former judge bobby delaughter's response to dickie scruggs/mike moore

1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI

UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) No. 09 CR 002 v. ) Judge Glen H. Davidson ) RICHARD F. “DICKIE” SCRUGGS, ) ) Defendant. )

BOBBY B. DELAUGHTER’S REPLY TO PETITIONER’S RESPONSE IN OPPOSITION TO HIS EMERGENCY MOTION TO QUASH SUBPOENA

Co-Defendant, BOBBY B. DELAUGHTER, by and through his attorneys, THOMAS

ANTHONY DURKIN and LAWRENCE L. LITTLE, in reply to Petitioner’s pleading

captioned: “Petitioner’s Response in Opposition to Bobby DeLaughter’s Emergency Motion to

Quash Subpoena,” filed on March 24, 2012, states as follows:

Petitioner Scruggs opposes DeLaughter’s request to quash the subpoena on three

grounds. The first is so lacking in credibility that it borders on the disingenuous; and the latter

two are inherently self-contradicting and meritless. All should be rejected.

First, counsel for Scruggs claim that because DeLaughter’s counsel “waited two full

weeks” to file this motion that Scruggs is somehow prejudiced by what they describe as “this

late-in-the day refusal to appear.” How exactly Scruggs is prejudiced his counsel fail to state,

which may well be explained by the simple reason that they have known since the day after

counsel received the subpoena, March 14, 2012,1 that DeLaughter did not wish to appear only to

exercise his Fifth Amendment privilege. Nor can Scruggs claim any surprise that this would be

1 While Petitioner’s response claims the subpoena was “sent” on March 9, 2012, counsel cleverly avoid mentioning that the subpoena was not received by undersigned counsel until March 14, 2012, as is evidenced by the received stamp bearing the same date on Exhibit A of DeLaughter’s Emergency Motion to Quash.

Case: 3:09-cr-00002-GHD-SAA Doc #: 190 Filed: 03/25/12 1 of 5 PageID #: 1822

2

DeLaughter’s position. Email correspondence with between undersigned counsel, Durkin, and

Scruggs’ counsel, Moore and Robertson, confirms that Scruggs was put on notice that

DeLaughter would assert his Fifth Amendment privilege as early as February 17, 2012.

Further, as counsel for Scruggs also well know, since March 15, 2012, the day after

undersigned counsel received the subpoena, there were several emails and telephone

conversations between counsel regarding the issue of whether DeLaughter should be required to

appear in Oxford only to assert the privilege. In fact, as late as March 20, 2012, Attorney Moore

informed Durkin that he would be travelling to Oxford the next day to discuss, among other

things, such a stipulation with AUSA Bob Norman. Having not heard back from Moore, Durkin

telephoned AUSA Norman on March 22, 2012, and learned that no such discussions had taken

place between him and Moore. Mr. Norman did say, however, that the government was willing

to enter into such a stipulation. In response to a phone call that afternoon to Moore regarding the

stipulation, Durkin received an email at 4:17 pm from Moore saying that Scruggs would not so

stipulate. More to the point of Scruggs’ purported “prejudice,” Moore told Durkin in this email:

“If you need to file your motion I would say go ahead.” A copy of said email, attached as Exhibit

A, is also made part hereof. The motion to quash was then filed the very next day.

Scruggs can claim no prejudice, because no prejudice can be said to exist. Scruggs’

counsel have known for many months that DeLaughter intended, consistent with the advice of

his counsel, to exercise his Fifth Amendment privilege if called to testify in this matter. They

have also known for months that DeLaughter had a good faith basis for asserting the Fifth

Amendment in these proceedings, as is evident from their motion in limine filed on March 7,

2012. Scruggs’ counsel also know full well, as does counsel for the government, that


3

DeLaughter has never “refused” to appear, nor does his motion even suggest otherwise. All

DeLaughter asks is that he not be required to appear unless, and until, the Court rules that he will

be granted immunity and that his testimony will be relevant to the hearing. Should the Court rule

that DeLaughter must appear, and that the conditions of his supervised release can be expanded

to permit travel to Oxford, DeLaughter will appear as ordered.

Each of the other two issues raised by Scruggs—the self-contradicting positions that the

Court should compel immunity for DeLaughter under U.S. v. Chagra, 669 F. 2d 241 (5th Cir.

1982) or that DeLaughter has not shown a good faith basis to assert the privilege in light of the

Statute of Limitations—can be readily dismissed. And, curiously insofar as timeliness is

concerned, in its March 7, 2012, pleading seeking immunity or an adverse inference against the

government, Scruggs’ counsel never suggested as they did in their Response that the Statute of

Limitations has already run. This should not escape the Court’s attention, anymore than the

rather obvious fact that Scruggs’ counsel must also be unfamiliar with the very charges they are

attacking in this § 2255 proceeding.

Count One of this indictment charges Scruggs and DeLaughter in a conspiracy alleged to

have existed “from on our about July 2005 until on or about October, 2007.” (Indictment, Docket

#3, ¶ 6, emphasis added.). Further, one of the overt acts of that count alleges that “from on or

about October, 2006, until on or about October, 2007, Joseph C. Langston wired approximately

$950,000 from his law office…to Ed Peters for his role in corruptly influencing Circuit Judge

BOBBY B. DELAUGHTER.” (Id., ¶ 9i., emphasis added.) These same dates are incorporated in

Counts Two through Four, alleging mail fraud. Further, Count Five to which DeLaughter

pleaded guilty alleges an interview that took place with the FBI on December 10, 2007.


4

Needless to say, therefore, from the very face of this indictment the five-year statute of

limitations has yet to run. This, unto itself, demonstrates beyond any doubt that DeLaughter has

a good faith basis to follow his counsel’s advice and assert his Fifth Amendment privilege.

As to the issue of court-ordered immunity, as stated in DeLaughter’s initial motion to

quash, undersigned counsel do not wish to take a side in that argument. Should the Court see fit

to determine that this case presents the “extraordinary circumstances” referred to in Chagra,

supra, Bobby DeLaughter will appear and testify truthfully—assuming either the Court or the

government provides the immunity to which the Fifth Amendment affords him and the Court

authorizes DeLaughter to so travel. Otherwise, and most respectfully, he should not be forced to

be publicly humiliated and personally inconvenienced to leave his new job and travel to Oxford,

only to assert a lawful constitutional privilege.

Respectfully submitted,

s/ Thomas Anthony Durkin

THOMAS ANTHONY DURKIN

s/ Lawrence L. Little LAWRENCE L. KITTLE, Attorneys for the Defendant Bobby B. DeLaughter.

DURKIN & ROBERTS 2446 North Clark Street Chicago, IL 60614 (312) 913-9300 LAWRENCE L. LITTLE & ASSOCIATES, PA 829 North Lamar Boulevard, Suite 6 Oxford, Mississippi 38655 (662) 236-9396


5

CERTIFICATE OF SERVICE

I hereby certify that the foregoing BOBBY B. DELAUGHTER’S REPLY TO PETITIONER’S RESPONSE IN OPPOSITION TO HIS EMERGENCY MOTION TO QUASH SUBPOENA was served on March 25, 2012, in accordance with Fed.R.Crim.P.49, Fed.R.Civ.P.5, LR 5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district court’s system as to ECF filers. /s/ Thomas Anthony Durkin THOMAS ANTHONY DURKIN 2446 North Clark Street Chicago, IL 60614 (312) 913-9300


EXHIBIT A

Case: 3:09-cr-00002-GHD-SAA Doc #: 190-1 Filed: 03/25/12 1 of 2 PageID #: 1827

1

Thomas A. Durkin

From: Mike Moore [[email protected]]Sent: Thursday, March 22, 2012 4:17 PMTo: Thomas A. DurkinCc: 'Chip Robertson'

Just left you a message, I have been busy with witnesses and a long meeting at the capitol today. The Govt has taken the position in their response filed yesterday that the law does not support the granting of immunity or of us compelling Delaughters testimony. We disagree obviously and want his truthful testimony in this motion. The Govt also doesn’t understand why he would need immunity if all he is going to do is tell the truth, makes sense in a way but I understand they may not like the truth they hear and consider it aggregiously. Your response to the court at Bobby delaughters plea is pretty telling as to the facts as is the information Scruggs plead to, no one was willing to plea guilty to or subscribe to the governments theory of this so called bribery that never happened. If you need to file your motion I would say go ahead, I don’t think we can stipulate he would take the 5th and that’s all when we know his truthful testimony would aid the court in understanding there was no agreement, no offer, no favorable ruling in return and obviously then no crime. I am around if you want to talk, 601 9330070. cell 6019546461 Mike Moore Mike Moore Law Firm, LLC P. O. Box 321048 Flowood, MS 39232 Phone: 601.933.0070 Fax: 601.933.0071 The preceding email message (including any attachments) contains information that may be confidential, be protected by the attorney-client or other appplicable privileges, or constitute non-public information. It is intended to be conveyed only to the designated recipient(s). If you are not an intended recipient of this message, please notify the sender by replying to this message and then delete it from your system. Use, dissemination, distribution, or reproduction of this message by unintended recipients is not authorized and may be unlawful.

Case: 3:09-cr-00002-GHD-SAA Doc #: 190-1 Filed: 03/25/12 2 of 2 PageID #: 1828

former judge bobby delaughter's response to dickie scruggs/mike moore

Documents