UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI UNITED STATES OF AMERICA v.

DAVID ZACHARY SCRUGGS CRIMINAL CASE NO. 3:07CR192-b-a

PETITIONER’S MOTION FOR SUMMARY JUDGMENT

Petitioner moves for summary judgment on all of the claims raised by his Petition, or partial summary judgment on any of those claims. “The basic mission of the summary judgment procedure is to allow the court to pierce the pleadings and assess the proof … serv[ing] a valuable function in winnowing the grain from the chaff,” so the Court can be sure that “litigation concerns itself with real issues.” Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir., 1965) (quoting other sources). This is a unique case, given that the Government has itself tacitly admitted that Petitioner had no involvement in bribery, and former prosecutors themselves admit that the Government misled the Court in a way that materially affected the Petitioner’s case. There is no real dispute about these issues; no real dispute that the Petitioner is actually innocent and that his constitutional rights to due process were violated.

I.

LEGAL STANDARD

The Federal Courts routinely use the Rule 56 summary judgment procedure in the context of post-conviction proceedings under Sections 2254, 2255, and coram nobis (as here). See e.g., Busby v. Dretke, 359 F.3d 708 (5th Cir., 2004) (affirming district court’s grant of summary judgment in a Section 2254 case); U.S. v. Flores, 135 F.3d 1000, 1002 (5th Cir., 1998) (affirming 1

district court’s grant of summary judgment in a Section 2255 case, where the trial court found “contentions to be ‘entirely conjectural and unsupported by anything in the record.’); Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir., 1996) (affirming district court’s grant of summary judgment in a coram nobis case, quoting Fed. R. Civ. Proc. 56). The Fifth Circuit has recently reiterated the standard for summary judgment as follows: A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ An issue as to a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” [The Court should] consider all evidence “in the light most favorable to the party resisting the motion.” Seacor Holdings, Inc. v. Commonwealth Ins. Co., --- F.3d ----, 2000 WL 35832322, *3 (5th Cir., 2011) (quoting Fed.R.Civ.Proc. 56(a), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, (1986), quoting Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986), and quoting Trevino v. Celanese Corp., 701 F.2d 397, 407 (5th Cir.1983)). A party may prevail on summary

judgment, even if he bears the ultimate burden of proof. See e.g., Resolution Trust Corp. v. Starkey, 41 F.3d 1018, 1023-24 (5th Cir., 1995) (affirming summary judgment for plaintiff); Tuft v. Texas , Slip Copy, 2011 WL 72198, *1 (5th Cir., 2011)(defendant prevailed on summary judgment on affirmative defense); Lane v. Doe , Slip Copy, 2010 WL 4272680 (5 th Cir., 2010)(same). If the Government opposes the Motion by alleging that the material facts are genuinely disputed, then it must support the assertion by: citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.

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Fed. R. Civ. Proc. 56(c)(1).

In making this showing the Government cannot rely upon

inadmissible evidence such as hearsay, conclusory allegations, or expert opinions that lack a scientific foundation. Id., at (c)(1)(B), (c)(2). Hayter v. City of Mt. Vernon, 154 F.3d 269, 274 (5th Cir.1998) (holding that “affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary

judgment[,]” and that “[w]ithout more than credentials and a subjective opinion, an expert's testimony that ‘it is so’ is not admissible.” (quoting Orthopedic & Sports Injury Clinic v. Wang Lab., Inc., 922 F.2d 220, 225 (5th Cir.1991). And, simply gesturing towards a future hearing will not suffice. In the case of Pelotto v. L & N Towing Co., the Fifth Circuit explained: Partial summary judgment was appropriate because instead of responding by affidavits ‘made on personal knowledge,’ F.R.Civ.P. 56(e), Pelotto merely asserted that the inadequacies … would be shown upon trial. Pelotto's response was clearly a procedural defect under Rule 56(e), which requires the submission of controverting affidavits. Since Pelotto had the burden of proving inadequacy, his failure to submit controverting affidavits or other factual proof entitled the District Judge to enter summary judgment against him. Allegations that one ‘might could’ show certain facts at trial are simply insufficient under Rule 56(e). 604 F.2d 396, 403 (5th Cir., 1979) (emphasis added).

II.

STATEMENT OF FACTS THAT ARE NOT GENUINELY DISPUTED

There is no genuine dispute as to the following material facts. Several of these facts are asserted in the alternative.

1. Conspiracy 1.1. When Petitioner met on March 15, 2007 with Tim Balducci, Steve Patterson, Richard Scruggs, and Sid Backstrom, they did not make any agreement to commit a crime. 3

Evidence: Government Admission, Petition Exh. “B” 2/20/2008 Hearing at 16:20 (Robert Norman: “We want to be the first to say, there was no mention of money at the March 15th meeting of the Scruggs Law Firm when these three defendants were present with Tim Balducci and Steve Patterson. These defendants wanted to corruptly influence the judge for free. … Your Honor, at that first meeting [with Judge Lackey] Mr. Balducci attempted to influence the Judge and said, I’d consider it a personal favor if you would enter an order in favor of the Scruggs Law Firm. Illegal by itself? No. Unethical? The kind of unethical conduct that would get a lawyer disbarred. But not illegal by itself.”)(emphasis added). 1 Materiality: The fact that there was no agreement to commit a crime means that there was no conspiracy at that point in time. “Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act.” Iannelli v. United States, 420 U.S. 770, 777 (1975); “The unlawful agreement contemplated precisely what was done. It was formed for the purpose.” Pinkerton v. U.S., 328 U.S. 640, 647 (1946); “[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).

1.2. Prior to the Indictment, Petitioner had no knowledge that Judge Lackey demanded a payment of money for doing his job or that Balducci agreed to pay him. Evidence: Petition Exh. “X”, Hearing Tr. 3/21/2008 at 15 (Under oath, Petitioner expressly asserted that he lacked any knowledge of bribery, and on this point the prosecutors stated no disagreement.) ; Petition Exh. “A,” Sentencing Hearing Tr., 7/2/08 at 8:23-24 (the Court merely
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See also Petition Exh. “L”, Richard Scruggs Plea Hearing Tr., 3/14/08 at 15:16-16:4 (no initial intent to bribe); Petition Exh. “M”, Patterson Plea Hearing Tr. 1/15/08 at 9 (same). Petition Exh. “K”, Testim ony of M r. Balducci at 17:5-6, 37:24-25; 58:5-13; 54:10-13 (“H e w asn’t “there to bribe him.”); See Petition Exh. “N”, Lafayette County Circuit Court Hearing Tr. at 61-63 (Judge Lackey confirms that Balducci did not mention anything about money during that initial visit).

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speculating that Backstrom must have told Petitioner, implicitly acknowledging that there was no evidence in support thereof). Materiality: Petitioner could not join a bribery conspiracy that he did not know existed. U.S. v. Delgado, 631 F.3d 685, 695 (5th Cir., 2011) (requiring that the government prove, at the very least, that the defendant knew about the criminal purpose of the agreement). Defendant never performed any affirmative act to express a deliberate, knowing, and specific intent to join any alleged conspiracy to bribe Judge Henry Lackey. Evidence: . See multiple government concessions that “all the facts and circumstances of the defendant’s involvement,” amount to misprision of earwigging (now clearly a non-crime), which merited only a probated sentence. Petition Exh. “X”, Hearing Tr. 3/21/2008 at 8 (Mr. Sanders). Petitioner Exh. “A”, Hearing Tr. at 5 (Mr. Dawson). The Government’s own policies prohibited them from dismissing the bribery charges, if they could have proven that the Petitioner had a role in bribery. See Petition, D.E. 303 at 18-19 (quoting DOJ policies). Materiality: The Government (and the Court) has emphasized that the Petitioner must have known about the Government’s bribery scheme. Even if that were true, “it is axiomatic that more is required than mere knowledge of the purpose of a conspiracy.” Delgado, 631 F.3d at 695. “Willful participation is an essential element of the crime of conspiracy; mere knowledge of a conspiracy does not itself make a person a conspirator.” United States v. Maloof, 205 F.3d 819, 830 (5th Cir., 2000). “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

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Cir., 1983). 2 It is notable that the any purported agreement between Petitioner and Balducci does not suffice. “It is axiomatic that a conspiracy conviction may not rest on an ‘agreement’ with a government informer. ‘[A]s it takes two to conspire, there can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy.’” Delgado, 631 F.3d at 694 (quoting Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1965)). 3

2. Federal Programs Bribery 2.1. Presiding over the Jones case, Judge Henry Lackey had no connection with any business, transaction, or series of transactions of any entity that received over $10,000 of federal funds. Evidence: See Whitfield v. U.S ., 590 F.3d 325, 347(5th Cir., 2009) (finding this fact in another case involving a civil dispute in Mississippi state court, which is in all material respects identical to the case at bar). Materiality: This is an essential element of the Government’s Section 666 charges. Id.

3.

Honest Services Fraud Bribery 3.1. Even if Petitioner had learned about a payment of money to Judge Lackey, he would have assumed that it was intended as a gratuity, not a bribe.

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See also United States v. Tenorio, 360 F.3d 491, 495 (5th Cir., 2004) (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.”); Fifth Cir. Pattern Jury Instr. 2.20 (same); U.S. v. Velgar-Vivero , 8 F.3d 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.”)
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If the Government could show that Petitioner joined a conspiracy, they w ould then have to prove that some mem ber of that conspiracy (not merely a government informer) took an action in furtherance thereof; a mere agreem ent does not suffice. See 18 U.S.C.A. § 371 (applying only “if … one or more of such persons do any act to effect the object of the conspiracy”); Cacace v. U.S., 590 F.2d 1339, 1340 n1 (5th Cir., 1979) (stating this rule).

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Evidence:

Dean, Witter, Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (The Federal

Arbitration Act “leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration …”); Barrett v. Jones , 27 So.2d 363, 376 (Miss. 2009) (ordering arbitration in this very case); Petition Exh. “J”, 5/09/07 Recording Tr. at 26 (Judge Lackey on tape responding to Balducci asking if he thought the matter “ought to be arbitrated”: “It does. It does. It looks, it looks uh, uh, uh, like that’s what they agreed to do.”); Petition Exh. “V”, PSR at ¶26 (showing that Judge Lackey had already provided a signed order compelling arbitration prior to the November 1 tape); Petition Exh. “N”, Lafayette Co. Ct. Hearing Tx., at 76-80 (Balducci never offered the Judge any money in exchange for official action); Petition Exh. “K”, Balducci Testimony at 72:12-73:25 (in his demand for money, Judge Lackey appealed to his personal friendship with Balducci and a desperate need to pay off some debts); Exh. “P”, 9/18/07 Recording Tr. at 7 (same). Materiality: After Skilling v. U.S, honest services fraud must be predicated on bribery or kickback. 130 S.Ct. 2896 (2010). Not every improper payment of money to an official is a bribe; some are gratuities. For bribery there must be a specific, subjective intent to use the money to “influence” the official action. Id.; 18 USC §201(b). Even a statement that “we’re payin’ for it” does not suffice to show such an intent to, because “payments to a public official for acts that would have been performed in any event … are probably illegal gratuities rather than bribes.” U.S. v. Campbell , 684 F.2d 141, 148 (D.C. Cir., 1982) (emphasis added). Distinguishing gratuities from bribes, the Supreme Court has said, “An illegal gratuity … may constitute merely a reward for some future act that the public official will take (and may already have determined to take)[.]” U.S. v. Sun-Diamond Growers of California, 526 U.S. 398, 405 (1999). Likewise, in United States v. Brumley, the Fifth Circuit held that, “Stated directly, the

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official must act or fail to act contrary to the requirements of his job under state law. This means that if the official does all that is required under state law, alleging that the services were not otherwise done ‘honestly’ does not charge a violation of the mail fraud statute. … Thus, the mere violation of a gratuity statute… will not suffice.” 116 F.3d 728, 734 (5 Cir, 1997). Given that Judge Lackey had no discretion to deny arbitration, it is even clearer that the “influence” requirement of bribery is unmet here. U.S. v. Marmolejo, 89 F.3d 1185, 1195 n.14 (5th Cir., 1996) (holding that payments to jailers for conjugal visits were bribes precisely because jailors had “discretion” to refuse to allow the visits, based on jail policies). Likewise, the Fifth Circuit has held that it is not bribery for the Government to pay a witness to testify, as long as the payment does not change the substance of the testimony. U.S. v Partin, 552 F2d 621, 642 (5th Cir., 1977), cert den 434 US 903. Here, the payment did not change the substance of Judge Lackey’s judicial performance.
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4. Government Misrepresentation 4.1. On February 21, 2008, the Government falsely represented to Petitioner and the Court that: “The testimony at trial from Mr. Langston would … implicate Zach Scruggs. Joey Langston is prepared to testify that Zach Scruggs was fully aware of what was going on in the Wilson case.” Evidence: Petition Exh. “B”, Hearing Tr., 2/21/2008 at 21:15:20 (emphasis added). As to the falsity of the representation, see Petition Exh. “F”, Langston Affidavit, 4/27/10 at 5 (denying that representation); Petition Exh. “D”, Sanders Affidavit, 4/22/10 at 3 (also denying that representation).

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Materiality: “Misrepresentation or other impermissible conduct by state agents” can make vulnerable “a voluntary plea of guilty,” and thereby impinge due process. Brady v. U.S., 397 U.S. 742, 757 (1970). “A situation in which a defendant is induced by deception, an unfulfillable promise, or misrepresentation to enter a plea of guilty does not meet the standard for voluntariness articulated by the Supreme Court. Such renders a plea involuntary.” U.S. v. Amaya, 111 F.3d 386, 389 (5th Cir., 1997). To put it another way, “the Government ought not be allowed to lure the defendant into a plea on false information.” U.S. v. Battle , 447 F.2d 950, 951 (5th Cir., 1971). “Of course, the federal courts have power to investigate whether a judgment was obtained by fraud and make whatever modification is necessary, at any time.” U.S. v. Smith, 331 U.S. 469, 476 n. 4 (1947).

4.2. The Government knew that the representation was false, at the time when the Court and the Petitioner was relying upon it. Evidence: Petition Exh. “F”, Langston Affidavit, 4/27/10 at 5 (saying that “all” of his “statements regarding Zach were exculpatory”); Petition Exh. “D”, Sanders Affidavit, 4/22/10 at 3 (saying that Langston “always maintained that Zach was uninvolved in the Wilson matter”). Materiality: The knowledge of any one prosecutor suffices. “It is well settled that if a member of the prosecution team has knowledge of Brady material, such knowledge is imputed to the prosecutors.” Avila v. Quarterman, 560 F.3d 299. 308 (5th Cir., 2009); Giglio v. U.S., 405 U.S. 150, 154 (1972)(“The prosecutor's office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. [The Government must] insure communication of all relevant information on each

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case to every lawyer who deals with it.”)

4.3. The Government’s representation was prejudicial to Petitioner. Evidence: The Court entered three Orders materially adverse to Petitioner based on and even citing Mr. Langston’s purported testimony against Petitioner. 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, over Petitioner’s objection). The Government itself admitted in a filing with Judge Mike Mills’ Court 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, D.E. 11 at 5.4 Materiality: To receive relief under coram nobis or Section 2255, Petitioner must show prejudice. U.S. v. Shaid, 937 F.2d 228, 232 (5th Cir., 1991) (en banc).

4.4. The Government concealed the falsehood until May 2010. Evidence: The Government never corrected its statement to the Court that Mr. Langston would implicate Petitioner in the Wilson/DeLaughter case. Petition Exh. “B”, Hearing Tr., 2/21/2008 at 21:15:20 (emphasis added). As to the falsity of the representation, see Petition Exh. “F”, Langston Affidavit, 4/27/10 at 5 (denying that representation); Petition Exh. “D”, Sanders Affidavit, 4/22/10 at 3 (also denying that veracity of that representation).

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See also Petition Exh. “C”, King of Torts book at 161, 219 (Mr. Dawson said that M r.Langston’s proposed testimony “compel[ed]” guilty pleas and was a “suffocating force” that “blew a hole” in the defense.).

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Materiality: To receive relief under coram nobis or Section 2255, Petitioner must show cause for failing to raise this ground prior to pleading guilty. Shaid, 937 F.2d at 232.

5. Misprison 5.1. Defendant never took an affirmative step to conceal any federal crime. Evidence: Information, D.E. 188 (disclosing no such act); Factual Basis, D.E. 189 (same). Materiality: “The elements of misprision of a felony include… an affirmative step to conceal the felony.” U.S. v. Walkes, Slip Copy, 2011 WL 396485 (5th Cir., 2011))(citing United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992)). “The mere failure to report a felony is not sufficient to constitute a violation” of the misprision statute. U.S. v. Johnson, 546 F.2d 1225, 1227 (5th Cir. 1977). This affirmative act must be “a separate act not necessary to the original conspiracy, but [] an affirmative act of concealment of that conspiracy.” U.S. v. Davila, 698 F.2d 715, 720 (5th Cir., 1983).

6. Entrapment and Outrageous Government Conduct 6.1. The Government created the bribery scheme and induced Timothy Balducci, and then the other Defendants, into the scheme. Evidence: See Fact 1.1 supra (showing that the original agreement was non-criminal). Thereafter, Judge Lackey, working as a government agent, refused to enter the routine order compelling arbitration for seven months, during which Balducci contemplated no bribe. Petition Exh. “K”, Balducci Testimony, at 63:10-17. Judge Lackey recused himself in frustration, thereby eliminating any chance that the Defendants would bribe him. The Government’s insisted that Judge Lackey un-recuse himself, not with any intent of actually adjudicating the case

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according to the law, but only for the purpose of entrapping the defendants. See Petition Exh. “N” at 72-74 (Judge Lackey testifying that he was motivated by his thought Dick Scruggs was a “monster” who had “probably destroyed” lives); id ., at 75 (the Government “encouraged” him to get back into case because they wanted to indict Dick Scruggs). See also Petition Exh. “K,” Testimony of FBI Agent Delaney at 120:18-22 (explaining Lackey’s non-judicial reason for reinserting himself in the case). Many months passed, and Judge Lackey gave Balducci many more opportunities to display a corrupt intent. See id., at 141:14-142:7 (taking Balducci out to lunch); 143:10-148:5 (calling him repeatedly); Petition Exh. “N”, Lackey Testimony at 76-80 (same). But after six months of pursuit, Balducci never took the bait. Agent Delaney and Judge Lackey then exploited Lackey’s personal relationship with Balducci. Id. ; Petition Exh. “K”, Balducci Testimony at 73:19-22. Mr. Balducci still had no intention to commit a crime. Id., at 79:12-18. The Government “encouraged” Judge Lackey to asked Balducci on September 18, 2007 “if I help them [the Scruggs firm], would they help me?” Petition Exh. “P”, 9/18/07 Recording Tr. at 5; Petition Exh. “N”, Lackey Testimony at 80. The Judge’s brazen comment surprised Balducci. Petition Exh. “K”, at 70:7-71:2. Recognizing that such an audacious request would not suffice, Judge Lackey then began “pouring his heart out to” his good friend Balducci with a story about how he was desperate for money and asking Balducci to help him out of the jam. Id., at 72:12-73:25. To further induce Balducci, Judge Lackey even insinuated that he would rule in favor of the opposing party if Balducci did not come up with the money, claiming that Jones’s attorney “Grady [Tollison] is putting some pressure ... on me to get this thing done.” Id., at 6. Through all this, Judge Lackey admits that Balducci never offered him any money for resolving the case favorably to SKG. See Petition Exh. “N,” at 76-80.

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Materiality: A defendant is allowed to raise entrapment as an alternative defense, even while denying knowledge and participation in the substantive crime. See U.S. v. Garrett, 716 F.2d 257, 271 (5th Cir., 1983) (“…to the extent that the jury may find culpability on his part, he was entrapped…”) (quoting and following United States v. Greenfield , 554 F.2d 179, 182 (5th Cir., 1977)). Government inducement is the first element of entrapment. U.S. v. Theagene , 565 F.3d 911, 918 (5th Cir., 2009) (stating that this and the other element both go to “the ultimate issue of whether criminal intent originated with the government” as opposed to the defendant.”).

7. Coram Nobis 7.1. Petitioner is continuing to suffer civil disabilities as a consequence of his conviction.

Materiality: The sufferance of civil disabilities is an element for relief under coram nobis. U.S. v. Marcello, 876 F.2d 1147 (5th Cir. 1989)

III.

CONCLUSION Summary judgment provides a litmus test. Through this procedure, the Court and the

parties can efficiently and deliberatively determine which issues are genuinely disputed, and which are founded on nothing more than rhetoric. The Petitioner has made a substantial showing on each of these issues. This Motion provides an opportunity for the Government to do the same. When the dust settles, and the law and facts are seen more clearly, the Petition should be granted. 13

/s/Edward D. Robertson, Jr. Edward D. Robertson, Jr. (pro hac vice) Michael C. Rader, MB#10020 BARTIMUS FRICKLETON ROBERTSON & GORNY 11150 Overbrook Road, Suite 200 Leawood, KS 66211 913-266-2300 Email: mrader@bflawfirm.com 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 David Lee Martin, MB#9982 MIKE MOORE LAW FIRM, LLC 10 Canebrake Blvd., Suite 150 Flowood, MS 39232 601-933-0070 lm@mikemoorelawfirm.com mm@mikemoorelawfirm.com Christopher T. Robertson, MB#102646 ATTORNEY AT LAW 6342 N Via Lomas de Paloma Tucson, AZ 85718 christophertrobertson@gmail.com

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CERTIFICATE OF SERVICE I, Edward D. Robertson, hereby certify that on April 22, 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.

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