dickie scruggs memorandum to support his attempt to overturn his guilty plea

8/4/2019 Dickie Scruggs Memorandum to support his attempt to overturn his guilty plea

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UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF MISSISSIPPI

UNITED STATES OF AMERICAv. NO.3:09CR002-GHDRICHARD F. SCRUGGS

PETITIONER'S REPLY MEMORANDUM

Edward D. Robertson (pro hac vice)Michael C. Rader, MB#100205BARTIMUS FRICKLETON ROBERTSON & GORNY11150 Overbrook Road, Suite 200Leawood, KS 66211913-266-2300Email: [email protected], Frickleton, Robertson & Gorny, P.C.715 Swifts HighwayJefferson City, Missouri 65109573-659-4454573-659-4460 (fax)[email protected]@bflawfirm.comMike Moore, MB#3452MIKE MOORE LAW FIRM, LLC10 Canebrake Blvd., Suite 150Flowood, MS [email protected]

Case: 3:09-cr-00002-GHD-SAA Doc #: 141 Filed: 09/20/11 1 of 25 PageID #: 1192


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TABLE OF CONTENTS

TABLE OF CONTENTS i i

TABLE OF AUTHORITIES iii

I. PETITIONER'S PETITION IS NOT PROCEDURALLY BARRED 5

II. THE MISSING PARADIGMATIC BRIBE The Defunct Charges in the Information andFactual Basis 6

A. Petitioner's Political Speech, which the Government Has Conceded is not HonestServices Fraud 7

III. THE GOVERNMENT'S NEW MONEY FRAUD THEORy 12

A. The Missing Money Fraud Charge in the Indictment 13

B. The New Money Fraud Charge Is Not "More Serious," the Predicate for Bousley 15

C. The Lack ofAny Evidence ofMoney Fraud 17

IV. CONCLUSION 19

CERTIFICATE OF SERVICE 21

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TABLE OF AUTHORITIES

Cases

Allen v. United States, 867 F.2d 969,972 (6th Cir.1989) 14Bousley v. Us., 523 U.S. 614 (1998) passimBrown v. Entertainment Merchants Ass'n, 131 S.Ct. 2729, 2738 (June 27,2011) 5Coffin v. US., 156 U. S. 432, 453 (1895) 18In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 131 S.Ct. 2806, 2825 (June

27, 2011) 5Johnson v. United States, 186 F.3d 876, 878 (8th Cir. 1999) 17Luster v. United States, 168 F.3d 913, 914-915 (6th Cir. 1999) 17McNally v. US., 483 U.S. 350 (1987) 14, 15Morrison v. People o/State o/California, 291 U.S. 82, 88-89 (1934) 18Peveler v. US., 269 F.3d 693, 700, 2001 Fed. App. 0372P (6th Cir. 2001) 17Reed v. Ross, 468 U.S. 1, 13 (1984) 5Sorich v. United States, 129 S. Ct. 1308, 1309-10 (2009) 10Stayton v. US., 766 F.Supp.2d 1260 n7 (M.D.Ala. 2011) 5Us. v. [David Zachary) Scruggs, Slip Copy, 2011 WL 1832769, *8 (N.D.Miss., 2011) 15US. v. Branch, 91 F.3d at 699, 752 (5 th Cir., 1996) 12Us. v. Brumley, 116 F.3d 728 (5 th Cir. 1997) 1Us. v. Ganim, 510 F.3d 134, 149 (2nd Cir. 2007) 2US. v. Lynch, 2011 WL 3862842,3 (E.D.Pa. 2011) 6, 13u.s. v. Marcello, 876 F.2d 1147 (5th Cir., 1989) 14, 15

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us. v. Skilling, _U .S . _ , 1 30 S.Ct. 2896 (2010) 1,6, 12, 15United States v. Arreola-Ramos, 204 F.3d 1115 (5th Cir. 1999) 16United States v. Benboe, 157 F.3d 1181, 1185 (9th Cir. 1998) 17United States v. Cotton, 535 U.S. 625 (2002) 15United States v. Dyer, 136 F.3d 417 (5th Cir. 1998) 14, 15United States v. Gaytan, 74 F.3d 545, 551 (5th Cir. 1996) 13United States v. Italiano, 837 F.2d 1480 (lIth Cir.1988) 14United States v. Jaramillo, 413 F. App'x. 979, 980 (9th Cir. 2011) 6United States v. Lloyd, 188 F.3d 184, 185 (3d Cir. 1999) 17United States v. McDonnell, SACV 10-1123 DOC, 2011 WL 2463194 (C.D. Cal. June 20, 2011)

..................................................................................................................................................... 5United States v. Meacham, 626 F.2d 503 (5th Cir.1980) 15United States v. Thor, 554 F.2d 759,762 (5thCir., 1977) 15United States v. Whitfield, 590 F.3d 325,353 (5th Cir. 2009) 11

Weyhrauch v. Us., 2009 WL 3495337, 45-6 11Williams v. US., 684 F.Supp.2d 807,825 (W.D.Tex., 2010) 15Other Authorities

ABA Informal Op. 189 (1938) 4ABA Informal Op. 841 (1965) 4

Fifth Circuit Pattern Instruction 1.01 18Regulations

18 U.S.C. s 3231 (1970) 15

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Petitioner respectfully offers this reply memorandum addressing the points raised in theGovernment's Response in Opposition ("Opp."). The issue before the Court is whether theevidence as presented and pled to by Petitioner constitutes a crime in light of u.s. v. Skilling, _U.S. --' 130 S.Ct. 2896 (2010). Unless the Court [mds that Petitioner's use of personal andpolitical influence, as stated in the Information and allocution, is traditional, or "paradigmaticbribery" Petitioner did not plead guilty to a cognizable crime. The issue is not, as theGovernment would make it, about the sufficiency of the evidence; rather it is about whetherSkilling de-criminalized the offense conduct underlying the single charge to which petitionerpled guilty.

That the conduct is no longer criminal is confirmed by the precise wording of theInformation and allocution, which were painstakingly negotiated over many weeks withGovernment counsel to avoid alleging bribery or its equivalent conduct. These negotiationsresulted in Petitioner pleading guilty to a charge sufficient to charge an honest-services offense

under the broad and now discredited u.s. v. Brumley, 116 F.3d 728 (5th

Cir. 1997) standard.Although Petitioner "pled guilty, under oath," to a now-defective charge, he did not (and wouldnot) plead guilty to bribery, as opposing Government counsel well knows, having been theGovernment's lead counsel during the negotiations.

Thus, bribery-essential allegations, like "quid pro quo," "agreement," "in exchange for,"and similar terms critical to a bribery allegation were intentionally - by agreement - omittedfrom the charge and allocution to which petitioner pled. Indeed, had the Government hadsufficient evidence of bribery, it was mandated to pursue such a charge, and not allow petitionerto plead to merely a generalized honest-services violation, which is no longer sufficient to state afederal offense after Skilling. Likewise, the case against Bobby Delaughter, wherein the

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government dismissed all of the briberylhonest-services charges, concluded as it did because theGovernment had no bribery case. "Bribery is not proved if the benefit is intended to be, andaccepted as simply an effort to buy favor or generalized goodwill from a public official whoeither has been, is, or may be . . . in a position to act favorably on the giver's interest." US. v.Ganim, 510 F3d 134, 149 (2nd Cir. 2007)(Sotomayor, J.)(cited approvingly in Skilling).Further, ifthe Government had no bribery case against Delaughter, then it follows as day thenight that it had no bribery case against Petitioner. If the quid is gone, so is the quo.

In order to avoid the result mandated by Skilling, the Government asks the Court to rewrite the Information to include not only terms intentionally omitted as a result of thenegotiation, but terms never even charged, like "money and property fraud." The Government 'sevidence filed with its response establishes beyond question--by its own immunized witnesses-that Petitioner's political "recommendation" ofBobby Delaughter was "not related in any way" tohis rulings, and moreover, that Senator Lott, in his much ballyhooed call to Delaughter, actuallydisabused him of his federal judgeship chances. Far from "dangling" ajudgeship, Senator Lott

deflated any aspirations Delaughter may have entertained. Senator Lott testified that the '' tenor' 'of the conversation was that Delaughter would not be getting special consideration, nor wasSenator Lott "even considering it." Lott Tr. at 21. The Government now calls all of this a"paradigmatic bribe." Yet neither Petitioner nor Delaughter could have concluded that there waseither a quid or a quo, since the Government's own evidence makes clear that neither got orexpected anything from the other. Indeed, Delaughter was surely dissuaded of any belief thatPetitioner was providing anything to him by Senator Lott's call.

Even if the Government had pleaded money/property fraud - which it did not - themoney/property fraud on which the Government now relies is not a "more serious charge"

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abandoned by the Government. Bousley v. u.s., 523 U.S. 614 (1998) thus rejects theGovernment's theory that Petitioner must show his actual innocence of money/property fraud toprevail. Bousley expressly limits Petitioner's burden of actual innocence to foregone, other"more serious charges." Id. at 624.

And then there are the factual problems with the Government's argument. Even if thisCourt were to require Petitioner to prove himself innocent of the never-charged, no more seriousmoney/property fraud, there is simply no evidence that Petitioner was in fact a party to anagreement to make such a quidpro quo exchange. The Government's key witness, Ed Peters,along with Petitioner and Delaughter, all deny that there was any such thing. Peters wasapproached by Langston to get assurances that the playing field would be l e v e ~ not to obtain anyruling or result from Deluaghter. Peters 12118/2007 FBI 302 Report 2. Trent Lott denied thathe gave Bobby Delaughter any hope of becoming a federal judge. Nor is a cla im that Petitionerintended to deprive Wilson of any money he was rightly owed helpful to the Government. TheGovernment conceded in open court that the underlying lawsuit would probably have been won

by Petitioner even in the absence of unethical conduct. This is because, as Peters and Langstontestified, Petitioner could expect no more than Delaughter's faithful adherence to the law. Andthe Government dropped its bribery claim against Delaughter, because there was no agreementofany kind.

Simply put, there is no credible evidence from anyone that there was a quidpro quobribe. The Government appears not to have considered that ex parte contacts were a part of thiscase on both sides,1 that other lawyers who frequently appeared before Judge Delaughter also

1 On infonnation and belief, William Kirksey had ex parte communication with Judge Delaughterconcerning orders and motions entered unbeknownst to Petitioner. Petitioner is willing to conduct limiteddiscovery to conflnn this fact if the Court deems it necessary to consider this factual issue.

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recommended that Senator Lott favorably consider Judge Delaughter/ and that Judge Delaughterknew that Senator Lott had given him nothing at all when he called him.

All of these facts and law aside, there is the First Amendment claim asserted byPetitioner. Recommending a person for consideration for a federal judicial appointment ispatently speech protected by the First Amendment. The American Bar Association encouragesjudicial endorsements by lawyers.

Lawyers are better able than laymen to appraise accurately the qualifications ofcandidates for judicial office. I t is proper that they should make that appraisalknown to the voters in a proper and dignified manner. A lawyer may withpropriety endorse a candidate for judicial office and seek like endorsement fromother lawyers.3

Moreover, Mississippi's rules for judicial officers specifically contemplate that an attorney maysupport a judicial officer's campaign for higher office, even when the attorney has a casepending before that judge, unless the lawyer is a "major donor," that is, a person who has givenmore than $1,000 to the campaign of any lower court judicial candidate. See, Miss. Code ofJudicial Conduct Canon 3(E)(2). These state codes provide the rule and the remedy for judicialmisconduct, and the Government's efforts to overlay a facially vague federal statute toselectively prosecute one person for recommending a candidate for public office offends the FirstAmendment, a principle the United States Supreme Court has forcefully reaffirmed in recent

2 On information and belief, lawyer John Corlew, among others, recommended Delaughter to SenatorLott.3 ABA Informal Op. 189 (1938). See also ABA Informal Op. 841 (1965) ("This Opinion makes clear

that individual lawyers may properly participate in the endorsement of candidates for office"); ABAInformalOp. 1329 ("Generally, lawyers are qualified, by personal observation or investigation, toevaluate the qualifications of persons seeking or being considered for such public offices, and for thisreason they have a special responsibility to aid in the selection of those who are qualified.. . Lawyersshould protest earnestly against the appointment or election of those who are unsuited for the bench andshould strive to have elected or appointed thereto only those who are willing to forego pursuits, whetherof a business, political or other nature, that may interfere with the free and fair consideration of questionspresented for adjudication").

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months.4 The Government appears to have no answer for this trenchant problem, unable tomount a single argument or authority addressing Petitioner's First Amendment claim.

I. PETITIONER'S PETITION IS NOT PROCEDURALLY BARREDEven if there had been a procedural default problem in this case, it is satisfied by the

good cause and prejudice standard. Given the settled law of the Fifth Circuit (and this Court'sholdings on related issues), it can be said that "'the state of the law at the time ... did not offer a'reasonable basis' upon which to challenge the [plea],' [which thus] constitutes 'cause for failingto raise the [Skilling] issue at that time.'" Reed v. Ross, 468 U.S. 1, 13 (1984).

In Stayton v. U.S., 766 F.Supp.2d 1260 n7 (M.D.Ala. 2011), the court held that Skillingwas such a "clear break with the pasf' that it excused counsel's failure to raise the issue onappeal (and the prejudice of pleading guilty to a noncrime is obvious, as here), and thus no"actual innocence" showing was required. Another district court has held likewise, writing that,"It is beyond doubt that there is good cause for Mr. McDonnell's failure to raise his challenge tothe Honest Services Fraud conviction and sentence in his direct appeal; there would have beenno basis for him to have done so based on the existing case law at the time of his trial andappeal." United States v. McDonnell, SACV 10-1123 DOC, 2011 WL 2463194 (C.D. Cal. June20,2011) (emphasis added). See also, United States v. Jaramillo, 413 F. App'x. 979,980 (9th

4 In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 131 S.Ct. 2806, 2825 (June 27,2011), the Supreme Court struck down a state statute that sought to regulate political speech in order to"level the playing field" between candidates for office. The Court reiterated that the "First Amendmenthas its fullest and most urgent application' to speech uttered during a campaign for political office." Id.,at 2817. The Court held that, "even if the ultimate objective of the matching funds provision is tocombat corruption [the Government's purported goal here] the burdens that the matching funds provisionimposes on protected political speech are not justified." Id., at 2826. See also Brown v. EntertainmentMerchants Ass'n, 131 S.Ct. 2729, 2738 (June 27, 2011) (striking down a content-based restriction onspeech, where state failed to show that it is "justified by a compelling government interest and is narrowlydrawn to serve that interest."). One can hardly say that the honest services fraud statute is "narrowlydrawn."

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Cir. 2011) (excusing appellant's failure to raise a Skilling argument because Skilling had not yetbeen decided). A finding of good cause and prejudice is the simplest and most direct way todispose of this case. In the alternative, as shown below, Petitioner's actual innocence showingalso satisfies procedural default.

ll. THE MISSING PARADIGMATIC BRIBE The Defunct Charges in theInformation and Factual Basis

The Government concedes that after Skilling it must now prove a "paradigmatic offenseofbribery" to support any honest services charge. Opp. at 2,4, 14, 16, 18. The Governmentfurther concedes that it must prove a quidpro quo, an actual agreement to exchange one thing foranother between Delaughter and Petitioner. ld., at 3, 4, 18.

The Government is simply wrong when it says that Petitioner "plead guilty, under oath,to a paradigmatic bribery." Opp., at 18. Nothing in the record supports such a charge. See D.E.13 (Information), D.E. 23 (Transcript ofPlea and Sentencing Hearing) (both failing to allege"bribe," "exchange," "agreement" and "quid pro quo"). Defendant would not, and did not, pleadguilty to bribery or its equivalent conduct, as counsel opposite, who negotiated the plea for theGovernment, knows.

Faced with similar efforts by the Government, district courts have refused to allow theGovernment to avoid Skilling by rewriting the history of a case. Just last week, a district courtgranted coram nobis relief in a post-Skilling honest services fraud case, writing that "defendantsare not required to demonstrate actual innocence ofhonest services fraud because theinformation charging them did not properly charge any valid theories of honest services fraud."us. v. Lynch, 2011 WL 3862842, 3 (E.D.Pa. 2011). Strikingly, that case was predicated on areal estate developer giving Lynch, a real estate tax assessor, an envelope with $20,000 in cash,

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"to thank him for his prior help" in lowering the developer's tax liability. Id. at 3. Then, threemonths later, Lynch again helped the developer by resolving a tax dispute with the city lawdepartment. Id. Like here, after Skilling, "the Government maintain[ed] that, in addition to thenow-void undisclosed-conflict-of-interest theory, the Information also charged a valid briberytheory." Id. at 4. Even though the Lynch indictment actually mentioned the word "bribe," thedistrict court still held that it did not allege the essential elements thereof- a quidpro quoexchange. The Information failed to "allege any intent on the part of either defendant withrespect to specific actions at the time of the improper payment" and "most notably, the factsections do not allege that Lynch took any action in expectation ofCampenella's payment or thatthe parties ever intended to exchange the monetary payment for government services." Id., at 6.Instead, the Court held that the primary thrust of the charges was a failure to disclose thepayment to the assessor, similar to the present charges of a failure to disclose Ed Peters' role.Here, unlike Lynch, there is no payment of any money to the judge. Indeed, compared to Lynch,the charge found in Petitioner's Information is much further from any allegation ofbribery, since

it does not even allege an exchange ofmoney or anything at all nor even use the word "bribe."The Government failed to charge a crime that survives Skilling.

A. Petitioner's Political Speech, which the Government Has Conceded is no tHonestServices FraudHowever, if the Court permits the Government creatively to reinterpret its 2008 charges

to pretend that a paradigmatic quidpro quo bribery allegation was lurking there all along butunstated, this Court will nonetheless find that the evidence fails to support that silent charge.After all, the Government concedes that not a penny ever went to Bobby DeLaughter, nor wasthere ever any promise, scheme, or intention to pay him a cent. See Opp., at 6 ("the million

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dollars paid to Peters does not constitute bribery of a circuit judge,,).5 According to theGovernment's own understanding of honest services fraud as applying only to "personalfinancial interests" that influence a decision, this admission would dispose of this case.6

The Government's new argument is that "the lure" of a political appointment to a"federal judgeship did in fact cause DeLaughter to rule favorably toward Scruggs," Opp., at 4, isnot a financial interest.

The Government concedes that "in fairness, Bobby DeLaughter would testify there wasno quidpro quo and he would say he did not allow himself to be corruptly influenced." Id at 3.Senator Lott commns that his interaction with DeLaughter was nothing like the bait that theGovernment now describes. First, Petitioner called Lott only to learn about the process by whichLott and Senator Cochran nominated federal judges and to mention Delaughter's interest. LottTr. at 14. That process required both Lott and Cochran's agreement before any person would benominated to a federal district judgeship. Id at 17. Lott told Delaughter he needed to know thatboth Senators were necessary before any name would be forwarded to the President. Id. at 17.

Lott also told Delaughter that he (Lott) wanted someone from the Coast. Id Delaughter wouldhave known that he did not qualify geographically for Lott's support. Lott gave no indication toDelaughter that Lott was even considering Delaughter for a judgeship. Id at 21. Further:

Q. ...The Clearing [sic] Ledger reported a statement by Timothy Balduccithat Delaughter obtained some influence from Trent Lott to be put on the

5 Indeed, Delaughter did not even know that Peters was being paid at all. Peters Tr., at 22 ("he didnot know about the money.")6 In their effort to save the honest service fraud statute from being struck down altogether, theGovernment represented to the United States Supreme Court that, "McNally thus sets forth the paradigmcase of honest-services fraud that Congress intended to prohibit in Section 1346 . . . [McNally] involved apersonal financial interest that might reasonably be thought to influence official decisionmaking." Brief

of the United States Government in U.S. v. Skilling, 2010 WL 302206, 39 (emphases added). Given thatthere is no personal financial interest at stake in this case, this simply is not a "paradigm case" ofbriberyor kickback, according to the Government's explicit representation to the United States Supreme Court.8



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list to be considered for a federal judgeship and that you called BobbyDeLaughter at Mr. Scruggs request rather than pay money, the bait wasthe judgeship. True or False?A. [by Lott] False. And I have no doubt that there is no credibility to that atall, certainly not on my part, and I don't believe on Judge DeLaughter'seither.

Id. at 24. And when asked whether ''there would have been no intent in your mind at all,whatsoever, to create any inference in Judge DeLaughter's mind that he was receiving anyfavorable consideration?" Senator Lott answered, "None at all, because he was not." Lott Tr.,at 30. Senator Lott "didn't suggest that [DeLaughter] was going to be given any consideration,you know at all or more than anybody else." Id., at 18. Senator Lott 's testimony makes it quite

clear that neither the federal judgeship, nor even special consideration therefore, was everoffered to Delaughter. There is no financial interest in being told by a United States Senator thathe was thinking about someone else for a judicial nomination.

The Government apparently thinks that the testimony ofEd Peters is so critical to its casethat it gave him complete immunity, even though he was the lynchpin for the entire scheme toinfluence DeLaughter. Peters testified multiple times that Langston and Patterson told him(Peters) quite explicitly that the judgeship "doesn't have anything to do with this [Wilson] case."Peters Tr., at 15-16. Thus, even if Lott's phone call had some value to DeLaughter (contrary toboth Lott's and DeLaughter's testimony), it was not offered in exchange for anything. Ofcourse,Petitioner -- the other party to this alleged agreement -- would testify that his ineffectual supportdid "not have anything to do with the Wilson case," just as Mr. Peters testified. Most important,Peters testified that Delaughter would "not go contrary to the law." Id. at 19. Peters breaks anyconnection between the alleged quid and the alleged quo, stating not only Peters'contemporaneous state ofmind, but also that of Langston and Patterson, who purported to

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represent Scruggs.7 Langston confirmed this. "Peters told us from the beginning and told usmany times thereafter Bobby Delaughter is going to do his own work, his own research. I can'tget him not to follow the law." Langston Tr. at 15. Delaughter knew that he was gettingnothing from Scruggs as a result of the Senator's call; Petitioner knew that he was gettingnothing more than what every lawyer had a right to expect, the judge's own work and hiscommitment to follow the law.

All that is left of the Government's argument is its hope that a political influence theoryqualifies as a bribe. Notably, the Government does not contest that DeLaughter's ambition to bea federal judge is a "political interest," given that the appointment of such officials isindisputably a political question. See Petitioner's Memorandum, D.E. 126 ("Pet. Mem.") at 2829 (citing sources).

The honest services statute does not allow the criminalization of "a staggeringly broadswath ofbehavior" that "headline-grabbing prosecutors" subjectively deem "unappealing orethically questionable," inviting "federal courts to develop a common-law crime ofunethical

conduct." Sarich v. United States, 129 S. Ct. 1308, 1309-10 (2009) (Scalia, J., dissenting fromdenial of certiorari). For this reason, the Government has already rejected this "politicalinfluence" theory as a basis for honest services fraud. 8 When the Supreme Court limited the

7 Likewise, Joey Langston testified that when he told Petitioner about Delaughter's interest in beinga federal judge, Petitioner "told [Langston] unequivocally that he would support Bobby Delaughter'sinterest in those judgeships." Langston Tr., at 26-27 (emphasis added). The support was unequivocal,rather than conditional upon receiving certain rulings in return, as in a quidpro quo. Moreover, Petitionerrepeatedly reminded Langston that he really had no real influence with Trent Lott, much less of course theconstitutional decision-maker, the President of the United States. See id., at 28. IfPetitioner had pushedLott to recommend Delaughter, it would "have had the reverse effect." /d., at 23. Senator Lott "wouldhave decided right then, no that's not the right one," given Lott's diametrically opposed politicalinclinations. Id., at 24. Senator Lott confirmed that there was never any intention of providing ajudgeship to DeLaughter. Id., at 19.8 In Weyhrauch, a companion case to Skilling in the Supreme Court, the Government explained that,

Honest-services fraud does not embrace allegations that purely political interests10



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statute as the Government requested, it relied explicitly upon and adopted the Government's term"paradigmatic." 9

Thus, the United States has explicitly renounced the theory the Government now asserts,ignoring Skilling. Now, however, the Government comes before this Court saying exactly theopposite. In doing so, the Government also fails to cite a single case - in this nation's entirehistory - in which someone was prosecuted for bribery for recommending someone to a publicoffice. In a nation of laws, even the United States Government is bound by its judicialomissions.

The Government cites United States v. Whitfield, 590 F.3d 325, 353 (5th Cir. 2009), andargues that "the United States Supreme Court in Skilling cited this portion of the Whitfielddecision as an example ofa valid honest services scheme." Opp., at 15. True enough - as far asthe argument goes. But Whitfield involved precisely the financial conflicts of interest (e.g., loanguarantees and cash payoffs) that are paradigmatic of a bribery scheme, unlike the politicalinterests in the present case. Moreover, the Government repeatedly describes the Whitfield case

as involving an "agreement" to exchange official decisions for that money, and the Governmentrecognizes that the Fifth Circuit requires proofof such an agreement, since it is the essence of aquidpro quo. See Opp., at 14, 15. Strikingly, however, the Government never even alleges thatan agreement existed between Delaughter and Petitioner or any ofhis agents. See Opp, at 1-20.By straying far from paradigmatic bribery -- to get into a case ofnon-financial, political

may have influenced a public official's performance of his duty. The coreinterests that give rise to the divided loyalties covered are personal financialinterests of the official, his family, or his associates that raise a conflict withofficial duties.

Brieffor the United States Government in Weyhrauch v. US., 2009 WL 3495337, 45-6.9 "Paradigmatic" means "[e]xemplary, typical . . . not unique but based upon old situations." Webster'sThird New International Dictionary (2002).

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influence where there was no allegation of a quidpro quo agreement and no benefit actuallyprovided anyway -- the Government's prosecution under the facially vague honest services fraudstatute has violated the standard of fair notice, which the United States Supreme Court redeemedin Skilling.

Likewise, the Government has chosen not even to respond to Petitioner's charge that, byusing a facially-vague statute to selectively prosecute him for his participation in core politicalspeech, the prosecutors have violated Petitioner's rights under the First Amendment. Thisfundamental problem was squarely raised in the Petition as a basis for this Court holding that itwould be unconstitutional to apply the honest services fraud statute to Petitioner, which Skillingcondemns as violating due process, to criminalize Petitioner's core political speech. See Pet. at26-32. Since the Government "did not contest" this point in its response, i t ''therefore effectivelyconceded it." Us. v. Branch, 91 F.3d at 699, 752 (5 th Cir., 1996). Given the gravity of this issue- a violation of the most fundamental of constitutional rights - the Court deserved a response.

ITI. THE GOVERNMENT'S NEW MONEY FRAUD THEORYThe Government also now asserts that the honest services fraud charges in the original

indictment and those in the superseding information were only camouflage for the real crime - ascheme to defraud Robert Wilson ofmoney. See Opp., at 16-17. The purpose of this argumentis to require Petitioner to shoulder the burden of his "actual innocence" of these new moneyfraud charges.

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A. The Missing Money Fraud Charge in the IndictmentFirst, the Government never charged money fraud, and such a charge was thus not

"foregone" by the superseding information. The Indictment just does not state a money/propertyfraud charge.10 The closest the Government can come is to quote this portion:

Petitioner ". . . devised and executed and intended to devise and execute a schemeand artifice to defraud the plaintiff in the Hinds County Circuit Court case ofWilson v. Scruggs, Cause No. 251-94-582, thereby depriving the plaintiff andthe citizens of the State of Mississippi of their intangible right to the honestservices of Circuit Judge Bobby DeLaughter, who as Circuit Court Judge had aduty to perform impartially, without affording either side an unfair advantage orsecret access to the court."Opp., at 9 (quoting the Indictment, emphasis added by Petitioner). It is notable that theIndictment specifies both Wilson ("the plaintiff") and the State of Mississippi as the victims offraud, and then directly states what they were deprived of - "their intangible right of the honestservices." There is absolutely no mention of a scheme to deprive Wilson of any money.

The Government also invokes the "factual basis [for the plea]: 'The Wilson legal teamnever knew about the involvement ofEd Peters, or the telephone call regarding the federaljudgeship." Opp., at 17. By its plain language, this allegation of a failure to disclos Peters' roledoes not include any allegation that Wilson was defrauded ofmoney; it is perfectly consistentwith the Government's explicitly-stated theory that Wilson and the State ofMississippi weredeprived of Judge Delaughter's honest services. See Lynch, 2011 WL 3862842, 3 (explainingthat such language reflects the pre-Skilling understanding of honest services fraud, predicated ona failure to disclose theory).

10 "The Sixth Amendment requires that an indictment (1) enumerate each prima facie element of thecharged offense; (2) fairly inform the defendant of the charges filed against him; and (3) provide thedefendant with a double jeopardy defense against future prosecutions." United States v. Gaytan, 74 F.3d545,551 (5th Cir. 1996). "The purpose of the indictment is to provide the defendant with notice of theoffense with which he is charged." !d. at 552. (emphasis added).13



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The Supreme Court and the Fifth Circuit have condemned the effort employed by theGovernment here. In McNally v. Us., 483 U.S. 350 (l987), the Supreme Court held that thewire and mail fraud statutes did not encompass honest services fraud.

In u.s. v. Marcello, 876 F.2d 1147 (5th Cir., 1989), the Government had previouslyindicted and won a conviction on a scheme to defraud the State ofLouisianaof the honestservices of certain contract agents to whom Marcello paid bribes. When McNally decimated thattheory, the Government got creative and tried to suggest that Marcello actually faced amoney/property fraud crime that was implicit in the indictment. The Fifth Circuit said:

In its effort to remove this case from the ambit of McNally and to sustain theconvictions, the government makes several arguments. First, the government citesarticle 3005 of the Louisiana Civil Code and contends that bribes paid to a stateagent are the property of the state and that monies paid to Roemer were propertybelonging to the state. While we admire counsel's ingenuity, we are notpersuaded. The agent's fiduciary duty to his principal was not the factual basis ortheory upon which the grand jury indicted, and it was not the basis upon whichthe defendants were tried. See United States v. Italiano, 837 F.2d 1480 (lIthCir.1988); Allen v. United States, 867 F.2d 969, 972 (6th Cir.1989) (''the issue isnot what [the defendant] might have been charged with when one examines hisconduct in retrospect and recharacterizes it in light of McNally, but what chargesactually were lodged against him, tried, and submitted to the jury").The government would have the court perform a nunc pro tunc revision of theindictment and charge so that the convictions would conform to McNally. This wedecline to do. A trial court may dismiss an indictment for failure to charge anoffense, or refuse to allow an indictment to go to the jury for insufficientevidence, but the court may not retrospectively redraft an indictment to supporta conviction on facts or theories upon which the defendant was not charged, tried,and convicted.

876 F.2d at 1152 (emphasis added). Marcello controls here.In United States v. Dyer, 136 F.3d 417 (5th Cir. 1998), the Government charged honest

services fraud in the information and also explicitly alleged a scheme to defraud a developer outof identifiable property and a specified amount ofmoney, $25,000 in particular. The FifthCircuit upheld the conviction after McNally, holding that, "The information contained specific

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allegations of both money and property loss." 136 F.3d at 424 (emphasis added). Such aspecific allegation is altogether missing from Petitioner's case. 11

After McNally and Marcello, the United States Government was on quite clear notice ofthe need to specifically charge a loss ofmoney/property if that was their theory, and Dyerdemonstrated precisely how they should do so. The Government's attempt to creatively rewritethe Indictment in this case has been foreclosed.

B. The New Money Fraud Charge Is Not "More Serious, " the Predicate for BousleySecond, Petitioner is actually innocent of the honest services violation to which he pled

guilty as a result ofSkilling.12 Thus, with regard to money fraud, an actual innocence showingis not required because Bousley limits the necessity of that showing to charges that are "more

11 Likewise, the Government now relies on the Skilling case on remand to argue that, "ordinary mailfraud survives" the Supreme Court 's Skilling decision. 0pp.,5 (citing U.S. v. Skilling, 638 F.3d 480 (5thCir. 2011)). Skilling did not involve "ordinary mail fraud", but instead the Court explained: "TheGovernment asserts that the invalid honest-services instruction was harmless with respect to theconspiracy conviction. Specifically, it argues that the evidence presented at trial proved that Skillingparticipated in a scheme to deceive the investing public about Enron's financial condition in order tomaintain or increase Enron's stock price. If so, then we would be able to conclude beyond a reasonabledoubt that absent the honest-services instruction, the jury would have convicted Skilling under a validtheory of guilt-conspiracy to commit securities fraud. The Government's harmless-error argument isconsistent with the indictment, which focused primarily on securities fraud and did not emphasize any actof honest-services fraud that is not also an act of securities fraud." 638 F.3d at 483. Unlike the presentcase, the Skilling indictment charged and indeed emphasized an altogether different crime, other thanhonest services fraud.

12 Alternatively, this Court never had jurisdiction to accept such a plea, which is thus a legal nullityand does not function as any sort of admission, waiver, or procedural default. All this Court need do isset aside its illegal conviction that it never had jurisdiction to enter. See 18 U.S.C. s 3231 (1970) (limitingthe jurisdiction of federal courts to federal crimes); United States v. Meacham, 626 F.2d 503 (5thCir.1980) (granting such relief, where the offense conduct was no longer criminal); United States v. Thor,554 F.2d 759, 762 (5th Cir., 1977) (same); Williams v. U.S., 684 F.Supp.2d 807, 825 (W.D.Tex., 2010)("Nothing has changed in the law or upset the rationale of Meacham from the time the Fifth Circuitrendered its decision therein."); U.S. v. Peter, 310 F.3d 709,714 (11th Cir., 2002) (analyzing Meachamand holding that it is good law in a similar case where a statute's scope was narrowed retroactively). Butsee U.S. v. [David Zachary) Scruggs, Slip Copy, 2011 WL 1832769, *8 (N.D.Miss., 2011) (rejecting thisanalysis, and arguing that Meacham had been overruled by the Supreme Court deciding another issue inUnited States v. Cotton, 535 U.S. 625 (2002), where there was no dispute about whether the trial courthad jurisdiction).

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serious" than the honest services mail fraud charge to which Petitioner pled. The Government'sbrief at fIrst quotes the correct standard: ". . . in cases where the government has foregone moreserious charges in the course ofplea bargaining, petitioner's showing of actual innocence mustalso extend to those charges." Opp., at 12 (quoting Bousley v. Us., 523 U.S. 614, 624 (1998)(emphasis added by Petitioner). Apparently recognizing the problem with the Supreme Court'sexplicit mandate, the Government then rewrites it - without any explanation or authority simply replacing the words it does not like: "Only if the petitioner can convince the court that heis actually innocent of all charges is he entitled to have his defaulted claim considered on itsmerits." Id., at 12 (emphasis added). Bousley controls this issue.

In Bousley, the United States Supreme Court was quite clear in its mandate for how trialcourts should assess procedural default, and this Court need only follow that mandate. The FifthCircuit has discussed this point at some length in an unpublished table decision, explaining thatto assess whether a charge is more serious, one looks a t whether the other charge would impose alonger period of imprisonment:

Bousley points out that a petitioner claiming factual innocence must be preparedto establish, in addition to his innocence of the fIrearms charge, that he did notcommit any more serious crimes whose prosecution was forgone by thegovernment in exchange for the plea agreement. ... The factual resumedemonstrates that on one occasion he was involved in a transaction to sell morethan eight ounces of cocaine. . . . [A]s the district court noted [however], Arreolawas defInitely exposed to more lengthy terms of imprisonment on the cocainecharges than on the charges to which he eventually pled guilty; .... For thesereasons, Arreola cannot succeed in challenging his fIrearm conviction, and thejudgment of the district court is AFFIRMED.United States v. Arreola-Ramos, 204 F.3d 1115 (5th Cir. 1999)(table)(emphasis added).Presumably, the Government would prefer to rewrite that case too, and dozens of others

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throughout the Courts of Appeal.13The new wire fraud charge would have the same statutory minimum as the honest

services fraud. It is not a "more serious charge." Thus, this Court need not decide whether isPetitioner is "actually innocent" of the new charge. See Peveler v. US., 269 F.3d 693, 700, 2001Fed. App. 0372P (6th Cir. 2001) (considering seriousness of two dismissed offenses based onstatutory mandatory minimum sentences). The "actual innocence" question is simply whetherPetitioner is actually innocent of the honest services fraud, and lacking a paradigmatic bribery(as shown in Part I above), Skilling decides that issue.

C The Lack o fAny Evidence ofMoney FraudThird, even if money/property fraud had been charged in the indictment and even if such

a charge were more serious than the honest services fraud charge, the facts fail to support such acharge. Petitioner did not plead guilty to a money/property fraud crime and the Government hasprovided no evidence that would persuade a reasonable jury to convict on the beyond areasonable doubt standard.14

13 See e.g., Johnson v. United States, 186 F.3d 876, 878 (8th Cir. 1999) ("If the district courtconcludes the dismissed 924(c) count is a more serious charge, then Johnson must show he is actuallyinnocent of that charge."); United States v. Lloyd, 188 F.3d 184, 185 (3d Cir. 1999)( "because we alsofind that Lloyd was not required to demonstrate actual innocence of a foregone, less serious charge, wewill reverse the decision of the District Court and remand for further proceedings."); United States v.Benboe, 157 F.3d 1181, 1185 (9th Cir. 1998) ("if the court finds that no more serious charges weredismissed, the court should consider on the merits whether his plea was unintelligent."); Luster v. UnitedStates, 168 F.3d 913, 914-915 (6th Cir. 1999)( "In return [for his plea of guilty], the government agreed todismiss all remaining counts, including the more serious drug counts. [The showing of actual innocence]must also extend to the more serious crimes in the indictment forgone by the government.")14 The Government also tries to move the goalposts by invoking a standard that applies in the context,where a petitioner has been convicted by a jury but instead seeks to have his conviction set aside based onnew evidence. Opp., at 12 (Petitioner "must prove that 'i t is more likely than not that no reasonable jurorwould have convicted him in light of the new evidence. In doing so the petitioner does not have thebenefit of a presumption of innocence and is, in fact, presumed guilty.") (citing Bosley v. Cain, 409 F.3d

657,664 (5th Cir. 2005) (emphasis added). Here, Petitioner has never admitted or been convicted ofmoney/property fraud, does not seek to set aside that conviction, and he does not assert that the discovery17



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In fact, the Government's evidence shows the opposite. It is beyond dispute thatPetitioner's motive for involving Ed Peters was to prevent Robert Wilson from exploiting hisown extra-judicial influence upon Judge Delaughter. Ed Peters testified that the motive forinvolving him was:

A. ...that there was a lawyer by the name ofKirksey that was on the other side [ofthe Wilson case] than Scruggs and that [Scruggs] wanted to make sure that home cooking is a word that lawyers use, undue influence. Wanted to make surethat Kirksey on the other side didn't create home cooking for the other side.Q.... [Scruggs] was afraid that Mr. Kirksey might get special considemtion [fromJudge Delaughter]?A. That 's correct.

Peters Tr., at 4-5. Likewise see, Peters 12/18/2007 FBI 302 Report, p2 (same)(Exhibit 1). Seealso Langston Tr., at 46-47 (explaining that at the time he and Peters believed that "what wewere doing was simply trying to influence [Judge Delaughter] to do just that and follow the law;"and that Peters "constantly reminded" him of this intention).

It is thus undisputed that Scruggs's motivation was not to defraud Wilson of any moneyor property; it was simply to neutralize the ''undue influence" that Wilson appeared to beapplying on the other side, so that Judge Delaughter would follow the law. Indeed, as previously

of new evidence is the basis for overturning his conviction. Instead, the law has changed and Petitionerneed not present any "new evidence" at all. The Government 's convenient "presumption of guilt" ofcharges that have never been admitted or proven finds no basis in Bous[ey, and would be unconstitutionalin these circumstances. Coffin v. U.S., 156 U. S. 432, 453 (1895) ("The principle that there is apresumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and itsenforcement lies at the foundation of the administration of our criminal law."); Morrison v. People ofState ofCalifornia, 291 U.S. 82, 88-89 (1934) ("the burden of proofmay be lifted from the state incriminal prosecutions and cast on a defendant [only if the state] shall have proved enough to make it justfor the defendant to be required to repel what has been proved"). Finally, the Government 's"presumption of guilt" theory is incoherent with the stated task ofdetermining, "what reasonable,properly instructed jurors would do." Bosley, 409 at 662. A properly instructed juror would of courserequire proof beyond a reasonable doubt, since that is what "marks the legal boundary between guilt andinnocence," id., and reasonable juror would presume the defendant's innocence until such proof is made,see Fifth Circuit Pattern Instruction 1.01.

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mentioned, on infonnation and belief, counsel for Wilson did have ex parte conversations withDelaughter - that were as unknown to Petitioner as Peters' talks with Delaughter were to Wilson.

This undisputed motivation to level the playing field is presumably why the Governmentcharged honest services fraud in the first place, dropped bribery charges against Delaughter andit is surely why it explicitly renounced the money fraud theory in open court.

Wilson sued Scruggs over attorneys' fees stemming from asbestos litigation, andMr. Scruggs was concerned about getting a, quote, unquote, fair trial, as one ofthe attorneys representing Wilson was a fonner law partner of the circuit judgeassigned to the case.Plea Tr., at 25 (emphasis added). The Government discussed this point at some length in ahearing before Judge Neal Biggers earlier that year:

There was no effort to get Bobby DeLaughter to break the law. There was noeffort to get Bobby DeLaughter to rule in violation of the law. . . There is everyreason to believe that the Scruggs Law Finn probably would have prevailed inboth these cases [Wilson and another].Feb. 21, 2008 Tr., at 18,21. Thus, the Government has already admitted that Petitioner lackedany intent to defraud Wilson of any money, since Petitioner did not intend to cause "DeLaugtherto rule in violation of the law." Rather, the Government admits that Petitioner's motive was toget precisely what the law required, even if that required special efforts to counterbalance anyinfluence that Wilson was exercising upon DeLaughter on the other side. According to theGovernment, the final result would be a "fair trial."

IV. CONCLUSIONThe Government has failed to even allege an agreement to make an exchange, the

essential element of a bribery, and moreover has failed to show that this case was "paradigmatic"bribery, rather than merely one ofnon-fmancial political influence. The Government has utterlyfailed to address the serious Constitutional problems with using a facially vague statute to

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criminalize a cit izen's endorsement of a candidate for a political office. The Government'snewfound money fraud charge fails for many reasons - it need not be considered here, wherePetitioner had cause and prejudice for not raising the Skilling issue before; it was not charged inthe indictment; it cannot be proven; and [mally, it is excluded by the plain language ofBousley.

The Government 's own concessions - that the honest services fraud law does not apply tocases ofnon-financial political influence like this one, and that Petitioner had no intent todefraud Wilson ofmoney - doom the Government's case. The Government has left this Courtwith no option but to grant the Petition.

Respectfully submitted, this 16th of September, 2011./s/Edward D. Robertson, Jr.Edward D. Robertson (pro hac vice)Michael C. Rader, MB#100205BARTIMUS FRICKLETON ROBERTSON & GORNY11150 Overbrook Road, Suite 200Leawood, KS 66211913-266-2300Email: [email protected], Frickleton, Robertson & Gorny, P.C.715 Swifts HighwayJefferson City, Missouri 65109573-659-4454573-659-4460 (fax)[email protected]@bflawfirm.comMike Moore, MB#3452MIKE MOORE LAW FIRM, LLC10 Canebrake Blvd., Suite 150Flowood, MS [email protected]

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CERTIFICATE OF SERVICEI, Edward D. Robertson, Jr., hereby certify that on September 16,2011, I served copies of

this document on the Office of the United States Attorney for the Northern District ofMississippi by way of first-class mail, postage prepaid because the document was filed with amotion to seal.

sf Edward D. Robertson, Jr.

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dickie scruggs memorandum to support his attempt to overturn his guilty plea

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