More Minor: “Is it wrong?” vs. “Is it a crime?”

As I’ve repeatedly said, I think the defendants in U.S. v. Minor won a large victory before the Fifth Circuit. And, to reach the dispositive issue, the Fifth Circuit had to rule that it would be an injustice to not decide the issue under its plain error rules.

But for almost all laymen and even some lawyers, those statements might obscure something important. What the Fifth Circuit opinion is about is the requirement the prosecution prove each element of a crime. And the element here– nexus to the use of federal funds– is jurisdictional– that is, it’s the part of the elements of the crime that allows the federal courts to have the power to act. Also, from the standpoint of a lawyer who appears before the Fifth Circuit and reads a lot of Fifth Circuit opinions, this is a rare victory: It is not often that the Fifth Circuit reverses a trial court by ruling that the prosecution failed to prove an essential element, and it is also rare for them to reach as plain error issues not raised in defendant’s brief. So most lawyers would read that as a big victory, I think.

NMC
12/12/9