This may look a little weird, for those who still follow the Scruggs case, it's today's response by the government to Zach Scruggs' request to depose nearly a dozen key players in the story that rocked the state's legal community.

Check it out:

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

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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 coconspirators

(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

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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,

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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.

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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

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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

1Subject only to the Touhy regulations.

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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

2Page 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.

3Rule 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.

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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 coconspirators,

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

4In 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.

My Reuters reporter friend Anna Driver reports from Houston, Texas, today quite a legal twist in the longrunning saga of financier R. Allen Stanford.

For the informed, he's suing for exactly the amount the feds say was lost by CD investors when Stanford Financial Group collapsed in 2009 under the weight of a Securities and Exchange Commission investigation.....

Here's the latest:

HOUSTON (Reuters) – Jailed financier Allen Stanford, accused of running a massive Ponzi scheme, filed a $7.2 billion lawsuit accusing federal prosecutors and regulators of depriving him of his constitutional rights.

The government agents "undertook illegal tactics" to prosecute Stanford and "engaged in unfair, abusive law enforcement methods and tactics" that left him broke and unable to properly defend himself, according to the lawsuit filed in federal court in Houston on Thursday.

Stanford, 60, is in the process of being transferred to a prison hospital for treatment to addiction to a powerful anti-anxiety medication he was prescribed while jailed.

The Bureau of Prisons website lists his current location as a federal transfer center in Oklahoma.

The former billionaire is accused of running a $7 billion Ponzi scheme centered on fraudulent certificates of deposit issue by Stanford International Bank in Antigua. He has pleaded not guilty to all charges in a 21-count indictment.

A spokeswoman for the U.S. Attorney in Houston was not immediately available to comment. A spokesman for the U.S. Securities and Exchange Commission declined to comment.

The case is R. Allen Stanford v Stephen Korotosh et al, U.S. District Court for the Southern District of Texas, No. 11-00582.

• • •

Watch my blog for the latest on the Stanford case ... patsy

The Wall Street Journal's legal blogger Ashby Jones makes a curious observation today - whether disgraced financiers, Allen Stanford and Bernie Madoff, will meet, now that Stanford is headed to the prison where Bernie resides.

Stanford is moving, temporarily, to get weaned off anti-anxiety meds so that he can help his attorneys prepared for his trial in Texas on criminal charges associated with claims he ran a $7.2 billion Ponzi scheme on CD investors.

Here's what Jones has to say in the WSJ:

Stanford on the Move: Will Allen Meet Bernie?

Word is drifting north from our state capital that Madison County Supervisor Tim Johnson plans to challenge long-time Transportation commissioner Dick Hall in the upcoming GOP primary.

My own words are inadequate to mourn that I do not live in the Central District, so that I might observe this race as closely as possible.

Johnson, whom I came to know when he was in the state Senate, has had his eyes on higher achievements for quite a long time.

After 2 terms in the Senate, he lost his footing when his legislative colleagues redistricted him out of his seat. That's when he decided he'd like to be a county supervisor.

Why all the ambition?

Goodness, he's already Elvis. No kidding, Johnson came to the state Capitol as, I believe, its first legislative Elvis "tribute artist."

Back in that day, when the daily roll was called, Sen. Johnson often responded – not with "here" or "present" – but with that curled-up lip and a tuneful "uh, huh, huh."

Late in the legislative session, when those small conference committees were busy working out deals for individual bills, and Johnson usually wasn't involved at that level, he'd arrive at the Senate in full Elvis gear to serenade whoever was in the chamber, as well as staff there or listening via the intercom.

He's also done a good bit of traveling in his Elvis work and is a favorite at many a central MS nursing homes, so perhaps he could bank that fan base, especially with absentee votes.

Dick Hall is a bit of a cool cat, himself, although now in his older age, he's less likely to go-Elvis on anybody. But I'm sure folks are still around from his MSU athletic days, who remember Hall as a suave kind of guy.

Hall isn't likely to take the Johnson challenge with a smile on his face, though. Hall was chairman of the powerful Appropriations Committee in the Senate when Johnson was lucky to get on a committee, so Hall figures his stock should be higher with the folks who know different.

They would square off in the Aug. 2 GOP primary, which means the summertime airways could be full of heated advertising. We can only hope some will have Elvis themes.

I'm not sure North MS has got anything to rival that race. Probably a good thing for exhausted voters ... and political reporters!

Stay tuned.... patsy