Will update later today. Just stopping by to link Zach’s [Defendant’s] Reply Memorandum in Support of His Motion to Vacate His Conviction – safe to say he knows his Skilling – and list the points he argues the Government contest and “therefore effectively conceded”
The Government’s Response in Opposition (D.E. 309) has dramatically narrowed the issues in this case. See, U.S. v. Branch, 91 F.3d 699, 752 (5th Cir., 1996)(where Government’s brief “did not contest” a point raised by a Petitioner, it “therefore effectively conceded that point”). Pursuant to 5th Circuit doctrine, the following claims are no longer contested issues:
•That, under Whitfield v. U.S., 590 F.3d 325 (5th Cir., 2009), the Petitioner is innocent of the three counts of federal programs bribery alleged in the Indictment under 18 USC § 666. With these three counts legal nullities, all that can remain are the honest services counts – and after Skilling v. U.S., these require beyond-a-reasonable-doubt proof that Petitioner bribed or conspired to bribe Judge Lackey.
•That, under U.S. v. Skilling, 130 S.Ct. 2896 (2010), the Court had no jurisdiction to accept a guilty plea nor pass sentence on the misprision of felony to which Petitioner pleaded guilty.
•That the Government misled the Court when it assured the Court that it had 404(b) testimony from Joey Langston that “implicated” Petitioner in any attempt to bribe Judge DeLaughter, a representation that it never sought to correct for two and a half years despite countless opportunities to do so.
Rather than apologizing to the Court for recklessly misleading it all this time, the Government now points to an out of context email written by Petitioner that it has never previously mentioned to the Court in support of 404(b), as if the single isolated document shows that Petitioner bears some guilt in the Wilson case, even though the Government’s interpretation is controverted by both of the Government’s own witnesses (Langston and Balducci) and every other witness in this case. That email has taken on new life as the Government’s needs – rather than the facts – dictate its response. Judge David Sanders, then-AUSA, has stated by sworn affidavit: “We discovered an email from Zach Scruggs to Attorney Johnny Jones… After reading it in its entirety, I did not necessarily believe that it incriminated Zach Scruggs. It was not exculpatory by any means, but it was not something that changed our way of thinking.” Exh. D to Motion at 3.1
Further, despite the Government’s current protestations about the “napkin” email and the Wilson case, when this Court inquired at Petitioner’s Change of Plea Hearing, ”Do you have knowledge that he has information on other cases [i.e. Wilson]?” the Government responded: “We have no knowledge that he has any information on other cases at this time, Your Honor”. Ex. X to Motion at 14.
The Court may decide for itself if the Government’s latest filing is thus yet another misrepresentation by the Government designed to thwart rather than further justice.
•That when Balducci went to talk to Judge Lackey about the case, and then later mentioned an of-counsel position with his firm, Balducci “did not consider the offer a quid pro quo,” and thus did not intend a bribe, and that no conspiracy to bribe existed until the Government created one. Opp., at 2.
•That Petitioner is actually innocent of the first wire fraud count that is based on a supposed May 4, 2007 email that was never found, because that fictitious email predated any bribery request from Judge Lackey and thus could not have been “in furtherance” of a criminal conspiracy to bribe Judge Lackey. Motion, at 20 (citing Schmuck v. United States, 489 U.S. 705, 710-711 (1989)).
•That the November, 2007 email was actually intra-state email, between Oxford and New Albany, Mississippi and Petitioner’s argument “this Court has no jurisdiction over alleged wire fraud consisting of intrastate emails” is legally correct. Motion at 17n6 (citing U.S. v. Moody, 903 F.2d 321,332 (5th Cir., 1990)).
•That when Judge Lackey demanded money to compel arbitration, he was in fact demanding money to grant what he had no discretion to deny under Mississippi law. Motion at 23-26 (citing Barrett v. Jones, Funderburg, Sessums, Peterson & Lee, 27 So.3d 363, 376 (Miss. 2009)). Thus, under U.S. Supreme Court and Fifth Circuit precedent, any payment to Judge Lackey was not a bribe and, under Skilling, not criminal.
Given these concessions, the relief requested by Petitioner must be granted, as will be explained in detail herein.
Click the link, pull the document and keep reading!