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

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI UNITED STATES OF AMERICA, Plaintiff, v. RICHARD F. DICKIE SCRUGGS, Defendant. ) ) ) ) ) ) ) ) )

No. 09 CR 002 Judge Glen H. Davidson

BOBBY B. DELAUGHTERS REPLY TO PETITIONERS 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 Petitioners pleading captioned: Petitioners Response in Opposition to Bobby DeLaughters Emergency Motion to Quash Subpoena, filed on March 24, 2012, states as follows: Petitioner Scruggs opposes DeLaughters 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 DeLaughters 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

While Petitioners 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 DeLaughters Emergency Motion to Quash.

Case: 3:09-cr-00002-GHD-SAA Doc #: 190 Filed: 03/25/12 2 of 5 PageID #: 1823

DeLaughters 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

Case: 3:09-cr-00002-GHD-SAA Doc #: 190 Filed: 03/25/12 3 of 5 PageID #: 1824

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 Scruggsthe 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 Limitationscan 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 Courts 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 officeto 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.

Case: 3:09-cr-00002-GHD-SAA Doc #: 190 Filed: 03/25/12 4 of 5 PageID #: 1825

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 counsels advice and assert his Fifth Amendment privilege. As to the issue of court-ordered immunity, as stated in DeLaughters 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 truthfullyassuming 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

Case: 3:09-cr-00002-GHD-SAA Doc #: 190 Filed: 03/25/12 5 of 5 PageID #: 1826

CERTIFICATE OF SERVICE I hereby certify that the foregoing BOBBY B. DELAUGHTERS REPLY TO PETITIONERS 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 courts system as to ECF filers.

/s/ Thomas Anthony Durkin THOMAS ANTHONY DURKIN 2446 North Clark Street Chicago, IL 60614 (312) 913-9300

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

EXHIBIT A

Case: 3:09-cr-00002-GHD-SAA Doc #: 190-1 Filed: 03/25/12 2 of 2 PageID #: 1828 Thomas A. Durkin
From: Sent: To: Cc: Mike Moore [mm@mikemoorelawfirm.com] Thursday, March 22, 2012 4:17 PM Thomas A. Durkin 'Chip Robertson'

Justleftyouamessage,Ihavebeenbusywithwitnessesandalongmeetingatthecapitoltoday.TheGovthastakenthe positionintheirresponsefiledyesterdaythatthelawdoesnotsupportthegrantingofimmunityorofuscompelling Delaughterstestimony.Wedisagreeobviouslyandwanthistruthfultestimonyinthismotion.TheGovtalsodoesnt understandwhyhewouldneedimmunityifallheisgoingtodoistellthetruth,makessenseinawaybutIunderstand theymaynotlikethetruththeyhearandconsideritaggregiously.YourresponsetothecourtatBobbydelaughtersplea isprettytellingastothefactsasistheinformationScruggspleadto,noonewaswillingtopleaguiltytoorsubscribeto thegovernmentstheoryofthissocalledbriberythatneverhappened.IfyouneedtofileyourmotionIwouldsaygo ahead,Idontthinkwecanstipulatehewouldtakethe5thandthatsallwhenweknowhistruthfultestimonywouldaid thecourtinunderstandingtherewasnoagreement,nooffer,nofavorablerulinginreturnandobviouslythennocrime. Iamaroundifyouwanttotalk,6019330070.cell6019546461
Mike Moore Mike Moore Law Firm, LLC P. O. Box 321048 Flowood, MS 39232 Phone: 601.933.0070 Fax: 601.933.0071
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