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

PETITIONER’S MOTION FOR RELEASE PENDING APPEAL

Petitioner Richard F. Scruggs moves this Court to grant him bail pending appeal. Petitioner’s release date for his first sentence, the so-called Scruggs I sentence, is November 6, 2012. Thus, to the extent that this case presents a significant possibility of the Fifth Circuit granting of Petitioner’s habeas corpus on appeal – a possibility recognized by this Court in granting the Certificate of Appealability – then a substantial possibility exists that Petitioner will be serving time in the Bureau of Prisons when he should have been released. Fundamental fairness and the law’s proper concern that no one should serve time in incarceration for a non-crime strongly suggest that release pending appeal is a proper course under these unique circumstances. “It is within the inherent power of a district court of the United States to enlarge a ... prisoner on bond pending hearing and decision on his application for a writ of habeas corpus.” In re Wainwright, 518 F.2d 173, 174 (5th Cir.1975) (per curiam) (affirming a district court’s grant of bail against mandamus challenge by the government).
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The

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Federal Rules of Appellate Procedure provide in 23(b) that: “While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be … released on personal recognizance, with or without surety.” See also Atkins v. People of State of Mich., 644 F.2d 543, 549 (6th Cir., 1981) (granting bail on pre-conviction habeas petition, noting that “‘inherent in our American concept of liberty’ is the general existence of the right to bail”). that make bail appropriate in this case: First, Petitioner has not yet begun serving the marginal portion of the sentence that is now being challenged. Petitioner has been serving a five-year sentence for a separate case (3:2007-cr-00192), a sentence which concludes on November 6, 2012. Until that date, the seven-year sentence imposed in the present case has been running concurrently, and the marginal two years will just now begin to run. Thus, pragmatically, the question is not whether to continue punishing Petitioner for this crime, it is whether to start. Second, in its decision to grant a Certificate of Appealability (COA), the District Court has already held that Petitioner “has made a substantial showing of the denial of constitutional rights,” specifically to the question of whether Petitioner is “actually innocent” of the crime of his conviction. D.E. 220 (emphasis added). As Justice Douglas said in the habeas case of Yanish v. Barber, “Allowance of bail pending appeal depends upon a determination whether the appeal presents a substantial question.” 73 S.Ct. 1105, 1107 (1953)(emphasis added). Likewise in Levy v. Parker, 396 U.S. 1204 (1969), Justice Douglas held that, although the district court, the court of appeals, and the circuit justice
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There are several unusual circumstances

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had all denied bail, since the applicant had raised “substantial issues” on appeal, he should be granted bail. Here, the District Court has already resolved this question of “substantiality” in the affirmative by granting the COA. To punish someone who has

made such a showing, before allowing appellate review of such a decision, is to run a substantial risk of false imprisonment. Third, the District Court proposes to begin punishing Petitioner on the basis of factual allegations – the existence of a bribery agreement – that was neither admitted in Petitioner’s plea, nor proven to a jury of his peers. Instead, the District Court conducted a multi-day bench hearing, without a jury, to find its own new factual basis to justify punishment. C.f., Aronson v. May , 85 S.Ct. 3, 5, 13 L.Ed.2d 6 (1964) (the bail inquiry is more onerous where the Petitioner was “tried, convicted, and sentenced by a court of law.”); Sanchez v. Winfrey, Not Reported in F.Supp.2d, 2004 WL 1118718, *3 (W.D.Tex.,2004)(granting bail to a habeas petition that had not been convicted by a jury or admitted guilt). This situation of punishment without either plea or trial is disturbing in a country with a Constitutional right to a jury trial. See U.S. v. Booker, 543 U.S. 220, 244 (2005) (holding that any fact that forms the basis for extending a term of punishment must be “established by a plea of guilty or ... must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”). If the Judiciary is going to begin the

punishment of someone without an admission or a jury finding, it should at the very least allow itself to consider the merits of doing so in the course of a meaningful appeal. Fourth, this is an unprecedented prosecution for the making of a political endorsement, and the Supreme Court has already resolved in Skilling that the statute that
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the Government proposes to use for this purpose is vague on its face. The Government has silently conceded that it has never before prosecuted such a case, and has explicitly conceded that it strikes at the core of First Amendment conduct: “Clearly, any citizen has a right to recommend a state judge for appointment to the federal bench. He may even do so while he has litigation pending before that judge[.]” R.USCA5:776. “There is

practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs of course including discussions of candidates.” Buckley v. Valeo, 424 U.S. 1, 14 (1976). Until now, jurists thought it “preposterous” that political considerations could form the basis for a bribery prosecution, and the Government itself repudiated this theory in the Supreme Court. United States v. Thompson, 484 F.3d 877, 883 (7th Cir. 2007); Brief for the United States Government in Weyhrauch v. U.S., 2009 WL 3495337, 45-6 (“Honest-services fraud does not embrace allegations that purely political interests may have influenced a public official’s performance of his duty.”) As the Fifth Circuit has often recognized, the Judiciary does not tolerate a “punish-first-adjudicate-later” approach to the First Amendment. See e.g., Opulent Life Church v. City of Holly Springs, Miss., --- F.3d ----, 2012 WL 4458234, *16 (5th Cir., 2012)(“injunctions protecting First Amendment freedoms are always in the public interest.”). See Smith v. Jones, Slip Copy, 2009 WL 2926014 (E.D.Mich.,2009) (maintaining bail in part because Petitioner has “a valid claim for a petition for certiorari to the United States Supreme Court.”) Fifth, the Fifth Circuit has recognized that “extraordinary delay in processing a habeas corpus petition” can form a basis for bail. Calley v. Callaway, 496 F.2d 701, 702
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n. 1 (5th Cir.1974). The Petition in this case has been pending since June 23, 2011, which is more than sixteen months. See e.g., D.E. 132 (granting a total of 70 days from the data of the Petition for the Government to respond); D.E. 148 (granting a total of 36 days for the Government to respond to a four-page motion); D.E. 162 (denying Petitioner’s motion for judgment on the pleadings and setting a hearing 90 days later); D.E. 172 (granting a total of 24 days for the Government to respond to a three-page motion); Appeal D.E. __ (denying motion to expedite); Appeal D.E. 00511965757 (granting Government a total of 64 days to respond to appellate brief). In America, we punish people because our fair procedures result in a reviewed determination that they deserve to be punished. We do not start punishing people simply because the

Government has turned the wheels of justice too slowly. The Sixth Amendment’s right to a speedy trial, and the Speedy Trial Act’s guarantee of no more than a 70 days delay, reflect this fundamental value. 18 USC § 3161. See Boyer v. City of Orlando, 402 F.2d 966, 968 (5th Cir.1968) (granting bail due to need for speed). Sixth, the Fifth Circuit has recognized that another “extraordinary circumstance” for granting bail is the “serious deterioration of the petitioner's health while incarcerated. Calley, 496 F.2d at 702 n. 1 (citations omitted). In fact, Petitioner is suffering from Dupuytren’s Contractor of the right hand. See D.E. 182-1 (affidavit of Cooper L. Terry, MD)(filed 3/20/2012). The District Court refused Petitioner’s request to have outpatient surgery while in Oxford, Mississippi for the Court’s hearing, and as Dr. Terry predicted, “without immediate surgery, Mr. Scruggs’s condition [has] continue[d] to progressively worsen, adversely affecting his long-term recovery and outcome.”
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Id.

Petitioner’s

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dominant hand is now nearly useless. In addition, Petitioner has a malignant cancerous lesion on his forehead, which is progressively worsening without treatment, despite his history of melanoma. For several months, there has been no physician at the Federal

Prison Camp Montgomery. Petitioner is suffering serious deterioration of his health while incarcerated, a deterioration that can be reversed with proper medical care, at Petitioner’s own expense, while on bail. Seventh, Petitioner was on bond without incident the entire time before his voluntary surrender to begin serving his first sentence, meaning that the District Court has already determined that he is not a flight risk or a danger to the community. See 3:07-cr-00192-NBB-SAA D.E. 12 (J. Alexander setting terms for release on bond). Further, Petitioner has had a pristine record during his incarceration, serving as a model prisoner. Petitioner’s Bureau of Prisons security classification is "community custody,” which is the lowest level possible, permitting him to work out in the community with only civilian supervision.1 As the Presentencing Report reflects, Petitioner has no record of violent crime. Thus, Petitioner is quite unlikely to either flee or endanger the public while this appeal is pending. Overall, the bond question “does not require the district court to find that it committed reversible error” in denying the Petition in the first place. United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir.1985). Instead, bail is the only way to respect the
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See U.S. Department of Justice, Federal Bureau of Prisons, Program Statement P5100.0, available at http://www.bop.gov/policy/progstat/5100_008.pdf (Defining ‘community custody’ as “The lowest custody level assigned to an inmate which affords the lowest level of security and staff supervision. An inmate who has COMMUNITY custody may be eligible for the least secure housing, including any which is outside the institution's perimeter, may work on outside details with minimal supervision, and may participate in communitybased program activities if other eligibility requirements are satisfied.”)

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fact that the District Court has already found that Petitioner made a “substantial showing” that he is actually innocent, a situation which would “inherently result in a complete miscarriage of justice.” Davis v. U.S., 417 U.S. 333, 346 (1974). The stakes are

particularly high here, where Petitioner has not yet begun serving the sentence for the new criminal allegations, which concern core First Amendment conduct, and which have neither been admitted nor proven to a jury. Bail will also allow Petitioner to get the medical care he needs, given that his medical condition has severely worsened while in prison. There is no risk to bail. If Petitioner’s claims are ultimately denied by the Fifth Circuit and the Supreme Court he can always return to prison. If he is denied bail, but later gets relief, those days of wrongful imprisonment can never be given back. Respectfully submitted this 29th day of October, 2012. /s/Edward D. Robertson, Jr. Edward D. Robertson, Jr. (pro hac vice) Michael C. Rader, MB#100205 BARTIMUS FRICKLETON ROBERTSON & GORNY, P.C. 715 Swifts Highway Jefferson City, Missouri 65109 573-659-4454 573-659-4460 (fax) chiprob@earthlink.net mrader@bflawfirm.com Mike Moore, MB#3452 MIKE MOORE LAW FIRM, LLC 10 Canebrake Blvd., Suite 150 Flowood, MS 39232 601-933-0070 mm@mikemoorelawfirm.com Samuel Issacharoff, Admitted Pro Hac Vice 40 Washington Square South
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New York, N.Y. 10012 212-998-6580 si13@nyu.edu Christopher Robertson, MB#102646 6342 N Via Lomas de Paloma Tucson, AZ 85718 573-915-6492 christophertrobertson@gmail.com

CERTIFICATE OF SERVICE I, Edward D. Robertson, Jr., hereby certify that on October 29, 2012, I served copies of this Motion on the Office of the United States Attorney for the Northern District of Mississippi by way of the Electronic Court Filing (ECF) system. /s/ Edward D. Robertson, Jr.

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