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USA v David Zachery Scruggs: Motion to Allow Discovery

USA v David Zachery Scruggs: Motion to Allow Discovery

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Published by: nowdoucit on Feb 15, 2011
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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF MISSISSIPPIUNITED STATES OF AMERICAv. CRIMINAL CASE NO. 3:07CR192-b-aDAVID ZACHARY SCRUGGS
MOTION TO ALLOW DISCOVERY
In preparation for the hearing called by this Honorable Court, Defendant David ZacharyScruggs moves for the Court’s permission to undertake limited discovery from the Government,as explicitly allowed by Rule 6 of the Rules Governing Section 2255 Proceedings for The UnitedStates District Courts. Although the Government seems to have conceded that the charge towhich Defendant pled guilty (misprision of earwigging) is now a legal nullity, the Governmentseems to assert that Defendant is guilty of some or all of the bribery charges that the Governmentpreviously dismissed. However, under Department of Justice Guidelines, the Government wasrequired to
pursue the most serious, readily provable offense or offenses that aresupported by the facts of the case
Once filed, the most serious readilyprovable charges
may not be dismissed….
Any sentencing recommendationmade by the United States in a particular case
must honestly reflect the totalityand seriousness of the defendant’s conduct
and must be fully consistent withthe Guidelines and applicable statutes and with the
readily provable facts aboutthe defendant’s history and conduct
. …Likewise, federal
prosecutors may not“fact bargain,”
or be party to any plea agreement that results in the sentencingcourt having less than a full understanding of all readily provable facts relevant tosentencing.Policy Memo. of the Attorney General, 9/22/2003 (emphasis added).
1
Indeed, the Governmentassured the Court in March, 2008 that “all the facts and circumstances”of this case amounted tomerely misprision of earwigging.
See
Motion, D.E. 303 at 19 (quoting the prosecutors).
1
Available athttp://www.justice.gov/opa/pr/2003/September/03 ag 516.htm.
Case 3:07-cr-00192-NBB-SAA Document 316 Filed 02/14/11 Page 1 of 5
 
2
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.
2
If the Government wants to resurrect thoserepudiated charges three years later, it shouldatthe very least make a
prima facie
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.
See
Motion, D.E. 303 at 12. On this doctrine, Petitioner isapparently required to prove that the Government’s secret agents
never 
told him about their planto pay money to each other, that Defendant did
not 
say anything to join the government’sconspiracy, that he did
not 
do anything in furtherance thereof, that he did
not 
have a corruptintent to influence Judge Henry Lackey, that Judge Lackey was
not 
acting as an agent of arecipient of Federal funds, that
nobody
used interstate wires in furtherance of the government’sconspiracy,
et cetera
. 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
th
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
th
Cir., 2008)(holdingthat defendants had no duty to “prove a negative” in a civil case);
Flores v. School Board of 
2
See
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
 
3
 DeSoto Parish
, 116 Fed.Appx. 504 (5
th
Cir., 2004) (similar). Defendant maintains his objectionto this unconstitutional procedure.Nonetheless, even if the process seems to be excerpted from a novel by Franz Kafka,Defendant can and will meet this burden. Given that the American system of criminal justiceotherwise presumes innocence, its procedures are understandably not designed to rationally orfairly facilitate such a process of proving negatives. Accordingly, the Rules for Section 2255Proceedings explicitly allow that, “The Federal Rules of 
Civil
Procedure, to the extent that theyare not inconsistent with any statutory provisions or these rules, may be applied to a proceedingunder these rules.” Rule 12 (emphasis added).
3
As the Fifth Circuit said last year, “this Courthas already concluded that § 2255 proceedings (which involve challenging a federal criminalconviction) are civil cases” and thus use civil procedures.
White v. Thaler 
, 610 F.3d 890, 897(5
th
Cir., 2010). More specifically, Rule 6 provides that, “A judge may, for good cause,authorize a party to conduct discovery under the Federal Rules of Civil Procedure.”
4
As anexample of the use of such a procedure, in the recent habeas case of 
Hodges v. Epps
, Chief JudgeMichael Mills allowed the petitioner to conduct discovery, including compelling disclosure of the prosecutors’ records to explore the prosecutor’s introduction of false testimony in the statetrial court. Case No. 1:07CV66-MPM, Docket Entry 42, Feb. 11, 2010.To provide a modicum of rationality and fairness to this procedure of proving negatives,Defendant merely asks for the opportunity to put the Government on the record as to preciselywhat it does and does not contest, and what evidence exists to support any points that they do
3
These Rules are available at www.uscourts.gov/uscourts/RulesAndPolicies/rules/2254_2255_Rules.pdf.
4
Rule 6 goes on to provide that, the Judge “may limit the extent of discovery, “ and that “A partyrequesting discovery must provide reasons for the request. The request must also include any proposedinterrogatories and requests for admission, and must specify any requested documents.”
Case 3:07-cr-00192-NBB-SAA Document 316 Filed 02/14/11 Page 3 of 5

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