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Former Judge Bobby DeLaughter asks judge to quash subpeona from Dickie Scruggs

Former Judge Bobby DeLaughter asks judge to quash subpeona from Dickie Scruggs

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Published by: yallpolitics on Mar 23, 2012
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03/23/2012

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1
UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF MISSISSIPPI
UNITED STATES OF AMERICA, ))Plaintiff, )) No. 09 CR 002v. ) Judge Glen H. Davidson)RICHARD F. “DICKIE” SCRUGGS, ))Defendant. )
BOBBY B. DELAUGHTER’S EMERGENCYMOTION TO QUASH SUBPOENA
Co-Defendant,
BOBBY B. DELAUGHTER
, by and through his attorneys,
THOMASANTHONY DURKIN
and
LAWRENCE L. LITTLE,
pursuant to Fifth Amendment of theConstitution of the United States, respectfully moves this Court, on an emergency basis, to quashthe subpoena that counsel for Co-Defendant Scruggs has served upon him in the above-captionedcase, which commands DeLaughter’s appearance on March 26, 2012, at 10:00 a.m.In support of this motion, Defendant, through counsel, shows to the Court the following:1.
 
On July 28, 2009, DeLaughter pled guilty to one count of attempting to obstruct,influence, and impede an official corruption investigation and grand jury proceeding in violationof 18 USC § 1512(c)(2). On November 13, 2009, DeLaughter was sentenced to 18 months in thecustody of the Bureau of Prisons, and a period of two years supervised release. DeLaughter iscurrently serving his supervised release portion of his sentence in the Eastern District of Louisiana, and must request permission of the Court to travel outside that district.2.
 
On March 14, 2012, undersigned counsel, Durkin, received a letter fromScruggs’s counsel containing a witness subpoena commanding DeLaughter’s appearance at the
Case: 3:09-cr-00002-GHD-SAA Doc #: 188 Filed: 03/23/12 1 of 6 PageID #: 1807
 
2hearing.
1
This subpoena requires DeLaughter to physically appear in the Federal DistrictCourthouse in Oxford, MS, in the context of the §2255 proceeding filed by Defendant Scruggson March 26, 2012, at 10:00 a.m. A copy of this letter, the subpoena, and the check for fees isattached hereto as Exhibit A.3.
 
Counsel for DeLaughter have repeatedly informed Scruggs’s counsel thatDeLaughter will assert his Fifth Amendment privilege not to be compelled in any criminal caseto be a witness against himself. Counsel for DeLaughter also so notified government counsel of DeLaughter’s position. Further, Scruggs’ lawyers have so acknowledged DeLaughter’s right toassert his Fifth Amendment privilege in its March 7, 2012, Motion in Limine regardingDeLaughter’s potential testimony. (Docket #173.) In this pleading, Scruggs seeks either judicialimmunity for DeLaughter or an adverse inference against the government for its failure to seek immunity for DeLaughter.4.
 
In its Response (Docket #185), the government cites Fifth Circuit precedent,
U.S.v. Chagra
, 669 F.2d 241 (5
th
Cir. 1982), to the effect that judicial immunity is not appropriateunder these circumstances. While undersigned counsel do not wish to argue the position of either party on this issue, counsel feel compelled to remind the Court and the government that,contrary to its suggestion in its response, “one of the Fifth Amendment’s basic functions is toprotect
innocent 
men who otherwise might be ensnared by ambiguous circumstances.”
Ohio v. Reiner 
, 532 U.S. 17, 21 (2001) (internal quotations and ellipses omitted). Further, while theCourt has yet to rule on Scruggs’ motion in limine, it would seem that should the Court not seefit to issue judicial immunity as the government suggests is the law of the Circuit, there will beno possibility that DeLaughter will have any testimony to give. Likewise, while undersigned
1
Counsel had agreed to accept service on DeLaughter’s behalf.
Case: 3:09-cr-00002-GHD-SAA Doc #: 188 Filed: 03/23/12 2 of 6 PageID #: 1808
 
3counsel do not profess to be familiar enough with Scruggs’ claims in this § 2255 proceeding, at aglance the very relevance of DeLaughter’s testimony—even if he were to be immunized—seemsquestionable, at best.5.
 
Undersigned counsel had proposed that, under these circumstances, the partiesstipulate that if DeLaughter were called as a witness, he would assert his Fifth Amendmentprivilege, so as to avoid the unnecessary and pointless process of requiring DeLaughter to seek permission of the Court and travel from New Orleans to Oxford. While the government iswilling to enter into this stipulation, counsel for Scruggs rejected this proposal on March 22,2012; and is insistent upon DeLaughter’s physical appearance at the Oxford courthouse onMonday morning.6.
 
Scruggs’s counsel’s insistence on DeLaughter physically appearing in Court andcompelling DeLaughter to the witness stand only to assert his valid constitutional right is bothvexatious and wrong—not unlike the impropriety of a party calling a witness to the stand onlyfor that witness to assert his Fifth Amendment right in front of the jury.
See
,
e.g.
,
U.S. v. Bowman
, 636 F.2d 1003, 1013 (5
th
Cir. 1981) (“There is strong Fifth Circuit precedent againstallowing witnesses to assert the Fifth Amendment in the jury’s presence. The general rule is thatonce the trial court has satisfied itself as to the validity of the witness’s Fifth Amendment claim,it may, in its discretion, decline to place the witness on the stand for the purpose of eliciting aclaim of privilege”);
U.S. v. Lacouture
, 495 F.2d 1237, 1239-40 (5
th
Cir. 1974) (affirming trialcourt ruling that witness, who stated to court during in-chambers examination that she wouldassert Fifth Amendment, could not testify before the jury and that counsel could not makereference to her failure to testify);
United States v. Johnson
, 488 F.2d 1206, 1211 (1
st
Cir. 1973)
Case: 3:09-cr-00002-GHD-SAA Doc #: 188 Filed: 03/23/12 3 of 6 PageID #: 1809

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