Dickie Scruggs Motion for Limited Discovery 111111

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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 Alternative Motion for Limited Discovery

Petitioner has filed a Motion for Judgment on the Pleadings. That Motion raises a

pure legal issue – whether the First Amendment protects non-financial political speech

from criminal sanctions. If the Court concludes that Petitioner’s legal argument resolves

the case, it must grant Petitioner’s § 2255 motion. If the Court decides otherwise, then

the Government’s opposition to the Motion for Judgment on the Pleadings indicates that

the First Amendment protections are conditional and ultimately factually driven. For the

Government, the First Amendment offers no protection for non-financial political speech

if there is some quid pro quo, however ambiguous or unstated that quid pro quo might be.

Somewhat like a moth trying to determine where to land on a clear night in Las

Vegas, the Government has not spoken with any consistency on what its allegations as to

the terms of any agreement between Petitioner and then-Judge DeLaughter were. Even

in its Response to Petitioner’s Motion for Judgment on the Pleadings, the Government’s

story changes within its 4 pages of argument. First, the so-called bribe is “in exchange

for corrupt rulings by the court.” Doc. 150 at 2. Four lines later the quid pro quo is an

“exchange for secret access to the Court.” Id. And then, it becomes for “corrupt

consideration in a matter before the court.” Id. Finally, the Government describes the

“lure of a federal judgeship to corrupt” Bobby DeLaughter, in return for which Petitioner,

in the Government’s imagination, received “secret access to the court, obtaining

Case: 3:09-cr-00002-GHD-SAA Doc #: 153 Filed: 11/11/11 1 of 12 PageID #: 1346

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favorable rulings on a number of preliminary matters, and finally obtaining a

quantification order from the court that was unsupported by the evidence in the case.” Id.

at 6.

Aside from the ambiguity on the quid side, the quo is just as vacuous. What was

actually promised to Judge DeLaugther? An inquiry from Petitioner to Senator lott? A

verbal endorsement from Petitioner? A phone call from Senator Lott? A nomination? A

presidential appointment? A senate confirmation? If one could figure out the terms of

the supposed deal, then one would be left asking who, in particular, made that deal, when,

where, and how? Suspending disbelief for the moment (that a person of Bobby

DeLaughter’s political sophistication would believe that the brother-in-law of a sitting

United States Senator could deliver a federal judgeship), it remains an undisputed fact

that Ed Peters – the only person who talked to Judge DeLaughter – insists that there was

no such agreement.

All these questions are left wide open by the Government, apparently hoping that

the Court will speculatively fill in the blanks. Although we do not know what deal is

being alleged, we at least know what is not alleged – a “paradigmatic” bribery (to use the

language of Skilling v. United States, 130 S. Ct. 2896, 2932-33 (2010)), a “financial

conflict of interest” (to use the language of the Government in Weyrauch), or dollars-for-

a-decision quid pro quo (to use the language of Citizens United). The Government

makes no claim that any money ever changed hands between anyone and Bobby

DeLaughter, or that there was any contemplation of such an exchange. In the absence of

any financial aspect, the Government’s claims may have been sufficient to state crimes

prior to Skilling. After Skilling, none of these claims states crimes. None is a


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paradigmatic bribe involving money or property and the Government cannot muster the

fortitude to admit as much.

But even if these claims did state a crime, and this Court erroneously1 concludes

that Petitioner must show his actual innocence under Bousley v. United States, 523 U.S.

614, 624 (1998), each of the Government’s claims depends on facts. The Government

concedes as much when it argues that a quid pro quo exists. Indeed, Petitioner’s § 2255

motion carries with it fact specific assertions – that the necessary post-Skilling quid pro

quo never existed at all in this case. And what has been revealed by the Government to

date shows that even the Government’s own evidence does not support its quid pro quo

argument.

Petitioner Richard Scruggs herewith requests that the Court permit very limited

discovery to permit the development of additional facts related to the issue of whether a

quid pro quo agreement existed between Judge Bobby DeLaughter and Petitioner and/or

Petitioner’s co-conspirators. This discovery is necessary because many of the critical

actors in this matter simply refuse to discuss the case with Petitioner’s counsel. None of

the requests made here are the product of speculation or serve the purpose of a

directionless fishing expedition. Petitioner’s counsel have conducted an investigation

and have spoken with a number of persons concerning the matters for which formal,

though limited discovery is sought. In several instances, the attorneys representing

several critical witnesses have informed counsel for Petitioner that the witness will not

1 Bousley suggests that when a person pleads guilty to an offense that is subsequently decriminalized, the Bousley requirement that Petitioner show his “actual innocence” before a § 2255 motion can be sustained is limited to crimes the Government abandoned that are “more serious” than the one to which he pleaded guilty. Any claim that a money/property/bribe the Government abandoned is more serious than the honest services bribe to which Petitioner pleaded guilty is incorrect as a matter of law. Thus, Petitioner is not required to show his actual innocence of money/property bribery in order to prevail on his 2255 motion.


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speak to them about the issues in this case unless compelled to do so. Were it otherwise,

Petitioner would be submitting affidavits consistent with the evidence outlined below in

support of summary judgment.

In the descriptions that follow, where the phrase “on information and belief” is found,

that phrase denotes statements made to Petitioner’s counsel by counsel for a witness. That

counsel has indicated what the witness knows or believes. The information sought is thus

grounded in the information revealed and, to the extent that counsel’s recollections are

accurate, accurately describes held by a client. Because formal discovery appears to be

the only way that Petitioner can obtain information critical and germane to Petitioner’s

motion, Petitioner requests that the Court permit the use of its subpoena power to compel

witnesses to provide factual information that will be validated by the oaths and penalties

of perjury that normally attend discovery. In particular, Petitioner believes that limited

discovery will permit development of the following facts that Petitioner and his counsel

believe are true, but cannot be confirmed in a way sufficient for the Court to consider as

such absent the exercise of this Court’s subpoena power.

As the Court is aware, the guilty plea in this case arises from litigation in

Mississippi state court styled Wilson v. Scruggs. The litigation involved claims by Mr.

William Roberts Wilson that Petitioner owed him attorneys’ fees for work in asbestos

matters. The case was assigned ultimately to Judge Bobby Delaughter.

The Government’s case against Petitioner centers on its theory that Judge

Delaughter agreed to do certain things, now delineated in Doc. 150, as consideration for

agreement between Petitioner/Petitioner’s agents and Judge DeLaughter. Petitioner will

address all three in turn and indicate the evidence that exists that Petitioner seeks.


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1. The Lure of the Federal Judgeship. This is the consideration to Judge

DeLaughter under the Government’s quid pro quo theory. First, it is beyond cavil that

Petitioner could not deliver a federal judgeship to Judge DeLaughter. All Petitioner

could do, at most, was offer a strong endorsement to one of Mississippi’s two federal

senators. Thus (taking the Government’s position in its most hopeful iteration), in order

for this consideration to have value, Judge DeLaughter must have believed that Petitioner

could provide him with a substantially increased opportunity to obtain the federal

judgeship. Moreover, if that were the “payment” to Judge DeLaughter, Judge

DeLaughter must also have known the political endorsement (a) would come only if he

(Judge DeLaughter) performed his end of the bargain and (b) that he could enhance his

chances for the federal judgeship by assisting Petitioner with favorable rulings.

The Court previously ruled tentatively that a federal judgeship is a thing of value

sufficient to support a quid pro quo under a pre-Skilling regime. Doc 67. Support for

that conclusion has not proven out, however, since all concerned say that Bobby

DeLaughter got no special consideration. BD really didn't get consideration in the sense

of special consideration, and was told so. Trent Lott has testified under oath that he did

not encourage Judge DeLaughter. Indeed, the-Senator Lott testified that he hoped to

convince the President to nominate a person “from the Coast,” a statement made to Judge

DeLaughter that certainly would have made clear that Petitioner had provided no help at

all to DeLaughter. Many of the rulings to which the Government would point were

made after March 29, 2006, the date of Lott’s call to DeLaughter. If Judge DeLaughter

knew that he was not going to be successful in his quest before he made rulings or

permitted or continued to permit “secret access” after he knew that Petitioner had not


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provided Judge DeLaughter with anything of value, DeLaughter’s acts could not be part

of a quid pro quo because there was no consideration flowing to DeLaughter by that time.

Chip Reynolds was formerly an aide to Senator Trent Lott. On information and

belief, Mr. Reynolds sought an audience with Judge Delaughter to discuss issues related

to Mr. Reynolds’ son. This occurred prior to Senator Lott’s call. During the

conversation between the two, Judge Delaughter brought up his interest in a federal

judgeship and asked Mr. Reynolds how the process of obtaining such an appointment by

the President worked. Mr. Reynolds advised Judge DeLaughter that it took two, that is,

both, Senators’ endorsement before a name would be sent to the President. Mr. Reynolds

suggested Judge Delaughter submit a letter of interest and resume to both Senators. Judge

Delaughter did so. If Judge DeLaughter knew that Trent Lott’s support was alone

insufficient to obtain the federal judgeship, that information is germane to the issue of

whether DeLaughter could have believed that Petitioner could give him anything more

than an endorsement, which alone, was insufficient even if Petitioner controlled Lott’s

actions.

Moreover, Petitioner’s opponent in Wilson v. Scruggs, Roberts Wilson or his

family, were close to Senator Thad Cochran. On information and belief, Mr. Wilson’s

children had all worked for Senator Cochran at one time or another, and, at the time of

the incidents under scrutiny, one of Mr. Wilson’s children was a current employee of

Senator Cochran. In addition, Mr. Wilson’s wife held a prominent position in the

Mississippi Republican Party and herself had close ties to Senator Cochran. Further, on

information and belief, Senator Cochran had been a guest at Mr. Wilson’s hunting

facilities on numerous occasions. If Judge DeLaughter knew that he risked offending Mr.


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Wilson by ruling for Petitioner in a manner not consistent with the law, it follows that

Judge DeLaughter would have found himself in a no-win situation. He could not have

advanced his interest in the federal judgeship if he (Judge DeLaughter) ruled for

Petitioner and if he (Judge DeLaughter) knew that such a ruling would ruin his chances

of obtaining Senator Cochran’s support.

Whether Judge DeLaughter knew these things as he made his rulings substantially

impacts the question whether he believed he would obtain anything of value from

Petitioner for his endorsement.

2. Secret Access: This is the consideration from Judge DeLaughter to Petitioner

in the Government’s imagined quid pro quo agreement. The Government’s unstated

premise of the value of the secret access was that Judge DeLaughter provided a map for

Peters to follow to achieve success in the case.

When Judge Delaughter took over the case, Mr. Wilson hired William Kirksey,

Judge Delaughter’s former law partner, as his counsel. On information and belief, Mr.

Kirksey initiated or participated in ex parte communications with Judge DeLaughter, that

is enjoyed secret access to Judge DeLaughter unknown to Petitioner. On information and

belief, in those conversations, Mr. Kirksey sought advice from Judge DeLaughter on

procedural steps to take in the case. Judge DeLaughter suggested the filing of a certain

motion. Specifically, Mr. Kirksey discussed matters related to the case with Judge

DeLaughter without the presence of or knowledge of counsel for Scruggs and Judge

DeLaughter suggested that Mr. Kirksey take certain actions for his client.

This information is germane to this motion and the Court’s decision on

Petitioner’s sec. 2255 motion precisely because the Government placed great weight on


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the fact that similar ex parte contacts occurred with Ed Peters and that Judge DeLaughter

invited Mr. Peters to file a particular motion. Indeed, the factual basis for Petitioner’s

plea stated as follows: “[T]he citizens of the State of Mississippi had a right to expect a

circuit judge to exercise his duties in a fair and impartial manner without affording

litigants on one side of the case secret access to the Court not enjoyed by the other.”

Plea Tr. at 27 (emphasis added). Here, on information and belief, the secret access was

enjoyed by both sides. While Peters’ access remained secret, it did not give Petitioner an

advantage not also enjoyed by the party opposite.

2. Corrupt Rulings and Orders

The Government has never identified a corrupt ruling or order. Indeed, the

Government stated in open Court before Judge Neal Biggers that Judge DeLaughter did

not violate the law in his rulings and that Petitioner would likely have won in Wilson v.

Scruggs even in the absence of unethical conduct and without the involvement of Ed

Peters.

[By Mr. Norman] There was no effort to get Bobby DeLaughter to break

the law. There was no effort to get Bobby DeLaughter to rule in violation

of the law. . . What they wanted Bobby DeLaughter to do was shade the

law at every opportunity, to ensure a victory they probably would have

anyway.

There is every reason to believe that the Scruggs Law Firm probably

would have prevailed in both these cases. The strange part about this is

that wasn’t good enough. They had to have an edge.

Your Honor, in the Wilson case, Mr. Langston and Mr. Balducci came

into the case with it became clear that Mr. Dunbar wasn’t being as

successful as Mr. Scruggs would like. And Bobby DeLaughter, sitting on

the bench, had a best friend in the world; he’d worked for as an assistant

DA, when he tried the cases that they’ve ,made movies about. That boss,

of course, was Ed Peters. And it was common knowledge that the two

were tight….


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No money went to Bobby Delaughter…..

U.S. v. Scruggs, No.3:07CR192-NBB (Tr. Feb. 21, 2007 hearing at 18-21).

The Government thus has conceded before a United States District Judge that all

Petitioner could have gotten was shading the law – not a ruling in violation of the law.

And even according to the Government, shading would have had no affect on the rulings

– as Petitioner would have won anyway. Peters and Langston both testified that Petitioner

could expect no more than DeLaughter’s faithful adherence to the law. On information

and belief, DeLaughter told Peters that while he appreciated any help he could get in the

federal judgeship quest, it would have no impact on his rulings in the case and that there

would be no consideration given Peters (or Petitioner) as a result of any help provided by

Petitioner with Senator Lott. The Government’s own actions in Judge DeLaughter’s case

are consistent with the conclusion that there was no agreement between DeLaughter and

Peters; the Government dropped its bribery claim against Delaughter, allowing him to

plead to the obstruction charge.2

Moreover, on information and belief, Judge DeLaughter would testify that when he

spoke with Mr. Kirksey, his former partner, it was like speaking to a brother. And Ed

Peters was, for Judge DeLaughter, like speaking to his father. Both sides had contact

with the Judge unknown to the other. The Judge had no incentive to shade his ruling one

way or the other as both sides were like family to him. The only arbiter in that situation

would be a faithful adherence to the law. And the Government has not indicated any

other course of action undertaken by then-Judge DeLaughter. On information and belief,

2 The Government required Judge DeLaughter to plead guilty to an obstruction charge based on DeLaughter’s statements to the FBI that he had contact with Peters, but did so only on a few occasions. DeLaughter told the truth (there was contact) but got the numbers wrong. Peters initially told the FBI that “he did not have any contact with the Judge in the case.” Peters, Dec. 11, 2007 FBI Form 302 at 2.


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DeLaughter believed that all of his rulings were consistent with his understanding of the

correct legal standard and were consistent with the rulings previously made by Judge

Hilburn, who was assigned Wilson v. Scruggs prior to Judge DeLaughter taking over the

case. Further, on information and belief, Joey Langston would similarly testify that none

of Judge DeLaughter’s rulings were inconsistent with either the evidence or the law.

Further, on information and belief, Mr. Langston believed that there was never a

discussion of a quid pro quo involving Judge DeLaughter, that such a discussion would

have been counterproductive.

Relief Requested

In the event that the Court does not sustain the Petitioner’s Motion for Judgment

on the Pleadings on the First Amendment issues, this Alternative Motion for Limited

Discovery will permit the Court to be fully apprised on the facts on the issues of the

existence of the supposed quid pro quo that lies at the heart of the Government’s claim.

The critical issue remains whether a paradigmatic bribe existed involving then-Judge

Bobby DeLaughter and Petitioner’s agents. The evidence Petitioner believes is germane

to that question furthers that provided by the Government in its previous filings with this

Court.

Given these circumstances, the Government’s theory and the information that

Petitioner believes is available through discovery, Petitioner respectfully requests that

limited discovery be permitted as follows: (1) Limited Requests for Admissions to the

Government to limit the scope of the inquiry. (2) Depositions of Ed Peters, Bobby

DeLaughter, Joey Langston, Steve Patterson and Timothy Balducci.3 The scope of these

3 Steve Patterson also participated in the hiring of Ed Peters. Tim Balducci was not part of that initial meeting. However, in its Response in Opposition to Petitioner’s Motion to Clarify Record (Doc 152),


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depositions would be limited to the existence of a quid pro quo agreement and, in

addition as to Bobby DeLaughter, the deposition would consider his ex parte contacts

with counsel representing William Roberts Wilson.

WHEREFORE, for the reasons stated, and to permit the Court the opportunity to

make a fully informed decision on matters of fact put at issue by the Government,

Petitioner respectfully requests the Court to permit limited discovery as described.

Respectfully submitted, this 11th day of November, 2011.

/s/Edward D. Robertson, Jr.

Edward D. Robertson, Jr. (pro hac vice)

Bartimus, Frickleton, Robertson &

Gorny, P.C.

715 Swifts Highway

Jefferson City, Missouri 65109

573-659-4454

573-659-4460 (fax)

[email protected]

Michael C. Rader, MB#100205

BARTIMUS FRICKLETON

ROBERTSON & GORNY

11150 Overbrook Road, Suite 200

Leawood, KS 66211

913-266-2300

[email protected]

Mike Moore, MB#3452

MIKE MOORE LAW FIRM, LLC

10 Canebrake Blvd., Suite 150

Flowood, MS 39232

601-933-0070

the Government states that Mr. Balducci, who never spoke directly with Judge DeLaughter, had hearsay evidence about Judge DeLaughter’s understanding of the supposed agreement. This contention by the Government makes Balducci’s testimony relevant to the Government’s claim that a quid pro quo existed.


mailto:[email protected]


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[email protected]

CERTIFICATE OF SERVICE

I, Edward D. Robertson, Jr., hereby certify that on November 11, 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.



Dickie Scruggs Motion for Limited Discovery 111111

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Transcript of Dickie Scruggs Motion for Limited Discovery 111111