The conspiracy charge is the key here, because the tape recording is hearsay as to Scruggs and the other defendants not present, except that statements by one conspirator in furtherance of the conspiracy — which this certainly is — are admissible against all others members under FRE 801(d)(2)(e).
The Sec. 666 charge makes it a crime to offer anything of value to a state or local official with the intent to influence or reward the official “in connection with any business, transaction, or series of transactions” of the government agency. This is not the typical Sec. 666 case, in which the official usually is an administrator or elected official steering a contract or other government benefit to the offeror of the bribe. Here, the state judge allegedly was being asked to rule in favor of Scruggs to the detriment of the opposing parties in the attorney’s fee suit, so the government was unharmed, and indeed Scruggs and the others had no intention to cause the government any loss. Does this fall outside of Sec. 666 if the government is not the intended victim? The statute could be read that narrowly, but the courts, led by the Supreme Court, have construed Sec. 666 fairly broadly, so the charge will probably survive a challenge. The fact that the judge might have ruled in their favor in the suit is irrelevant to the bribe because the propriety of the decision is not an issue.
White Collar Crime Blog