitution Scanlon owes is earmarked for the law and lobbying shop Greenberg Traurig. The firm contends Scanlon owes $17 million to compensate its losses in the bribery conspiracy.
Greenberg Traurig settled actual or threatened litigation with Native American tribes identified as victims.
Scanlon unsuccessfully argued last year that Greenberg Traurig is not entitled to any money from him. Lawyers for the firm rejected the notion that Greenberg Traurig in any way participated in the conspiracy with Scanlon and Abramoff.
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