                        REVISED April 19, 2013

          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                         United States Court of Appeals
                                                                  Fifth Circuit

                                                              FILED
                                   No. 12-60423              April 12, 2013

                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                        Clerk

            Plaintiff - Appellee

v.

RICHARD F. SCRUGGS, also known as Dickie.

            Defendant - Appellant



                 Appeal from the United States District Court
                   for the Northern District of Mississippi


Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.
WIENER, Circuit Judge:
      Defendant–Appellant Richard F. “Dickie” Scruggs appeals the denial of his
§ 2255 motion challenging one of his two convictions for bribing a judge. We
affirm.
                           I. Facts & Proceedings
      Scruggs made both a name and a fortune as a plaintiffs’ attorney in
asbestos and tobacco litigation. Along the way, he became entangled in many
fee-sharing disputes with co-counsel, one of which resulted in a lawsuit filed by
Roberts Wilson in the Circuit Court of Hinds County, Mississippi (“the Wilson
                                  No. 12-60423

Case”).   Robert “Bobby” DeLaughter, best known first for successfully
prosecuting Byron De La Beckwith for murdering civil rights leader Medgar
Evers, sat on the Circuit Court of Hinds County, where he was assigned the
Wilson Case and his path crossed with Scruggs.
      Scruggs wanted a sure thing in the Wilson Case, having recently lost a
similar fee fight. As the presiding judge, DeLaughter could put his finger on the
scales. DeLaughter coveted a federal Article III judgeship more than anything
else; as the brother-in-law of then-United State Senator Trent Lott, Scruggs
could influence the person who sent candidates to the President. In early 2006,
Scruggs retained Ed Peters, a close friend and mentor of DeLaughter’s, as a
secret go-between who conveyed an offer: If DeLaughter would help Scruggs win
the Wilson Case, Scruggs would recommend DeLaughter to Lott for a district
court judgeship.
      DeLaughter kept his end of the bargain: When Scruggs badly needed a
trial continuance, DeLaughter entered, verbatim, a scheduling order prepared
by one of Scruggs’s attorneys, despite having disclaimed input from either party.
DeLaughter also reviewed yet-to-be-filed motions for Scruggs, advising how he
would rule and which arguments needed work.
      During 2006, three judicial vacancies opened on Mississippi federal district
courts. In March 2006, after being passed over for nomination to one of those
seats, DeLaughter relayed his dissatisfaction and concern that “he was doing his
part of the bargain and that . . . Scruggs was not going to fulfill his part of the
deal.” Immediately thereafter, Scruggs had Senator Lott call DeLaughter.
Although the record suggests that Lott did not say that DeLaughter was being
considered, DeLaughter nonetheless came away with the impression that he was
in the running for the seat.
      Mollified that Scruggs was keeping his end of the bargain, DeLaughter
continued secretly to tilt the scales in the Wilson Case. When Wilson filed a

                                        2
                                  No. 12-60423

potentially dispositive motion asking DeLaughter to quantify the amount of fees
Scruggs still owed, Scruggs’s attorneys did not know whether to oppose the
motion and pursue a full trial or to agree to submit the quantification issue to
the judge. DeLaughter assured them that Scruggs would win the quantification
motion, and he did. After faxing a preview of his order to Scruggs’s counsel,
DeLaughter held that Scruggs owed no more than he had already paid and
denied Wilson’s motion for reconsideration without comment.              But the
quantification order was so favorable that even Scruggs’s attorneys worried that
it could not be affirmed on appeal, so Scruggs settled the Wilson Case before
appeal with the help of DeLaughter, who revealed Wilson’s confidential
settlement position.
      These machinations came to light when members of Scruggs’s legal team
began cooperating with the government’s investigation of an unrelated judicial
bribery scheme. A grand jury returned an indictment charging Scruggs and
DeLaughter with one count of conspiracy to commit federal programs bribery,
in violation of 18 U.S.C. § 666, and three counts of aiding and abetting
honest-services mail fraud, in violation of 18 U.S.C. §§ 1341 and 1346.1 The
honest-services counts in the indictment alleged “a scheme and artifice to
secretly and corruptly influence” DeLaughter, thus “depriving [Wilson] and the
citizens of the State of Mississippi of their intangible right to [his] honest
services.” In particular, the indictment alleged that Scruggs prevailed on Lott
to consider DeLaughter, and “in return” DeLaughter provided secret access and
favorable treatment.
      Scruggs pleaded guilty to a superseding information charging him with a
single count of aiding and abetting honest-services mail fraud, in violation of 18
U.S.C. §§ 1341 and 1346. Like the original indictment, the information alleged


      1
         The indictment also charged DeLaughter (but not Scruggs) with one count of
obstruction of justice. DeLaughter pleaded guilty only to that count.

                                        3
                                      No. 12-60423

a scheme corruptly to influence DeLaughter and deprive the citizens of
Mississippi of their right to his honest services, describing Scruggs’s call to Lott
on DeLaughter’s behalf. But the Information omitted that which DeLaughter
did for Scruggs “in return.”
       Pursuant to a plea agreement, the charges in the indictment were
dismissed. Scruggs was sentenced to imprisonment for seven years, concurrent
with a prior five-year term for conspiring to bribe another judge who was
presiding over a different fee dispute.
       On June 24, 2010, the Supreme Court issued Skilling v. United States in
which it addressed the constitutionality of 18 U.S.C. § 1346, the honest-services
statute.2 Section 1346 states that “the term ‘scheme or artifice to defraud’
includes a scheme or artifice to deprive another of the intangible right of honest
services.” To avoid problems of constitutional vagueness with this definition, the
Court in Skilling limited the application of the statute to paradigmatic bribery
and kickback schemes only.3 In June 2011, Scruggs filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255, contending in light of Skilling that, as
he did not admit to bribing Judge DeLaughter, he is not guilty of a crime.
       The district court concluded that, by pleading guilty, Scruggs had
procedurally defaulted on that claim. After a two-day evidentiary hearing, the
district court issued a thorough 48-page opinion denying the § 2255 motion
because Scruggs had not shown either his actual innocence or cause and
prejudice. The district court issued a certificate of appealability on the issue of
“actual innocence” and “other issues in the opinion,” and Scruggs timely filed a
notice of appeal.



       2
           130 S. Ct. 2896 (2010).
       3
        See id. at 2932-33. We limit the discussion here to bribes because kickbacks are not
implicated.

                                             4
                                           No. 12-60423

                                           II. Analysis
A.       Standard of Review
         “In reviewing a district court’s denial of a motion to vacate sentence under
§ 2255, we review questions of fact for clear error and questions of law de novo.”4
B.       Merits
         Scruggs pleaded guilty. A voluntary and unconditional guilty plea waives
all non-jurisdictional defects.5 Not surprisingly, then, most of the issues raised
by Scruggs in this appeal are attempts to evade that waiver.6 He first tries to
parlay Skilling into a challenge to the district court’s subject matter jurisdiction;
he then attempts to excuse his procedural default; and finally, he challenges the
constitutionality of the honest-services statute. The district court rejected each
argument, and we agree.
         1.       Subject Matter Jurisdiction
         After Skilling, honest-services fraud requires proof of a bribe.7 Because
his information does not use the word “bribe,” Scruggs urges that it no longer
charges an offense. Therefore, he contends, the district court had no jurisdiction
over his “non-offense” and could not accept his guilty plea.                            Scruggs
understandably leads off with this assertion because subject matter jurisdiction
“can never be forfeited or waived.”8 This contention is no more successful now,


         4
             E.g., United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006).
         5
             E.g., United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008).
         6
         We assume without deciding that Scruggs’s § 2255 motion is not facially frivolous. It
is at least plausible that the facts introduced at his plea colloquy do not suffice to establish
honest-services fraud as defined after Skilling.
         7
             Skilling, 130 S. Ct. at 2932-34; United States v. George, 676 F.3d 249, 257 (1st Cir.
2012).
         8
        United States v. Cotton, 535 U.S. 625, 630 (2002); but see United States v. Scruggs, 691
F.3d 660, 667 n.15 (“In addition, this court has stated in dicta that jurisdictional claims not
raised on direct appeal are procedurally defaulted and cannot be raised on collateral review

                                                  5
                                         No. 12-60423

however, than it was when Dickie’s son Zach raised it in United States v.
Scruggs.9 As we explained in Zach’s case, Scruggs “confuses a failure of fact
with want of power to adjudicate” and does not implicate subject matter
jurisdiction.10
       Subject matter jurisdiction, or the “court’s power to hear a case,”11 is
straightforward in the criminal context. Title 18 U.S.C. § 3231 grants “original
jurisdiction . . . of all offenses against the laws of the United States” to the
district courts.12        To invoke that grant of subject matter jurisdiction, an
“‘indictment need only charge a defendant with an offense against the United
States in language similar to that used by the relevant statute.’”13 That is the
extent of the jurisdictional analysis: “[A] federal criminal case is within the
subject matter jurisdiction of the district court if the indictment charges . . . that
the defendant committed a crime described in Title 18 or in one of the other
statutes defining federal crimes.”14




without a showing of cause and prejudice or actual innocence.”).
       9
           691 F.3d 660, 666-67 (5th Cir. 2012).
       10
            Id. at 667.
       11
            Cotton, 535 U.S. at 630.
       12
            See Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999).
       13
         Scruggs, 691 F.3d at 668 (quoting United States v. Jacquez-Beltran, 326 F.3d 661,
662 n.1 (5th Cir. 2003) (per curiam)). We look only at the face of the charging document to
assess subject matter jurisdiction. Id. at 667-68.
       14
          United States v. Gonzalez, 311 F.3d 440, 442 (1st Cir. 2002). An indictment or
information could fail to invoke criminal subject matter jurisdiction by alleging violation of a
state criminal statute, see United States v. Titterington, 374 F.3d 453, 459 (6th Cir. 2004), or
by failing to comply with another statutory jurisdictional requirement, see United States v.
Sealed Juvenile 1, 225 F.3d 507, 508-09 (5th Cir. 2000).

                                                6
                                         No. 12-60423

       In charging Scruggs with honest-services mail fraud under § 1346, the
information used the language of that statute, which Skilling did not change.15
The district court thus had subject matter jurisdiction over this case. Although
there was no express allegation of a quid pro quo bribe, the Supreme Court has
held unequivocally in United States v. Cotton that “defects in an indictment do
not deprive a court of its power to adjudicate a case.”16 “[T]he objection that the
indictment does not charge a crime against the United States goes only to the
merits of the case” and does not affect subject matter jurisdiction.17 Even though
Skilling might have “rendered the instant information factually insufficient, it
did not divest the district court of subject matter jurisdiction over the case.”18
       All that Scruggs can really say is that, as a factual matter, the allegations
of the information no longer suffice to allege honest-services fraud in light of
Skilling. This is simply not a jurisdictional argument, and none of the cases that
might appear to hold otherwise withstand scrutiny.
       Scruggs first cites United States v. Meacham, an old, pre-Cotton case, in
which we vacated a conviction based on a guilty plea to the non-existent crime
of “conspiracy to attempt” to import drugs.19 We did so because “entry of a guilty
plea does not act as a waiver of jurisdictional defects such as an indictment’s
failure to charge an offense.”20 In light of Cotton, we have disavowed Meacham’s




       15
         George 676 F.3d at 257 (“But Skilling did not invalidate the definition limned in 18
U.S.C. § 1346 . . . .”).
       16
            535 U.S. at 630.
       17
            Id. at 630-31 (quoting Lamar v. United States, 240 U.S. 60, 65 (1916)).
       18
            See George, 676 F.3d at 260 (citation omitted and emphasis in original).
       19
            626 F.2d 503, 508 (5th Cir. 1980).
       20
            Id. at 510.

                                                 7
                                         No. 12-60423

“classif[ication] as jurisdictional the requirement that the indictment state an
offense.”21 Meacham does not help Scruggs.22
       He next cites United States v. Rosa-Ortiz, in which the First Circuit stated
that a district court “lacks jurisdiction to enter a judgment of conviction when
the indictment charges no offense under federal law whatsoever.”23 But the First
Circuit has abandoned that holding as “an awkward locution” inconsistent with
Cotton.24 As that court later explained, the factual failure of an indictment to
charge an offense is not a jurisdictional flaw in “the district court’s power to
adjudicate the case.”25
       Scruggs lastly relies on the Eleventh Circuit decision in United States v.
Peter.26 The defendant in Peter pleaded guilty to a RICO conspiracy predicated
on a single count of mail fraud that was based on misrepresentations in a liquor
license application.27 The Supreme Court later held that state licenses are not
property for the purposes of the mail fraud statute, thus undermining the
conviction in Peter.28         The Eleventh Circuit concluded that this caused a
jurisdictional defect in the defendant’s indictment: As “the indictment consisted


       21
            See United States v. Cothran, 302 F.3d 279, 283 (5th Cir. 2002).
       22
          In Meacham, the statutory offense alleged in the indictment did not exist. See 626
F.2d at 508. Conceivably Meacham may remain good law in that very narrow circumstance
because an indictment that charges a violation of a non-statute does not give rise to subject
matter jurisdiction under § 3231. But after Cotton it cannot be read to mean that factual
failure to allege a violation of a valid federal statute is a jurisdictional flaw.
       23
            348 F.3d 33, 36 (1st Cir. 2003).
       24
            See George, 676 F.3d at 259-60.
       25
            See id. at 260.
       26
            310 F.3d 709 (11th Cir. 2002).
       27
            Id. at 711.
       28
            See id. (discussing Cleveland v. United States, 531 U.S. 12 (2000)).

                                                 8
                                        No. 12-60423

only of specific conduct that, as a matter of law, was outside the sweep of the
charging statute,” this defect went to the jurisdiction of the district court.29
Although Peter acknowledged Cotton, it attempted to limit the Supreme Court’s
holding to defects based on omissions from an indictment rather than on a
factual failure to charge an offense.30
      In Scruggs, we implied reservations about “Peter’s fidelity to Cotton.”31
Subsequently, the Tenth Circuit issued a thoughtful opinion in United States v.
DeVaughn, rejecting Peter for its inconsistency with Cotton.32 De Vaughn
carefully analyzed Cotton and the authorities on which it relied, then rejected
“Peter’s overly narrow reading of Cotton.”33 We agree with that reasoning.
Cotton unambiguously declared that a defective indictment does not deprive a
district court of subject matter jurisdiction.34 We join the Tenth Circuit in
holding that Peter was wrongly decided and cannot be squared with Cotton.
      To summarize, nothing about Skilling has any effect on the district court’s
subject matter jurisdiction over Scruggs’s guilty plea.                  As there is no
jurisdictional problem, and as Scruggs pleaded guilty, we consider whether he
has shown an exception for his procedural default.
      2.        Procedural Default
      “It is well settled that a voluntary and intelligent plea of guilty . . . may
not be collaterally attacked.”35 Scruggs pleaded guilty, took no direct appeal, and

      29
           See id. at 714.
      30
           See id. at 713-14.
      31
           Scruggs, 691 F.3d at 669.
      32
           United States v. De Vaughn, 694 F.3d 1141 (10th Cir. 2012).
      33
           Id. at 1148.
      34
           535 U.S. at 631.
      35
           Bousley v. United States, 523 U.S. 614, 621 (1998).

                                               9
                                         No. 12-60423

never contended that § 1346 was unconstitutionally vague. To pursue this
collateral attack, therefore, he must show “cause and prejudice or that he is
actually innocent.”36 He attempts to demonstrate the presence of both.
                 a.     Cause and Prejudice
       Scruggs claims that our pre-Skilling precedent precluded any assertion
that his information did not charge a crime, so he was prohibited from raising
the issue at that time. But “futility cannot constitute cause if it means simply
that a claim was unacceptable to that particular court at that particular time.”37
Indeed, Scruggs could have challenged the honest-services statute as
unconstitutionally vague, just as did Skilling.38 In fact, parties routinely raise
arguments to preserve them for further review despite binding authority to the
contrary. We join other circuits and the overwhelming majority of district courts
in recognizing no cause for procedural default of a Skilling-type challenge to §
1346.39 And, as Scruggs has not shown cause, we need not and therefore do not
reach prejudice.40
                 b.     Actual Innocence
       Scruggs professes in the alternative that he is actually innocent of honest-
services fraud. The district court rejected this claim, concluding that Scruggs
actually bribed Judge DeLaughter. Scruggs contends that the district court


       36
            Scruggs, 691 F.3d at 666.
       37
            Bousley, 523 U.S. at 623 (internal quotation marks omitted).
       38
          See Ryan v. United States, 645 F.3d 913, 917 (7th Cir. 2011) (“If Ryan’s lawyers had
done what Skilling’s lawyers did, the controlling decision today might be Ryan rather than
Skilling.”), vacated on other grounds, 132 S. Ct. 2099 (2012).
       39
          See Turner v. United States, 693 F.3d 756, 758 (7th Cir. 2012); Walker v. Rivera, 820
F. Supp. 2d 709, 714 (D.S.C. 2011), aff’d 468 F. App’x 341 (4th Cir. 2012); see also United
States v. Jennings, 2011 WL 3609298 (D. Minn. Aug. 15, 2011), aff’d, 696 F.3d 759 (8th Cir.
2012); Stinn v. United States, 856 F. Supp. 2d 531, 539 & n.9 (E.D.N.Y. 2012).
       40
            E.g., Johnson v. Puckett, 176 F.3d 809, 817 (5th Cir. 1999).

                                               10
                                        No. 12-60423

erred on both the law and the facts by (1) requiring him to show innocence on a
bribery theory of honest-services fraud to which he did not plead guilty, and (2)
finding a quid pro quo exchange when none existed. We address each contention
in turn.
                       i.      Actual Innocence of Honest-Services Fraud Under
                               What Theory?
       A § 2255 petitioner must show that he is factually innocent of both (1) the
charges to which he pleaded guilty and (2) any “more serious” charges forgone
by the government in the course of plea bargaining.41 The petitioner need not,
however, show actual innocence of alternative theories not charged in the
information or indictment.42
       The district court concluded that because Scruggs pleaded guilty to honest-
services fraud, he must show actual innocence of honest-services fraud as it is
now limited, viz., under a bribery theory. Scruggs disagrees and insists that he
should not have to show actual innocence of bribery because (1) the one-count
information did not allege a bribery theory, and (2) the counts in the dismissed
indictment, although bribery-based, were not “more serious.”43
       Citing our opinion in United States v. Arreola-Ramos, Scruggs suggests
that a crime’s statutory maximum sentence is the measure of that crime’s
“seriousness.”44 He insists that, because the charges in his original indictment

       41
            Bousley, 523 U.S. at 624.
       42
         See id. (requiring petitioner to show innocence of “using” firearms but not “carrying”
because “carrying” was neither charged in indictment nor forgone in exchange for guilty plea).
       43
          If Scruggs does not have to show actual innocence of a bribery theory, then he has
carried his burden because the crime of non-bribery honest-services fraud is no longer
constitutional.
       44
        204 F.3d 1115, at *1 (5th Cir. Dec. 14, 1999) (unpublished table opinion) (“Moreover,
as the district court noted, Arreola was definitely exposed to more lengthy terms of
imprisonment on the cocaine charges than on the charges to which he eventually pled guilty;
the plea bargain reduced his maximum exposure from sixty years to nine years

                                              11
                                        No. 12-60423

and in his superseding information were all honest-services fraud charges with
the same twenty-year statutory maximum, the dismissed charges were only “as
serious as,” not “more serious than,” the charge to which he pleaded.45 But, in
Arreola-Ramos we assessed “seriousness” by cumulating the statutory
maximums for all of the forgone counts and all of the pleaded counts to
determine the petitioner’s “maximum exposure” before and after the plea, not by
comparing the highest single maximum sentence on each side.46 Although
Arreola-Ramos is unpublished and thus not precedential, we agree with its
implicit reasoning based on a district court’s discretion to impose consecutive
sentences on multiple counts.47
       Pursuant to the plea agreement in this case, the government dismissed
three honest-services fraud counts in the indictment in exchange for Scruggs’s
guilty plea to one honest-services fraud count in the superseding information.
Three honest-services counts have a potential sentence of sixty years when
assessed consecutively and are thus more serious than one count with a twenty-
year maximum. Under Bousley, Scruggs was therefore required to show actual
innocence of the honest-services counts in the original indictment, which he
concedes charged a bribery theory that survives Skilling.48
                       ii.    Actual Innocence of Bribery


imprisonment.”).
       45
         The Indictment also alleged one violation of 18 U.S.C. § 666. In light of our holding
in United States v. Whitfield, that charge is no longer viable. See 590 F.3d 325, 345-46 (5th
Cir. 2009).
       46
            See Arreola-Ramos, 204 F.3d at *1.
       47
            See 18 U.S.C. § 3584.
       48
         We do not address whether the single count in the superseding information also opens
the door to a bribery theory. See Skilling, 130 S. Ct. at 2928 (explaining that core of honest-
services cases “involved fraudulent schemes to deprive another of honest services through
bribes or kickbacks supplied by a third party who had not been deceived.”).

                                                 12
                                          No. 12-60423

       The burden is on the § 2255 petitioner to show that “in light of all the
evidence it is more likely than not that no reasonable juror would have convicted
him,”49 “or, to remove the double negative, that more likely than not any
reasonable juror would have reasonable doubt.”50
       In Skilling, the Court did not crystallize what constitutes a “paradigmatic
bribe,” but it did observe that the “prohibition on bribes and kickbacks draws
content” from case law and federal statutes.51 And, the Court cited our decision
in United States v. Whitfield as an example.52 In that case, we considered
honest-services fraud in the context of bribes disguised as campaign
contributions to Mississippi state judges.53 We assumed without deciding that,
in the context of campaign contributions, the First Amendment requires proof
of an express quid pro quo or a corrupt agreement to exchange something for a
specific official act.54 Because Scruggs insists that his exercise of influence on
behalf of Judge DeLaughter was a political endorsement protected by the First
Amendment, we again assume arguendo, for the purposes of this case only, that
a quid pro quo is required.
       We agree with the district court in concluding that the record
overwhelmingly establishes the existence of a corrupt bribery agreement



       49
            523 U.S. at 623 (internal quotation marks omitted).
       50
        House v. Bell, 547 U.S. 518, 538 (2006). The district court erred by framing the issue
as whether a single reasonable juror would vote to convict, rather than whether any
reasonable juror would have reasonable doubt. This error is easily corrected on review, even
though we question whether there is a quantum of evidence that would convince one
hypothetical juror but would not convince twelve hypothetical reasonable jurors.
       51
            Skilling, 130 S. Ct. at 2933-34.
       52
            Id. (citing Whitfield, 590 F.3d at 352-53).
       53
            590 F.3d at 347-48.
       54
            See id. at 353.

                                                 13
                                      No. 12-60423

between Scruggs and DeLaughter. Early in the Wilson Case, Scruggs raised the
issue of DeLaughter’s federal aspirations and his own ability to assist. And
Scruggs’s recommendation to his Senator brother-in-law was a thing of value,
at least to DeLaughter. There is abundant testimony regarding the “deal” or
“arrangement” that they reached shortly thereafter, and of DeLaughter’s official
actions in exchange for the bribe. In short, the record supports all of the
elements of a paradigmatic quid pro quo bribe.
      Scruggs argues on appeal that there is no proof of a causal connection
between his actions and DeLaughter’s, insisting that the record reveals only
parallel favorable action without the causative pro in the quid pro quo.
According to Scruggs, he already had secret ex parte access before there were any
vacancies in Mississippi federal courts and before Senator Lott called
DeLaughter, so nothing Scruggs did to assist DeLaughter’s ambitions could have
caused DeLaughter to take any actions in his favor.
      This view is too narrow. In Whitfield, we held that a quid pro quo bribe
is still a bribe even if it is offered “in exchange for an official act to be performed
sometime in the future.”55 For the same reason, a bribe that takes the form of
a promise to assist later—here, with a future district court vacancy—is still a
bribe.56 Scruggs promised to assist DeLaughter, and in exchange DeLaughter
favored him in the Wilson Case. The fact that Scruggs was delayed in upholding
his end of the bargain is at most a difference without a distinction.
      Scruggs has shown neither his actual innocence of post-Skilling honest-
services fraud nor that there was cause and prejudice for failing to raise a




      55
           590 F.3d at 353 (emphasis and internal quotation marks omitted).
      56
         See United States v. Terry, 707 F.3d 607, 614 (6th Cir. 2013) (holding that bribed
judge does not have “the First Amendment right to sell a case so long as the buyer has not
picked out which case at the time of sale.”).

                                             14
                                        No. 12-60423

constitutional-vagueness challenge to § 1346. Accordingly, he procedurally
defaulted the claim, and the district court correctly denied his § 2255 motion.


       3.       Overbreadth
       Finally, Scruggs throws in a First Amendment overbreadth challenge to
§ 1346. If the honest-services statute applies to bribes that take the form of
political endorsements, then—according to Scruggs—it is facially overbroad.
This, he contends, is because it will chill protected political speech.57 “A statute
is overbroad if in banning unprotected speech, a substantial amount of protected
speech is prohibited or chilled in the process.”58 “The overbreadth of a statute
must not only be real, but substantial as well, judged in relation to the statute’s
plainly legitimate sweep.”59 Scruggs argues at length that, if § 1346 applies to
political endorsements, then overzealous prosecutors will perceive nefarious
bribery in routine political activity, such as when a politician appoints a former
backer to a position, thereby discouraging endorsements. He cites well known
historical examples of run-of-the-mill political back-scratching that, although not
bribery, would be suppressed by such an expansive reading of § 1346. For
example, Scruggs suggests that if he is guilty of honest-services fraud then so
was President John Adams for appointing his supporter, William Marbury, as
a District of Columbia justice of the peace.



       57
         We note that this challenge has little to do with Skilling; if § 1346 impinges on the
First Amendment, it did so well before the Supreme Court limited it to bribes and kickbacks.
Thus, this overbreadth challenge is probably untimely under § 2255(f), but because the
Government did not raise this as a bar we proceed to the merits of the argument.
       58
         United States v. Brooks, 681 F.3d 678, 697 (5th Cir. 2012). Only chilling is at issue
because § 1346 now prohibits only bribes, which Scruggs concedes are not protected by the
First Amendment.
       59
            Asgeirsson v. Abbott, 696 F.3d 454, 465 (5th Cir. 2012) (internal quotation marks
omitted).

                                              15
                                     No. 12-60423

      We see no real likelihood that § 1346 will chill a significant amount of
protected political speech, if any, and even less likelihood that President Adams
would have had cause to worry about prosecution for honest-services fraud. “As
to arbitrary prosecutions,” the Supreme Court itself “perceive[d] no significant
risk that the honest-services statute ... will be stretched out of shape.”60 We also
note that the honest-services statute has been on the books for a quarter of a
century, most of that time without the limitations imposed by Skilling, with no
sign of chilled political endorsements or the overreaching prosecutions
prophesied by Scruggs. Moreover, judged in relation to the plainly legitimate
sweep of § 1346, any de minimis chilling effect that might occur will hardly be
substantial. Scruggs’s overbreadth argument fails.
                                   III. Conclusion
      For the foregoing reasons, the district court’s denial of Scruggs’s § 2255
motion is AFFIRMED.              We REMAND to the district court for further
proceedings consistent with this opinion.




      60
           130 S. Ct. at 2933.

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