Government's Response To Petitioner's David Zachery Scruggs Motion For Depositions

Case 3:07-cr-00192-NBB -SAA Document 328 Filed 03/11/11 Page 1 of 9
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
UNITED STATES OF AMERICA
v. CRIMINAL CASE NO. 3:07CR192
DAVID ZACHARY SCRUGGS
RESPONSE TO PETITIONER DAVID ZACHARY SCRUGGS’

MOTION FOR DEPOSITIONS
Comes now the United States of America, by and through the United States Attorney for
the Northern District of Mississippi, and in response to the petitioner’s Motion for Depositions
would respectfully show unto the Court the following, to-wit:
1.
In the petitioner’s Motion to Allow Discovery, the petitioner included “ . . . the right also
to ask for depositions of key persons.” The Court denied the petitioner’s request finding that “ . .
. the defendant has failed to set forth good cause for the requested discovery . . . .” The petitioner
now asks to depose eleven witnesses, and in support thereof he attempts to show “good cause.”
“Good cause” in this context requires an accurate proffer of what a witness is truly likely
to say, on an issue that is relevant and within the scope of the hearing, together with a showing
that a deposition is the only reasonable way to acquire the witness’s testimony. As a result, the
petitioner’s proffers of expected testimony require close scrutiny and careful analysis.
Sidney Backstrom, Richard F. “Dickie” Scruggs, Steven Patterson, Timothy Balducci and
David Zachary Scruggs possess, in varying degrees, personal knowledge that should be relevant
to the one issue before the Court that is justiciable and not time-barred: whether or not David
Zachary Scruggs knew that money had actually been delivered to Circuit Judge Henry Lackey in
connection with their scheme to corruptly influence him or, in the alternative, whether David
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 government
has no objection to the aforesaid co-conspirators being issued writs or subpoenaed as witnesses.
The safest and most efficient way to produce their testimony is to require their actual attendance
before the Court. As regards the remaining witnesses, the petitioner’s proffers are at best
inaccurate and fanciful and they are only relevant to issues that are no longer before the Court.
They do not establish good cause.
As regards Circuit Judge Henry Lackey, the petitioner’s proffer doesn’t come close to
establishing good cause. Whether or not there was ever any real dispute about whether Judge
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 litigated,
decided by the Court and not appealed. “Whether or not Mr. Balducci ever implicated
petitioner” in his conversations with Judge Lackey is irrelevant. Petitioner’s assertion that Judge
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 has no
knowledge one way or the other regarding what Zach Scruggs knew or didn’t know.
As regards FBI Special Agent William Delaney, whether or not he “ . . . is the person
who, along with Tom Dawson and John Hailman, first conceived of a plan to bribe Judge Lackey
. . . .” is not only untrue with no basis in fact, it would also be irrelevant, as the issue of
2
government misconduct (entrapment) is, again, res judicata. Whether Delaney “pressured” Judge
Lackey to demand such a bribe is nothing but fanciful speculation; it is untrue and unfounded.
“Thus, Mr. Delaney has knowledge of exculpatory discussions concerning the petitioner . . .” is
again wild speculation; it has no basis in fact. The petitioner avers that Mr. Delaney “ . . . can
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’s
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 Delaney has
already testified under oath regarding these matters and will be present at the hearing on April 25.
There is no good reason to depose him.
As regards Joseph C. Langston, the petitioner’s proffer is again disingenuous. The
petitioner is already in possession of Joseph Langston’s sworn affidavit, which is attached hereto.
The petitioner therefore knows that Joseph Langston will not testify that government counsel
“willfully misrepresented anything to the court.” He will not testify that no one corrected the
record, and he will not testify that he was threatened by the government to remain silent while the
Court was misled. He will not testify that there were secret negotiations for a month preceding
his plea. Petitioner’s 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 testificandum.
As regards Anthony Farese, the petitioner once again attempts to mislead the Court with
his “proffer.” Petitioner filed a bar complaint against Mr. Farese some time ago. In response to
that complaint Mr. Farese filed a certified 27-page answer with 35 exhibits, totaling 288 pages.
The petitioner has had Mr. Farese’s response in his possession since approximately May 15,
3
2010, and he knows or should know from a review of that response exactly what Mr. Farese
would say if questioned under oath. Contrary to the petitioner’s proffer, Mr. Farese would
testify:
1. That he received a verbal waiver from Petitioner on December 10,

2007, as to his dual representation of petitioner and Joey Langston,
later receiving a written waiver on January 7, 2008.
2. That petitioner told Farese that he (Zach) was not involved in the
Wilson case, and that Langston told Farese that he (Langston) was
not involved in the Lackey case, therefore there was no conflict
between them. Further that all information concerning the search
warrant on Langston’s office and the status of the case against him
which became known to Farese between December 10, 2007, and
January 4, 2008, was passed on to members of the Joint Defense
team. Contrary to what petitioner attempts to get this Court to
believe, members of that team were concerned about
DeLaughter/Wilson allegations and wanted Farese to keep them
informed of what he learned via his representation of Langston.
Petitioner, as well as Langston, knew this and consented to the dual
representation. (Please see the attached affidavits of Ronald
Michael and Kenneth Coghlan.)
3. That the “government” never pressured Farese in regard to any type

of waiver, either verbal or otherwise. That Farese alone secured
the written waiver, which was done before Langston pled guilty
and two months prior to the petitioner’s plea, and that petitioner
had known of and approved the dual representation status since
December 10, 2007 which did not pose a problem, because there
again the petitioner was not involved in the Wilson case and
Langston was not involved in the Lackey case.
4. That the only potential 404(b) information connecting the

petitioner to the Wilson case, (the paper napkin e-mail) became
known only after petitioner had fired Farese, and had other
counsel.
5. That there were no month long negotiations between Farese,

Langston, and the government, and no secret deals cut in any
manner for Langston to testify against the petitioner, David
Zachary Scruggs.
4
6. It should be remembered that at all times during Farese’s

representation of the petitioner, all parties, (petitioner, Langston,
and the government) represented to Farese that Scruggs I (the
Lackey case) involved Zach Scruggs but did not involve Langston.
Scruggs II (the Wilson case) involved Langston but did not involve
Zach Scruggs. Therefore, there was no conflict of interest between
Langston and Scruggs. Both Farese and the government maintain
that Joey Langston never incriminated Zach Scruggs in any illegal
conduct in Scruggs II (the Wilson case).
The government would therefore respectfully submit that the petitioner, Zach Scruggs, is
well aware of Farese’s position and does not need discovery to obtain or understand it. In fact he
misrepresented what Mr. Farese would say. Petitioner has a complete copy of Anthony Farese’s
response together with all 35 exhibits including nine affidavits from Tom Dawson, Bob Norman,
Dave Sanders, Vicki Slater, Ronald Michael, Joey Langston, Ken Coghlan, Shane Langston, and
Steve Farese, Sr. Because there is a pending bar complaint, the government is by a separate
pleading requesting permission to file with the Court a copy of Anthony L. Farese’s entire
Answer, with attachments, under seal, so that the Court will have all of the information that
petitioner has. Suffice to say, the petitioner has already had full discovery regarding Mr.
Farese’s position in this matter. Mr. Farese is also easily subject to the subpoena power of the
Court. No deposition is required and the petitioner’s proffer is recklessly misleading. It does not
establish good cause.
Mr. Dawson has already provided an affidavit in support of Mr. Farese’s response to the
bar complaint; the same has been served upon the petitioner previously, and it is attached hereto.
In his motion for authority to pursue depositions, the petitioner states that, “Mr. Dawson has
knowledge that despite that awareness (of an ethical conflict), the government co-opted
petitioner’s counsel and secretly negotiated with Mr. Farese and Langston in order to secure
5
purported witnesses against the petitioner and his co-defendants.” In fact, as the petitioner well
knows, Mr. Dawson said in his sworn affidavit “. . . we were assured by Mr. Farese and Mr.
Langston that they knew of no conflict with Zach Scruggs and the prosecution team knew of no
such conflict. Between December 10, 2004, and January 4, 2008, there were no plea negotiations
with Mr. Langston or Mr. Farese.” Undaunted, the petitioner’s allegations continue: “Mr.
Dawson has also specifically written about the prejudice that these tactics caused to petitioner’s
case, stating that they [sic], Mr. Langston’s (false) testimony created an ‘insurmountable’
challenge to petitioner, one that ‘blew a hole’ in his case. Mr. Dawson will further explain that
the government knew all along that Mr. Langston would be adverse to the Scruggs defendants . .
. .” Mr. Langston’s testimony created an insurmountable challenge to Dickie Scruggs, but not the
petitioner. The petitioner’s allegation that Dawson would say the government knew all along
that Langston would be adverse is absolutely contrary to Tom Dawson’s sworn affidavit. “Good
cause” is not supplied by proffers that are fanciful and outright disingenuous. Mr. Dawson is
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 Robert
Norman are both local, and available to the Court and counsel opposite.1 Judge Sanders and Bob
Norman have already provided sworn affidavits which are attached hereto. Contrary to the
petitioner’s proffer, Judge Sanders does not describe efforts to co-opt petitioner’s counsel to
secure Langston as a witness against the petitioner, nor would his testimony establish any willful
misrepresentation. In a similar vein, petitioner’s representation that “Mr. Norman will also
testify with regard to why the government never corrected the record . . .” is irresponsibly
1
Subject only to the Touhy regulations.
6
reckless in that the petitioner’s own pleadings establish that, in fact, the government did correct
any misunderstanding.2 In addition, then AUSA David Sanders, as part of the prosecution team
and on behalf of the government, told the Court at the petitioner’s plea that “we have no
knowledge that he has any information on other cases at this time, Your Honor.” (Change of
Plea Transcript, p. 14)
In conclusion, the petitioner’s Motion for Depositions is reckless, speculative, and legally
ineffective. It does not establish good cause for authorizing depositions. Furthermore, a 28
U.S.C. § 2255 hearing is quasi-civil, quasi-criminal, and this Court clearly has the discretion to
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 opposed
to the witness simply traveling to the hearing. Depositions would require significant
expenditures of time and money and, furthermore, depositions facilitate the intentional abuse of
witnesses, subject to protests and objections that are simply reserved for the Court to decide at a
2
Page 3 of the petitioner’s renewed motion in limine to exclude 404(b) evidence filed
March 19, 2008, two days before the petitioner’s plea of guilty, states that “ . . . the government,
to date, has only indicated that Zach Scruggs was aware that Ed Peters was hired in the case
because of his long-standing relationship with Judge DeLaughter. Additionally, the government
provided counsel with a copy of an e-mail involving Zach Scruggs and Johnny Jones, wherein
they discuss the Wilson case . . . .” Thus, two days before his plea, the petitioner was in
possession of the latest and best 404(b) notice the government could provide and it comports
with Joey Langston’s sworn affidavit. Any misunderstanding or misrepresentation had been
corrected, but the petitioner pled guilty rather than pursue his motion in limine.
3
Rule 45 of the Federal Rules of Civil Procedure does impose a 100-mile radius for the
issuance of civil subpoenas, but Rule 12 of the rules applicable to Section 2255 proceedings
clearly vests the Court with the discretion to permit the issuance of writs and nationwide
subpoenas when necessary, and in fact, that has always been the practice in this district.
7
later date. For all the reasons aforesaid, the government objects to the taking of depositions.4
Actual, factual innocence (not technical innocence) will be the only issue before the Court
that is not time-barred. Witnesses who might therefore be relevant include the petitioner’s co-
conspirators, Sid Backstrom, Richard Scruggs, Steven Patterson and Timothy Balducci. The
government respectfully suggests that the Court consider granting petitioner leave of Court to
issue writs and subpoenas to require their presence and facilitate their sworn testimony before the
Court. The petitioner’s motion for depositions should otherwise be denied and overruled.
Respectfully submitted,
JOHN MARSHALL ALEXANDER

United States Attorney
/s/ Robert H. Norman

By:
ROBERT H. NORMAN
Assistant United States Attorney
Mississippi Bar No. 3880
4
In Epps v. Hood, cited by petitioner, Chief Judge Mills was reviewing a death penalty
case wherein the petitioner filed a timely objection to the effectiveness of counsel who did not
produce mitigating evidence (that the victim’s mother did not want the petitioner executed).
Petitioner fails to mention that the State in Epps did not object to taking depositions.
8
CERTIFICATE OF SERVICE
I, ROBERT H. NORMAN, Assistant United States Attorney, hereby certify that I
electronically filed the foregoing Government’s RESPONSE TO PETITIONER DAVID
ZACHARY SCRUGGS’ MOTION FOR DEPOSITIONS with the Clerk of the Court using
the ECF system which sent notification of such filing to the following:
Honorable Edward D. Robertson, Jr.

Bartimus Frickleton Robertson & Gorny, P.C.
chiprob@earthlink.net
Honorable William N. Reed

wreed@bakerdonelson.com
Honorable Michael C. Rader

mrader@bflawfirm.com
This the _11th_ day of March, 2011.
__/s/ Robert H. Norman_____________

ROBERT H. NORMAN
Assistant United States Attorney
Case 3:07-cr-00192-NBB -SAA Document 328-1 Filed 03/11/11 Page 1 of 6

Government's Response To Petitioner's David Zachery Scruggs Motion For Depositions

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Case 3:07-cr-00192-NBB -SAA Document 328 Filed 03/11/11 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

UNITED STATES OF AMERICA

v. CRIMINAL CASE NO. 3:07CR192

DAVID ZACHARY SCRUGGS

RESPONSE TO PETITIONER DAVID ZACHARY SCRUGGS’

would respectfully show unto the Court the following, to-wit:

They do not establish good cause.

There is no good reason to depose him.

As regards Joseph C. Langston, the petitioner’s proffer is again disingenuous. The

1. That he received a verbal waiver from Petitioner on December 10,

3. That the “government” never pressured Farese in regard to any type

4. That the only potential 404(b) information connecting the

5. That there were no month long negotiations between Farese,

6. It should be remembered that at all times during Farese’s

establish good cause.

Plea Transcript, p. 14)

JOHN MARSHALL ALEXANDER

/s/ Robert H. Norman

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

electronically filed the foregoing Government’s RESPONSE TO PETITIONER DAVID

Honorable Edward D. Robertson, Jr.

Honorable William N. Reed

Honorable Michael C. Rader

This the _11th_ day of March, 2011.

__/s/ Robert H. Norman_____________

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/s/ Robert H. Norman___________