WASHINGTON – A federal judge ruled Tuesday that a leading figure in the Jack Abramoff lobbying conspiracy cannot change his guilty plea in light of a recent Supreme Court ruling that weakened one of the laws he was convicted under.
Michael Scanlon admitted in a guilty plea five years ago that he and Abramoff defrauded Indian tribes that hired them to help promote their casino interests in Washington. Abramoff convinced his tribal lobbying clients to pay inflated fees for Scanlon's public relations services, and then Scanlon secretly kicked back half the profits to Abramoff.
Six tribes paid the pair more than $80 million between 2001 and 2004, and Scanlon was ordered to refund the tribes $19 million as part of his plea deal. He's scheduled to be sentenced on Dec. 21, with prosecutor's guidelines calling for four to five years in prison with a reduction for his cooperation in the investigation.
Scanlon had pleaded guilty to conspiring with Abramoff to defraud the tribal clients of their right to "honest services," along with mail and wire fraud and corrupting public officials.
But he argued the honest services part of the plea should be canceled because of the Supreme Court ruling and that his sentencing should reflect that change and his $19 million restitution should be lowered.
"Mr. Scanlon is not trying to walk away from anything he's admitted," said his attorney, Stephen Braga, said at a hearing last week. Braga said it's not a question of the facts, but a legal question. "Is this conduct any longer an honest services fraud offense?"
The honest services law is used frequently in corruption cases against politicians and corporate executives who have violated their duty to provide "honest services." In June, the Supreme Court ruled on the honest services conviction of former Enron chief executive Jeffrey Skilling, finding that to get a conviction, prosecutors must prove bribes or kickbacks were accepted.
Scanlon's attorney argued the Skilling decision meant that honest services fraud only applies when it involves a bribe or kickback between and employer and employee or involving a public or union official.
Prosecutors argued that was an unreasonable interpretation of the high court's decision. U.S. District Judge Ellen Segal Huvelle agreed that Scanlon's view of the ruling was too narrow and that his scheme still violated the honest services law.
Although many defendants in the Abramoff scandal were convicted under honest services charges, others have stuck with their plea deals rather than fight to change it as Scanlon did.
Mark Zachares, a former aide to Alaska Republican Rep. Don Young, decided not to withdraw his guilty plea to conspiracy to commit honest services fraud and instead went forward with sentencing last week to put the Abramoff case behind him.
"Not everybody has the resources — and the stomach, frankly — to take on the government for years and years," Zachares' attorney, Edward MacMahon, said outside the courtroom after his client was sentenced to four years probation and 12 weekends in jail.
Scanlon's sentencing has been delayed while he cooperated with investigators pursuing prosecutions of congressional aides, Bush administration officials and other lobbyists accused of trading gifts for favors. Twenty people have been convicted in the scandal, mostly through guilty pleas. One defendant still awaits trial.