USA V David Zachery Scruggs: Motion To Allow Discovery

Case 3:07-cr-00192-NBB-SAA Document 316 Filed 02/14/11 Page 1 of 5
UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI
UNITED STATES OF AMERICA
v. CRIMINAL CASE NO. 3:07CR192-b-a
DAVID ZACHARY SCRUGGS
MOTION TO ALLOW DISCOVERY
In preparation for the hearing called by this Honorable Court, Defendant David Zachary
Scruggs moves for the Court’s permission to undertake limited discovery from the Government,
as explicitly allowed by Rule 6 of the Rules Governing Section 2255 Proceedings for The United
States District Courts. Although the Government seems to have conceded that the charge to
which Defendant pled guilty (misprision of earwigging) is now a legal nullity, the Government
seems to assert that Defendant is guilty of some or all of the bribery charges that the Government
previously dismissed. However, under Department of Justice Guidelines, the Government was
required to
pursue the most serious, readily provable offense or offenses that are
supported by the facts of the case … Once filed, the most serious readily
provable charges may not be dismissed…. Any sentencing recommendation
made by the United States in a particular case must honestly reflect the totality
and seriousness of the defendant’s conduct and must be fully consistent with
the Guidelines and applicable statutes and with the readily provable facts about
the defendant’s history and conduct. …Likewise, federal prosecutors may not
“fact bargain,” or be party to any plea agreement that results in the sentencing
court having less than a full understanding of all readily provable facts relevant to
sentencing.
Policy Memo. of the Attorney General, 9/22/2003 (emphasis added).1 Indeed, the Government
assured the Court in March, 2008 that “all the facts and circumstances” of this case amounted to
merely misprision of earwigging. See Motion, D.E. 303 at 19 (quoting the prosecutors).
1
Available at http://www.justice.gov/opa/pr/2003/September/03 ag 516.htm.
1
As explained in Petitioner’s moving papers, based on the constitutional presumption of
innocence and basic tenets of due process, the Government should bear the burden of proving
such charges, which it procured from the grand jury based on admittedly false testimony, which
the Petitioner has never conceded guilt towards, and which the Government has voluntarily
dismissed as unsupportable by the evidence.2 If the Government wants to resurrect those
repudiated charges three years later, it should at the very least make a prima facie case in support
thereof.
Still, in Bousley v. U.S., 523 U.S. 614, 621 (1998), the Supreme Court seems to impose
the burden on the Petitioner to prove his innocence of every charge, even those the government
repudiated for lack of evidence. See Motion, D.E. 303 at 12. On this doctrine, Petitioner is
apparently required to prove that the Government’s secret agents never told him about their plan
to pay money to each other, that Defendant did not say anything to join the government’s
conspiracy, that he did not do anything in furtherance thereof, that he did not have a corrupt
intent to influence Judge Henry Lackey, that Judge Lackey was not acting as an agent of a
recipient of Federal funds, that nobody used interstate wires in furtherance of the government’s
conspiracy, et cetera. The Fifth Circuit has described “the difficult and anomalous position of
trying to prove a negative.” Matter of Oesterle, 651 F.2d 401, 403 (5th Cir., 1981); See also
Elkins v. U.S., 364 U.S. 206, 220 (1960) ( “as a practical matter it is never easy to prove a
negative...”); Senu-Oke v. Jackson State University, 283 Fed.Appx. 236 (5th Cir., 2008)(holding
that defendants had no duty to “prove a negative” in a civil case); Flores v. School Board of
2
See Motion, D.E. 303 at 13 (citing Coffin v. U.S., 156 U.S. 432, 453 (1895) and Taylor v. Kentucky, 436
U.S. 478 (1978)). See also id., at 15-18 (reviewing the Government’s representations to this Court that
the charge of misprision of earwigging reflected all the facts and circumstances of the case).
2
DeSoto Parish, 116 Fed.Appx. 504 (5th Cir., 2004) (similar). Defendant maintains his objection
to this unconstitutional procedure.
Nonetheless, even if the process seems to be excerpted from a novel by Franz Kafka,
Defendant can and will meet this burden. Given that the American system of criminal justice
otherwise presumes innocence, its procedures are understandably not designed to rationally or
fairly facilitate such a process of proving negatives. Accordingly, the Rules for Section 2255
Proceedings explicitly allow that, “The Federal Rules of Civil Procedure, to the extent that they
are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding
under these rules.” Rule 12 (emphasis added).3 As the Fifth Circuit said last year, “this Court
has already concluded that § 2255 proceedings (which involve challenging a federal criminal
conviction) are civil cases” and thus use civil procedures. White v. Thaler, 610 F.3d 890, 897
(5th Cir., 2010). More specifically, Rule 6 provides that, “A judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of Civil Procedure.”4 As an
example of the use of such a procedure, in the recent habeas case of Hodges v. Epps, Chief Judge
Michael Mills allowed the petitioner to conduct discovery, including compelling disclosure of
the prosecutors’ records to explore the prosecutor’s introduction of false testimony in the state
trial court. Case No. 1:07CV66-MPM, Docket Entry 42, Feb. 11, 2010.
To provide a modicum of rationality and fairness to this procedure of proving negatives,
Defendant merely asks for the opportunity to put the Government on the record as to precisely
what it does and does not contest, and what evidence exists to support any points that they do
3
These Rules are available at www.uscourts.gov/uscourts/RulesAndPolicies/rules/2254_2255_Rules.pdf.
4
Rule 6 goes on to provide that, the Judge “may limit the extent of discovery, “ and that “A party
requesting discovery must provide reasons for the request. The request must also include any proposed
interrogatories and requests for admission, and must specify any requested documents.”
3
contest. Where the record is admittedly bare, the Defendant can then point to the absence as
proof of a negative. Otherwise, the Defendant will be forced to waste hour after hour of hearing
time, asking witness after witness questions like, “did you ever hear Zachary Scruggs say
anything to indicate that he joined the government’s conspiracy?” and “did you ever use the
wires to send a message interstate, in furtherance of the government’s conspiracy?” Witnesses
will have to be brought from thousands of miles away, merely to testify to their lack of any such
knowledge implicating Defendant. Even then, just as they did in their slippery Reply brief, the
Government will spin and re-spin their rhetoric, without ever grappling with the record.
Instead of such a wasteful and disorganized procedure, limited discovery will allow the
parties to narrow the issues in dispute, to organize their cases efficiently, and thereby to
minimize the amount of time needed for hearings before this Court. Indeed, if the Government is
candid in their admissions, it will foreclose the need for a hearing altogether.
The specific discovery requested is attached in Exhibit A. Defendant requests that the
Government be given no more than 30 days to respond. See Fed. R. Civ. Proc. 33(b)(2)
(allowing 30 days for response to interrogatories). Depending on whether the Government will
admit certain points, the Defendant reserves the right also to ask for depositions of key persons.
Defendant also asks that this Court hold the Government to their answers, by inter alia, refusing
to allow them to put on evidence that they failed to disclose in response to this discovery.
The United States Supreme Court should have the final word, as it has articulated the
common sense mandate for discovery.
The need to develop all relevant facts in the adversary system is both fundamental
and comprehensive. The ends of criminal justice would be defeated if judgments
were to be founded on a partial or speculative presentation of the facts. The very
integrity of the judicial system and public confidence in the system depend on full
4
disclosure of all the facts, within the framework of the rules of evidence. To
ensure that justice is done, it is imperative to the function of courts that
compulsory process be available for the production of evidence needed either by
the prosecution or by the defense.
United States v. Nixon, 418 U.S. 683, 709 (1974).
Respectfully submitted, this 14th day of February, 2011.
/s/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)
chiprob@earthlink.net
Christopher T. Robertson
Attorney at Law
MS Bar # 102646
christophertrobertson@gmail.com
6342 N Via Lomas de Paloma
Tucson, AZ 85718
CERTIFICATE OF SERVICE
I, Edward D. Robertson, hereby certify that on February 14, 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.
5
Case 3:07-cr-00192-NBB-SAA Document 316-1 Filed 02/14/11 Page 1 of 10
UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI
UNITED STATES OF AMERICA
v. CRIMINAL CASE NO. 3:07CR192-b-a
DAVID ZACHARY SCRUGGS
EXHIBIT A to
MOTION TO ALLOW DISCOVERY:
REQUESTS FOR ADMISSISIONS, INTERROGATORIES, AND

REQUESTS FOR DOCUMENTS AND OTHER THINGS
Instructions
1. These instructions and definitions should be construed to require answers based upon the
actual or constructive knowledge of, and information available to YOU as well as YOUR
attorneys, representatives, investigators, and others acting on your behalf.
2. If, after exercising due diligence, you cannot answer the following Interrogatories, Requests
for Admissions (hereinafter “RFA”), and Requests for Documents and Other Things (altogether
hereinafter “discovery”), so state and answer to the extent possible, specifying your inability to
answer to the remainder. State whatever knowledge or information you have regarding the
unanswered portion, and identify and describe in detail what you did in attempting to secure the
unknown information. Estimated dates should be given when, but only when, exact dates cannot
be supplied. Any estimates should be identified as such. The sources and means of derivation of
each estimation should be specifically set forth.
3. If you object to a portion or an aspect of the discovery, state the grounds of your objection
with specificity and answer the remainder.
4. If, in answering this discovery, you encounter any ambiguities when construing a question,
instruction, or definition, your answer shall set forth the matter deemed ambiguous and the
construction used in answering.
5. Where a claim of privilege is asserted in responding or objecting to any discovery requested in

these interrogatories and information is not provided on the basis of such assertion, you shall, in
your response or objection, identify the nature of the privilege (including work product) which is
being claimed. When any privilege is claimed, you shall indicate, as to the information
requested, whether (a) any documents exist, or (b) any oral communications took place.
1
6. If you elect to specify and produce business records in answer to any discovery, the
specification shall be in sufficient detail to permit Respondents to locate and identify the
business records from which the answer may be ascertained.
7. For every interrogatory that requests you to state the basis of an allegation, contention,
assertion, claim, denial, or refusal to admit, please answer as follows:
(a) Describe, in specific detail of the factual basis for the allegation, contention, assertion, or
claim;
(b) Identify every person who has knowledge of facts relating to the allegation, contention,
assertion or claim, by providing the person's full name, present or last known address and
telephone number, and the present or last known place of employment (Once a person has been
identified in accordance with this subparagraph, only the name of that person need be listed in
response to subsequent discovery requesting the identification of that person);
(c) Identify every communication relating to the allegation, contention, assertion or claim;
(d) Identify every document relating to the allegation, contention, assertion or claim by providing
a specific and individual identification of each document or thing, including the type of
document or thing and a brief description consisting at least of (i) the type of document or thing;
(ii) its general subject matter; (iii) its date; (iv) its author(s), addressee(s) and recipient(s); (v) the
present location of each document or thing and each copy thereof; (vi) the name, job title,
employer, and address of the custodian of the document or thing; and (vii) if a copy of the
document or thing has been previously produced to any party, so state and specifically and
individually describe the previously supplied copy by production numbers or otherwise.
Definitions
Notwithstanding any definition below, each word, term, or phrase used in this discovery is
intended to have the broadest meaning.
A. “DEFENDANT” refers to David Zachary Scruggs, the petitioner.
B. “YOU” refers to the United States Government, and to each and every employee, agent, or
officer of the offices of the United States Attorney for the Northern Division of Mississippi, and
each and every employee, agent, or officer of the Department of Justice, individually and
collectively, whether their role was in the past, present, or both, and anyone acting on your
behalf.
C. The term “person” is defined as any natural person or any business, legal or governmental
entity or association.
D. The term “communication” means the transmittal of information by any means.
2
E. The terms “document” and “documents” include, without limitation, any written material,
whether typed, handwritten, printed or otherwise, and whether in draft or final form, of any kind
or nature, or any photograph, photostat, microfilm or other reproduction thereof, including,
without limitation, each note, memorandum, letter, telegram, telex, circular, release, article,
report, prospectus, memorandum of any telephone or in-person conversation, any financial
statement, analysis, drawing, graph, chart, account, book, notebook,draft, summary, diary,
transcript, computer data base, computer printout or other computer generated matter, contract or
order, technical report, laboratory report or notebook, engineering report, patent, registration or
mark, application for a copyright, trademark or patent, patent appraisal, infringement search or
study, and all mechanical and electronic audio and video recordings or transcripts thereof, and
other data compilations from which information can be obtained and translated; if necessary, by
Defendant/Counter-Plaintiffs into reasonably usable form. Electronic mail is included within the
definition of the terms “document” or “documents.” A draft or-non-identical copy is a separate
document within the meaning of the term.
F. The term ‘evidence’ includes, without limitation, documents, testimony (whether recorded,
transcribed, or live), witnesses (whether expert or fact), recordings, exhibits, summaries, and any
other thing that may be used to prove, support, rebut, or disprove an assertion by either party.
G. The term “relating” (or “relate”) shall mean: pertaining, describing, referring, evidencing,
reflecting, discussing, showing, supporting, contradicting, refuting, constituting, embodying,
containing, concerning, identifying, or in any way logically or factually connected with the
matter discussed.
H. The words “or” and “and” shall be read in the conjunctive and not in the disjunctive wherever
they appear, and neither of these words shall be interpreted to limit the scope of a request. The
use of a verb in any tense shall be construed as the use of the verb in all other tenses and the
singular form shall be deemed to include the plural, and vice-versa. The singular form of any
noun shall be deemed to include the plural, and vice-versa.
I. The present tense includes the past and future tenses. The singular includes the plural, and the
plural includes the singular. “All” means “any and all”; “any” means “any and all.” “Including”
means “including but not limited to.” “And” and “or” encompass both “and” and “or.” Words
in the masculine, feminine or neuter form shall include each of the other genders
REQUEST FOR ADMISSON #1: Admit that, when transmitted by wire, neither of the two
emails specified in the Indictment crossed state lines.
INTERROGATORY #1: If, for any reason, YOU refuse to admit RFA #1, please state the basis
for YOUR refusal.
3
REQUEST FOR DOCUMENTS AND OTHER THINGS #1: Please provide copies of all
evidence referenced in YOUR answer to Interrogatory #1.
REQUEST FOR ADMISSON #2: Admit that neither of the two emails specified in the
Indictment were sent in furtherance of a conspiracy to bribe Judge Henry Lackey.
for YOUR refusal.
REQUEST FOR ADMISSON #3: Admit that at all times prior to September 18, 2007, there was
no conspiracy to bribe Judge Henry Lackey (other than the one planned by YOU).
INTERROGATORY #3: If, for any reason, YOU refuse to admit RFA#3, please state the basis
for YOUR refusal.
REQUEST FOR ADMISSON #4: Admit that, while in the presence of Defendant, neither
Timothy Balducci nor any other member of the alleged conspiracy ever explicitly said that he
intended to provide any money to Judge Henry Lackey.
for YOUR refusal.
REQUEST FOR ADMISSON #5: Admit that Defendant never took any action in furtherance of
the alleged conspiracy to bribe Judge Henry Lackey.
for YOUR refusal.
4
REQUEST FOR ADMISSON #6: Admit that Defendant never said or did anything to join any
alleged conspiracy to bribe Judge Henry Lackey.
for YOUR refusal.
REQUEST FOR ADMISSON #7: Admit that Defendant never took any affirmative act to
conceal any crime related to Judge Henry Lackey.
for YOUR refusal.
REQUEST FOR ADMISSON #8: Admit that Defendant never heard Timothy Balducci’s
comments on the November 1 recording that referred to “sweet potatoes” or “we are payin’ for
it.”
for YOUR refusal.
REQUEST FOR ADMISSON #9: Admit that, under the laws of Mississippi and the United
States of America, Judge Henry Lackey had no discretion to deny the motion to compel
arbitration in the Jones case.
for YOUR refusal.
5
REQUEST FOR ADMISSON #10: Admit that Defendant consistently believed that an order
compelling arbitration in the Jones case was the appropriate disposition of the motion to compel
arbitration under the Law of Mississippi and the United States of America.
INTERROGATORY #10: If, for any reason, YOU refuse to admit RFA #10, please state the
basis for YOUR refusal.
REQUEST FOR ADMISSON #11: Admit that in his adjudicatory role presiding over the Jones
case, Judge Henry Lackey had no connection with any business, transaction, or series of
transactions of any entity that received over $10,000 of federal funds.
REQUEST FOR ADMISSON #12: Admit that YOUR representation on February 21, 2008 to
the Court that Joey Langston would implicate Defendant in another crime was false.
REQUEST FOR ADMISSON #13: Admit that YOUR representation to the Court on February
21, 2008 that Joey Langston would implicate Defendant in another crime was prejudicial to
Defendant.
6
REQUEST FOR ADMISSON #14: Admit that when YOU negotiated with Anthony Farese to
secure a plea deal for Joey Langston that required cooperation with YOU, that YOU knew that
such cooperation would likely be adverse to Defendant.
REQUEST FOR ADMISSION #15: Admit that in the time since July 2, 2008 to present day,
that YOU have discovered no new evidence that would tend to incriminate Defendant.
REQUEST FOR ADMISSON #16: Admit that at all relevant times, Defendant had a reasonable
expectation that Judge Lackey would have entered an order compelling arbitration in the Jones v.
Scruggs case even without any payment of money.
REQUEST FOR ADMISSON #17: Admit that Defendant never had an intention to bribe Judge
Henry Lackey.
7
INTEROGATORY #18: If, for any reason you refuse to admit RFA #17, identify the first date
upon which the Defendant had an intention to bribe Henry Lackey.
REQUEST FOR ADMISSON #18: Admit that on February 21, 2008, one or more of YOU
knew that Joey Langston would not implicate Defendant in any scheme to corruptly influence
Judge Bobby DeLaughter.
INTEROGATORY #20: Identify how YOU first came to believe that Joey Langston would
implicate Defendant in any scheme to corruptly influence Judge Bobby Delaughter, including the
name and title of the person who first acquired such a belief, the date when it was acquired, the
source of the belief, and how it was communicated to you.
INTERROGATORY #21: Identify how YOU who first learned that Joey Langston would not
implicate Defendant in any scheme to corruptly influence Judge Bobby Delaughter, including the
name and title of the person who learned the fact, the date when it was learned, the source of the
information, and how it was communicated to you.
REQUEST FOR ADMISSION #19: Admit that YOU were telling the truth when, on March 21,
2008 you represented to the Court that, “We have no knowledge that he has any information on
other cases at this time, Your Honor.”
REQUEST FOR ADMISSON #20: Admit that, prior to the release of Indictments in this case,
Defendant did not know of the $40,000 or $10,000 payments from the Scruggs Law Firm to
Timothy Balducci.
REQUEST FOR ADMISSON #21: Admit that when YOU decided to dismiss the bribery and
conspiracy charges against Defendant, that YOUR decision was “based on all the facts and
circumstances” of the Defendant’s involvement in this case.
8
REQUEST FOR ADMISSION #22: Admit that misprision of felony relating to earwigging is
the most serious charge that is readily provable against the Defendant.
REQUEST FOR ADMISSON #23: Admit that David Sanders, Joey Langston, and Tony Farese
told the truth when they swore that, Joey Langston “always maintained that Zach Scruggs was
uninvolved with the Wilson matter,” that all of his “statements regarding Zach were
exculpatory,” and that he “never implicated Zach Scruggs in that bribe.”
REQUEST FOR ADMISSION #24: Admit that Timothy Balducci testified falsely to the grand
jury when he said that on November 1, 2007 he told Defendant that “the judge wanted now an
additional $10,000” and that Defendant responded that it was “not a problem.”
REQUEST FOR ADMISSION #25: Admit that YOU kept your negotiations with Joey
Langston secret from Defendant until after the deal was done, because you knew that Anthony
Farese had a conflict of interest.
documents relating to Mr. Tony Farese’s representation of Joey Langston, including without
limitation any communications about Langston’s plea deal (whether draft or final), Defendant’s
bar complaint against Tony Farese, and any communications between YOU and Mr. Farese, and
any drafts of YOUR affidavits in support of Tony Farese.
documents relating to the book Kings of Tort, by Tom Dawson and Alan Lange, including
without limitation any contracts, drafts, notes, correspondence, or emails relating to the book or
forming a basis for the book; and including both the substance of the book and the DOJ’s
permission for Dawson to write the book, including those pertaining to when Dawson
commenced work on the book, Dawson’s multiple roles as a author, prosecutor and then
consultant; and any discussions pertaining to potential explicit or implicit waivers of work
product or attorney client privilege arising from the book.
REQUEST FOR DOCUMENTS AND OTHER THINGS #22: Please provide any documents
that reflect YOUR beliefs as to the guilt or innocence of Defendant.
INTERROGATORY #23: Please provide all the information specified by Federal Rule of Civil
Procedure 26(a) (regardless of whether it would otherwise be required in this sort of proceeding),
including an identification of all facts and evidence, including expert witnesses and their reports,
that YOU may rely upon in YOUR opposition to Defendant’s Section 2255 Petition.
Respectfully submitted, this 14th day of February, 2011.
9
/s/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)
chiprob@earthlink.net
Christopher T. Robertson
Attorney at Law
MS Bar # 102646
christophertrobertson@gmail.com
6342 N Via Lomas de Paloma
Tucson, AZ 85718
CERTIFICATE OF SERVICE
I, Edward D. Robertson, Jr., hereby certify that on February 14, 2011, I served copies of this
requested discovery 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.
10

USA V David Zachery Scruggs: Motion To Allow Discovery

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

USA V David Zachery Scruggs: Motion To Allow Discovery

Uploaded by

Copyright:

Available Formats

Case 3:07-cr-00192-NBB-SAA Document 316 Filed 02/14/11 Page 1 of 5

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA

v. CRIMINAL CASE NO. 3:07CR192-b-a

DAVID ZACHARY SCRUGGS

MOTION TO ALLOW DISCOVERY

As explained in Petitioner’s moving papers, based on the constitutional presumption of

dismissed as unsupportable by the evidence.2 If the Government wants to resurrect those

to this unconstitutional procedure.

To provide a modicum of rationality and fairness to this procedure of proving negatives,

wires to send a message interstate, in furtherance of the government’s conspiracy?” Witnesses

common sense mandate for discovery.

United States v. Nixon, 418 U.S. 683, 709 (1974).

Respectfully submitted, this 14th day of February, 2011.

/s/Edward D. Robertson, Jr.

/s/ Edward D. Robertson, Jr.

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA

v. CRIMINAL CASE NO. 3:07CR192-b-a

DAVID ZACHARY SCRUGGS

REQUESTS FOR ADMISSISIONS, INTERROGATORIES, AND

5. Where a claim of privilege is asserted in responding or objecting to any discovery requested in

A. “DEFENDANT” refers to David Zachary Scruggs, the petitioner.

D. The term “communication” means the transmittal of information by any means.

Respectfully submitted, this 14th day of February, 2011.

/s/Edward D. Robertson, Jr.

/s/ Edward D. Robertson, Jr.

You might also like