government's response to petitioner's david zachery scruggs motion for depositions

8/7/2019 Government's Response to Petitioner's David Zachery Scruggs Motion for Depositions

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Zachary Scruggs knew that money had actually been delivered to Circuit Judge Henry La

connection with their scheme to corruptly influence him or, in the alternative, whether Da

Zachary Scruggs was, as a co-conspirator, responsible for the actions of his fellow co-

conspirators (including the actual delivery of $40,000 to Circuit Judge Lackey). The gov

has no objection to the aforesaid co-conspirators being issued writs or subpoenaed as witn

The safest and most efficient way to produce their testimony is to require their actual atten

before the Court. As regards the remaining witnesses, the petitioners proffers are at best

inaccurate and fanciful and they are only relevant to issues that are no longer before the C

They do not establish good cause.

As regards Circuit Judge Henry Lackey, the petitioners proffer doesnt come clos

establishing good cause. Whether or not there was ever any real dispute about whether Ju

Lackey should order arbitration is irrelevant to the issues sub judice. Whether or not Mr.

Balducci ever offered him a bribe is well established and beyond dispute. Who first

conceived of there being a bribe relates to the entrapment issue that was previously litiga

decided by the Court and not appealed. Whether or not Mr. Balducci ever implicated

petitioner in his conversations with Judge Lackey is irrelevant. Petitioners assertion tha

Lackey has knowledge of exculpatory discussions with federal authorities concerning the

petitioner is wildly speculative and untrue, with no basis in fact. Judge Lackey simply ha

knowledge one way or the other regarding what Zach Scruggs knew or didnt know.

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government misconduct (entrapment) is, again, res judicata. Whether Delaney pressured

Lackey to demand such a bribe is nothing but fanciful speculation; it is untrue and unfoun

Thus, Mr. Delaney has knowledge of exculpatory discussions concerning the petitioner .

again wild speculation; it has no basis in fact. The petitioner avers that Mr. Delaney . .

resolve the mystery of this missing evidence . . . ., a statement which appears to create a

controversy that in fact does not exist; there simply is no missing evidence. Petitioner

proffers are recklessly speculative and disingenuous, perhaps useful to his public relations

campaign, but for purposes of this motion, ineffective. In any event, Special Agent Delan

already testified under oath regarding these matters and will be present at the hearing on A

There is no good reason to depose him.

As regards Joseph C. Langston, the petitioners proffer is again disingenuous. Th

petitioner is already in possession of Joseph Langstons sworn affidavit, which is attached

The petitioner therefore knows that Joseph Langston will not testify that government coun

willfully misrepresented anything to the court. He will not testify that no one corrected

record, and he will not testify that he was threatened by the government to remain silent w

Court was misled. He will not testify that there were secret negotiations for a month prec

his plea. Petitioners proffer is inaccurate and inadequate, and he knows it. However, Mr

Langston is (with leave of Court) available to testify via writ of habeas corpus ad testifica

As regards Anthony Farese, the petitioner once again attempts to mislead the Cou



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6. It should be remembered that at all times during Faresesrepresentation of the petitioner, all parties, (petitioner, Langston,

and the government) represented to Farese that Scruggs I (theLackey case) involved Zach Scruggs but did not involve Langston.Scruggs II (the Wilson case) involved Langston but did not involveZach Scruggs. Therefore, there was no conflict of interest betweenLangston and Scruggs. Both Farese and the government maintainthat Joey Langston never incriminated Zach Scruggs in any illegalconduct in Scruggs II (the Wilson case).

The government would therefore respectfully submit that the petitioner, Zach Scru

well aware of Fareses position and does not need discovery to obtain or understand it. In

misrepresented what Mr. Farese would say. Petitioner has a complete copy of Anthony F

response together with all 35 exhibits including nine affidavits from Tom Dawson, Bob N

Dave Sanders, Vicki Slater, Ronald Michael, Joey Langston, Ken Coghlan, Shane Langst

Steve Farese, Sr. Because there is a pending bar complaint, the government is by a separa

pleading requesting permission to file with the Court a copy of Anthony L. Fareses entire

Answer, with attachments, under seal, so that the Court will have all of the information th

petitioner has. Suffice to say, the petitioner has already had full discovery regarding Mr.

Fareses position in this matter. Mr. Farese is also easily subject to the subpoena power o

Court. No deposition is required and the petitioners proffer is recklessly misleading. It d

establish good cause.Mr. Dawson has already provided an affidavit in support of Mr. Fareses response

bar complaint; the same has been served upon the petitioner previously, and it is attached



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purported witnesses against the petitioner and his co-defendants. In fact, as the petitione

knows, Mr. Dawson said in his sworn affidavit . . . we were assured by Mr. Farese and M

Langston that they knew of no conflict with Zach Scruggs and the prosecution team knew

such conflict. Between December 10, 2004, and January 4, 2008, there were no plea neg

with Mr. Langston or Mr. Farese. Undaunted, the petitioners allegations continue: Mr.

Dawson has also specifically written about the prejudice that these tactics caused to petiti

case, stating that they [sic], Mr. Langstons (false) testimony created an insurmountable

challenge to petitioner, one that blew a hole in his case. Mr. Dawson will further explai

the government knew all along that Mr. Langston would be adverse to the Scruggs defend

. . Mr. Langstons testimony created an insurmountable challenge to Dickie Scruggs, bu

petitioner. The petitioners allegation that Dawson would say the government knew all al

that Langston would be adverse is absolutely contrary to Tom Dawsons sworn affidavit.

cause is not supplied by proffers that are fanciful and outright disingenuous. Mr. Dawso

also local and easily within the subpoena power of the Court. No deposition is required.

Federal Magistrate Judge David Sanders and Assistant United States Attorney Ro

Norman are both local, and available to the Court and counsel opposite. Judge Sanders a1

Norman have already provided sworn affidavits which are attached hereto. Contrary to thpetitioners proffer, Judge Sanders does not describe efforts to co-opt petitioners counsel

secure Langston as a witness against the petitioner, nor would his testimony establish any



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reckless in that the petitioners own pleadings establish that, in fact, the government did c

any misunderstanding. In addition, then AUSA David Sanders, as part of the prosecutio2

and on behalf of the government, told the Court at the petitioners plea that we have no

knowledge that he has any information on other cases at this time, Your Honor. (Change

Plea Transcript, p. 14)

In conclusion, the petitioners Motion for Depositions is reckless, speculative, and

ineffective. It does not establish good cause for authorizing depositions. Furthermore, a

U.S.C. 2255 hearing is quasi-civil, quasi-criminal, and this Court clearly has the discre

authorize the issuance of writs and subpoenas for witnesses who reside outside a 100-mile

radius. 3

Finally, depositions would require teams of lawyers to travel to each witness, as o

to the witness simply traveling to the hearing. Depositions would require significant

expenditures of time and money and, furthermore, depositions facilitate the intentional ab

witnesses, subject to protests and objections that are simply reserved for the Court to deci

Page 3 of the petitioners renewed motion in limine to exclude 404(b) evidence f2

March 19, 2008, two days before the petitioners plea of guilty, states that . . . the govern

to date, has only indicated that Zach Scruggs was aware that Ed Peters was hired in the cabecause of his long-standing relationship with Judge DeLaughter. Additionally, the goverprovided counsel with a copy of an e-mail involving Zach Scruggs and Johnny Jones, whthey discuss the Wilson case . . . . Thus, two days before his plea, the petitioner was inpossession of the latest and best 404(b) notice the government could provide and it comwith Joey Langstons sworn affidavit. Any misunderstanding or misrepresentation had be



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later date. For all the reasons aforesaid, the government objects to the taking of depositio

Actual, factual innocence (not technical innocence) will be the only issue before t

that is not time-barred. Witnesses who might therefore be relevant include the petitioner

conspirators, Sid Backstrom, Richard Scruggs, Steven Patterson and Timothy Balducci. T

government respectfully suggests that the Court consider granting petitioner leave of Cou

issue writs and subpoenas to require their presence and facilitate their sworn testimony be

Court. The petitioners motion for depositions should otherwise be denied and overruled

Respectfully submitted,

JOHN MARSHALL ALEXAND

United States Attorney

/s/ Robert H. NormanBy:

ROBERT H. NORMANAssistant United States AttorneyMississippi Bar No. 3880



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CERTIFICATE OF SERVICE

I, ROBERT H. NORMAN, Assistant United States Attorney, hereby certify that I

electronically filed the foregoing Governments RESPONSE TO PETITIONER DAVID

ZACHARY SCRUGGS MOTION FOR DEPOSITIONS with the Clerk of the Co

the ECF system which sent notification of such filing to the following:

Honorable Edward D. Robertson, Jr.Bartimus Frickleton Robertson & Gorny, P.C.

[email protected]

Honorable William N. [email protected]

Honorable Michael C. Rader [email protected]

This the _ 11th _ day of March, 2011.

__ /s/ Robert H. Norman ______ROBERT H. NORMANAssistant United States Attorney

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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government's response to petitioner's david zachery scruggs motion for depositions

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