As explained in Petitioner’s moving papers, based on the constitutional presumption of innocence and basic tenets of due process, the Government should bear the burden of provingsuch charges, which it procured from the grand jury based on admittedly false testimony, whichthe Petitioner has never conceded guilt towards, and which the Government has voluntarilydismissed as unsupportable by the evidence.
If the Government wants to resurrect thoserepudiated charges three years later, it shouldatthe very least make a
case in supportthereof.Still, in
Bousley v. U.S.
, 523 U.S. 614, 621 (1998), the Supreme Court seems to imposethe burden on the Petitioner to prove his innocence of every charge, even those the governmentrepudiated for lack of evidence.
Motion, D.E. 303 at 12. On this doctrine, Petitioner isapparently required to prove that the Government’s secret agents
told him about their planto pay money to each other, that Defendant did
say anything to join the government’sconspiracy, that he did
do anything in furtherance thereof, that he did
have a corruptintent to influence Judge Henry Lackey, that Judge Lackey was
acting as an agent of arecipient of Federal funds, that
used interstate wires in furtherance of the government’sconspiracy,
. The Fifth Circuit has described “the difficult and anomalous position of trying to prove a negative.”
Matter of Oesterle
, 651 F.2d 401, 403 (5
Cir., 1981); See also
Elkins v. U.S.
, 364 U.S. 206, 220 (1960) ( “as a practical matter it is never easy to prove anegative...”);
Senu-Oke v. Jackson State University
, 283 Fed.Appx. 236 (5
Cir., 2008)(holdingthat defendants had no duty to “prove a negative” in a civil case);
Flores v. School Board of
Motion, D.E. 303 at 13 (citing
Coffin v. U.S
., 156 U.S. 432, 453 (1895) and
Taylor v. Kentucky
, 436U.S. 478 (1978)). See also id., at 15-18 (reviewing the Government’s representations to this Court thatthe charge of misprision of earwigging reflected all the facts and circumstances of the case).
Case 3:07-cr-00192-NBB-SAA Document 316 Filed 02/14/11 Page 2 of 5