Disgraced plaintiffs’ attorney Richard "Dickie" Scruggs could be headed back to prison after a federal appeals court affirmed his 2009 conviction for bribing a Mississippi state court judge.

Scruggs, who was released on December 10 on a $2 million bond pending his appeal, has served more than four years in prison on dual convictions in 2008 and 2009 for which he was sentenced to a total of seven years. On May 30, 2012, he petitioned the U.S. Court of Appeals for the Fifth Circuit to review his 2009 conviction in light of the U.S. Supreme Court’s recent decision in Skilling v. United States, which limited the scope of the "honest services" fraud statute under which he was charged.

The Fifth Circuit affirmed his conviction on April 12.

"We agree with the district court in concluding that the record overwhelmingly establishes the existence of a corrupt bribery agreement between Scruggs and DeLaughter," the court wrote, referring to former Mississippi Seventh Circuit District Judge Robert "Bobby" DeLaughter.

Neither Scruggs’ attorney, Edward "Chip" Robertson of Bartimus Frickleton Robertson & Gorny in Leawood, Kan., nor a spokesman for the U.S. attorney’s office for the Northern District of Mississippi, returned calls for comment.

Scruggs is best known for his work in suing Big Tobacco, which was profiled in the 1999 film The Insider.

In 2008, he pleaded guilty to charges that he attempted to bribe Third Circuit District Judge Henry Lackey with $40,000 in exchange for a favorable ruling in a fee dispute. He was sentenced to five years in prison.

He was indicted again in 2009 on charges of bribing DeLaughter, who was overseeing a fee dispute brought by Scruggs’ former co-counsel, Robert Wilson. Federal prosecutors charged Scruggs, whose brother in law was then-U.S. Senator Trent Lott, D-Miss., of promising to recommend DeLaughter for a seat on the federal bench in exchange for favorable rulings in the Wilson matter. DeLaughter did so, advising Scruggs about how he would rule on certain motions and revealing Wilson’s settlement position.

Both Scruggs and DeLaughter were charged with one count of conspiracy to commit federal programs bribery and three counts of aiding and abetting honest services mail fraud. Scruggs pleaded guilty to one count of the honest services mail fraud and was sentenced to seven years in prison. He also was ordered to pay a $100,000 fine. He is serving sentences for both convictions concurrently.

In 2012, Scruggs failed to persuade a trial judge to set aside his conviction in light of Skilling, in which the high court found on June 24, 2010, that the honest services fraud statute was unconstitutionally vague and limited it to circumstances involving bribes and kickback schemes. U.S. District Judge Glen Davidson in Aberdeen, Miss., affirmed his conviction but certified for appeal the issue of whether Scruggs had been "actually innocent" of honest services fraud in light of Skilling. On appeal before the Fifth Circuit, Scruggs argued that his actions, albeit unethical, did not amount to a bribe since there was no "quid pro quo."

The panel disagreed.

"Scruggs promised to assist DeLaughter, and in exchange DeLaughter favored him in the Wilson case," wrote Judge Jacques Wiener, an appointee of President George H.W. Bush. Wiener was joined on the panel by Judge Jerry Edwin Smith, a Reagan appointee, and Clinton appointee Chief Judge Carl Stewart. "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 constitutional-vagueness challenge."

Furthermore, the panel noted, Scruggs did not directly appeal his 2009 conviction and never challenged the honest services fraud statute prior to Skilling. The panel also disagreed with Scruggs’ contention that the honest services fraud statute was "facially overbroad" by including alleged bribes involving political endorsements, which he had asserted were protected by the First Amendment.

The opinion came eight months after the Fifth Circuit upheld the 2008 conviction of Scrugg’ son, Zach Scruggs, in the Lackey indictment. Zach Scruggs, also represented by Robinson, was denied a petition for rehearing by the Fifth Circuit on October 1; the U.S. Supreme Court denied his petition for review on February 20. He was released from prison in 2009.

The opinion also came 10 days after the Ninth Circuit ruled against former Orange County, Calif., Sheriff Mike Carona, who argued that Skilling invalidated his conviction for witness tampering, for which he is serving a sentence of 5 1/2 years.

Also, on April 4 the U.S. Justice Department issued a notice to shareholders, employees and other victims of Enron Corp. that Jeffrey Skilling, its former chief executive officer and the subject of the Supreme Court precedent, would be resentenced. He is serving 24 years in federal prison following his conviction for insider trading and securities fraud.

Contact Amanda Bronstad at abronstad@alm.com.