PETITIONER’S RESPONSE IN OPPOSITION TO THE ... David Zachary Scruggs respectfully submits this brief in opposition to the Government’s Motion to Dismiss, D.E. 384, which was filed

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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF MISSISSIPPI

UNITED STATES OF AMERICA

v. CRIMINAL CASE NO. 3:07CR192-b-a

DAVID ZACHARY SCRUGGS

PETITIONER’S RESPONSE IN OPPOSITIONTO THE GOVERNMENT’S MOTION TO DISMISS

Petitioner David Zachary Scruggs respectfully submits this brief in opposition to the

Government’s Motion to Dismiss, D.E. 384, which was filed at the end of the evidentiary

hearing conducted the week of May 23.

INTRODUCTION

Petitioner and the Government tried two different cases.

The Government believes that it can defeat Petitioner’s § 2255 petition if the evidence

shows that Petitioner joined a conspiracy to defraud John Jones by seeking an order from Judge

Lackey to compel Jones v. Scruggs to arbitration. This argument, which is both legally

nonsensical1 under the law of § 2255 and a measure of the Government’s desperation, rests upon

a reading of the indictment that no construction of the English language can support.

The indictment accused that Petitioner (and others)

devised and intended to devise a scheme and artifice to defraud and todeprive the State of Mississippi of its intangible right to the services of theHonorable Henry L. Lackey…..

D.E. 1 at 10.

1 It is nonsensical because the Government’s position requires Petitioner to show his actual innocence of acrime for which he was never indicted. Bousley v. United States, 523 U.S. 614 (1998) requires a showing only ofactual innocence of crimes that the Government forwent in reaching the plea agreement with Petitioner.

Case 3:07-cr-00192-NBB -SAA Document 390 Filed 06/08/11 Page 1 of 76

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At the hearing, the Government, speaking through Mr. Lamar, informed the Court that

the indictment could be read to accuse Petitioner of defrauding John Jones.

He pled guilty to misprision of a federal crime, that is, arguably, a scheme todefraud, a scheme to defraud using interstate wire communications, a scheme todefraud Jones.

Hearing Tr. at Vol. III, 105-06 (emphasis added). See, also Government’s Motion to Dismiss,

D.E. 384 at 3 (Petitioner was involved in “a scheme to defraud the plaintiff [Jones] in Jones et

al., v. Scruggs, et al of his property rights”) (emphasis added).

It is a fundamental tenet of English grammar that a transitive verb is directed at

something that receives the action of the verb or shows the result of the action. That something

is called the direct object, which can be either stated or implied. Indeed, this is fourth-grade

English. The sentence, “The Government filed its brief” contains a transitive verb – filed – and a

direct object – brief. The direct object answers the “who” or “what” question posed by the

transitive verb.

The indictment uses transitive verbs -- “defraud and deprive.” Who or what? The

indictment answers clearly: “the State of Mississippi.” The indictment mentions no other entity,

person or object. And as to John Jones, the indictment’s charging language is completely silent.

Nor does it matter, as the Government seems to say, that “defraud” and “deprive” are

stated in the conjunctive. For the Government, the “and” means that “defraud” stands alone,

with its direct object to be supplied on the Government’s whim – now John Jones. English

grammar rules state otherwise. The “and” simply means that the Government must show that

Petitioner both defrauded and also deprived the who or what – that is, the State of Mississippi.2

2 Likewise, the indictment’s citation to two different sections of the criminal code, §§ 1343 and 1346, doesnot indicate that two separate crimes are being charged. The honest services fraud statute at §1346 is not itself acrime, but is rather titled “Definition of ‘scheme or artifice to defraud,’” and the entire section reads: “For thepurposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of


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“Defraud” is not a free floating transitive verb – in effect, a mulligan available to the

Government in the event that the Government needs another shot – that can be linked with

anyone to whom the Government wants to link it as necessity and failed evidence changes the

Government’s purposes.

To read the indictment to charge Petitioner with defrauding John Jones by seeking the

arbitration that the Mississippi Supreme Court ultimately ordered in this case is simply an

attempt to mislead the Court about the indictment. And as will be explained later, the law does

not countenance such sophistry.

Petitioner tried a different case, attempting to follow Bousley v. United States, 523 U.S.

614 (1998) and this Court’s Order (DE 370, 371). First, as a matter of law, Petitioner is not guilty

of an honest services violation under his guilty plea. As this Court correctly noted in accepting

the plea in March of 2007:

He’s [David Zachary Scruggs is] not being sentenced for conspiracy to bribe ajudge. … He hasn’t pled guilty to being part of the bribery. And he’s not beingsentenced for part of the bribery. … And as far as the law is concerned, I’mgoing to base the sentence on that.

Sentencing Hearing Tr., 7/2/08 at 7-9. Skilling v. United States, ___ U.S. ___, 130 S. Ct. 2896

(2010) requires evidence of bribery or a kickback for there to be a conviction under the honest

services statute. “To preserve the statute without transgressing constitutional limitations, we

now hold that § 1346 criminalizes only the bribe-and-kickback core of the pre-McNally case

law.” Id. at 2931. Further, as the Court correctly concluded in its Order partially granting

summary judgment, the federal programs bribery charges leveled by the Government in its

indictment of Petitioner under 18 U.S.C. § 666 do not extend to a state court judge. Whitfield v.

United States, 590 F.3d 325 (5th Cir., 2009).

the intangible right of honest services.” Thus, any allegation of honest services fraud will also cite the wire fraud ormail fraud statutes, as the Indictment did in this case.


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Second, at the hearing, Petitioner proved by a preponderance of the evidence that no

reasonable juror, properly instructed, would find beyond a reasonable doubt that he joined a

conspiracy to bribe or pay a kickback to Judge Lackey. This is the actual innocence standard.

What the Government misses is that Bousley answers the question: “Actually innocent of what?”

The answer in Bousley is the charges the Government abandoned in the plea agreement. The

actual innocence standard does not require the Petitioner to prove that he is actually innocent of

any charge the Government can now concoct, only those the Government bargained away.

As recited below, no evidence showed the Petitioner joined the conspiracy. It is true

that Richard Scruggs and Sid Backstrom pleaded guilty to an honest services violation. But

those pleas were founded on a factual basis that included a bribe. And for that reason, Skilling

cannot relieve the elder Scruggs or Mr. Backstrom of their convictions in the Lackey case. To

overrule the § 2255 motion in this case, the Court must find – acting as a reasonable juror

properly instructed – that Petitioner committed the same crime as his father and Sid Backstrom.

But, again, while there was proof that those defendants knew of the bribe and took an affirmative

step to join the conspiracy, there is no proof that Petitioner joined a conspiracy to bribe or pay a

kickback to Judge Lackey.

The evidence in this case, laid out in more detail below, shows that the only time anyone

spoke about the bribery scheme in Zach Scruggs’s possible presence was on November 1, 2007.

Prior to that date and time, Mr. Balducci had never spoken to Zach Scruggs about any payment

of money to Judge Lackey (and neither had any of the other conspirators). It was on that date

when Tim Balducci, wearing a wire and acting as a Government agent, and seeking by his own

admission to save his own skin by implicating two members of the Scruggs Law Firm in his


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payments of money to Judge Lackey to obtain an arbitration order, spoke in code (“sweet

potatoes”) and ambiguously (“we’re paying for it”) about the bribery scheme.

Yet even if one takes the evidence in the light most favorable to the Government –

believing that Petitioner remained in the room when Balducci spoke and heard and understood

every word that Tim Balducci said in Sid Backstrom’s office on that date -- there is still no

evidence that Zach Scruggs took an affirmative step to join the conspiracy, that he willfully

joined the conspiracy.

The 5th Circuit’s conspiracy instruction, Criminal Pattern Instruction 2.20, permits a

conspiracy conviction only on proof beyond a reasonable doubt that:

First: That the defendant and at least one other person made an agreement tocommit the crime of _______ (describe) as charged in the indictment;

Second: That the defendant knew the unlawful purpose of the agreement andjoined in it willfully, that is, with the intent to further the unlawful purpose;and

Third: That one of the conspirators during the existence of the conspiracyknowingly committed at least one of the overt acts described in the indictment, inorder to accomplish some object or purpose of the conspiracy.

Id. (emphasis added). See also United States v. Maloof, 205 F.3d 819, 830 (5th Cir., 2000)

(“Willful participation is an essential element of the crime of conspiracy; mere knowledge of a

conspiracy does not itself make a person a conspirator.”) An individual's “[m]ere presence at the

scene of a crime or close association with a co-conspirator will not support an inference of

participation in a conspiracy.” United States v. Tenorio, 360 F.3d 491, 495 (5th Cir., 2004);

“[T]he mere fact persons have associated with each other to discuss common aims and interests

does not necessarily establish the existence of a conspiracy.” U.S. v. Boruff, 909 F.2d 111, 118

(5th Cir., 1990), Fifth Cir. Pattern Jury Instr. 2.20 (same); See, also U.S. v. Velgar-Vivero, 8 F.3d


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236, 241 (5th Cir., 1993) (“It is not enough ... that the evidence places the defendant in a climate

of activity that reeks of something foul.”)

Although the Government has thrown up a typhoon of chaff which must be addressed,

Petitioner would respectfully direct this Court’s attention to the evidence. Petitioner provides

extensive citations to the hearing record to show that, prior to the very end of a conversation on

November 1, 2007, nobody even attempted to tell Petitioner about the scheme to pay Judge

Lackey (Fact #1), and thereafter, Petitioner never said or did anything related to the scheme to

pay Judge Lackey (Fact #2). Under clear Fifth Circuit authority, and the plain language of the

conspiracy statute, these two facts dispose of this case. Again, even if this Court were to

conclude that Petitioner heard Balducci’s mutterings about “sweet potatoes” and “we’re payin

for it,” and understood that to be a bribe (which Petitioner expressly denied at his sentencing

hearing, David Z. Scruggs Change of Plea Tr. at 15), Petitioner never said or did anything to

express any agreement to join that criminal conspiracy, including ratifying the order. Indeed, it

is undisputed that Petitioner left the room before Sid Backstrom approved the order. Petitioner

took no action beyond discussing the order. And that discussion all took place before Mr.

Balducci began speaking in code in an attempt to save himself.

An agreement is the essence of any conspiracy. Instead of joining, Petitioner simply

turned his back and walked away. That is not a crime.

Thus, Petitioner has met the burden imposed by Bousley. “In cases where the

Government has forgone more serious charges in the course of plea bargaining, petitioner's

showing of actual innocence must also extend to those charges.” Id., 523 U.S. at 624. And,

despite what the Government now argues, Petitioner cannot be required to prove actual

innocence of a crime never charged in the indictment.


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TABLE OF CONTENTS

I. ACTUAL INNOCENCE ................................................................................................... 9A. The Legal Standard ......................................................................................................... 9B. The Government’s New Theory of Money / Property Fraud........................................ 10C. The Government’s “Alternative Theories” That Try to Avoid Skilling........................ 20D. The Two Key Facts that Show Actual Innocence of Bribery ....................................... 22Fact #1: Prior to the very end of a conversation on November 1, 2007, nobody

told Petitioner about the scheme to pay Judge Lackey.................................. 23Fact #2: After that moment on November 1, Petitioner never said or did anything

to join any scheme to pay Judge Lackey. ...................................................... 28E. The Larger Context of Exculpatory Facts..................................................................... 32Fact #3: Petitioner never heard or understood Mr. Balducci’s comments about

“sweet potatoes” and “we’re payin’ for it” on November 1, 2007................ 32Fact #4: Mr. Balducci is an unreliable witness with a record of repeatedly stating

falsehoods under oath, in order to curry favor with the Government. .......... 37F. The Ambiguous Evidence as to Gratuity versus Bribe ................................................. 41

II. THE RIGHT TO LOYAL COUNSEL .......................................................................... 46A. The Legal Standard ....................................................................................................... 46B. The Conflict of Interests ............................................................................................... 48Fact #5: Petitioner’s counsel, Mr. Farese, helped the Government procure a

witness whose cooperation “substantially contributed” to causingPetitioner to plead guilty. .............................................................................. 49

C. The Government’s Willfulness or Recklessness........................................................... 51Fact #6: The Government willfully or recklessly deprived Petitioner of his right

to loyal counsel and deprived this Court of its ability to do itsConstitutional duty. ....................................................................................... 51

D. The Statute of Limitations............................................................................................. 53Fact #7: KINGS OF TORT revealed what Mr. Farese had concealed when he

procured a waiver -- that Mr. Farese had already negotiated a deal forMr. Langston to cooperate with Petitioner’s adversary................................. 56

III. THE PROSECUTORS’ MISCONDUCT...................................................................... 65Fact #8: Mr. Norman made a material misrepresentation to this court and to

Petitioner, despite admitted evidence that he was informed that he hadspoken falsely to the Court, failed to take remedial measures to correcthis misstatement in a timely manner and allowed a document containinglanguage consistent with that misstatement to be filed after theGovernment was advised of the error............................................................ 71

Fact #9: In the culmination of plea bargaining and in three pretrial rulings,Petitioner was prejudiced by the Government’s continued exploitation oftheir false representation to the Court. .......................................................... 73


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IV. CONCLUSION ................................................................................................................ 74


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I. ACTUAL INNOCENCE

A. The Legal Standard

Following this Court’s analysis of Bousley v. U.S. in the Court’s Opinion on Summary

Judgment, D.E. 371 at 7-8, Petitioner here proceeds on the assumption that Petitioner bears the

burden of proof to show his actual innocence of both the crime to which he pleaded guilty and

the charges leveled in the Indictment that the Government subsequently abandoned. Petitioner

meets that burden by evidence that is largely undisputed.

Still, Petitioner is separately submitting a Bench Memorandum respectfully to reserve

and reassert the argument that the “actual innocence” burden violates Petitioner’s constitutional

rights, that it is contrary to the Congressional mandate and common sense, and that the

Government has waived or should be estopped from imposing this burden, given prior

representations to this Court and Department of Justice policy. As at least one court has

recognized, in the context of Skilling, it is not clear that the actual innocence showing would be

necessary anyway, since Petitioner had cause for not litigating the honest services question all

the way to the Supreme Court.3

Still, at the recent hearing, Petitioner embraced the burden of showing actual innocence.

This section shows that Petitioner is actually innocent of all charges, even those charges which

the Government procured from the grand jury with false testimony and while withholding the

real record, and even those charges the Government subsequently dismissed, after representing

that Petitioner’s guilty plea reflected “all the facts and circumstances.” This Honorable Court

3 Stayton v. U.S., -- F.Supp.2d ----, 2011 WL 691238 *6 n7 (M.D.Ala.,2011) (a post-Skilling honestservices fraud case that found cause for not pursuing the honest services fraud issue, and presumed prejudice, thusgranting relief without requiring an actual innocence analysis) (citing Reed v. Ross, 468 U.S. 1, 13, 104 S.Ct. 2901,82 L.Ed.2d 1 (1984) for the proposition that “’when the state of the law at the time ... did not offer a ‘reasonablebasis' upon which to challenge the jury instructions,’ that constitutes ‘cause for failing to raise the issue at thattime’” and holding that Bousley did not overrule Reed).


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has said that it will determine whether “any” reasonable juror would convict Petitioner under the

proper instructions, keeping in mind that “such a juror would conscientiously obey the

instructions of the trial court in requiring proof beyond a reasonable doubt.” D.E. 371 at 8 n6

(quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).

B. The Government’s New Theory of Money / Property Fraud

Petitioner was charged with honest services fraud. In Skilling v. U.S., the Supreme Court

held that, in order to avoid unconstitutional vagueness, the statute could only be applied to

bribery and kickback schemes. 130 S.Ct. 2931. Therefore, Petitioner can be guilty of an honest

services crime only if the evidence shows that Petitioner had knowledge of the Government’s

bribery conspiracy and joined that conspiracy. As this Court recognized, the very purpose of

holding an evidentiary hearing was to resolve that question of fact once and for all. See Opinion,

D.E. 371 at 29 (“The claims to be heard at the Section 2255 motion hearing are as follows: (1)

actual innocence pursuant to Skilling v. United States including, but not limited to (a) knowledge

of payment to Judge Lackey; (b) intent of defendants with regard to the nature of payment, i.e.,

whether payment was a bribe or gratuity…”) (emphasis added).

After nearly three hard-fought days of witnesses testifying to resolve this question, the

Petitioner rested. The Government put on no evidence. And no evidence supported the

conclusion that Petitioner willfully joined a conspiracy to bribe Judge Lackey.

This is not to say that Petitioner did not know about Tim Balducci’s attempt to use his

personal relationship with Judge Lackey to obtain an arbitration order from Judge Lackey. He so

stated at his change of plea hearing. Plea Hearing Tr. 15-16. But under Skilling, that is not a

crime precisely because the use of influence does not involve the payment of a bribe or kickback.


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The Government cannot let go of Petitioner’s knowledge of the attempt to obtain the

order from Judge Lackey. That misunderstanding of the law after Skilling is fatal to the

Government’s reasoning. It permits the Government to admit that Zach Scruggs did not know

about the bribe, yet is still guilty because he committed a money/property fraud against John

Jones. And the only way the Government can make this argument is to cast the indictment adrift

from its linguistic moorings. The Government does so by claiming that the indictment levels a

charge of money/property fraud against a specific person – even though the indictment mentions

neither money nor property a single time and John Jones’ name never even appears there.

These are the Government’s words: “[T]he original indictment charges a valid 18 U.S.C.

§ 1343 wire fraud based on a money/property fraud theory in addition to honest services fraud.

… As a result, even if the Petitioner can establish he did not know about the bribe payments,

he still cannot prove his actual innocence of the underlying charges in the indictment and his

2255 petition fails.” D.E. 384 at 24 (emphasis added).4

The Government has had trouble with the truth in this case. And this is yet another

example.

The indictment speaks for itself. See D.E. 1. The operative charges are quite clear:

2. From on or about March of 2007 and continuing through November of 2007, inthe Northern District of Mississippi, the defendants RICHARD "DICKIE"SCRUGGS, DAVID ZACHARY SCRUGGS, SIDNEY A. BACKSTROM,TIMOTHY R. BALDUCCI and STEVEN A. PATTERSON devised and intendedto devise a scheme and artifice to defraud and to deprive the State of Mississippiof its intangible right to the honest services of The Honorable Henry L. Lackey,Circuit Court Judge, performed free from deceit, bias, self-dealing andconcealment.

4 The Government also raises the harmless error concept, which also seems to turn on this newmoney/property fraud theory. See D.E. 384 at 27. All of this harmless error analysis is inapposite in the presentguilty-plea context, but is instead “the appropriate test when evaluating the impact of a jury instruction that offeredan invalid, alternative theory of guilt.” Id., at 25. The Government seems to have simply cut and pasted pages andpages of material from briefing in another case that involved a jury instruction.


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D.E. 1, at 10. The Government reads the indictment to have new words, set out in brackets here.

2. From on or about March of 2007 and continuing through November of 2007, inthe Northern District of Mississippi, the defendants RICHARD "DICKIE"SCRUGGS, DAVID ZACHARY SCRUGGS, SIDNEY A. BACKSTROM,TIMOTHY R. BALDUCCI and STEVEN A. PATTERSON devised and intendedto devise a scheme and artifice to defraud [Johnny Jones of property] and todeprive the State of Mississippi of its intangible right to the honest services of TheHonorable Henry L. Lackey, Circuit Court Judge, performed free from deceit,bias, self-dealing and concealment.

In the real text, the word “defraud” has no other victim (object) than the State of Mississippi. In

the real text, the State of Mississippi was defrauded and deprived of its intangible right to the

honest services of Judge Lackey. Only by changing the text to insert a new victim (Jones) and a

new description of what Jones supposedly lost (property) can the Government make its

argument.

The Government’s interpretation of the indictment is fanciful, farfetched and free of

logic. The indictment says honest services fraud over and over. To repeat: Not once does it say

anything at all about a money/property theory of fraud or Jones.

When reading the real text, this Court has already recognized that, “Count One of the

indictment against Petitioner charged conspiracy in violation of 18 U.S.C. § 371 to commit

bribery under 18 U.S.C. § 666 and honest services fraud under 18 U.S.C. §§ 1343 and 1346. …

Counts Five and Six charged honest services fraud in violation of 18 U.S.C. §§ 1343 and

1346.” Opinion, D.E. 371 at 1 (emphasis added).

The Government cannot even maintain this theory consistently in its own brief, as the

Government characterizes the pleas of all the other co-conspirators, to these very same charges,

as pleas to honest services fraud. See D.E. 384 at 19 (“Notably, all four of the Petitioner’s co-

conspirators, including his own father, pled guilty to conspiracy to commit honest services wire

fraud explicitly including the bribe payments to Judge Lackey and each guilty plea involved the


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same Count One of the Indictment.”)(emphasis added). Under the Government’s newfound

theory, these conspirators would have pled guilty to money/property fraud and honest services

fraud. But the Government’s brief-writers know that is just not true. Richard Scruggs,

Backstrom, Balducci and Patterson pleaded guilty to honest services fraud involving the payment

of money to Judge Lackey as a quid pro quo. In none of those defendants’ plea colloquies or the

factual bases advanced by the Government is a money/property bribe mentioned.

Indeed, as recently as March 11, 2011, the Government seemed to concur that the key

question was about whether Petitioner could be linked to Judge Lackey’s demand for money.

[T]he one issue before the Court that is justiciable and not time-barred [is]whether or not David Zachary Scruggs knew that money had actually beendelivered to Circuit Judge Henry Lackey in connection with their scheme tocorruptly influence him or, in the alternative, whether David Zachary Scruggswas, as a co-conspirator, responsible for the actions of his fellow coconspirators(including the actual delivery of $40,000 to Circuit Judge Lackey).

D.E. 328 at 2 (emphasis added). The Government only now “noticed” the money/property fraud

crime that it now maintains was lurking in that Indictment all along. Criminal charges do not lurk

unspoken in indictments, like concealed remote control bombs waiting to be triggered by the

Government when it needs to claim a victim.

“The Sixth Amendment requires that an indictment (1) enumerate each prima facie

element of the charged offense; (2) fairly inform the defendant of the charges filed against him;

and (3) provide the defendant with a double jeopardy defense against future prosecutions.”

United States v. Gaytan, 74 F.3d 545, 551 (5th Cir. 1996). “The purpose of the indictment is to

provide the defendant with notice of the offense with which he is charged.” Id. at 552.

(emphasis added). The only fraud charged in the indictment is an honest services fraud. For

there to be a proper indictment of a conspiracy to defraud John Jones of property, the indictment

would have to say that or violate the Sixth Amendment.


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This newfound position is disingenuous, and reveals the Government’s dogged

desperation to maintain a conviction, even at the cost of the Government’s own dignity, its

obligation to pursue justice, and its now-abandoned adherence to the truth. Indeed, the

dichotomy between honest services fraud and money/property fraud that the Government wishes

to obliterate has been clearly spelled out by the 5th Circuit, as noted in Skilling.

The Fifth Circuit's opinion in Shushan stimulated the development of an “honest-services” doctrine. Unlike fraud in which the victim's loss of money or propertysupplied the defendant's gain, with one the mirror image of the other, see, e.g.,United States v. Starr, 816 F.2d 94, 101 (C.A.2 1987), the honest-services theorytargeted corruption that lacked similar symmetry. While the offender profited, thebetrayed party suffered no deprivation of money or property; instead, a thirdparty, who had not been deceived, provided the enrichment.

Id. 130 S. Ct. at 2926.

Further, the Government’s position partakes of that which is expressly forbidden in

Skilling, violating due process by finding crimes in the honest services statute that do not belong

there. This is because, “[t]o satisfy due process, ‘a penal statute [must] define the criminal

offense [1] with sufficient definiteness that ordinary people can understand what conduct is

prohibited and [2] in a manner that does not encourage arbitrary and discriminatory

enforcement.’ Kolender v. Lawson, 461 U.S. 352, 357 … (1983).” Skilling, 130 S. Ct. at 2927-

28. The Government’s reading of the honest services statute is both arbitrary and discriminatory.

Thus, the Fifth Circuit has condemned the sort of shenanigans employed by the

Government here. In U.S. v. Marcello, the Government indicted and won a conviction on a

scheme to defraud the State of Louisiana of the honest services of certain contract agents to

whom Marcello paid bribes. 876 F.2d 1147, (5th Cir., 1989). When the Supreme Court struck

down the honest services fraud crime inMcNally v. United States, 483 U.S. 350 (1987) by

holding that the then-effective honest services statute did not extend to intangible rights, the


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Government got creative and tried to suggest that Marcello actually faced a money/property

fraud crime that was implicit in the indictment. The Fifth Circuit said:

In its effort to remove this case from the ambit of McNally and to sustain theconvictions, the government makes several arguments. First, the government citesarticle 3005 of the Louisiana Civil Code and contends that bribes paid to a stateagent are the property of the state and that monies paid to Roemer were propertybelonging to the state. While we admire counsel's ingenuity, we are notpersuaded. The agent's fiduciary duty to his principal was not the factual basis ortheory upon which the grand jury indicted, and it was not the basis upon whichthe defendants were tried. See United States v. Italiano, 837 F.2d 1480 (11thCir.1988); Allen v. United States, 867 F.2d 969, 972 (6th Cir.1989) (“the issue isnot what [the defendant] might have been charged with when one examines hisconduct in retrospect and recharacterizes it in light of McNally, but what chargesactually were lodged against him, tried, and submitted to the jury”).

The government would have the court perform a nunc pro tunc revision of theindictment and charge so that the convictions would conform to McNally. This wedecline to do. A trial court may dismiss an indictment for failure to charge anoffense, or refuse to allow an indictment to go to the jury for insufficientevidence, but the court may not retrospectively redraft an indictment to supporta conviction on facts or theories upon which the defendant was not charged,tried, and convicted.

876 F.2d at 1152 (emphasis added). Marcello controls here.

While ignoringMarcello (which was cited in the Petition, D.E. 303 at 1), the Government

invokes United States v. Dyer, 136 F.3d 417 (5th Cir. 1998), which the Government says “dealt

with a scenario very similar to the present case.” D.E. 384 at 8. There is, however, one key

difference. In addition to an honest services charge, Dyer’s indictment explicitly alleged a

scheme to defraud a developer out of money, $25,000 in particular.5 As the Fifth Circuit said,

“The information contained specific allegations of both money and property loss.” 136 F.3d at

5 This fact is apparent in the Government’s own description of the case. D.E. 384 at 8-9 (“The informationdescribed the mail fraud scheme in three paragraphs: (1) to defraud the city and its citizens of his honest service inusing his position to influence the city bodies to approve a development project while intending to profit personally;(2) to demand $25,000 from a developer for alleged reimbursement of funds expended on behalf of the developer toassure approval of a proposed project; (3) to threaten to use his position and influence with city bodies to preventfinal approval of a project unless he received from the developer $25,000 and financing for a project proposed byDyer. Id. at 426 n. 15”).


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424 (emphasis added). Thus, it was a quite simple matter for the court to uphold Dyer’s

conviction on a money/property theory since that theory was specifically charged all along.

If Petitioner’s indictment said that he not only sought to deprive the State of Mississippi

of the honest services of Judge Henry Lackey, but also sought to defraud Jones of $25,000 (or

any other amount of money), then Dyer would indeed be “very similar to the present case,” as

the Government now says. But the real text speaks for itself – and in speaking, makes a mockery

of the Government’s argument.

Even if this money/property theory had been presented in the Indictment, the

Government has waived that theory in these post-conviction proceedings by failing to present

that theory until after the evidentiary hearing had ended. This was an abrupt change of course

for the Government, and frankly, it is a vexatious litigation tactic. After all, Petitioner (and the

Court) repeatedly characterized this case as being merely one of honest services fraud, see D.E.

303, and through nine months of briefing the Government never raised a quibble about that

point. The Government said nothing about money/property fraud in its Response in Opposition

to the Petition, D.E. 309, its lengthy Response in Opposition to Discovery, D.E. 328, or in its

Opposition to Summary Judgment, D.E. 354, or even its Opposition to Petitioner’s Motion to

Reconsider Summary Judgment, D.E. 379, filed the very morning the hearing commenced. As

this Court has already held in this case, “arguments not raised in response to defendant’s

summary judgment motion are waived.” Opinion, D.E. 371 at 15.

Finally on this point, even if the Government had fairly charged a money/property fraud

theory (which it wholly failed to do), and had timely asserted it in these post-conviction

proceedings, the theory would fail on the merits. In its briefing, the Government never really

specifies what is the money or property that the conspirators sough to fraudulently take from


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Jones (which is itself a defect of the Indictment). Still, the Government does provide the

following:

The Supreme Court has “held that a cause of action is a species of propertyprotected by the Fourteenth Amendment’s Due Process Clause,” which requires ata minimum that “deprivation . . . by adjudication be preceded by notice andopportunity for hearing.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428(1982); Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 (1950). Ascheme to deprive an adversary of money by means of a civil lawsuit conductedfraudulently is cognizable as mail fraud under McNally. See United States v.Eisen, 974 F.2d, 246, 251-252 (2d Cir. 1992).

D.E. 384 at 7-8. Even here the Government equivocates. It first suggests that Jones’s lawsuit

was itself the “property” that the conspirators sought to deprive, and then suggests that there was

some effort to fraudulently deprive Jones of money by “means of a civil lawsuit.” The problem

is that nobody sought to deprive Jones of his lawsuit. He filed it. And nobody sought to deprive

Jones of any money he was rightfully owed. All the SKG defendants sought from Judge Lackey

was an order compelling arbitration, to divert the decision on Jones’ claims to a previously

agreed to forum. And that diversion was precisely what the law required. See Barrett v. Jones,

Funderburg, Sessums, Peterson & Lee, LLC, 27 So. 3d 363, 377 (Miss. 2009) (reversing

sanctions against Richard Scruggs’ former co-venturers/appellants and remanding for entry of an

order compelling arbitration in the underlying fee dispute).6 Given that the Government

altogether ignores the Mississippi Supreme Court’s holding in Barrett v. Jones, rather than

somehow explaining or distinguishing it, makes it difficult to take the Government very seriously

in their newfound money/property fraud allegations. Indeed, how could Jones be deprived of

something (a jury trial in state court) to which he was never entitled?

6 Judge Lackey admitted as much. See Petition Exh. “J”, 5/09/07 Recording Tr. at 26 (Judge Lackey ontape responding to Balducci’s question about whether the Judge thought the matter “ought to be arbitrated”: “Itdoes. It does. It looks, it looks uh, uh, uh, like that’s what they agreed to do.”).


18

Given the clear mandate of the Federal Arbitration Act and Mississippi law, it is clear

that Mr. Jones had no “property” interest in having Judge Lackey resolve the case rather than

send it to arbitration. Mr. Jones had agreed to binding arbitration. Judge Lackey’s duty was to

compel arbitration. Indeed, the case did not “rightfully belong to” Jones in the first place, and

thus the scheme was not intended to deprive Jones of any property. See United States v.

Castaldi, 547 F.3d 699 (7th Cir.2008) (holding that an intent to defraud is found where the

defendant took something he knew “rightfully … did not belong to him.”).7

The Government also cites U.S. v. Eisen in the section quoted above. There the

Government’s “indictment explicitly allege[d] a scheme to deprive the victims of money,” by

securing judgments in civil cases through various fraudulent means. 974 F.2d at 252. Because

the whole purpose of the Eisen scheme was to get money through fraudulent means, the Eisen

court distinguished the honest services fraud case of United States v. Eckhardt, 843 F.2d 989 (7th

Cir.), cert. denied, 488 U.S. 839 (1988) as follows:

In Eckhardt, the defendant had operated a phony tax shelter scheme and hadcommitted perjury and submitted false documents in a civil proceeding broughtby his investors against the IRS to challenge disallowance of their deductions.The indictment charged him with a scheme “To defraud the United States byimpeding and impairing, obstructing and defeating the lawful functions of theInternal Revenue Service in the ascertainment computations, assessment andcollection of the revenue, to wit, income taxes, of taxpayer-investors....” 843F.2d at 996. The Seventh Circuit concluded that this allegation failed to allegemail fraud in light of McNally [which struck down honest services fraud]. Itfound that the indictment charged the defendant with interfering with the IRS'sproper ascertainment and collection of income taxes. It does not specificallyallege that he deprived the government of revenue.... [I]t is not sufficient to allege

7 For the same reason, the other cases the Government cited are inapposite. For example, “in Moore v.United States, 865 F.2d 149 (7th Cir. 1989), for example, the Seventh Circuit upheld a conviction … because thegovernment ‘plainly lost money or property as a result of the proven bid-rigging scheme.’” D.E. 384 at 28.Likewise, in United States v. Asher, 854 F.2d 1483, 1496 (3d Cir. 1988), the “bottom line of the scheme or artificeto defraud had the inevitable result of effecting monetary or property losses to the employer or to the state.” D.E.384 at 27. Here, it was not plain or inevitable that Mr. Jones would lose money he was owed. Instead, if Balduccihad succeeded in earwigging Judge Lackey to compel arbitration, Mr. Jones would have gotten exactly what he wasowed: an order compelling arbitration. It bears emphasis that Petitioner is not trying to excuse or belittle the ethicalwrongdoing, but simply to insist that this case proceed on the reality of what was done.


19

conduct which could have resulted in the government's failure to collect revenueowed to it.... The connection between the charged conduct and the loss ofrevenue here is too tenuous and speculative to constitute an actualdeprivation of money or property. Id. at 996-97.

Eisen, 974 F.2d at 252 (emphasis added). Eckhardt obviously involved money, in the form of

tax revenues, just as almost every honest services fraud case likely involves some money or

property in an oblique way. Indeed, if every honest services fraud case could be automatically

converted to a money/property case, there would be no need for an honest services fraud statute

at all. But in Eckhardt, as here, the Indictment alleged that the conspirators interfered with the

decisionmaker’s “lawful functions.” The law will not simply speculate that defendants intended,

or would have caused, “an actual deprivation of money or property.”

In fact, thanks to the Government’s zeal to create a larger and larger crime, we now know

that the defendants did not intend such a scheme to deprive Jones of money. On November 13,

2007 the Government tried to transform the honest services fraud case into a money/property

case by sending Timothy Balducci to propose to Sid Backstrom that, “if you pay [Judge Lackey]

a little bit more money, maybe we can get him to dismiss this case altogether.” Hearing Tr. Vol

I, p. 62:15-19. That outcome, rejected by Mr. Backstrom, would have indeed fraudulently

deprived Mr. Jones of his lawsuit and deprived him of whatever money he was rightly owed for

his legal work. Id., at 62:20-24. If Mr. Backstrom had taken that bait, the Government very

well could have, and should have, issued a money/property indictment (against Mr. Backstrom at

least). But with a negative answer from Mr. Backstrom, the Government was left with an

honest-services fraud case and no more. That is the indictment it sought from the grand jury, and

that is what it got – not some unstated, far reaching money/property fraud directed at Mr. Jones.

This is now, and has always been, an honest services fraud case, which after Skilling,

must have a bribe at its core. That is not to say that the conduct of Petitioner is excusable. It is


20

not. Petitioner is only maintaining that, if the conduct was criminal, it was the crime of honest

services fraud and, without his joining a conspiracy to bribe Judge Lackey, falls under the

cleansing touch of Skilling.

For all the foregoing reasons, this Court should reject the Government’s newfound theory

of property fraud.

C. The Government’s “Alternative Theories” Fail to Avoid Skilling

The Government also tries to construct various “alternative theories” of Petitioner’s guilt,

including aiding and abetting liability and “Pinkerton” liability, which the Government says

would apply “even without finding that the Petitioner knew about the bribe payments to Judge

Lackey.” D.E. 384 at 20. Like the foregoing property fraud theory, if the Government had been

correct about these “alternative theories,” then the foregoing nine months of litigation and two-

and-a-half days of hearings would have been altogether unnecessary.8 Instead, the Supreme

Court and the Fifth Circuit have long held that,

[T]here must be proof beyond a reasonable doubt that a conspiracy existed, thatthe accused knew of it, and with that knowledge, voluntarily became a part of it.United States v. Navar, 611 F.2d 1156, 1159 (5th Cir., 1980); United States v.Harbin, 601 F.2d 773, 781 (5th Cir., 1979). Moreover, conspiracy to commit aparticular substantive offense cannot exist without at least that degree of criminalintent necessary for the substantive offense itself. Ingram v. United States, 360U.S. 672, 678, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503 (1959).

U.S. v. Bland, 653 F.2d 989, 996 (5th Cir., 1981).

These “alternative theories” seem to depend on the Government’s assertion that

Petitioner associated with a criminal venture, and that “the criminal venture in this case was the

8 As this Court has held elsewhere, the Government has waived these arguments for not raising them inresponse to summary judgment. D.E. 371 at 27. Indeed, in briefing leading up to the hearing, the Government saidprecisely the opposite of what it is now saying.: “[T]he one issue before the Court that is justiciable and not time-barred [is] whether or not David Zachary Scruggs knew that money had actually been delivered to Circuit JudgeHenry Lackey …”). D.E. 328 at 2.


21

corrupt influence of Judge Lackey to alter the outcome of a civil lawsuit based on something

other than the merits of the case.” Id. Yet, the Government prosecutors and their star witness

have both said that there was no criminal intent, and thus no criminal conspiracy, until the

Government decided to create a bribery scheme in September 2007. See Testimony of Mr.

Balducci, Hearing Tr., Vol. I at 15; and Hearing Tr., 2/20/2008 at 16 (Robert Norman

characterizing the original scheme as “the kind of unethical conduct that would get a lawyer

disbarred. But not illegal by itself.”).

Aside from these admissions, a criminal venture obviously must be predicated on a

crime, but strangely the Government never bothers to specify what underlying crime it is here

alleging. See D.E. 384. The Government seems to admit that it is limited to the crimes charged

in the indictment. See id., at 21 (saying that Petitioner is “guilty as charged.”). Of course, the

Indictment, D.E. 1, alleged only two substantive crimes, the § 666 federal programs bribery

charge, which this Court already dismissed (D.E. 371 at 28), and the honest services fraud

charge, which this Court has recognized now only applies to bribery and kickback schemes (id.,

at 5, citing Skilling).9

When the Government writes vaguely about “a criminal venture … to corruptly influence

Judge Lackey,” it seems that they are cutting and pasting from a brief written in 2008, before

Skilling changed the law. In 2011, there simply is no underlying crime that does not depend on

whether “Petitioner knew about the bribe payments to Judge Lackey.” D.E. 384 at 20.10 The

Government cites not a single case or other authority in which a defendant is held liable for

9 This Court has held that both of these crimes are nullities, if Petitioner lacked knowledge of a bribe. ThusPetitioner’s counsel is frankly stumped. Is the Government asserting some extremely creative theory that we fail tocomprehend, or is the Government just blithely ignoring the law?

10 After all, the Government concedes that aiding and abetting liability only applies if “the defendant sharesin the principal’s criminal intent.” Id. That inquiry then returns us to the question, discussed below, of whetherthere is evidence that Petitioner knew about and intended to bribe Judge Lackey.


22

making a non-criminal agreement, and never learns about the change of plans to make it

criminal, but is nonetheless held liable for the crime.11 The Government’s attempt to eviscerate

the mens rea requirement and instead hold Petitioner liable for a bribery scheme that he did not

even know about and most certainly did not join also would eviscerate the very purpose of

Skilling, making all the void-for-vagueness problems come roaring back. See 130 S.Ct. at 2933

(“[I]t has always been ‘as plain as a pikestaff that’ bribes and kickbacks constitute honest-

services fraud, and the statute's mens rea requirement further blunts any notice concern[.]”)

Since the lack of an underlying crime is fatal to the Government’s “alternative theories,”

Petitioner need not linger on the many other problems with these alternative theories.12

D. The Two Key Facts that Show Actual Innocence of Bribery

Putting aside the Government’s diversionary tactics, this Court has recognized that the

real question in this case is whether Petitioner joined the Government’s bribery conspiracy.

11 The Government does cite the Fifth Circuit Pattern Jury Instruction 2.22 (Pinkerton). However, thisdoctrine is premised on the idea that there is first proof that the defendant joined a criminal conspiracy. See FifthCircuit Pattern Jury Instruction 2.22 (“if you have first found the defendant guilty of the conspiracy charged inCount ___ and if you find beyond a reasonable doubt that during the time the defendant was a member of thatconspiracy, another [other] conspirator[s] committed the offense[s] in Count[s] ___ in furtherance of or as aforeseeable consequence of that conspiracy, then you may find the defendant guilty of Count[s] ___, even thoughthe defendant may not have participated in any of the acts which constitute the offense[s] described in Count[s]___.”)(emphasis added). Thus, Pinkerton cannot help the Government avoid the necessity of showing thatPetitioner actually conspired to commit the crime of bribing Judge Lackey.

12 For example, to support their aiding and abetting theory, the Government also falsely alleges thatPetitioner took “some affirmative conduct designed to aid the venture or assists the perpetrator of the crime.” D.E.384 at 21. Petitioner did no such thing. The mere fact that Petitioner attended a meeting, happened to be in theoffice when Balducci later stopped by, and a looked at proposed order in no way aided or assisted any plan tocorrupt Judge Lackey by a bribe. See Testimony of Steve Patterson, Hearing Tr., 5/24/2011 at 196 (“Q. Did youthink it was better that it was dropped off with Zach, as opposed to leaving it on Dick's desk? A. No. I didn't placeany significance on it one way or the other.”). In particular, the Government asserts that Petitoiner “assisted SidBackstrom and Tim Balducci in wording the corrupt arbitration order in such a way as to best achieve the purpose ofthe criminal venture.” Id. In that meeting, which was completely contrived by the Government, Mr. Balducci didnot even intend to meet with Petitioner and did not even raise the topic when talking with him privately. Seetranscript quotations infra page 29. Moreover, the November 1 transcript shows that Petitioner made no edits to theproposed order. Instead he just agreed that it “didn’t make sense.” In fact, Petitioner simply said that “I don’t knowhow to clean it up other than, uh, ‘cause I don’t know what he [Judge Lackey] is trying to say. I mean its not bad,but I don’t know what his intent was.” Nov. 1, 2007 Recording Tr. at 21-22. Petitioner left before Mr. Backstromeven approved the Order as written. Id. at 30. If expressing confusion is “aiding and abetting” then the criminalstatutes mean nothing. See also, Bland, 653 F.2d at 997 (reversing the convictions of those who helped a criminalventure without sharing the knowledge of a criminal plan).


23

Opinion, D.E. 371 at 29. To resolve that question, this Court heard two-and-a-half days of

testimony in this case. But when this Court attends carefully to the law, it will focus its attention

on two key facts concerning when Petitioner allegedly knew about the payment of money to

Judge Lackey (November 1, 2007 at the earliest), and what he did or said to join the conspiracy

thereafter (absolutely nothing). These two facts are apparently undisputed, and are at the very

least proven by the clearest of evidence.

Fact #1: Prior to the very end of a conversation on November 1, 2007, nobodytold Petitioner about the scheme to pay Judge Lackey.

With regard to Fact #1, there is no disagreement. The parties stipulated to the testimony

of Richard Scruggs that he “would testify that he never discussed with David Zachary Scruggs,

nor was he ever aware that David Zachary Scruggs had any knowledge of any agreement to pay

any money, or any knowledge of any payment, to Judge Henry Lackey for any purpose.”

Hearing Tr., Vol. II at 181. Steve Patterson said the same thing. Hearing Tr., Vol. II at 198 (“Q.

To your knowledge and involvement in this matter – and you're in a position to know – did Zach

Scruggs have any awareness or involvement in this scheme to bribe Judge Lackey or pay Judge

Lackey money? A. Not to my knowledge.”) Sid Backstrom said the same thing. Hearing Tr.,

Vol. II at 48 (“Q. Did you ever have a discussion with Zach Scruggs that this Judge has been

paid some money for an order? A. No, sir.”). Mr. Backstrom repeated that claim four more

times, at every step in the story. See id., at 34 (similar); id., at 38 (similar), id., at 64 (similar),

id., at 65 (similar). More, Petitioner made this fact a part of his change of plea. “I had no

knowledge that Tim Balducci bribed Judge Lackey in connection with this arbitration order. I

didn’t conspire to bribe judge Lackey in connection with an arbitration order….” (David Z.

Scruggs Change of Plea Tr. at 15.)


24

The testimony of the Government’s star witness, Mr. Tim Balducci, is not to the contrary.

He quite clearly testified that he only had three contacts with Zachary Scruggs relevant to Judge

Lackey. Hearing Tr., 5/23/2011 at 8.

Q. And would it be fair to say that one was the March meeting?A. Yes.Q. And the second one was on October 18th when you delivered some things

from - - that you' d picked up from Judge Lackey?A. Yes.Q. And the third was then on November the 1st?A. Yes.

Id., at 8-9. It is clear that there was no discussion or even contemplation of money at the March

meeting. See id., at 13 (“Q. You were asking Judge Lackey to do a favor for you? A. That' s

correct. Q. No money involved at that point. A. That' s correct.”). The Government prosecutors

and their star witness have admitted that no criminal conspiracy was formed at that meeting.13

The second contact was on October 18, when Mr. Balducci went to the Scruggs Law

Firm to drop off the order on Richard Scruggs’s desk, but instead happened to find Zachary

Scruggs there. Mr. Balducci testified that, “I had never had a conversation with him about

money at that point.” Id., at 94.14 And, concerning the October 18 delivery to the Scruggs Law

Firm, Balducci testified:

Q. Were there any indications that - - in other words, Zach Scruggs didn' t say,"Hey, what' s this, " did he?

A. He did not.Q. Did y 'all discuss, at all, the case?

13 See Testimony of Mr. Balducci, Hearing Tr., 5/23/2011 at 15; and Hearing Tr., 2/20/2008 at 16 (RobertNorman characterizing it as “the kind of unethical conduct that would get a lawyer disbarred. But not illegal byitself.”).

14 Indeed, Mr. Patterson and Mr. Balducci are shown in tape recordings to be hiding from the Scruggs LawFirm the fact that they had to pay money to Judge Lackey, because that information would have reflected poorlyupon them. See Petition Exh. “R”, 9/27/2007 Recording Tr. at 8-9 (Balducci telling Lackey: “‘this is just betweenyou and me…This is just between me and you. …There ain’t another soul in the world that knows about this, ok?” );Exh. “S”, 9/27/2007 Recording Tr. at 2-3 (Steve Patterson telling Balducci that P.L. Blake, who was supposedlyserving as an intermediary for Dick Scruggs, himself did not know of the purpose of the $40,000 that he would laterask Mr. Scruggs to pay to Mr. Balducci).


25

A. No.

Hearing Tr., Vol I, at 151. This continued to be true until the November 1, 2007 conversation.

Id., at 111.

Thus, for Fact #1, it all comes down to the third contact on November 1, 2007, a

conversation which, thankfully, was tape recorded. On that visit to see Mr. Backstrom and

Richard Scruggs, Mr. Balducci testified that he again just happened to bump into Zachary

Scruggs. Mr. Balducci explained:

Q. Well, you say at the beginning, I'm attempting to make an intentionalrecording of a conversation - - this is Exhibit 40 - - between myself and SidBackstrom at the Scruggs Law Firm and possibly Richard Scruggs. Nomention of Zach.

A. That's right.

Q. And you didn't think you were going to run into Zach. And if you did, didyou think of Zach as much of a player in this whole thing?

A. I did not. I had only had, as you said, just the two contacts with him.

Id., at 104. Indeed, Mr. Balducci talked with Zachary Scruggs privately for several minutes,

without ever raising the topic of Judge Lackey, much less the idea of a bribe. Again, Mr.

Balducci explained:

Q. So you had several times, you remembered, an opportunity to talk to ZachScruggs … by himself. Do you remember that, as you were waiting for SidBackstrom?

A. I think so, yes.

Q. And do you remember that you didn't bring up anything about this order withZach?

A. Yes.

Q. Why?

A. Sid had been my contact the whole time that I'd been talking to about it.

Q. So Zach's not even a player?


26

A. Zach and I were not directly involved together in talking about it, no.

Q. Okay. So you waited for Sid?

A. Yes.

Id., at 105.

Once Sid Backstrom arrived, Petitioner left the room, and only then did Mr. Balducci

raise the topic of Judge Lackey. See November 1, 2007 recording transcript at 17-19. Petitioner

then opened the office door and barged into the conversation.15 The three attorneys talk about

the proposed order and its possible legal effects. Petitioner expressed some confusion about its

meaning. See id., at 21-22. Mr. Balducci proposed that it be revised to say that the case is

“dismissed without prejudice” during the arbitration, rather than stayed pending arbitration, but

no decision was reached on that question. Id., at 27.16

At one point, Mr. Balducci mentioned that he “might not have the same stroke with the

next judge,” a point that the Government tried to exploit in its prior briefing. At the May 2011

hearing, Mr. Balducci clarified that reference to “stroke” was not a reference to any money.

Q. Okay. So I want to ask you about one word that we all heard in there, you sayyou wouldn't have the same stroke with that judge. What did you mean bythat?

A. Influence.

Q. Just influence. So there' s nothing on that tape, is there, until the time youstart talking about the sweet potatoes that talks about any money or bribe; is

15 It is quite clear that Petitioner had no particular need to be in Backstrom and Balducci’s discussion, butjust happened to wander into the room, as was his wont to do. See Testimony of David Shelton, Hearing Tr.5/25/2011 at 14-15 (explaining Petitioner’s nickname, Kramer, for the Seinfeld character that was always barginginto conversations uninvited).

16 When Mr. Dawson was on the witness stand with Mr. Norman questioning him, they elided over the factthat their own agent Mr. Balducci suggested dismissal pending arbitration, and even then the Government agentsmischaracterized the proposal as seeking outright dismissal instead. Compare Hearing Tr. 5/9/2011 at 51 (“Q.[D]id they discuss on that tape whether they wanted this matter sent to arbitration or just out right dismissed? A. Asbest I can recall, there was some discussion about that.”) with Recording Tr., 11/1/2007 at 27 (Balducci: “Well doyou wanna put in there that the action’s dismissed? Put that its, that it’s compelled to arbitration proceedings andthe proceedings before this Court are dismissed? … Just dismiss without prejudice? I mean you can’t dismiss itwith prejudice, but he could dismiss it without prejudice.”). Even there, the Government’s agent making clear thatthis was not a property fraud case.


27

that correct?

A. That's correct.

Hearing Tr. Vol I, at 112. Even during the November 1, conversation, Mr. Balducci is still

talking in terms of the original earwigging scheme, when in the presence of Zach Scruggs.

Admittedly, the November 1, 2007 tape recording reveals that Petitioner was cursing and

disrespectful. However, the Court can be quite sure that none of Petitioner’s comments during

that conversation can indicate his assent to a bribery conspiracy because Mr. Balducci had not

yet even tried to reveal the Government’s bribery conspiracy to him.

Then, Petitioner is interrupted by a secretary telling Petitioner that he has a telephone call

from a person who may be a family member. Petitioner’s mother is ill. There is a discussion

about who the caller might be. Petitioner is never heard from again on the tape. Id., at 117-118.

In the next Section of this Brief, Petitioner will show clear evidence that Petitioner never

even heard the remainder of the conversation between Mr. Balducci and Mr. Backstrom, where

Mr. Balducci referred to “delivering another bushel of sweet potatoes” and said “get it how you

want it because we’re payin’ for it.” And, moreover, it is reasonable to assume that Petitioner

would not have understood those ambiguous comments as referring to a payment to Judge

Lackey, much less that the payment was a bribe. Sid Backstrom testified that he was not sure he

understood it as a bribe at the time, but that it only became clear in a subsequent conversation

when Mr. Balducci made it explicit. Hearing Tr. Vol. II at 103. But for present purposes, the

Court can assume, arguendo, that Petitioner did in fact hear and understand those words as

referencing a bribe to Judge Lackey. Key Fact #1 simply requires that Petitioner was never put

on notice of any bribe prior to that point. And Mr. Balducci was quite clear about that:

Q. That sweet potatoes [comment]?

A. Yeah.


28

Q. So you've testified that you've never spoken to Mr. Zach Scruggs about thebribe at all up until this particular point?

A. That's correct

Hearing Tr., Vol. I at 113. See also id., at 119-120 (“Q. What hadn' t you told them about?

A. About getting the more money. Q. Or money at all as to Zach - - A. True. Q. - - right? A.

Yes.”). So based on the foregoing, it is clear that Fact #1 is proven: Prior to the very end of a

conversation on November 1, 2007, nobody even attempted to tell Petitioner about the scheme to

pay Judge Lackey.

Fact #2: After that moment on November 1, Petitioner never said or didanything to join any scheme to pay Judge Lackey.

It is even easier to prove Fact #2 that, after that moment of alleged knowledge of the

bribery scheme, Petitioner never said or did anything related to that scheme. There may be some

ambiguity about precisely when Petitioner left the room on November 1, 2007 (whether it was

immediately after being interrupted by the secretary, or some number of seconds later), but it is

quite clear from the tape recording that Petitioner never said anything else, after musing about

who “it could be” on the phone and trailing off into utter silence.17 Regardless of whether he

was in the room or paying attention to Mr. Balducci’s scheme, Zach Scruggs most definitely did

not say, “not a problem,” which Mr. Balducci falsely told the grand jury. Hearing Tr., 5/23/2011

at 126 (“[W]hen I said that at the grand jury, I misspoke.”). To be sure, Zach Scruggs did not

respond, “OK, since we are paying for it, let’s change the order to make it more favorable.”

Zach Scruggs did not say, “paying the judge seems like a great idea, how can I help?” Most

notably, unlike Sid Backstrom, there is no allegation that Petitioner said anything like, “you are

17 When one listens to the actual tape recording one can hear a bit more from that sentence, that “it could beTrent [Lott] or Tricia [Lott],” which makes it even more clear that he was still contemplating the call that might beabout his very ill mother.


29

covered, do it,” And unlike Richard Scruggs, Petitioner did not say, “I’ll take care of it.” This

time, Petitioner did not even respond ambiguously, saying something like “you are a good friend,

Tim.”18 Indeed, Petitioner did not even say goodbye. And he surely never even approved the

order – he just left. Mr. Backstrom approved the order after Petitioner left the room – and not

even the Government disputes that fact.

The tape recording speaks for itself, but the witnesses also confirmed that Zachary

Scruggs never said or did anything that would show any agreement to the scheme Mr. Balducci

vaguely referenced around the time Petitioner left the room. Mr. Backstrom testified:

Q. …Did Zach Scruggs say anything or do anything whatsoever after thosestatements by Mr. Balducci were made? Did he say anything or do anything?

A. I don't recall hearing Zach again on the tape after that moment.

Q. Was he in the office anymore?

A. Yeah. I think he was.

Q. Was he in your office anymore?

A. No.

Q. Did he ever come back?

A. While Tim was there? Based on my recollection of the tape, no, I don't thinkhe did.

Hearing Tr. II, at 64. Mr. Balducci confirmed this fact. Hearing Tr., Vol. I, at 123. (“Q. So

after Zach leaves the room, that’s the last you hear of him? A. Yes.”).

Even after this November 1 meeting, the Government apparently felt unsure about

whether they had managed to ensnare everyone into the bribery conspiracy they created, so they

sent Mr. Balducci back one more time to call Sid Backstrom and offer him the opportunity to pay

Judge Lackey even more money to resolve the case on the merits. See id., at 61 (“Q. … [W]hen

you were trying to get Sid to add another bit of money on November the 13th …why did you

18 When Mr. Tom Dawson was on the stand, Mr. Norman emphasized that Petitioner said, “you’re a goodfriend” to Mr. Balducci on October 18, 2007. See Hearing Tr., 5/9/2011 at 50. As ominous as that may appear to be(or not), it is quite clear that Petitioner knew nothing about any bribe at that point.


30

make that phone call? A. I was asked by the FBI.”) It is notable that the Government could have

chosen to call Petitioner instead or also, if they had really wanted to try to rope him into their

case, to try to get precisely the evidence they now lack. The Court can only speculate as to how

Zachary Scruggs would have responded if the Government had done so.

Nonetheless we do know that, on the November 13 call, Mr. Balducci repeatedly refers to

Zach Scruggs, trying to get Mr. Backstrom to somehow implicate Petitioner indirectly. See e.g.,

id., at 62 (falsely suggesting that Balducci “could go see Zach or Dick” instead.). Mr. Balducci

repeatedly suggests to Backstrom that, “Maybe you should talk to Dick and Zach,” to see if they

would agree to the new proposal to pay for a disposition on the merits. Id., at 63. Mr.

Backstrom unilaterally rejects the suggestion that he needs to first confer with Petitioner, and

instead makes the decision alone to reject the Government’s new proposal outright.19 That was

the Government’s last chance to ensnare Petitioner, and Mr. Balducci failed.20

Based on the foregoing, this Court must conclude that these two facts are resolved. Prior

to the very end of a conversation on November 1, 2007, nobody even attempted to tell Petitioner

about the scheme to pay Judge Lackey (Fact #1), and after that moment, Petitioner never said or

19 The Government does try to rest their case on the thinnest of reeds from this November 13 conversation– the fact that Backstrom follows Balducci in using the pronoun “they,” after Balducci gratuitously referencedRichard Scruggs and Petitioner. SeeMotion, D.E. 384 at 17-18. Notably, even here Backstrom is not at all sayingthat “they” know anything about money being paid to Judge Lackey. Instead, Backstrom merely says that “they”want to get the order from Judge Lackey, which was the desire all along even before the Government created abribery conspiracy. See id. (quoting transcript). Thus, even if somebody else’s pronoun choice could causePetitioner to join a conspiracy, in this case the pronoun does not move the government’s ball forward a single inch inproving that Petitioner was involved in a bribery conspiracy. Moreover, even if it were implicative, such hearsaywould not be admissible.

20 For whatever reason, the Government felt the need to get an indictment against the son of RichardScruggs, and so the Government proceeded to a grand jury even without such proof. Still, they had big holes in thecase that needed patching. Rather than simply playing the November 1 tapes so the jury could decide for itself, theGovernment instead used their star witness, Mr. Balducci, to give the false testimony that Petitioner was explicitlytold about the $10,000 and explicitly assented, “not a problem.” Hearing Tr., 5/23/2011 at 126 (“[W]hen I said thatat the grand jury, I misspoke.”). Mr. Balducci has testified that he was motivated to help the Government so that hecould get leniency for his own misdeeds. See Hearing Tr., 5/23/2011 at Tr. 103-04 (“Q. And you know thatsometimes if someone that' s accused can turn on someone else it results in them getting lighter treatment; is thatcorrect? A. Yes. Q. Did you have that in mind? A. Yes, I did.”)


31

did anything to join the scheme to pay Judge Lackey (Fact #2). The remaining question is then,

what would a properly instructed, reasonable juror conclude from those two facts? Could a

reasonable jury infer that Petitioner had joined the Government-created conspiracy to bribe

Judge Lackey?

This Court likely would have instructed the jury as follows:

In determining whether or not a defendant, or any other person, was a member ofa conspiracy, the jury [is] not to consider what others may have said or done. Thatis to say, the membership of a defendant, or any other person, in a conspiracy,must be established by the evidence in the case as to his own conduct, whathe himself willfully said or did.

U.S. v. Bright, 630 F.2d 804, 822 n35 (5th Cir., 1980) (affirming such a jury instruction as

necessary to reflect the law “that the government must prove that each defendant objectively

manifested an intent to participate in the criminal enterprise, and that mere association with

nefarious characters is not a ground to convict.”).21 The problem for the Government is that,

when we look at what Petitioner “himself willfully said or did” after allegedly learning about the

conspiracy, the record is completely bare. Fact #2 proved that there is absolutely nothing there.

Not a shred of evidence.

These two Facts are dispositive because conspiracy law requires the convergence of two

things: (a) knowledge of a criminal scheme and (b) some words or action to show that the

Petitioner agreed to join that scheme. “It is axiomatic that more is required than mere knowledge

21 See also U.S. v. Emmons, 24 F.3d 1210 (10th Cir., 1994)(same); U.S. v. Garcia, 35 F.3d 1125, 1131 (7thCir.,1994)(It is proper to instruct the jury that: “Only the defendant's own words and acts show whether thatparticular defendant joined the conspiracy.”); U.S. v. Payne, 974 F.2d 1333 (Table), *1 (4th Cir.,1992)(“[O]nly thedefendant's own words and acts show whether he joined the conspiracy[.]”); U.S. v. Bullard, 162 Fed.Appx. 106,110 (3rd Cir., 2005) (“The charges necessarily involve a relationship of some sort; whether that relationshipconstitutes a criminal conspiracy depends upon what the people involved said and did with one another.”).Petitioner concedes, as these cases also note, that statements by co-conpsirators can be considered in determiningwhat the Petitioner said or did – that’s is why Petitioner put every single co-conspirator on the stand to determinewhether they implicated Petitioner has saying or doing anything. They all exculpate him from saying or doinganything. See U.S. v. Martinez de Ortiz, 907 F.2d 629, 634 (7th Cir., 1990)(en banc) (“[O]ur holding that although adefendant's membership depends on his own words and deeds, [is not inconsistent with the holding that]declarations admitted in accord with Rule 104(a) and Bourjaily may be employed to show what those words anddeeds were.”)


32

of the purpose of a conspiracy.” U.S. v. Delgado, 631 F.3d 685, 695 (5th Cir., 2011) “Juries must

not be allowed to convict on mere suspicion and innuendo…We will not lightly infer a

defendant's knowledge and acquiescence in a conspiracy. … The government must show beyond

a reasonable doubt that the defendant had the deliberate, knowing, and specific intent to join the

conspiracy.” U.S. v. Jackson, 700 F.2d 181, 185 (5th Cir., 1983).22

Fact #1 and Fact #2 show that these two things – knowledge plus words or acts to join –

never come together. Petitioner’s actions and words prior to the alleged knowledge given by the

November 1 conversation are incompetent for proving that he joined a conspiracy because Fact

#1 shows that he did not yet know about any conspiracy. And Fact #2 shows that once he

allegedly knew, he did nothing to join. That is actual innocence.

E. The Larger Context of Exculpatory Facts

Petitioner believes that this case is conclusively resolved by Fact #1 and Fact #2,

discussed supra, but for the sake of a complete record, Petitioner provides the following

additional proposed findings of fact.

Fact #3: Petitioner never heard or understood Mr. Balducci’s comments about“sweet potatoes” and “we’re payin’ for it” on November 1, 2007.

Petitioner concedes that this Fact is nominally disputed, at least to the extent that Mr.

Balducci is a reliable witness when he says that Petitioner was still in the room. See Hearing Tr.,

Vol. I, at 160 (agreeing when the prosecutor asked, “was Zach Scruggs close enough to hear

22 See also United States v. Maloof, 205 F.3d 819, 830 (5th Cir., 2000) (“Willful participation is an essentialelement of the crime of conspiracy; mere knowledge of a conspiracy does not itself make a person a conspirator.”);An individual's “[m]ere presence at the scene of a crime or close association with a co-conspirator will not supportan inference of participation in a conspiracy.” United States v. Tenorio, 360 F.3d 491, 495 (5th Cir., 2004); “[T]hemere fact persons have associated with each other to discuss common aims and interests does not necessarilyestablish the existence of a conspiracy.” U.S. v. Boruff, 909 F.2d 111, 118 (5th Cir., 1990), Fifth Cir. Pattern JuryInstr. 2.20 (same); U.S. v. Velgar-Vivero, 8 F.3d 236, 241 (5th Cir., 1993) (“It is not enough ... that the evidenceplaces the defendant in a climate of activity that reeks of something foul.”)


33

you?”). But, given Mr. Balducci’s proven propensity to lie for the Government (see Fact # 4

infra), and given the tape recording and the several contrary witnesses, any reasonable juror

would have a reasonable doubt about whether Petitioner heard or understood those comments.

The record reflects that Petitioner’s conversation with Mr. Balducci was interrupted by a

secretary with a message from someone with his mother’s sister’s name, at a time when

Petitioner’s mother was gravely ill. Id., at 117-119. If Mr. Balducci had wanted a clean shot at

Petitioner, he had already missed his chance, as Petitioner was startled and his mind was on the

move. Petitioner had a compelling reason to be thinking about something other than Mr.

Balducci’s story about a procedural question in the Jones v. Scruggs case. In fact, Petitioner’s

last recorded words, “it could be Tricia or Trent…,” trail off into silence, and Balducci responds,

“God only knows.” Then silence ensues. Recording Tr., 11/1/2007 at 30. Thereafter, Petitioner

no longer contributes to the conversation, and in fact leaves the room, sooner or later, without

ever saying so much as a goodbye.

For any person, these circumstances suggest that he was no longer engaged in a

conversation with Mr. Balducci, but is either attending to other things (such as his Blackberry to

further seek context for the call) or is already gone. For Petitioner, the inference is even

stronger, because witness after witness testified that Petitioner is loquacious to a fault; he is

never a silent participant in a conversation. The Government’s witness, Mr. Balducci, himself

explained,

Q. Zach ever in a room that he's not talking about what's going on?

A. Rarely.

Q. He's always talking, isn't he, when he's engaged?

A. Yes.

Q. And when he's not talking, he's not engaged?

A. A lot of the time, that's true.


34

Id., at 123:18 to 123:24. Mr. Shelton, Petitioner’s former law partner, noted that “Zach' s not

that good of a listener, in my opinion. So he's either talking, or he's thinking about what he' s

about to say next.” Hearing Tr. Vol. III at 15. More colorfully, Mr. Backstrom said that, “when

he's [not] sleeping, he's … talking.” Hearing Tr., 5/24/2011 at 61.23 Petitioner did not sit silently

through Mr. Balducci’s revelation and then disappear, without uttering a peep.

Even more, there is evidence that Petitioner had already left that office, prior to Mr.

Balducci taking his shot.24 On the tape, after the interruption by the secretary and the confusion

about who exactly was calling, Petitioner trails off “it could be Tricia or Trent…” and Mr.

Balducci says “God only knows,” a dismissive segue back to the business at hand. Mr. Balducci

gathers himself for eight seconds, then proceeds to trap his friend Sid Backstrom in order to help

his own cause with the Government. Only then does he work his way around to his “sweet

potatoes” comment. Mr. Backstrom testified as follows:

Q. [D]o you remember where Zach Scruggs was when Tim Balducci said, “Godonly knows”?

A. My best recollection was that Tim said that as Zach was leaving the room. Hekind of rolls his eyes and says, “God only knows.”

Q. As to what?

A. As to who it was or why Zach was leaving the room.

Q. All right. So Mr. Backstrom, did Zach Scruggs, at that point, after "God onlyknows," walk around behind the desk and read the order with you?

A. I don't recall that happening.

Q. All right. When Tim Balducci said the words, "Y'all need to know I'm going tohave to go back down there for another load of them sweet potatoes, another

23 See also Testimony of Steve Patterson, 5/24/11 at 197 (“Q. If Zach's in the room, is he always talking?A. Absolutely. Q. If Zach's involved in the conversation, is he always talking? A. Absolutely.”); Testimony of SidBackstrom, 5/24/11 at 61 (“Q.If Zach's in a room with others having a conversation, is he talking all the time? A.Pretty much.”).

24 Petitioner and the Government have agreed that this Court should disregard any editorial comments thatappear in the tape recording transcript, including indications as to when persons may have entered or left the room.There are obvious error and inconsistencies in such comments (e.g., some people enter twice, having not left inbetween), and moreover they are merely the impressions of the unidentified FBI transcriptionist. This Court insteadmust resolve these ultimate questions for itself.


35

bushel of them sweet potatoes; and he said, “You need to get it right, like youwant it, because we're paying for it, was Zach Scruggs in the room?

A. Based on hearing that on the tape, I feel like he wasn't because he never saidanything, never responded to that.

Hearing Tr., Vol. II at 63-64.25

Ashley Young, the assistant who interrupted the conversation, testified that she

specifically remembered that, before she could even return to her station, Zachary Scruggs

caught up with her, so that he could handle the telephone call. Ms. Young laid it out step by

step. First, she testified that when she interrupted the meeting, Mr. Balducci was standing with

Mr. Backstrom behind his desk, but that Petitioner was standing near the office door. See

Hearing Tr., 5/24/2011 at 118. Ms. Young testified that when she opened the door, Petitioner

disengaged from Mr. Balducci and Mr. Backstrom, and “He came over to me so as not to

interrupt what was going on.” Id., at 119. Ms. Young then testified that after giving the

message, “I walked out of the office and got about—just outside the office midway, and Zach

told me that he would take the call.” Id., at 120. This is compelling evidence that Petitioner left

the room well before Mr. Balducci made his incriminating comments.

Mr. Balducci now tries to implicate the Petitioner as being close enough to hear Mr.

Balducci’s shot. Yet, Mr. Balducci is wading upstream in the factual record. When Mr.

Balducci entered the Scruggs Law Firm on November 1 as a hunter for the Government, he had

designated targets in mind. Mr. Balducci spent many minutes alone with Petitioner, and then

with Mr. Backstrom present too, which provided every opportunity for Mr. Balducci to fire

25 In their cross-examination, the Government tried to make an issue about Mr. Backstrom’s prefacing hiscomment that his recollection was in part “based on hearing that on the tape.” See id., at 100. But witnessesroutinely have their recollection refreshed by trial exhibits, and such witnesses are then in the very best position toexplain their beliefs as to what happened. Mr. Backstrom also said that he did not have absolute certainty aboutwhat happened three years prior. Id. That merely shows his candor; it is no reason to disregard his testimony.Indeed, when another witness, Ashley Young, expressed a greater degree of certainty, the Government attacked herfor being too certain. It seems that the Government has every witness in a Catch-22.


36

away, to put Petitioner on notice of a bribe. Instead, Mr. Balducci just waited and waited, until

his real prey, Mr. Backstrom, stood alone.

The only rational explanation for Mr. Balducci’s calculated delay was fear. Mr. Balducci

was afraid to pull the trigger when he had a clean shot at Zachary Scruggs, because Mr. Balducci

was afraid that Zachary Scruggs did not know of the bribe and would ask questions, risking Mr.

Backstrom escaping his trap as well.

It only makes sense that Mr. Balducci would wait until after Petitioner left the room to

then start talking about paying money to Judge Lackey, since Mr. Balducci himself says that

Petitioner was not his target. After all, according to Mr. Balducci, as of November 1, Mr.

Backstrom was already on notice about a payment of money to Judge Lackey, but Petitioner was

not on such notice. See discussion and quoted evidence supra. And, at the beginning of the tape

where Mr. Balducci is heading into the Scruggs Law Firm on the FBI mission to ensnare the

other alleged conspirators, Mr. Balducci explicitly said that he was intending only to see Mr.

Backstrom and Mr. Richard Scruggs. Pet. Ex. 40 at 2. In his testimony, Mr. Balducci

explained that he withheld the information from Petitioner because “Zach and I were not directly

involved together in talking about it.” Hearing Tr. Vol. I at 105. Mr. Backstrom was instead his

contact. Id.

All this, paired with Petitioner’s silence on the tape, makes it quite sensible to infer that

Mr. Balducci purposefully waited until Petitioner left the room, or was at least clearly distracted,

in order to then start talking ambiguously about the money. Only then did Mr. Balducci turn to

Mr. Backstrom, begin speaking in the singular, and begin talking about “sweet potatoes.”

A reasonable juror would have much more than a reasonable doubt as to whether

Petitioner even heard Mr. Balducci’s statements or even then understood them to be disclosing a


37

payment of money to Judge Lackey. Mr. Balducci’s actions – waiting and waiting until

Petitioner was distracted or gone – are the most compelling evidence of his intent.

Fact #4: Mr. Balducci is an unreliable witness with a record of repeatedlystating falsehoods under oath, in order to curry favor with theGovernment.

Nathan Garrett, a former FBI Special Agent and Assistant United States Attorney,

testified about the special problems with witnesses who have become Government agents. “As a

prosecutor, you have a special – one has a special relationship with a witness. There is a great

degree of control and power over that witness. And that has to be exercised very carefully.”

Hearing Tr. Vol II, p. 140. This question followed:

Q. Were you concerned, that no matter what you knew the facts were that inorder to stay in good with his sponsor, Mr. Langston might not tell what youthought to be the truth.?

A. I was concerned that Mr. Langston may seek to reach the bar set by Mr.Norman, yes.

Hearing Tr. Vol. II, p. 141.

That danger is particular exacerbated when the “turned” arrestee is a lawyer who knows

how to play the game – as Mr. Balducci admitted.

Q. Now, you've done a lot of criminal defense work in your life, haven' t you?

A. Yes, sir.

Q. And you know that sometimes if someone that' s accused can turn onsomeone else it results in them getting lighter treatment; is that correct?

A. Yes.

Q. Did you have that in mind?

A. Yes, I did.

Q. So you knew that if you could get them a big fish, you might be able to notspend as much time in jail and miss your children' s high school graduation?

A. Yes, I did.

Q. Does that explain why, at the end of the tape, when you're walking out of theScruggs Law Office you say these words - - we can read them. I don' t want


38

to say them in a court.

A. Yes.

Q. "I hope this f’ing thing works." Does that explain it, you hoped that the tapeworks so you could get yourself in less trouble?

A. Yes.

Hearing Tr, Vol. I at 103-04.

What we learned in this case is that Mr. Balducci spoke numerous untruths to the grand

jury. Those stood uncorrected by the Government. These untruths reveal that Mr. Balducci’s

affection for the truth suffers when he wishes to curry favor with the Government that held his

fate in theirs hands. In sum, Mr. Balducci’s testimony under oath is no more reliable than the

accidental alignment of his personal interests with that of the truth – and here that alignment did

not exist as to Petitioner.

First, Mr. Balducci lied to the grand jury about obtaining explicit approval from Zach

Scruggs to pay Judge Lackey an additional $10,000. Pet. Ex. 44 at 48. The transcript proves

that that statement is false. No mention is made to Zach Scruggs or Sid Backstrom of any

amount of money, much less a specific and express reference to $10,000. Pet. Ex. 40, pp. 19-30.

Nor was there the express approval of the payment Mr. Balducci testified there was. Pet. Ex. 40

at 48. The best Mr. Balducci could summon is that he “misspoke” when he said this to the grand

jury. Hearing Tr. Vol. I at 113.

Second, Mr. Balducci lied to the grand jury about the reason he and Mr. Patterson

approached P.L. Blake. To the grand jury, Mr. Balducci stated that they approached P.L.Blake

on September 27, 2007, because Dick Scruggs still owed them $400,000 and “[w]e didn’t want

to upset that.” Pet. Ex. 44 at 32. Yet Mr. Balducci told the FBI on November 7, 2007, that he

had been fully paid and listed the dates of the checks as proof. Pet. Ex. 43 at 3. Indeed, the

Court received the cancelled checks, showing final payment on August 1, 2007. Pet. Ex. 50


39

Third, Mr. Balducci lied to the grand jury about receiving a phone call from Sid

Backstrom approving payment to Judge Lackey. Mr. Balducci purported to have a very specific

memory of the call when he testified to the grand jury and his need to separate himself from his

family to take the call from Backstrom. Pet. Ex. 44 at 28-29. The Backstrom cell phone records

and the Scruggs Law Firm telephone records show no call from Backstrom to Balducci within 48

hours (or a much longer period of time). Pet. Ex. 47 & 48. See also testimony of Sid Backstrom

denying talking with Balducci about any bribe to Judge Lackey. Hearing Tr. at Vol. II at 32-35.

Fourth, Mr. Balducci testified that at the hearing that Zach Scruggs initiated the

conversation in March about Balducci approaching Judge Lackey to discuss Jones v. Scruggs.

Balducci’s own then-partner, Steve Patterson, as well as Sid Backstrom, refute that testimony.

See, Patterson testimony, Vol. II at 85 (“Q. At some point, did the Jones lawsuit that was

pending before Judge Lackey involving the Scruggs firm get brought up? A. It did. Q. Do you

know who brought it up? A. I cannot recall who or how it actually came up. But I know toward

the end of the conversation it was mentioned. Q. Regardless of who brought up that case, did

someone mention Tim Balducci's close relationship with Judge Lackey at that meeting? A. I did.

Q. You did. A. I did. Q. Zach didn't bring it up? A. No.”); Backstrom testimony, Vol. II at 23-

24 (Patterson was a cheerleader trying to get the Scruggs Law Firm to hire Balducci).

Fifth, Mr. Balducci testified to the grand jury that he personally met with Sid Backstrom

on September 27, 2007, about his visit with Judge Lackey that day. Pet. Ex. 44 at 33. Mr.

Backstrom’s testimony (Hearing Tr. Vol II, pp.42-25) and Scruggs Law Firm flight logs and

American Express bills confirmed that Mr. Backstrom was in New Orleans that day. Pet. Ex 68,

70. No such visit took place.


40

Sixth, Mr. Balducci testified that the voir dire for which Richard Scruggs hired him was a

mere cover story and that no work was actually expected on that. Pet. Ex. 44 at 38, 55. See also

Hearing Tr. at Vol. I at 95. He testified that he learned of the cover story in Steve Patterson’s

presence. Pet. Ex. 44 at 38. Yet Mr. Patterson testified that the voir dire work was real. Hearing

Tr. Vol. II at 194-95. Mr. Backstrom also testified that “There was an expectation he would do

that work.” Hearing Tr., Vol.II at 82:19. Ms. Angela Edwards testified that the attorneys and

staff working on the Lisanby case were working under the assumption that the work had in fact

been “handed over” to Mr. Balducci and that at that point nobody within the Scruggs Law Firm

did “any more work on the voir dire.” Hearing Tr. Vol. III at 93.

More, Balducci is a serial briber. He offered Judge Lackey a bribe to fix a manslaughter

case at the November 1, 2007 meeting, expressing a willingness to split $20,000 with the Judge.

That modus operandi was the same – take the money from an unsuspecting client who would not

know its purpose, work the deal with Judge Lackey, then pay the Judge from the money Balducci

obtained for the work he was doing. This bribe attempt revealed how Balducci operated -- and

its consistent with Petitioner’s evidence and with his actual innocence.

Given Mr. Balducci’s record and character, there is little reason to credit his testimony

that Zach Scruggs stood on the business side of Mr. Backstrom’s desk after Ashley Young left

the room and that Zach Scruggs was could have heard Mr. Balducci’s mutterings. Indeed, that

testimony is not credible given the fact that ultimately Zach Scruggs left the room (about that

there is no dispute) before the conversation ended and Ashley Young (who had no reason to

please the Government) testified that Mr. Balducci was on Mr. Backstrom’s side of the desk and

the Zach Scruggs left the room almost immediately on her heals. Hearing Tr. Vol. II, 118-120.


41

F. The Ambiguous Evidence as to Gratuity versus Bribe

Petitioner believes that this Court has decided that, if the evidence showed only a

gratuity, rather than a bribe, then Petitioner would be actually innocent of honest services fraud.

Opinion, D.E 371 at 10, 29 (designating this factual distinction as being a question for the

hearing). This Court has correctly noted that the pertinent question is not whether the

Government intended the scheme it created to be a bribe, or whether Judge Lackey intended it to

be a bribe, or even whether other conspirators so intended, but whether Petitioner intended it to

be a bribe. Id. at 9 (“[t]he word ‘probably’ reflects the controlling nature of the defendant’s

intent, and the fact that the donor’s intent may differ from the donee’s.”) (quoting United States

v. Campbell, 684 F.2d 141, 148 n11 (D.C. Cir. 1982)).26

Fact #1 above demonstrated that, with regard to Petitioner, the entire bribery case hinges

on a few words from Mr. Balducci to the effect that “we’re payin’ for it.” This phrase, even

when read with an absent and damning clarity, is not time specific. It could mean “we are going

to pay for it.” It could mean “we are in the process of paying for it.” It does not mean “we have

paid for it.” Were that the fact, Balducci would have said “we’ve paid for it.”

Further, the statement must be read against the evidence of what Zach Scruggs knew. As

a practicing attorney, Petitioner knew quite well that an order granting a motion to compel

arbitration, especially where arbitration was explicitly agreed upon by sophisticated parties,

would be a ministerial act, one in which Judge Lackey had no real discretion to do otherwise.

See Petition, D.E. 303 at 27-29 (describing unequivocal Supreme Court authority that mandated

arbitration); see also Backstrom Testimony, Vol. II, at 27 (explaining that he thought the case

26 Petitioner could not join any conspiracy to bribe Judge Lackey unless he personally shared that intent,since paying a gratuity to state judge is not a federal crime. Petitioner would thus lack the relevant specific criminalintent. See Whitfield v. U.S., 590 F.3d 325, 354 (2009)(“The law only requires that the Government prove the‘specific intent to give or receive something of value in exchange for an official act’ to be performed sometime inthe future.”)


42

“was going to be compelled to arbitration at some point”). He knew that Tim Balducci had

asked Judge Lackey as a favor to enter the Order the law required.. (March Meeting). He knew

that the Judge had agreed to an Order and that Balducci had provided a copy of the Order.

(October 18 delivery). He did not know anything about any money being paid to Judge Lackey.

Thus, as previously noted, Petitioner could reasonably have assumed that the decision to enter

the Order had been made for two weeks, that the Order had been entered, and that this was an

amended Order that responded to Grady Tolleson’s filings. That the money was going to be paid

was not, therefore, to get the order – that had been decided in October. At most it could be a

gratuity for what the Judge had already done.

Petitioner also knew that Mr. Balducci had a close personal relationship with Judge

Lackey and thus Petitioner would have understood that Mr. Balducci could provide money to

Judge Lackey when needed without any demand of a quid pro quo. Indeed, Mr. Balducci

testified that his willingness to pay Judge Lackey $40,000 was not caused by Judge Lackey’s

willingness to compel arbitration.

Q. … And then Judge Lackey goes on to say, "You know, just to kind of helpme over a little hump I've got." What did you take that to mean?

A. Well, I started coming to the understanding that he was talking about money.

Q. And he was appealing to you as a friend; was he not?

A. Yes, he was.

Q. Was that how you understood it?

A. Yes, it is.

Q. And is that how you still understood it?

A. Yes, I do.

Q. And did you want to help him because he was your friend?

A. Yes, I did.

Q. You had said, I think earlier on -- you may have said this earlier thismorning; that he was a mentor to you.


43

A. That's correct.

Q. Would you describe him as an important person in your life?

A. Yes.

Q. If he had called you out of the blue and asked for financial help unrelated toanything else, would you have probably done it?

A. I'd have done anything I could to help him.

Q. And, so, he sort of took advantage of that friendship here; would you say?

A. I would have done anything I could to help him.

Q. Unrelated to the order?

A. Yes.

Hearing Tr., Vol I, pp. 45-47. See also Testimony of Patterson, Vol. II, 192-193 (similar). It is

clear then that, from the perspective of the two primary conspirators, the order compelling Jones

v. Scruggs case was not the cause of the payment to Judge Lackey. They would have helped Mr.

Lackey get over his hump, regardless of the Jones case.

In this case it is striking that both sides of the quid pro quo are lacking. The quid (a

payment) would have been provided regardless of the quo. And the quo (the order) would have

been provided regardless of the quid. Either of these failures would undermine a bribery theory,

but it is remarkable that in this case, both aspects of a bribe are defective.

This section assumes arguendo that Petitioner could in fact hear, and was in fact

listening, to Balducci’s less-than-clear words. Still, as Petitioner has previously shown with

Supreme Court authority, that phrase is ambiguous because a gratuity can be paid “for” an

official act, even without intending to influence that act, as is required for bribery. See id., at 9

(quoting authorities provided by the Petitioner, including United States v. Sun-Diamond Growers

of California, 526 U.S. 398 (1999)). It is not a quid pro quo to get something; it is a thank you

for what has already been decided.


44

This Court has also held that, when applying the actual innocence standard to determine

what a reasonable juror would do, the Court must presume that the juror would properly follow

the “beyond a reasonable doubt standard.” Id., at 8 n6 (citing Supreme Court authority). If the

reasonable doubt standard means anything, it means that where the only incriminating statement

is ambiguous – susceptible to a criminal meaning (bribe) and a noncriminal meaning (gratuity) –

the defendant must prevail. See U.S. v. Barcley, 452 F.2d 930, 933 (8th Cir., 1971)(“Where a

communication contains language which is equally susceptible of two interpretations, one

threatening, and the other nonthreatening, the government carries the burden of presenting

evidence serving to remove that ambiguity. Absent such proof, the trial court must direct a

verdict of acquittal.”); U.S. v. Reddest, 512 F.3d 1067, 1072 (8th Cir., 2008) (“But even when

construed in the light most favorable to the verdict, this single, nondescript, internally

inconsistent statement laden with ambiguity is insufficient to permit a reasonable jury to find

Reddest guilty beyond a reasonable doubt on count IV.”)27

For whatever reason, when Mr. Balducci and the Government were deciding to try to

ensnare people into the crime, Mr. Balducci muttered an ambiguous comment about payin’ for it.

Now the Government is stuck with those facts, and any properly instructed juror would have a

reasonable doubt as to whether Petitioner would have understood a payment of money to be a

bribe versus a gratuity.

27 It is also worth noting that Mr. Balducci was himself working as a Government agent, so he could havesaid anything he wanted to try to ensnare Petitioner. In essence, the Government drafted these words “we’re payin’for it,” and any ambiguity therein should be resolved against the Government, even aside from the criminal standardof reasonable doubt. See West India Industries, Inc. v. Tradex, Tradex Petroleum Services, 664 F.2d 946, 952 n9(5th Cir, 1981) (citing and quoting nine cases for the proposition that “any reasonable doubt as to the properinterpretation of the contract should be resolved against the [drafter].”) If the Government wants to go aroundcreating crimes and trying to ensnare other people into them, it is not too much for the Courts to ask that theGovernment be explicit in doing so, because only then can the Courts extinguish doubts about whether a fellowcitizen has manifested the requisite criminal intent.


45

Again, all of this doubt could have been resolved had Balducci spoken clearly, using no

code and employing language that was not susceptible to misinterpretation. Yet had Balducci

done so, he risked what he most wanted – creating the appearance of guilt without obtaining the

necessary clear assent that the law ought to require. The code and the ambiguity served

Balducci’s purposes and fit in with the hopes of the Government agents who were willing to

permit Balducci to lie to the grand jury without correction to obtain an indictment against

Petitioner.

~ ~ ~

For all the foregoing reasons, Petitioner has met the burden of showing actual innocence

of all the charges in the Indictment. On this basis alone, the Petition should be granted.


46

II. THE RIGHT TO LOYAL COUNSEL

A. The Legal Standard

In his August 2010 Petition to this Court, Zachary Scruggs also asserted a claim that,

Mr. Dawson’s book details how the prosecutors co-opted [his] counsel, Mr.Farese, by secretly negotiating with him to secure the cooperation (and allegedly,testimony) from Mr. Langston adverse to [Petitioner], while Mr. Farese was infact representing [Petitioner]. This dual-representation created a per-se conflict ofinterest, one that made Movant’s counsel at that time constitutionally defective.

Petition, D.E 303 at 32. The loyalty of counsel is the precondition of effective assistance.

“Loyalty is an essential element in the lawyer's relationship to a client. The duty of loyalty to the

client … is one of the basic tenets of the legal profession.” Douglas v. DynMcDermott

Petroleum Operations Co., 144 F.3d 364, 369-70 (5th Cir., 1998) (quoting rules).28

Petitioner’s allegation that he was denied the right to loyal counsel calls into question the

integrity of proceedings before this Court. “Not only the interest of a criminal defendant but the

institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by

unregulated multiple representation.” Wheat v. United States, 486 U.S. 153, 160 (1988). Indeed,

“[f]ederal courts have an independent interest in ensuring that criminal trials are conducted

within the ethical standards of the profession and that legal proceedings appear fair to all who

observe them.” Id.; accord United States v. Vazquez, 995 F.2d 40, 42 (5th Cir.1993) (per

curiam). See U.S. v. Cantu, Not Reported in F.Supp.2d, 2006 WL 2506361, *1 (S.D.Tex.,2006)

(quoting these sources in a case where the Government raised the potential conflict of interest

problem).

28 See also id., at 372(“If she is serious in her contention that she considered the DOE to be her client inconjunction with the corporation she was specifically employed to represent, she has a distorted understanding ofher professional duty. DynMcDermott was her client; it hired her and paid her. The DOE was not her client; indeed,the DOE was a potential adversary to her client. DynMcDermott therefore reasonably expected her loyally torepresent it[.]”)


47

For this claim, Petitioner cited one case, U.S. v. Newell, 315 F.3d 510, 516 (5th Cir.,

2002), where the defendant “was in the unacceptable position of having his own attorney help

the state procure a witness against him,” and the Fifth Circuit held that “constitutional error had

occurred and prejudice is inherent in the conflict.” Id., at 32 n16. Inexplicably, in 47 pages of

briefing, the Government altogether ignores this controlling authority. See D.E. 384 1-47. It is

notable that Newell is not premised on whether an attorney represents two defendants in the same

case -- the Newell conflict arises when the defendant’s attorney switches sides, to “help the state

procure a witness against him.” Newell, 315 F.3d at 516. Thus, it makes no difference whether

Mr. Langston entered a plea in Petitioner’s case or in another case (or no case at all); the point is

that Mr. Farese represented Langston in Langston’s negotiations to become a Government

witness in Petitioner’s case. Similarly in the murder case of Hoffman v. Leeke, the Fourth Circuit

granted habeas relief where the defendant “was in the unacceptable position of having his own

attorney help the state procure a witness against him.” 903 F.2d 280, 286 (4th Cir., 1990). See

also, Edgemon v. Lockhart, 768 F.2d 252, 255 (8th Cir.,1985) (remanding for an evidentiary

hearing on allegation “that [defendant’s] trial counsel also represented the Sheriff who helped

investigate the case and one of the prosecution's chief witnesses,” because such a “breach of

counsel's loyalty … creates a presumption of prejudice.”)

In Newell, the Fifth Circuit explained that there are two distinct lines of Supreme Court

authority on criminal counsel’s conflicting interests. First, there are “Strickland” cases where

“an attorney's conflict of interest that springs not from multiple client representation but from a

conflict between the attorney's personal interest and that of his client.” Newell, 315 F.3d at 516

(quoting Beets v. Scott, 65 F.3d 1258, 1260 (5th Cir.1995) (en banc) (emphasis added)). Since

there are “virtually limitless” variations on the type and degree of such interpersonal conflicts, in


48

Strickland cases there “is a requirement of showing prejudice.” Id. The Government relies on

Strickland cases and their progeny, which are inapposite here, since the allegation is not that Mr.

Farese merely had a personal interest contrary to that of Petitioner. See D.E. 384 at 44-45.

Second, there are Cuyler cases, like Newell and the present one, where the Petitioner

“challenge[s] an attorney's divided loyalties due to multiple representation, a conflict which in

the most literal sense demonstrates a denial of the ‘right to have the effective assistance of

counsel.” Newell, 315 F.3d at 516 (citing Cuyler v. Sullivan, 446 U.S. 335, 349-50, (1980)). In

Cuyler, the Supreme Court reiterated that, “In order to demonstrate a violation of his Sixth

Amendment rights, a defendant must establish that an actual conflict of interest adversely

affected his lawyer's performance. … [A] defendant who shows that a conflict of interest

actually affected the adequacy of his representation need not demonstrate prejudice in order to

obtain relief.” 446 U.S. at 349-50. Thus, in cases like this, all that needs to be shown is a conflict

between Petitioner’s interests and Mr. Langston, when he joined the Government’s side of the

case, as a cooperating witness.

B. The Conflict of Interests

The Government does invoke Bostick v. Quarterman, 580 F.3d 303, 306 (5th Cir. 2009),

for the proposition that “‘something more than speculative or potential conflict must be shown.’”

D.E. 384 at 46. As a statement of the law, that is true enough. The Government cannot,

however, bring itself to even argue -- as a matter of fact -- that the conflict in this case was

merely “speculative or potential.” See id. (abruptly ending the brief after stating this legal

proposition).


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Fact #5: Petitioner’s counsel, Mr. Farese, helped the Government procure awitness whose cooperation “substantially contributed” to causingPetitioner to plead guilty.

There can be no real doubt about this. After all, the Government stood up and

represented to this Court that, in order to prove Petitioner’s criminal intent, Mr. Farese’s second

client, Mr. Langston would be a 404(b) witness that would “implicate” Mr. Farese’s first client,

Petitioner, as being “fully aware” of another similar crime. Hearing Tr. 2/21/08 at 21:15-20

(previously submitted as Exh. B. to Petition). Indeed, in their post-hearing brief, the

Government digs in even further, explaining at length just how they would have used Mr.

Langston’s testimony to create inference after inference adverse to Petitioner. See D.E. 384, at

39-41. It is remarkable that to this day, the Government is still using Mr. Langston adversely to

Petitioner, in an effort to avoid charges of prosecutorial misconduct. Id. The conflict between

Mr. Farese’s two clients became quite concrete when this Court explicitly relied upon Mr.

Langston’s proposed testimony in three orders adverse to Movant. See D.E. 134 at 1, 3 (denying

motion to exclude under Rule 404b), D.E. 132 at 4 (denying motion to sever from Richard

Scruggs’s trial), and D.E. 146, at 2 (ordering an anonymous jury). Again, in these post-

conviction proceedings, the Court underscored the point when it opined that Langston’s three

points of evidence – that Petitioner knew that Ed Peters had been hired, that Petitioner knew that

Peters and Judge DeLaughter were close, and that Ed Peters had not entered an appearance in the

Wilson case – implicated Petitioner rather than exonerated him. D.E. 371 at 13 at n11.

Indeed, the Government has itself admitted that Mr. Langston’s proposed testimony

constituted “the turning point in the case” and “substantially contributed … to the plea of… Zach


50

Scruggs”. Petition, Exh. “I” Govt. Mot. for Downward Departure for Joey Langston, at 5.29 See

also Testimony of David Sanders, Hearing Tr. Vol. III, at 53:14-15 (endorsing that as a “fair

statement” regarding Zach Scruggs).30 Since the Government admits that one of Mr. Farese’s

clients, Mr. Langston, substantially contributed to the plea of another of Mr. Farese’s clients, Mr.

Zachary Scruggs, that’s an “actual conflict of interest,” if that phrase means anything at all.

There seems to be no real dispute about this point.

Indeed, this Court has already ruled that the conflict between Mr. Langston and Petitioner

was so very real that it was “obvious.” This Court denied a motion for reconsideration for Ken

Coghlan to represent Richard Scruggs after having previously represented Steve Patterson, and

compared that situation to Petitioner’s:

The Langston plea was initially under seal; thus, no record of the matter wasbefore the undersigned district judge when Mr. Farese moved to withdraw ascounsel for Zachary Scruggs. … When the Langston guilty plea and agreement totestify against Scruggs were made public, it became obvious that Mr. Faresecould not continue in his representation of both Langston and ZacharyScruggs, even though Zachary Scruggs had signed a waiver of conflict of interest.

Order, 1/30/2008 D.E. 86 at 2 (emphasis added).31 This was true in January 2008, even before

the Government represented to the Court that Langston would “implicate” Petitioner as an

adverse witness, which drastically deepened the conflict of interests.

29 See also the Transcript for Mr. Langston’s December 16, 2008 Sentencing Hearing, in which both Mr.Farese and Mr. Dawson discuss at length all the ways that Mr. Langston’s cooperation helped Petitioner’s adversary,and in particular that it led to “pleas of guilty.”

30 See also Petition Exh. “C”, KINGS OF TORT at 161, 219 (Mr. Dawson said that Mr. Langston’s proposedtestimony “compel[ed]” guilty pleas and was a “suffocating force” that “blew a hole” in the defense.).

31 As previously noted by Petitioner, D.E. 319 at 7, this order appears to have been removed from thePACER/ECF system. Petitioner is unaware of why this order was removed, and thus is hesitant to now exhibit theorder, for fear of violating some unknown order sealing or removing docket entry 86. Petitioner would appreciateguidance in this regard, because docket entry 86 needs to be part of the appellate record.


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C. The Government’s Willfulness or Recklessness

Fact #6: The Government willfully or recklessly deprived Petitioner of hisright to loyal counsel and deprived this Court of its ability to do itsConstitutional duty.

As a matter of law, it is enough that there was a very real conflict between Mr. Langston

and Petitioner, both of whom were represented by Mr. Farese. Newell, 315 F.3d at 516. Still,

one cannot ignore the Government’s active role and utter recklessness in producing this result.

Mr. Dawson’s book said that the Government began negotiations with Mr. Farese and Mr.

Langston in early December 2007, when they notified him that he was a target of the Wilson

case. See KINGS OF TORT, Petition Exh. C at 181-182 (quoted infra). Mr. Dawson emphasizes

that the Government immediately foresaw the potential of using Mr. Langston as 404(b) in

Petitioner’s case, and immediately saw the conflict of interest problem with regard to Mr.

Langston serving as an attorney of record in Scruggs I. Id. Mr. Sanders confirmed in his

testimony that at least by January 4, 2008, he was personally involved in negotiations with Mr.

Farese, on behalf of Mr. Langston. See Sanders Testimony, Hearing Tr. Vol. III at 51:17-52:9.

The record reflects that Mr. Farese was at that time, literally begging for immunity for Mr.

Langston, and a key part of what Mr. Langston could offer was testimony in the Scruggs I case.

See KINGS OF TORT, at 189-192 (quoted infra).

It is astounding that Government did not even investigate the possibility of a conflict of

interest. They did not even ask Joey Langston whether he would implicate Petitioner Zach

Scruggs. Mr. Sanders said so three times.32 The reality of conflict is quite enough. But the fact

32 Mr. David Sanders testified that, “Joey never talked to me about Zach. I mean, I talked to Joey a number of timeson Scruggs II. But Zach never came up one time when he talked to me about Scruggs II. We never discussed Zach atall.” Hearing Tr. 5/25/2011 at 44:10-13. Mr. Sanders said it again, when the Government asked him about theJanuary 4 negotiations, with Mr. Farese in which the Government gave him an ultimatum for Mr. Langston. Id., at55:13-16 (“Q. Well, if that' s what took place on January the 4th, there was certainly no discussion of Zach Scruggson January the 4th, was there? A. No, certainly not.”) Mr. Sanders said it a third time, when the Government


52

that the Government itself recklessly created the conflict is even worse. Not only did they fail to

explore the conflict themselves, but the prosecutors also actively concealed their negotiations,

preventing the Petitioner or the Court from making an informed decision about whether and how

to proceed with Mr. Farese, while he was instead working against Petitioner to secure a deal for

Mr. Langston. The Government thus prevented this Honorable Court from doing its duty to

“ensur[e] that criminal trials are conducted within the ethical standards of the profession and that

legal proceedings appear fair to all who observe them.” Wheat, 486 U.S. at 160. Mr. Sanders

gave no real explanation for why the Government chose to go to Judge Michael Mills to enter a

sealed plea that this Court did not even know about, rather than taking Mr. Langston before

Judge Neal Biggers, who was handling the Scruggs case and who would have objected to the

obvious conflict of interest.33

In a pathetic attempt at rationalization, the Government has tried to suggest that after they

negotiated Mr. Langston’s cooperation via Petitioner’s counsel, they then learned of an

incriminating email from Zachary Scruggs discussing the Wilson case, and that it all-of-a-sudden

caused them to then think that Mr. Langston could be used adversely to Petitioner after all. Of

asked him again. Id., at 64:3-8 (“Q. Let me rephrase that. If you did, the subject of Zachary Scruggs and hisknowledge of Scruggs II or the Wilson case was not the topic of conversation? A. It was never the topic. When Iwas with Joey, it was never the topic of conversation.”) When Petitioner’s counsel then challenged Mr. Sandersabout the recklessness of negotiating with Mr. Farese and Mr. Langston without even exploring the potentialconflict, Mr. Sanders backpedaled. Id., at 87:25 (“Q. …Don' t you agree, don' t you agree, that not asking questionson January 4th about the dual representation was a serious error on behalf of the prosecution in this case? A. Mike, Idon' t think I testified that we didn' t ask questions. The issue arose. I mean, we discussed it with Tony and Joey atthat time, the conflict - - the potential conflict or the appearance of a conflict or anything on that date.”) Whenpushed for specifics, however, Mr. Sanders went back the other way. Id., at 88:18-23 (“Q. Mr. Sanders, on Januarythe 4th, did you ask this simple question to Joey Langston - - A. Okay. Q. - - Mr. Langston, what involvement doesZach Scruggs have in the Wilson/DeLaughter matter? A. I don' t recall asking that specific question.”)

33 See Sanders Testimony, 5/25/2011 Hearing Tr., at 81:11-24 (“Q. All right. Now, did Joey Langston pleadguilty before Judge Biggers? A. No. Q. Well, why not? A. I don' t recall exactly why not. It may be that JudgeBiggers wasn' t here. Or my recollection is this was going to be an entirely different case, and it obviously had notbeen filed. And, so, I think it was our decision just to go to the chief judge. I believe Judge Mills was chief judge atthat time, because he pled guilty to Judge Mills. Q. All right. Are you sure that Judge Biggers wasn't here? Didsomeone attempt to have the plea in front of Judge Biggers since he was handling these cases at that time? A. I don' trecall that.”)


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course, this theory does not at all explain why the prosecutors would fail to even ask Mr.

Langston about whether he would implicate Petitioner, at the time while they were deciding

whether they should negotiate with Petitioner’s counsel on Mr. Langston’s behalf. Even still,

Mr. Sanders has completely eviscerated the Government theory that the email was incriminating

and that it changed their way of thinking about Mr. Langston. “After reading it in its entirety, I

did not necessarily believe that it incriminated Zach Scruggs. It was not exculpatory by any

means, but it was not something that changed our way of thinking.” Sanders Testimony, Hearing

Vol. III at 43 (affirming that he still stood by his affidavit).34 The Government is now using

snippets of that email out of context in an effort to distract this court, and is apparently doing so

in bad faith, contrary to the sworn testimony of their own prosecutor.

Thus, the problem is not merely that Petitioner’s right to counsel happened to be

encroached when his counsel went astray. In this case, the Government went out of its way to

deprive Zachary Scruggs of his Constitutional rights, went out of its way to undermine this

Court’s performance of its Constitutional duties. Such behavior demands relief.

D. The Statute of Limitations

It seems that the Government does not really dispute the foregoing, nor could it, since the

allegations arise from the writings and testimony of the former prosecutors themselves. Further,

the Government concedes that procedural default does not apply to Petitioner’s claim that he was

deprived of the right to counsel. See D.E. 384 at 43. Still the Government does assert a statute

of limitations defense against the right to counsel claim, while conceding that Petitioner’s

Skilling claim is timely. Id. The Government apparently would have preferred that Petitioner

34 Mr. Norman’s own story also does not depend on this email, but instead depends on an anecdote abouthim storming into the witness waiting room and asking an ambiguous question to Mr. Langston, getting anambiguous answer, and him jumping to conclusions. See Section III infra.


54

file two separate petitions, first objecting on the basis of right to counsel, before Mr. Dawson’s

book was published, and then filing another petition on the basis of Skilling, after that case was

decided.35

Petitioner has previously shown that there is no statute of limitations for coram nobis

petitions, which this Petition should be considered in light of the fact that Petitioner is no longer

in custody. See D.E. 384 at 4 n3 (citing Monroe v. U.S., Not Reported in F.Supp.2d, 2005 WL

2133668, *3 (E.D.Tex., 2005) (“The principal differences between coram nobis and these other

remedies are that petitioners do not have to satisfy a custody requirement, and there is no statute

of limitations.”)). In the seminal opinion affirming that coram nobis remains available alongside

§2255, the Supreme Court recognized that, “The writ of coram nobis was available at common

law to correct errors of fact. It was allowed without limitation of time for facts that affect the

‘validity and regularity’ of the judgment, and was used in both civil and criminal cases.” U.S. v.

Morgan, 346 U.S. 502, 508 (1954) (emphasis added). Although Petitioner has squarely raised

this point that this case should be considered as proceeding under coram nobis, and that there is

no statute of limitations therein, the Government has not seen fit to dispute it. The Court should

take these matters as settled.

35 Congress has clearly expressed a preference against such piecemeal litigation. See 28 USC §2255(h)(2)(requiring a special panel of the court of appeals to certify successive petitions); Martin v. Jones, 969 F.Supp. 1058,1061 (M.D.Tenn., 1997) (“The Court feels that tolling the statute on all claims during the time in which a post-conviction remedy is pending will ensure that petitions are brought in their entirety at one time, thus keeping withthe “one bite at the apple” approach. It is generally acknowledged by courts and secondary authorities that thepurpose of the Act was to make the habeas process more streamlined and efficient. See Parisi [Parisi v. Cooper, 961F.Supp. 1247, 1248-49 (N.D.Ill.1997)], 17a Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, FederalPractice and Procedure § 4261 (Supp.1997)); Parker v. Johnson, 988 F.Supp. 1474, 1476 (N.D.Ga.,1998)(“[T]ollingall claims until they can be consolidated in one habeas petition furthers Congress' purpose of eliminating piecemeallitigation and streamlining the process of habeas review. See H.R.Rep. No. 104-23 (noting that purpose of AEDPAis to curb delay and repetitive litigation).”); Duncan v. Griener, Not Reported in F.Supp.2d, 1999 WL 20890, *4(S.D.N.Y.,1999)(“In addition, there is a significant interest in a petitioner's bringing all of his habeas claims at thesame time, and AEDPA is designed in part to encourage habeas petitioners to do so. Thus the petitioner's petition asto his first six claims was not untimely because he waited to bring those claims until the state courts decided thepost-conviction motion dealing with the seventh claim so that all of the claims could be brought together in onepetition.”).


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Furthermore, to the extent that this case proceeds under §2255 instead (as this Court has

suggested), Petitioner has repeatedly shown that the Government “bear[s] the burden of proof on

the affirmative defense of statute of limitations.” D.E. 380 at 2, n1 and D.E. 359 at 2 (both citing

U.S. v. Petty, 530 F.3d 361, 364 n5 (5th Cir., 2008)(“[T]his circuit does not view the AEDPA

limitations period as a jurisdictional bar, but rather as a statute of limitations that functions as an

affirmative defense.”)); accord Smith v. Kelly, 301 Fed.Appx. 375, 378 (5th Cir., 2008)

(“AEDPA's statute of limitations is, of course, an affirmative defense rather than a jurisdictional

prerequisite.”); Holland v. Florida, 130 S.Ct. 2549, 2560 (2010)(the statute of limitations is not

jurisdictional).36 See also, Dillon v. Rogers, 596 F.3d 260,266 (5th Cir., 2010) (holding in

prisoner litigation case that the government failed to meet its burden to prove the affirmative

defense of exhaustion); Davis v. Johnson, 158 F.3d 806, 809 (5th Cir., 1998) (holding that the

statute of limitations in §2255 is not jurisdictional, and could be tolled equitably). The

Government does not contest this point, and is barred from doing so at this late date.

It goes without saying that since the statute of limitations is an affirmative defense, the

Government bears the burden of proving it up with a preponderance of competent evidence.

Dillon, 596 F.3d at 266. In this case, however, the Government chose to rest without even

putting on a single witness of their own. The Government apparently thinks that the applicability

of the statute of limitations turns on a factual assertion: “In fact, the Petitioner was fully aware

of all the circumstances surrounding Tony Farese and his representation of Joey Langston when

he fired Farese on January 9, 2008.” D.E. 384 at 43. The Government does not meet its burden

to cite any evidence whatsoever in support of this factual assertion, however. Thus, Petitioner

cannot reasonably be expected to respond (and the Government should not be allowed to try

36 The courts’ references to “AEDPA” are to the “Anti-Terrorism and Effective Death Penalty Act(‘AEDPA’), as codified in 28 U.S.C. § 2255.” Petty, 530 F3d at 364.


56

once again in their reply brief). Since the Government has not met its burden, the statute of

limitations is thus forfeited. Holland, 130 S.Ct. at 2560 (it is “subject to waiver and forfeiture”).

Nonetheless, Petitioner will provide the following analysis and evidence, for the sake of making

a complete record.

Fact #7: KINGS OF TORT revealed what Mr. Farese had concealed -- when heprocured a waiver -- that Mr. Farese had already negotiated a dealfor Mr. Langston to cooperate with Petitioner’s adversary.

Petitioner’s right to counsel claim arose from the revelations in Mr. Tom Dawson’s book,

KINGS OF TORT, published in December 2009, within one year of the Petition being filed. It is

not every day that a litigant’s adversary publishes a book detailing their every move as they

created and then litigated a case against him; this book provided a rare and compelling look

behind the scenes of a federal prosecution. In particular, Mr. Tom Dawson’s book revealed for

the first time that Mr. Farese had begun negotiations on behalf of Mr. Langston as a criminal

defendant on December 10, 2007, while purporting to represent Petitioner and almost a month

prior to receiving an uninformed, written waiver from Petitioner. Mr. Dawson writes that at that

December 10, 2007 meeting,

The trial team had several objectives in meeting with Langston. First they wantedto accomplish his withdrawal as one of Scruggs’s attorneys because of the conflictof interest in the Scruggs II investigation. They also wanted to warn Langstonabout their concerns for Balducci’s safety. Last, but not least, they intended toadvise Langston of his status as a target in Scruggs II, and the fact that thePublic Integrity Section of the Department of Justice might take over that portionof the investigation. They planned to plant the seeds of cooperation in hopesthat he would ultimately plead guilty and testify. Langston arrived at theappointed time and was frankly told where he stood. He was deeply concerned asa result of the search and his status as a target in a criminal investigation, buthe remained relatively calm. … He readily understood the conflict issue andagreed to withdraw as counsel for Scruggs. … When Langston left theprosecutors’ offices late that afternoon the trial team had varying views aboutLangston’s ultimate decision. … Langston, through his political connections,had accumulated massive wealth. If the trial team could demonstrate


57

overwhelming evidence of guilt coupled with the threat of forfeiture of assets, itmight be enough to bring Langston to plead guilty and to cooperate.

KINGS OF TORT at 181-182 (emphasis added). It is clear from this description that the

negotiations began on that day December 10, 2007, and that Mr. Langston walked away in

criminal jeopardy with an “ultimate decision” about whether to cooperate with the Government

resting squarely on his shoulders. Mr. Farese was thus on notice of the actual conflict of interest

nearly a month prior to securing a written waiver of “potential” conflicts of interest from

Petitioner.

Mr. Farese never told Petitioner of these facts in a timely manner. That Petitioner was

unaware of these facts is evidenced by Mr. Farese’s letter to Petitioner on January 9, 2008, after

Petitioner learned of Mr. Langston’s plea and fired Mr. Farese. SeeMotion for Reconsideration.

Exh.1. D.E. 377-1. In that letter Mr. Farese explains that “on December 10, 2007, the FBI

executed a search warrant on Joey Langston’s office in Booneville, Mississippi. Joey called me

and requested that I represent him.” Id., at 1. Mr. Langston was at that time representing

Richard Scruggs in the criminal case in this Court, and Mr. Farese was representing Petitioner in

that same case, wherein they had both signed a joint defense agreement, specifying certain duties

of confidentiality. The search of Mr. Langston’s offices was an emergency for the entire defense

team and there was some urgency to ensure that the Langston Law Offices’ legal clients

(including the Scruggses) would be protected in their rights of privacy and attorney/client

privileges. Thus, when Mr. Farese went to represent the Langston Law Offices for the limited

purpose of defending against a search warrant to protect privileged materials, Petitioner was

under the impression that Mr. Farese was in fact representing Petitioner’s own interests as part of

a larger defense team. Even in Mr. Farese’s letter there is no disclosure that Mr. Farese was

representing Mr. Langston in a personal capacity with regard to his own criminal jeopardy.


58

Instead, as it later became clear that Mr. Langston faced some criminal jeopardy,

Petitioner was under the belief that Mr. Langston had engaged “the Washington, D.C. firm of

Steptoe & Johnson LLP to represent him in connection with the Delaughter/Wilson allegations.”

Affidavit of John Keker, D.E. 319-3 at 3. Mr. John Keker, the lead counsel for the Scruggs

defense team, goes on to explain:

From December 10, 2007, the date of the search of the Langston Law Office, toJanuary 7, 2008, the date that I first learned that Farese was representingLangston, I attended at least two in-person, joint-defense meetings where Faresewas present, including meetings in Oxford, Mississippi on December 11, 2007and December 13, 2007; I participated in a number of telephone conversationswith Farese, including a joint-defense conference call on December 21, 2007; andI was a party to a number of email messages to and from Farese. During thistime, Farese never stated that he was representing Langston in connection withthe DeLaughter/Wilson allegations and never stated that he was engaged inplea negotiations with the government on Langston’s behalf.

Id., at 3-4 (emphasis added).

Thus, there is a significant discrepancy between what Mr. Farese revealed in his January

9, 2007 letter, and what was known at that time, compared to what Mr. Dawson revealed in his

2009 book. Mr. Farese provides no suggestion that on December 10, 2007, the Government put

Mr. Langston on notice that he was a “target” of a criminal investigation, nor that the

Government notified him of a conflict of interest between the two cases, nor that the Government

had “planted the seeds of cooperation in the hopes that Langston ultimately plead guilty and

testify.” Mr. Dawson’s 2009 book revealed all of this.

December 10 was just the tip of the iceberg. At that point, Mr. Farese likely could have

walked away from Mr. Langston when his criminal jeopardy became clear, or the Government

could have insisted that Mr. Langston find someone else with whom they could negotiate.

Instead, when the negotiations resumed a few weeks later in early January, Mr. Farese was

squarely in the middle, working to help Petitioner’s adversary secure a new cooperator and


59

witness. Mr. Dawson’s book revealed that Mr. Farese then worked in earnest to negotiate a plea

for Mr. Langston, and that Mr. Farese specifically made a “desperate pitch” on Mr. Langston’s

behalf, one that would trade Mr. Langston’s cooperation and testimony in exchange for

preserving the many millions of dollars of Mr. Langston’s assets. Mr. Dawson’s book revealed

these secret negotiations in wonderful detail:

After successfully getting corroborating data from Lott, they [the prosecutors]decided the next move was to confront Langston. A three o’clock meeting wasset for Friday, January 4, 2008, and when Langston arrived he brought along hislongtime friend, attorney Tony Farese of the Farese Law Firm as his counsel.

Langston was given the bad news. The trial team was now in a position to indicthim in the Scruggs II investigation for a series of federal violations, includingmoney laundering in relation to the $950,000 in wire transfers to Ed Peters forcorruptly influencing Judge DeLaughter in the Wilson case. In all likelihood,Public Integrity would take over the Scruggs II case, unless a quick resolution wasreached. That spelled even worse news for Langston. A shrewd lawyer whorarely missed an angle, he knew what message was being delivered. Moneylaundering could mean asset forfeiture, and if a RICO case was made, other assetspaid for by fees such as tobacco, MCI, and other unrelated plaintiff’s cases couldbe at risk. Additionally, if Public Integrity took over, that created moreuncertainty for Langston. On a personal note, he knew Scruggs better thananyone and understood that loyalty to fellow lawyers was not Scruggs’s strongsuit. Langston could see that the train was leaving the station.

Langston and Farese made a desperate pitch for immunity offering to testifyagainst Scruggs in the DeLaughter case. They argued that the value of Langston’stestimony would cause Scruggs’s collapse in both cases, resulting in guilty pleas.The specter of Scruggs’s own lawyer testifying against him would beinsurmountable. Dawson and Norman did not discount the value of Langston’scooperation, but the price was just too high. After three hours of discussions,Langston and Farese left Dawson’s office with the bottom line – a felony plea andtruthful cooperation. Prosecutors also gave them a firm deadline. Any deal hadto be agreed to by the close of business January 7.

Over the weekend, Dawson tried to clear his head by going duck hunting. Whilechanging a flat tire on an ATV trailer in cold rain, his cell phone rang. It wasTony Farese pleading Langston’s case once again. Dawson told Farese that hewould call him later when he returned to Oxford, but made one point clear hewould not grant immunity for Langston. He was hoping letting that “marinate”for a few hours, given the deadline, might facilitate a resolution.

Dawson called Farese at his office around three o’clock that afternoon. Langston


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was with Farese for the call, and while Dawson and Farese did most of thetalking, Langston asked to speak with Dawson at the end of the conversation.Dawson reiterated that under no circumstances would immunity be included inthe equation. Farese asked if Langston could plead guilty to misprision of felony(18 USC § 4), surrender his law license and testify as previously indicated. …Farese was and Langston were told again that the only acceptable outcome was aplea to conspiracy (18 USC § 371) in the Scruggs case. In return, the statutewould not include asset forfeiture, and the trial team would submit a 5K1.1motion (reduction of sentence) for the court’s consideration based on Langston’scooperation. They were reminded of the deadline and also told that once his casewas referred to the Public Integrity Section, there was no coming back.

Farese asked for a Sunday meeting with Greenlee and the Scruggs [prosecutors]trial team. Dawson placed a call to Jim Greenlee, and he agreed to reach out tothem again at eight thirty on Monday morning. Greenlee knew time was on theirside and chose to let everything “marinate” as well.

…Bob Norman, Dave Sanders, and Tom Dawson arrived early Monday to meetwith Jim Greenlee. … Langston and Farese arrived at eight thirty on the dot[.] …The tone was somber as Steve and Tony Farese took the lead for teamLangston. They made a last-ditch effort to bargain for misprision of felony[.]…Greenlee delivered the same message that Dawson had given Farese on Sunday– they could not accept a deal that included immunity. Joey Langston “hadcrossed the Rubicon” regarding the plea to a felony, and his main concern shouldbe limiting his exposure to three years with a possible reduction in the sentencefor his complete cooperation.

Langston and his advisors met privately for fifteen minutes, after which Langstonagreed to the deal. Buoyed by this development, Sanders, Norman, and Dawsonwent to Greenlee’s office to call Judge Mills. He was presiding over a civil trial,but said he would meet them in his chambers at one thirty that afternoon. A pleaagreement, information, waiver of indictment, and factual basis were prepared inrecord time. When the plea was signed by the principals, all involved hurried upthe hill to the Federal Courthouse. Judge Mills presided over the plea colloquy(known as a Rule Eleven hearing), after excusing from his chambers anyone whodid not officially represent the government or Langston. This included ShaneLangston, who Judge Mills told to, “hit the door.”

…Tony Farese made one more request, that these proceedings be sealed forseven days to allow Langston time to notify his employees and clients andotherwise shut down his law practice. Judge Mills agreed and ordered the recordsealed.

The impact of Langston’s cooperation was staggering. … It blew open a hugehole in the Scruggs defense.

KINGS OF TORT, 189-92 (emphasis added).


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Mr. Farese’s response to the bar complaint (also filed within a year of the Petition) makes

the chronology quite clear – first Mr. Farese negotiated a deal for Mr. Langston to cooperate with

Petitioner’s adversary, the Government, and then Mr. Farese procured an unknowing waiver

from Petitioner. SeeMr. Farese’s Answer (filed under seal pursuant to Order D.E. 333) (“On

January 7, 2008, I met with the U.S. Attorneys, along with Steve Farese, Shane Langston, and

Joey Langston. I subsequently met with Zach Scruggs later that morning and obtained a

written waiver for my representation of Joey Langston.”)(emphasis added).

Mr. Dawson’s book was revelatory. The plain language of Mr. Farese’s waiver

document, and even Mr. Farese’s subsequent letter on January 9, failed to disclose to Petitioner

the critical fact that Mr. Farese had already secretly negotiated to secure Mr. Langston’s

cooperation with Petitioner’s adversary, the Government. Mr. Farese’s January 9 letter instead

says that, “on Monday January 7, 2008 Joey’s situation changed regarding allegations which

occurred in the Southern District of Mississippi regarding a case styled Wilson v. Scruggs

[Scruggs II].” SeeMotion for Reconsideration. Exh.1. D.E. 377-1 at 2 (emphasis added). Mr.

Dawson’s book revealed that, to the contrary, Mr. Langston’s jeopardy was clear to Mr. Farese a

month earlier when Mr. Langston was given “an ultimate decision” to make, and Mr. Dawson’s

book revealed that Mr. Farese had been involved in negotiations starting on December 10 and

continuing through January 4, 5, 6, and 7.

On that same day of January 7, Mr. Farese induced Petitioner to sign a written waiver,

stating that “I understand that there are many advantages to having separate counsel but I, after

having had this explained to me in detail, desire to waive any potential conflict of interest and

have no objection for Anthony L. Farese representing Joey Langston in the investigation being


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conducted against him.” D.E. 65 at 1-2 (emphasis added).37 As the Government concedes, a

waiver must be “knowing, voluntary, and intelligent,” D.E. 384 at 45, but Mr. Farese’s waiver

document does not disclose any of the foregoing facts from Mr. Dawson’s book. The wavier

document does not explain that the case had gone well beyond an “investigation” and that,

instead of a “potential” conflict, Mr. Farese had already in fact been representing Mr. Langston

in plea negotiations where a deal had crystallized in which Mr. Langston would receive leniency

in exchange for “full cooperation” with Petitioner’s adversary, the Government.

Mr. Farese’s deal for Mr. Langston only required the formality of a Rule 11 hearing, in

which Mr. Farese might then be asked about his conflicting interests. Mr. Dawson’s book

reveals this timing – that Mr. Farese needed the written waiver, not to get permission to represent

Mr. Langston, which he had already been doing in secret for quite some time, but instead to

provide the Court with a false impression that everything was on the up and up.

Mr. Farese kept these material facts secret, and had good reason for doing so, since they

reflected so poorly upon him as Petitioner’s advocate. John Keker, the Scruggs’s lead counsel in

the case, affirms that these plea negotiations on January 4, 5, 6, and 7 were kept secret from the

defense team: “Between January 4 and January 7, 2008, Farese did not inform me that he was

engaged in plea negotiations with the government on Langston’s behalf in connection with the

Delaughter/Wilson allegations.” Keker Affidavit, D.E. 319-3 at 3.

Without offering any evidence, the Government now says: “In fact, the Petitioner was

fully aware of all the circumstances surrounding Tony Farese and his representation of Joey

Langston when he fired Farese on January 9, 2008.” D.E. 384 at 43. But a simple comparison of

Mr. Dawson’s 2009 book with Mr. Farese’s 2008 waiver document and letter belie that assertion.

37 This document also appears to be missing from the ECF docket.


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Mr. Dawson’s book reveals that Mr. Farese fraudulently induced Petitioner to sign that waiver

document by withholding material information that Mr. Farese had already been working with

Petitioner’s adversary, the Government, to procure Mr. Langston’s “full cooperation.”38 Mr.

Dawson’s book shows that prior to securing that waiver from Petitioner, Mr. Farese had already

violated his duties of loyalty and zealous advocacy. Mr. Farese obviously did not admit those

facts to Petitioner in 2008.39 Mr. Dawson’s book revealed that Petitioner’s waiver was not

knowing, voluntary, and intelligent.

The Government apparently recognizes that the KINGS OF TORT book, written by their

own witness and former prosecutor, creates real problems for the Government’s case against

Petitioner. As such, the Government now tries to denigrate Mr. Dawson’s book as merely “a

novel.” D.E. 384 at 3 (emphasis added). The word “novel” means, “a long fictional story in

book form.” Collins English Dictionary (2011) (emphasis added). John Grisham writes novels,

like THEODORE BOONE, KID LAWYER. Mr. Dawson’s book, KINGS OF TORT, is not a novel. On

its cover, Mr. Dawson’s subtitle says that it is, “The true story of Dickie Scruggs, Paul Minor,

and two decades of political and legal manipulation in Mississippi.” Petition Exh. “C” at 1

(emphasis added). And of course, Mr. Dawson describes in detail the decisions and behaviors of

real people, such as Mr. Farese, Mr. Norman, Mr. Sanders, and Petitioner – certainly not fictional

characters. Mr. Dawson says that his book is based on “over two hundred individual fact

citations in over one hundred different sources,” such that the book “has been impeccably

researched.” If Mr. Dawson’s former colleagues in the Office of the United States Attorney are

38 Petitioner uses the term “fraudulently” advisedly. See U.S. v. Argumedo-Perez, 326 Fed.Appx. 293, *3(5th Cir., 2009)(describing the “commonly understood definition of fraud …which is, ‘a knowing misrepresentationof the truth or concealment of a material fact to induce another to act to his or her detriment.”)(quoting Omari v.Gonzales, 419 F.3d 303, 307 (5th Cir.2005) (citing BLACK'S LAWDICTIONARY 413 (7th ed. 1999)).

39 Indeed, Mr. Farese was so defensive at that time that he held hostage Petitioner’s retainer until he couldget Petitioner to sign a release of liability, still without informing Petitioner that Mr. Farese had actively workedagainst his interests, prior to securing the waiver.


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now intending to say that Mr. Dawson’s book is false, and perhaps libelous, then the

Government should do so concretely and specifically.40 The Government is obviously running

scared if they now want to denigrate the meticulous work of one of their own colleagues, calling

it a work of fiction.41

In 2007, the Government could have simply set the record straight and explained to the

Court and Petitioner precisely how the Government was using Petitioner’s counsel to procure

Mr. Langston’s cooperation, just as Mr. Dawson did in 2009. Then, perhaps the Court could

have put a stop to the shenanigans or perhaps remedied the situation by severing Petitioner’s case

from Richard Scruggs and by excluding Mr. Langston’s testimony from Petitioner’s case, all to

ensure that the conflict of interest the Government created would not be prejudicial to Petitioner.

If the prosecutors had done so, then they could truly say that “Petitioner was fully aware of all

the circumstances surrounding Tony Farese and his representation of Joey Langston,” as they do

now. D.E. 384 at 43. Instead, for obvious reasons, the prosecutors preferred to work with Mr.

Farese in secret, and then, only when Petitioner was behind bars, brag about their exploits in a

2009 book.

40 Instead, the Government has asked this court to accept the book on a basis of judicial notice. SeeHearing Tr. at 5/9/2011 at 40:21-25 (Mr. Norman: “I'd like to ask the Court to judicially note all of the pleadingsthat have been filed in this case and the attachments thereto from both sides if the Court would please. The Court:Okay.”) Excerpts from Mr. Dawson’s book were attached as Exhibit C to the Petition, D.E. 303.

41 Perhaps the Department of Justice should have thought about that prior to giving Mr. Dawson permissionto write the book. DOJ policy apparently requires that such outside contracts be approved by the DOJ. Publicreports suggest that Mr. Dawson was still working for the DOJ and was “almost exclusively devoted to Scruggs-related investigations litigations,” when he signed a contract and began work on the book. But Mr. Dawson’s DOJcontract was cancelled after “Main Justice made inquiries” and a Freedom of Information Act request. See JoePalazzo, Scruggs Prosecutor Writes Tell All Book, MAIN JUSTICE, Nov 1, 2009 available athttp://www.mainjustice.com/2009/11/01/scruggs-prosecutor-writes-tell-all-book/


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III. THE PROSECUTORS’ MISCONDUCT

The Government’s behavior is part of a pattern and practice of abuse in this case. From

the start, the Government admits that it created the bribery scheme it is now prosecuting,

converting a non-criminal scheme into a criminal one. The Government sent Mr. Balducci into

the Scruggs Law Firm to ensnare two other people, and when he accidentally talked with

Petitioner, he waited until Petitioner was interrupted, spoke in code, and even then failed to get

Petitioner to agree to any bribe. The Government tried again two weeks later to get Mr. Balducci

to get an indirect implication of Petitioner out of Mr. Backstrom, but they failed again.

Not deterred, the Government asked the grand jury to indict Petitioner nonetheless, but to

achieve that goal, the Government found it necessary to put on materially false testimony from

Mr. Balducci, testimony that went directly to the core question of Petitioner’s liability – whether

Petitioner was told about any money and whether he assented thereto. To make matters worse,

the Government then withheld from the grand jury the tape recordings that would have showed

the truth about Petitioner’s innocence. On those pretenses, the Government got their indictment

of Petitioner.

The Government then used Petitioner’s counsel to secure cooperation and testimony from

Joey Langston, acting secretly and without securing a written waiver from Petitioner. The

Government did not even bother to explore the conflicts of interests by simply asking Mr.

Langston about whether his testimony might be directly adverse to Petitioner (which they now

say it was). The Government then took Mr. Langston before another judge to enter that plea that

Mr. Farese had negotiated, so that Mr. Farese’s conflicting interests would not be so patently

“obvious”, as this Court later remarked when it learned the truth.

Although Mr. Langston said that he consistently and repeatedly exculpated Petitioner in


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his discussions with the Government, Mr. Norman then stormed into a waiting room at the last

minute, asked one ambiguous question, and got an ambiguous answer that he interpreted as

contrary to all of Mr. Langston’s prior representations to the FBI. See Testimony of Joey

Langston, 5/9/2011 Vol. I at 85-87. Rather than stopping to clarify the misunderstanding, the

Government’s agent then stood before this Court and said that Petitioner was “implicated” in and

“fully aware” of a similar felony in a different case. Even when Mr. Norman learned the truth

from Mr. Langston’s attorney at the lunch break during those pending hearings, Mr. Norman

refused to stand again before this Court to share what he had learned. See Testimony of Tony

Farese, 5/9/2011 Vol. I at 101 (“Q. In all candor, I believe I basically blew you off that afternoon

and said, ‘I'm tired. I'm going home. We'll talk about it later.’ Is that right? A. Yes, sir. But I

think it was closer to the noon hour.”). When the hearings continued, Mr. Norman stood again

before the Court and concealed the truth.

That February 2008 hearing came to a close. This Court entered an adverse order against

Petitioner, explicitly citing Mr. Norman’s representation. The Government sat silent. This Court

entered another adverse order, again citing the Government’s false representation. The

Government sat silent. This Court did it again, for the third time ruling adversely to Petitioner,

while explicitly relying upon the Government’s representation. The Government sat silent. It is

undisputed that the Government knew the truth, but exploited falsehood.

According to the Government, one of the prosecutors then privately and orally disclosed

to Petitioner’s counsel the truth about Mr. Langston’s intentions, contrary to the Government’s

representations to the Court.42 The Government nonetheless continued to withhold the truth

42 As this Court recognized, at the disqualification hearing, the government presented no such evidence thata government agent had corrected the record. D.E. 368 at 6. That testimony arrived, by convenient surprise, at thehearing on the merits. Mr. Sanders self-servingly testified that, although he never even discussed Zach Scruggs withJoey Langston to learn what Joey Langston would or would not say, Mr. Sanders nonetheless made oral disclosures


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from the Court, while insisting that Petitioner plead guilty to a felony.

Mr. Nathan Garrett, Petitioner’s counsel at that time, explained:

Q. And, so, you've been a federal prosecutor?

A. Yes, sir.

Q. And you've been a criminal defense attorney?

A. Yes, sir.

Q. What do you, as a criminal defense attorney, believe you have to considerwhen an officer of the Government and an officer of the Court tells the Courtsomething?

A. As a prosecutor, you have a special -- one has a special relationship with awitness. There is a great degree of control and power over that witness. Andthat has to be exercised very carefully. I know that from having been in thatsituation. So as a defense attorney, when I hear a prosecutor characterize aGovernment-sponsored witness's purported and believed testimony, that is, inmy mind, setting an expectation and a bar with respect to what theGovernment expects that testimony to be. It would be a mistake for me notto take that very seriously, regardless of what my own personal evaluationmay be of the testimony or the evidence.

Q. So are you saying -- and I want you to correct me if I misstate this, that evenif you thought the only evidence that Joey Langston would offer would be thee-mail and that ZachScruggs knew about Ed Peters' hiring –

A. I did think that was the only thing the witness could legitimately testifyabout. But again, if I hear the witness's sponsor, particularly theGovernment, given the nature of that relationship, in all fairness to everyone,that is a concern and something that I take very seriously.

Q. And you have to operate as though what the Government says to the Court isgoing to be the evidence -- will be the evidence?

A. I have to give that significant weight.

Q. So you were never, at any point, disabused of the notion that Mr. Langstonwould testify that Zach was fully aware of all of these elements wepreviously discussed of the Wilson/DeLaughter matter?

A. I had been provided certain tangible pieces of evidence of the testimony --

to Petitioner’s counsel concerning what Mr. Langston would say. Mr. Sanders has no recollection of when he didso. Nor does Mr. Sanders recall to whom he made such disclosures. Mr. Sanders provided no emails or otherdocumentation that could substantiate this new claim. Mr. Sanders also has no explanation of why he pulled the rugout from under the Petitioner in his subsequent filing to the Court. Petitioner’s counsel, Mr. Nathan Garrett,repudiated this testimony, saying that he did not recall receiving any such disclosure. See Hearing Tr., 5/24/2011 at139 (“Q. And you'd previously testified that, that information that you heard Mr. Norman say had never beencorrected to you? A. I was not aware of any effort by Mr. Farese or anybody else to correct Mr. Norman followingthat hearing.”)


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related to the testimony, purported testimony, of Mr. Langston that, in mymind, was not consistent with the terms or the description in Court of fullyaware. However, given that that statement was made that that is what thewitness would testify to, I was never disabused of the concern that that'swhere the witness may ultimately attempt to go. And I would be concernedin having that debate or flushing that out in front of a jury.

Q. Well, let's not put too fine a point on it. Were you concerned that no matterwhat you knew the facts were that in order to stay in good with his sponsorsMr. Langston might not tell what you thought to be the truth?

A. I was concerned that Mr. Langston may seek to reach the bar set by Mr.Norman, yes.

Hearing Tr., 5/24/2011 at 139 to 141. As long as Mr. Norman’s representation remained on the

record, the prosecutors’ whisperings to the contrary did nothing other than sow more uncertainty.

As the plea negotiations were culminating, Petitioner was focused on Mr. Langston’s

testimony as a primary obstacle in any trial, so Petitioner made a final, desperate effort to notify

the Court of the discrepancy, filing a brief explaining that the information that Petitioner had

concerning Joey Langston did not amount to what Mr. Norman had represented. This was the

final chance for the Government to make it right, and come clean with the Court.

Instead, the Government then pulled the rug out from under the Petitioner and filed a

signed brief to this Court saying that there had “been no substantial changes” that should cause

the Court to reconsider its prior decision, which had explicitly relied upon Mr. Norman’s

representations. As this Court has recognized, that brief is “baffling” because it “appears to be

inconsistent with the Government’s position at that point in time and inconsistent with

information which had been provided to Petitioner.” Order, D.E. 368 at 3. When asked about

why the prosecutors filed that document, Mr. Sanders said: “The only explanation I can give to

you, and it may not be a good one, is at that point all I was focused on was the plea deal. I

signed the document. I'm sure I read the document.” Hearing Tr. 5/25/2011 at 47:19-21. The

Government put their desire to secure a plea ahead of the need to tell this Court the truth.


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In doing so, the Government effectively retracted whatever notice it had provided to

Petitioner. The Government’s brief proved to Petitioner that, when the rubber hit the road, the

Government was sticking to their position that Mr. Langston would falsely “implicate” Petitioner

as being “fully aware” of another crime. At this point, Petitioner literally did not know what

Mr. Langston was intending to say if he testified, since Petitioner was (at most) receiving

divergent information: private, oral suggestions that Mr. Langston would not implicate

Petitioner in the criminal behavior, clashing against public, written statements in open court

stating the opposite.43 The latter was obviously much more probative, since the Government had

a reputation with the Court to preserve and had Mr. Langston’s life in their hands, and could

likely make him say whatever they wanted. Having played his last card, and facing a

Government who had doubled-down, Petitioner was left with no choice but to drop. Facing 75

years of imprisonment at a trial, Petitioner had to plead guilty, which he did the very next day.

So the Government got their guilty plea, and Petitioner went to prison. Then the

prosecutors sat quietly, until after Petitioner had served his time in prison. One prosecutor

published a book explaining, in part, how Mr. Tony Farese had worked so diligently to help the

Government secure the cooperation of Mr. Langston, while Mr. Farese was instead representing

Petitioner. Petitioner filed a bar complaint complaining of those very facts.

The prosecutors then leaped into action to help Mr. Farese in return for his help to them.

The prosecutors provided to the Bar Committee precisely the affidavits and disclosures that the

43 For this reason, the Government’s cited case of Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998)is inapposite. In that case, the Court held that the statute of limitations began running at judgment, rather than at thetime when the defendant’s own counsel drafted an affidavit in support of a post-conviction theory of relief. TheCourt held that the Petitioner had known the predicate all along, since it was based on the knowledge of his owncounsel. In contrast, Petitioner was never told the truth in a dispositive way that would give him knowledge aboutMr. Langston’s intentions. And the ultimate affidavits came not from Petitioner’s own counsel, but from counselopposite. The present situation is thus patently opposite from that in Flanagan. See also Part II.D supra(discussing the statue of limitations as an affirmative defense applicable only to §2255 (but not coram nobis), andshowing that the government bears the burden of proof, but has failed to meet it).


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prosecutors had previously withheld from this Court. It was now in the prosecutors’ interests to

join Mr. Langston in saying that he had consistently “exculpated” and “exonerated” Petitioner all

along.44 For the purposes of that bar complaint, the Government suggested that there was no

conflict of interest at all. And on that basis, the prosecutors then bragged to this Court that, the

“bar complaint, by the way, [] has been found meritless and has been dismissed.” Hearing Tr.,

Vol. III, at 108. The irony is painful – the Government succeeded in the Bar Committee by

providing precisely the information that they withheld from this Court. And then they brag to

this Court that they did so.

Now in these proceedings, where Mr. Norman’s misrepresentation is also at issue, the

Government runs the opposite direction to try to minimize the misrepresentation, going on for

page after page explaining how they would have used Mr. Langston’s testimony to create

inference after inference adverse to Petitioner (and thereby implicitly conceding the deep

conflict). See D.E. 384 at 39-41. Of course, the prosecutors said none of this to the Bar

Committee, but were instead eager to give the impression that there was no conflict at all

between Mr. Farese’s two clients. And, apparently, the Government failed to get Mr. Dawson on

board with their new theory. He explained that, “Joey Langston would not have been a witness

for the Government in a case in chief if we were trying Zach Scruggs alone.” Hearing Tr.,

44 As this Court has noted, Mr. Langston’s affidavit (along with Mr. Farese’s bar answer and some of theprosecutors’ affidavits) seem to be inconsistent with Mr. Langston’s testimony in the Grand Jury on October 23,2008, “which is more incriminating than exculpatory.” D.E. 371 at 13. Notably, in their effort to make it appear tothe Bar Committee that there was no conflict of interest between Mr. Farese’s two clients, the prosecutors withheldthose transcripts and in fact suggested to the contrary. Petitioner believes that after Mr. Norman made therepresentation to the Court, and the Court began relying thereupon, the Government then proceeded to paint thetarget around the arrow, nudging Mr. Langston to implicate Petitioner in some way. Mr. Langston’s FBI 302sfurther support this hypothesis, because only after Mr. Norman made that representation do they begin to mentionPetitioner as being implicated. According to Mr. Dawson’s book, the Government held hundreds of millions ofdollars and years of imprisonment over Mr. Langston’s head, on the condition that he “cooperate fully.” Thismotivation also explains why Mr. Langston himself, and Mr. Farese as an officer of this Court, never directlyadvised the Court of Mr. Norman’s misrepresentation. They instead remained silent while this Court relied uponthat representation over and over. Frankly, because the Government had such a close and coercive relationship withMr. Langston and Mr. Farese, it may be more accurate to say that the Government destroyed the truth than to say theGovernment misrepresented the truth.


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5/9/2011 at 60-61. Of course that was precisely the situation when the Government represented

to this Court that there had been “no substantial changes.”

This Court has already provided a considered analysis of one small part of the

Government’s misconduct, when it found it necessary to disqualify Mr. Robert Norman as a

prosecutor in this case. D.E. 368 at 1 (declining to address the other factors as “moot” for the

purposes of disqualification). Petitioner acknowledges that the “reasonable possibility” standard

for that Motion to Disqualify is lower than the standard for resolving his Petition for post-

conviction relief. Id., at 5. Still, the primary factual findings that the Court made in resolving

the Disqualification Motion were not reasonably disputed, and thus would be resolved in the

same way on any standard of proof. See Farmer v. Strickland, 652 F.2d 427, 434 (5th Cir., 1981)

(holding that “the several standards of proof have no practical relevance” in a case where “the

facts of [the] courtroom conduct are undisputed.”).

Thus Petitioner respectfully proceeds on the assumption that the following fact is settled:

Fact #8: Mr. Norman made a material misrepresentation to this court and toPetitioner, despite admitted evidence that he was informed that hehad spoken falsely to the Court, failed to take remedial measures tocorrect his misstatement in a timely manner and allowed a documentcontaining language consistent with that misstatement to be filed afterthe Government was advised of the error.

This is a partial quote from this Court’s Order. D.E. 368 at 1 (saying that “the court is

persuaded” of that fact). The Court ruled in part because, “no explanation was offered the court

for the failure adequately to correct the record.” D.E. 368 at 5-6. That gaping hole remains open

today.

The Court explicitly reserved the question of whether Petitioner was prejudiced by the

Government’s pattern of misconduct. Id., at 5. This Court did, however, hold that the


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Government’s misrepresentation was “material.” Id,. at 1. The two concepts are very closely

related. As the Supreme Court has said,

“Unless suppressed evidence is ‘material for Brady purposes, [its] suppression[does] not give rise to sufficient prejudice to overcome [a] procedural default.’”“[T]he materiality standard for Brady claims is met when ‘the favorable evidencecould reasonably be taken to put the whole case in such a different light as toundermine confidence in the verdict.’”

Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoted in Rocha v. Thaler, 619 F.3d 387, 396 (5th

Cir., 2010) (emphasis added). In this regard, it is notable that the Government had a relatively

weak case against the Petitioner in particular, unlike all the other alleged conspirators who were

on tape agreeing (one way or another) to a payment of money to Judge Lackey. See Part I.D

supra. Moreover, it was a case in which the Government had played a very active role in

creating the crime. As the Government said in introducing Mr. Langston’s proposed testimony

to the Court, it went directly to whether Petitioner had a criminal state of mind. See Hearing Tr.,

2/21/2008 at 17:21-18:1. This was not some incidental or minor point in the case – Mr.

Langston’s proposed testimony quite literally allowed the Government to open a second front in

the war against Petitioner. And that, presumably, is why they preferred not to correct the record,

until after Petitioner pled guilty.

Petitioner would submit that the timing of Petitioner’s filing of a renewed motion on Mr.

Langston’s testimony -- right at the culmination of plea bargaining with the Government itself --

demonstrates just how prejudicial the Government misconduct was. This timing strongly

suggests that Mr. Langston’s proposed testimony was foremost on Petitioner’s mind precisely at

the time when he was “rationally weigh[ing] the advantages of going to trial against the

advantage of pleading guilty.” Brady v. United States, 397 U.S. 742, 750 (1970). A rational

weighing, of course, requires accurate information.


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In terms of prejudice, it is also probative that this Court relied upon the Government’s

representations in three orders adverse to Petitioner. In this case in which there was severe

pretrial publicity and personal animus, Petitioner was particularly aggrieved by the order

requiring an anonymous jury, which is an extremely rare intervention which treads on

constitutional rights. The Fifth Circuit has said that, “it must be emphasized that this is a drastic

measure.” U.S. v. Krout, 66 F.3d 1420, 1427 (5th Cir., 1995). Likewise, by falsely procuring an

order from this Court that kept Petitioner tied into the case with Richard Scruggs, the

Government was able to erect a Chinese Wall, delaying and delaying against Petitioner’s

proposals for a non-felony diversion program. And when Richard Scruggs pled, and the deadline

for a binding plea passed, the Government was then able to have their cake and eat it too,

negotiating an agreement that involved no prison time, while also having some reason to believe

that this Court would send Petitioner to prison anyway.

As this Court explicitly recognized in three orders, Mr. Langston’s proposed testimony

was germane to all these issues. The Government has itself admitted that Mr. Langston’s

proposed testimony constituted “the turning point in the case” and “substantially contributed …

to the plea of… Zach Scruggs”. Petition, Exh. “I” Govt. Mot. for Downward Departure for Joey

Langston, at 5. The Government cannot be heard to say that there was no prejudice. Thus, a

final fact has been proven:

Fact #9: In the culmination of plea bargaining and in three pretrial rulings,Petitioner was prejudiced by the Government’s continued exploitationof their false representation to the Court.


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IV. CONCLUSION

David Zachary Scruggs does not come to this Court attempting to recant anything he

stated to the Court or that was contained in the Factual Basis. He has served a fourteen month

sentence, missed significant family events, and now seeks not sympathy but what the law allows

him. Throughout these proceedings, David Zachary Scruggs has deserved and laid claim to no

more than what every American citizen seeks – an honest government and a loyal attorney. Now

that the United States Supreme Court has decriminalized the crime to which he pleaded guilty,

Petitioner now asks that this Court determine that he is actually innocent of participation in any

scheme to pay money to Judge Lackey as a quid pro quo for any Order from that Judge.

We do not send men and women to jail and take their civil rights for ten seconds of

ambiguous code talk – at least not in this country. Petitioner should not be the exception to that

rule.

The record reflects that David Zachary Scruggs never made a choice to bribe Judge

Lackey or join with those who did. Rather, he left to take a phone call -- and in so doing, he

turned his back and walked away. He is actually innocent.

Respectfully submitted, this 8th day of June 2011.

/s/Edward D. Robertson, Jr.Edward D. Robertson (pro hac vice)Michael C. Rader, MB#100205BARTIMUS FRICKLETON ROBERTSON & GORNY11150 Overbrook Road, Suite 200Leawood, KS 66211913-266-2300Email: [email protected], Frickleton, Robertson & Gorny, P.C.715 Swifts Highway


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Jefferson City, Missouri 65109573-659-4454573-659-4460 (fax)[email protected]@bflawfirm.com

Mike Moore, MB#3452David Lee Martin, MB#9982MIKE MOORE LAW FIRM, LLC10 Canebrake Blvd., Suite 150Flowood, MS [email protected]@mikemoorelawfirm.com

Christopher T. Robertson, MB#102646ATTORNEY AT LAW6342 N Via Lomas de PalomaTucson, AZ [email protected]


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CERTIFICATE OF SERVICE

I, Edward D. Robertson, Jr., hereby certify that on June 8th, 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.


Documents

PETITIONER’S RESPONSE IN OPPOSITION TO THE ... David Zachary Scruggs respectfully submits this brief in opposition to the Government’s Motion to Dismiss, D.E. 384, which was filed