Case: 3:09-cr-00002-GHD-SAA Doc #: 153 Filed: 11/11/11 1 of 12 PageID #: 1346

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI UNITED STATES OF AMERICA v. RICHARD F. SCRUGGS NO. 3:09CR002-GHD

Petitioners Alternative Motion for Limited Discovery Petitioner has filed a Motion for Judgment on the Pleadings. That Motion raises a pure legal issue whether the First Amendment protects non-financial political speech from criminal sanctions. If the Court concludes that Petitioners legal argument resolves the case, it must grant Petitioners 2255 motion. If the Court decides otherwise, then the Governments opposition to the Motion for Judgment on the Pleadings indicates that the First Amendment protections are conditional and ultimately factually driven. For the Government, the First Amendment offers no protection for non-financial political speech if there is some quid pro quo, however ambiguous or unstated that quid pro quo might be. Somewhat like a moth trying to determine where to land on a clear night in Las Vegas, the Government has not spoken with any consistency on what its allegations as to the terms of any agreement between Petitioner and then-Judge DeLaughter were. Even in its Response to Petitioners Motion for Judgment on the Pleadings, the Governments story changes within its 4 pages of argument. First, the so-called bribe is in exchange for corrupt rulings by the court. Doc. 150 at 2. Four lines later the quid pro quo is an exchange for secret access to the Court. Id. And then, it becomes for corrupt consideration in a matter before the court. Id. Finally, the Government describes the lure of a federal judgeship to corrupt Bobby DeLaughter, in return for which Petitioner, in the Governments imagination, received secret access to the court, obtaining

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favorable rulings on a number of preliminary matters, and finally obtaining a quantification order from the court that was unsupported by the evidence in the case. Id. at 6. Aside from the ambiguity on the quid side, the quo is just as vacuous. What was actually promised to Judge DeLaugther? An inquiry from Petitioner to Senator lott? A verbal endorsement from Petitioner? A phone call from Senator Lott? A nomination? A presidential appointment? A senate confirmation? If one could figure out the terms of the supposed deal, then one would be left asking who, in particular, made that deal, when, where, and how? Suspending disbelief for the moment (that a person of Bobby DeLaughters political sophistication would believe that the brother-in-law of a sitting United States Senator could deliver a federal judgeship), it remains an undisputed fact that Ed Peters the only person who talked to Judge DeLaughter insists that there was no such agreement. All these questions are left wide open by the Government, apparently hoping that the Court will speculatively fill in the blanks. Although we do not know what deal is being alleged, we at least know what is not alleged a paradigmatic bribery (to use the language of Skilling v. United States, 130 S. Ct. 2896, 2932-33 (2010)), a financial conflict of interest (to use the language of the Government in Weyrauch), or dollars-fora-decision quid pro quo (to use the language of Citizens United). The Government makes no claim that any money ever changed hands between anyone and Bobby DeLaughter, or that there was any contemplation of such an exchange. In the absence of any financial aspect, the Governments claims may have been sufficient to state crimes prior to Skilling. After Skilling, none of these claims states crimes. None is a

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paradigmatic bribe involving money or property and the Government cannot muster the fortitude to admit as much. But even if these claims did state a crime, and this Court erroneously1 concludes that Petitioner must show his actual innocence under Bousley v. United States, 523 U.S. 614, 624 (1998), each of the Governments claims depends on facts. The Government concedes as much when it argues that a quid pro quo exists. Indeed, Petitioners 2255 motion carries with it fact specific assertions that the necessary post-Skilling quid pro quo never existed at all in this case. And what has been revealed by the Government to date shows that even the Governments own evidence does not support its quid pro quo argument. Petitioner Richard Scruggs herewith requests that the Court permit very limited discovery to permit the development of additional facts related to the issue of whether a quid pro quo agreement existed between Judge Bobby DeLaughter and Petitioner and/or Petitioners co-conspirators. This discovery is necessary because many of the critical actors in this matter simply refuse to discuss the case with Petitioners counsel. None of the requests made here are the product of speculation or serve the purpose of a directionless fishing expedition. Petitioners counsel have conducted an investigation and have spoken with a number of persons concerning the matters for which formal, though limited discovery is sought. In several instances, the attorneys representing several critical witnesses have informed counsel for Petitioner that the witness will not
Bousley suggests that when a person pleads guilty to an offense that is subsequently decriminalized, the Bousley requirement that Petitioner show his actual innocence before a 2255 motion can be sustained is limited to crimes the Government abandoned that are more serious than the one to which he pleaded guilty. Any claim that a money/property/bribe the Government abandoned is more serious than the honest services bribe to which Petitioner pleaded guilty is incorrect as a matter of law. Thus, Petitioner is not required to show his actual innocence of money/property bribery in order to prevail on his 2255 motion.
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speak to them about the issues in this case unless compelled to do so. Were it otherwise, Petitioner would be submitting affidavits consistent with the evidence outlined below in support of summary judgment. In the descriptions that follow, where the phrase on information and belief is found, that phrase denotes statements made to Petitioners counsel by counsel for a witness. That counsel has indicated what the witness knows or believes. The information sought is thus grounded in the information revealed and, to the extent that counsels recollections are accurate, accurately describes held by a client. Because formal discovery appears to be the only way that Petitioner can obtain information critical and germane to Petitioners motion, Petitioner requests that the Court permit the use of its subpoena power to compel witnesses to provide factual information that will be validated by the oaths and penalties of perjury that normally attend discovery. In particular, Petitioner believes that limited discovery will permit development of the following facts that Petitioner and his counsel believe are true, but cannot be confirmed in a way sufficient for the Court to consider as such absent the exercise of this Courts subpoena power. As the Court is aware, the guilty plea in this case arises from litigation in Mississippi state court styled Wilson v. Scruggs. The litigation involved claims by Mr. William Roberts Wilson that Petitioner owed him attorneys fees for work in asbestos matters. The case was assigned ultimately to Judge Bobby Delaughter. The Governments case against Petitioner centers on its theory that Judge Delaughter agreed to do certain things, now delineated in Doc. 150, as consideration for agreement between Petitioner/Petitioners agents and Judge DeLaughter. Petitioner will address all three in turn and indicate the evidence that exists that Petitioner seeks.

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1.

The Lure of the Federal Judgeship. This is the consideration to Judge

DeLaughter under the Governments quid pro quo theory. First, it is beyond cavil that Petitioner could not deliver a federal judgeship to Judge DeLaughter. All Petitioner could do, at most, was offer a strong endorsement to one of Mississippis two federal senators. Thus (taking the Governments position in its most hopeful iteration), in order for this consideration to have value, Judge DeLaughter must have believed that Petitioner could provide him with a substantially increased opportunity to obtain the federal judgeship. Moreover, if that were the payment to Judge DeLaughter, Judge DeLaughter must also have known the political endorsement (a) would come only if he (Judge DeLaughter) performed his end of the bargain and (b) that he could enhance his chances for the federal judgeship by assisting Petitioner with favorable rulings. The Court previously ruled tentatively that a federal judgeship is a thing of value sufficient to support a quid pro quo under a pre-Skilling regime. Doc 67. Support for that conclusion has not proven out, however, since all concerned say that Bobby DeLaughter got no special consideration. BD really didn't get consideration in the sense of special consideration, and was told so. Trent Lott has testified under oath that he did not encourage Judge DeLaughter. Indeed, the-Senator Lott testified that he hoped to convince the President to nominate a person from the Coast, a statement made to Judge DeLaughter that certainly would have made clear that Petitioner had provided no help at all to DeLaughter. Many of the rulings to which the Government would point were made after March 29, 2006, the date of Lotts call to DeLaughter. If Judge DeLaughter knew that he was not going to be successful in his quest before he made rulings or permitted or continued to permit secret access after he knew that Petitioner had not

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provided Judge DeLaughter with anything of value, DeLaughters acts could not be part of a quid pro quo because there was no consideration flowing to DeLaughter by that time. Chip Reynolds was formerly an aide to Senator Trent Lott. On information and belief, Mr. Reynolds sought an audience with Judge Delaughter to discuss issues related to Mr. Reynolds son. This occurred prior to Senator Lotts call. During the conversation between the two, Judge Delaughter brought up his interest in a federal judgeship and asked Mr. Reynolds how the process of obtaining such an appointment by the President worked. Mr. Reynolds advised Judge DeLaughter that it took two, that is, both, Senators endorsement before a name would be sent to the President. Mr. Reynolds suggested Judge Delaughter submit a letter of interest and resume to both Senators. Judge Delaughter did so. If Judge DeLaughter knew that Trent Lotts support was alone insufficient to obtain the federal judgeship, that information is germane to the issue of whether DeLaughter could have believed that Petitioner could give him anything more than an endorsement, which alone, was insufficient even if Petitioner controlled Lotts actions. Moreover, Petitioners opponent in Wilson v. Scruggs, Roberts Wilson or his family, were close to Senator Thad Cochran. On information and belief, Mr. Wilsons children had all worked for Senator Cochran at one time or another, and, at the time of the incidents under scrutiny, one of Mr. Wilsons children was a current employee of Senator Cochran. In addition, Mr. Wilsons wife held a prominent position in the Mississippi Republican Party and herself had close ties to Senator Cochran. Further, on information and belief, Senator Cochran had been a guest at Mr. Wilsons hunting facilities on numerous occasions. If Judge DeLaughter knew that he risked offending Mr.

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Wilson by ruling for Petitioner in a manner not consistent with the law, it follows that Judge DeLaughter would have found himself in a no-win situation. He could not have advanced his interest in the federal judgeship if he (Judge DeLaughter) ruled for Petitioner and if he (Judge DeLaughter) knew that such a ruling would ruin his chances of obtaining Senator Cochrans support. Whether Judge DeLaughter knew these things as he made his rulings substantially impacts the question whether he believed he would obtain anything of value from Petitioner for his endorsement. 2. Secret Access: This is the consideration from Judge DeLaughter to Petitioner in the Governments imagined quid pro quo agreement. The Governments unstated premise of the value of the secret access was that Judge DeLaughter provided a map for Peters to follow to achieve success in the case. When Judge Delaughter took over the case, Mr. Wilson hired William Kirksey, Judge Delaughters former law partner, as his counsel. On information and belief, Mr. Kirksey initiated or participated in ex parte communications with Judge DeLaughter, that is enjoyed secret access to Judge DeLaughter unknown to Petitioner. On information and belief, in those conversations, Mr. Kirksey sought advice from Judge DeLaughter on procedural steps to take in the case. Judge DeLaughter suggested the filing of a certain motion. Specifically, Mr. Kirksey discussed matters related to the case with Judge DeLaughter without the presence of or knowledge of counsel for Scruggs and Judge DeLaughter suggested that Mr. Kirksey take certain actions for his client. This information is germane to this motion and the Courts decision on Petitioners sec. 2255 motion precisely because the Government placed great weight on

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the fact that similar ex parte contacts occurred with Ed Peters and that Judge DeLaughter invited Mr. Peters to file a particular motion. Indeed, the factual basis for Petitioners plea stated as follows: [T]he citizens of the State of Mississippi had a right to expect a circuit judge to exercise his duties in a fair and impartial manner without affording litigants on one side of the case secret access to the Court not enjoyed by the other. Plea Tr. at 27 (emphasis added). Here, on information and belief, the secret access was enjoyed by both sides. While Peters access remained secret, it did not give Petitioner an advantage not also enjoyed by the party opposite. 2. Corrupt Rulings and Orders The Government has never identified a corrupt ruling or order. Indeed, the Government stated in open Court before Judge Neal Biggers that Judge DeLaughter did not violate the law in his rulings and that Petitioner would likely have won in Wilson v. Scruggs even in the absence of unethical conduct and without the involvement of Ed Peters. [By Mr. Norman] There was no effort to get Bobby DeLaughter to break the law. There was no effort to get Bobby DeLaughter to rule in violation of the law. . . What they wanted Bobby DeLaughter to do was shade the law at every opportunity, to ensure a victory they probably would have anyway. There is every reason to believe that the Scruggs Law Firm probably would have prevailed in both these cases. The strange part about this is that wasnt good enough. They had to have an edge. Your Honor, in the Wilson case, Mr. Langston and Mr. Balducci came into the case with it became clear that Mr. Dunbar wasnt being as successful as Mr. Scruggs would like. And Bobby DeLaughter, sitting on the bench, had a best friend in the world; hed worked for as an assistant DA, when he tried the cases that theyve ,made movies about. That boss, of course, was Ed Peters. And it was common knowledge that the two were tight.

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No money went to Bobby Delaughter.. U.S. v. Scruggs, No.3:07CR192-NBB (Tr. Feb. 21, 2007 hearing at 18-21). The Government thus has conceded before a United States District Judge that all Petitioner could have gotten was shading the law not a ruling in violation of the law. And even according to the Government, shading would have had no affect on the rulings as Petitioner would have won anyway. Peters and Langston both testified that Petitioner could expect no more than DeLaughters faithful adherence to the law. On information and belief, DeLaughter told Peters that while he appreciated any help he could get in the federal judgeship quest, it would have no impact on his rulings in the case and that there would be no consideration given Peters (or Petitioner) as a result of any help provided by Petitioner with Senator Lott. The Governments own actions in Judge DeLaughters case are consistent with the conclusion that there was no agreement between DeLaughter and Peters; the Government dropped its bribery claim against Delaughter, allowing him to plead to the obstruction charge.2 Moreover, on information and belief, Judge DeLaughter would testify that when he spoke with Mr. Kirksey, his former partner, it was like speaking to a brother. And Ed Peters was, for Judge DeLaughter, like speaking to his father. Both sides had contact with the Judge unknown to the other. The Judge had no incentive to shade his ruling one way or the other as both sides were like family to him. The only arbiter in that situation would be a faithful adherence to the law. And the Government has not indicated any other course of action undertaken by then-Judge DeLaughter. On information and belief,
The Government required Judge DeLaughter to plead guilty to an obstruction charge based on DeLaughters statements to the FBI that he had contact with Peters, but did so only on a few occasions. DeLaughter told the truth (there was contact) but got the numbers wrong. Peters initially told the FBI that he did not have any contact with the Judge in the case. Peters, Dec. 11, 2007 FBI Form 302 at 2.
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DeLaughter believed that all of his rulings were consistent with his understanding of the correct legal standard and were consistent with the rulings previously made by Judge Hilburn, who was assigned Wilson v. Scruggs prior to Judge DeLaughter taking over the case. Further, on information and belief, Joey Langston would similarly testify that none of Judge DeLaughters rulings were inconsistent with either the evidence or the law. Further, on information and belief, Mr. Langston believed that there was never a discussion of a quid pro quo involving Judge DeLaughter, that such a discussion would have been counterproductive. Relief Requested In the event that the Court does not sustain the Petitioners Motion for Judgment on the Pleadings on the First Amendment issues, this Alternative Motion for Limited Discovery will permit the Court to be fully apprised on the facts on the issues of the existence of the supposed quid pro quo that lies at the heart of the Governments claim. The critical issue remains whether a paradigmatic bribe existed involving then-Judge Bobby DeLaughter and Petitioners agents. The evidence Petitioner believes is germane to that question furthers that provided by the Government in its previous filings with this Court. Given these circumstances, the Governments theory and the information that Petitioner believes is available through discovery, Petitioner respectfully requests that limited discovery be permitted as follows: (1) Limited Requests for Admissions to the Government to limit the scope of the inquiry. (2) Depositions of Ed Peters, Bobby DeLaughter, Joey Langston, Steve Patterson and Timothy Balducci.3 The scope of these

Steve Patterson also participated in the hiring of Ed Peters. Tim Balducci was not part of that initial meeting. However, in its Response in Opposition to Petitioners Motion to Clarify Record (Doc 152),
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depositions would be limited to the existence of a quid pro quo agreement and, in addition as to Bobby DeLaughter, the deposition would consider his ex parte contacts with counsel representing William Roberts Wilson. WHEREFORE, for the reasons stated, and to permit the Court the opportunity to make a fully informed decision on matters of fact put at issue by the Government, Petitioner respectfully requests the Court to permit limited discovery as described.

Respectfully submitted, this 11th day of November, 2011.

/s/Edward D. Robertson, Jr. Edward D. Robertson, Jr. (pro hac vice) Bartimus, Frickleton, Robertson & Gorny, P.C. 715 Swifts Highway Jefferson City, Missouri 65109 573-659-4454 573-659-4460 (fax) chiprob@earthlink.net Michael C. Rader, MB#100205 BARTIMUS FRICKLETON ROBERTSON & GORNY 11150 Overbrook Road, Suite 200 Leawood, KS 66211 913-266-2300 mrader@bflawfirm.com Mike Moore, MB#3452 MIKE MOORE LAW FIRM, LLC 10 Canebrake Blvd., Suite 150 Flowood, MS 39232 601-933-0070
the Government states that Mr. Balducci, who never spoke directly with Judge DeLaughter, had hearsay evidence about Judge DeLaughters understanding of the supposed agreement. This contention by the Government makes Balduccis testimony relevant to the Governments claim that a quid pro quo existed.

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mm@mikemoorelawfirm.com CERTIFICATE OF SERVICE I, Edward D. Robertson, Jr., hereby certify that on November 11, 2011, I served copies of this Motion the Office of the United States Attorney for the Northern District of Mississippi by way of the Electronic Court Filing (ECF) system. s/ Edward D. Robertson, Jr.

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