Zach Scruggs and His Attorney, Former MS AG Mike Moore, Beg The 5th To Undo Guilty Plea

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Date Filed: 12/09/2011
11-60564
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID SCRUGGS, Defendant-Appellant. Appeal from the United States District for the Northern District of Mississippi ____________________________ BRIEF FOR APPELLANT ____________________________
Edward D. Robertson, Jr. Michael C. Rader, MB#100205 BARTIMUS FRICKLETON ROBERTSON & GORNY 715 Swifts Highway Jefferson City, MO 65109 chiprob@earthlink.net mrader@bflawfirm.com 573-659-4454 573-659-4460 (fax)
Mike Moore, MB#3452 David Lee Martin, MB#9982 MIKE MOORE LAW FIRM, LLC 10 Canebrake Blvd., Suite 150 Flowood, MS 39232 601-933-0070 mm@mikemoorelawfirm.com lm@mikemoorelawfirm.com Christopher T. Robertson, MB#102646 ATTORNEY AT LAW 6342 N Via Lomas de Paloma Tucson, AZ 85718 christophertrobertson@gmail.com
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CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following is a complete list of persons and non-governmental entities which have an interest in the outcome of this case as described in the fourth sentence of United States Court of Appeals for the Fifth Circuit Rule 28.2.1. Opposing counsel is not listed as required by the Rule because the United States is represented by the United States Attorney for the Northern District of Mississippi and her assistants. These representations are made in order that the judges of this court may evaluate possible disqualification or recusal. David Zachary Scruggs: Defendant-Appellant
/s/ Edward D. Robertson, Jr. Edward D. Robertson, Jr., Mo. Bar No. 27183
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REQUEST FOR ORAL ARGUMENT Appellant requests that this Court grant oral argument to permit the fullest possible presentation of the questions presented. Appellants case is the first, or among the first, case to bring to this Court (or any of its sister Courts of Appeals) the question whether a conviction based upon conduct that was not criminal in light of Skilling v. United States, 130 S. Ct. 2896, 2931-32 (2010), should be vacated under Bousley v. United States, 523 U.S. 614, 624 (1998) (conviction for an act that the law does not make criminal is a miscarriage of justice justifying collateral relief); Davis v. United States, 417 U.S. 333, 346 (1974) (There can be no room for doubt that such a circumstance inherently results in a complete miscarriage of justice and present(s) exceptional circumstances' that justify collateral relief under 2255). Appellant further requests that this Court allot thirty minutes per side for oral argument, or such other schedule as the Court anticipates will be sufficient to allow a thorough airing of these issues.
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TABLE OF CONTENTS REQUEST FOR ORAL ARGUMENT..................................................................3 TABLE OF AUTHORITIES ..................................................................................6 JURISDICTIONAL STATEMENT.....................................................................10 STATEMENT OF THE ISSUES..........................................................................11 STATEMENT OF THE CASE.............................................................................13 STATEMENT OF FACTS....................................................................................15 The Earwigging Conspiracy..............................................................................15 The Bribery Conspiracy........................................................................................17 The Original Criminal Proceedings ......................................................................22 Appellants Guilty Plea and Sentencing ...............................................................24 Appellants Newly Discovered Claims ................................................................26 SUMMARY OF THE ARGUMENT ...................................................................28 STANDARD OF REVIEW ...................................................................................34 ARGUMENT ..........................................................................................................35 I. Appellants conviction must be vacated because the conduct to which he pled guilty was not a crime under Skilling. ...............................................................35 A. Appellants misprision plea was based solely on his failure to report the earwigging conspiracy, which everyone mistakenly believed was an honest services fraud felony.....................................................................................37 II. Appellants Skilling Claim is not procedurally barred. ..............................40 A. Skilling Claims are Jurisdictional and Cannot be Procedurally Defaulted . .................................................................................................................41 B. Even if Procedural Default Applies, Skilling Establishes Cause and liPrejudice.......................................................................................................43
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III. Appellant proved his actual innocence of the misprision charge. ............46 IV. Appellant proved his actual innocence of the original charges. ...............48 A. No Reasonable Juror Would Find that Appellant Knew About the Bribes to Judge Lackey ..................................................................................................50 B. No Reasonable Juror Would Find that Appellant Joined the Bribery Conspiracy After Learning of its Criminal Purpose.......................................56 V. District Court Erred in Holding Appellant Failed to Prove Actual Innocence of Crimes Never Charged ......................................................................................61 VI. Appellant was Entitled to Relief on the Basis of Ineffective Assistance of Counsel, which Claim was Timely and Sufficient. ...........................................64 VII. Appellant is Entitled to Relief Because His Plea was Unknowing and Involuntary Due to the Governments Deliberate Misrepresentations to the Court and Appellant.....................................................................................................66 CONCLUSION.......................................................................................................70
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TABLE OF AUTHORITIES Cases Barrett v. Jones, Funderburg, Sessums, Peterson & Lee, LLC, 27 So.3d 363, 376 (Miss. 2009) ..........................................................................................................16 Bosley v. Cain, 409 F.3d 657, 665 (5th Cir. 2005) ..................................................47 Bousley v. United States, 523 U.S. 614, 624 (1998)........................................ passim Davis v. United States, 417 U.S. 333, 346 (1974) ........................................... passim James v. Cain, 56 F.3d 662, 665 (5th Cir. 1995).....................................................35 Reed v. Ross, 468 U.S. 1 (1984) ..............................................................................45 Riley v. Cockrell, 339 F.3d 308, 314 (5th Cir. 2003) ..............................................44 Santos-Sanhez v. United States, 548 F.3d 327, 330 (5th Cir.2008).........................35 Schlup v. Delo, 513 U.S. 298, 329 (1995) ............................................ 47, 48, 56, 62 Skilling v. United States, 130 S. Ct. 2896 (2010) ............................................ passim Stayton v. United States, 766 F. Supp. 2d 1260, 1269 n.10 (M.D. Ala. Feb. 28, 2011) ........................................................................................................................ 41, 45 United States v. Bland, 653 F.2d 989, 996 (5th Cir. 1981) ............................. passim United States v. Blitch, No. 5:08-CR-40 (M.D. Ga. Sept. 6, 2011).........................46 United States v. Boruff, 909 F.2d 111, 118 (5th Cir. 1990).....................................58 United States v. Briggs, 939 F.2d 222, 227-28 (5th Cir. 1991)...............................47
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United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998)...........................36 United States v. Cothran, 302 F.3d 279, 283 (5th Cir. 2002)..................................42 United States v. Cotton, 535 U.S. 625 (2002) .........................................................43 United States v. Davila, 698 F.2d 715, 717 (5th Cir. 1983) ............................. 24, 38 United States v. Gobert, 139 F.3d 436, 438 (5th Cir. 1998)....................................47 United States v. Jackson, 700 F.2d 181, 185 (5th Cir. 1983) ........................... 55, 56 United States v. Jaramillo, 413 F. App'x. 979, 980 (9th Cir. 2011)........................46 United States v. Lopez, 248 F.3d 427, 433 (5th Cir. 2001) .....................................36 United States v. Lynch, ___ F. Supp. 2d ___, 2011 WL 3862842, *8 (E.D. Pa. Aug. 31, 2011) .............................................................................................................. 41, 42 United States v. Maloof, 205 F.3d 819, 830 (5th Cir. 2000) ...................................58 United States v. Maricle, CRIM.A. 6: 09-16-S, 2010 WL 3927570 (E.D. Ky. Oct. 4, 2010) .....................................................................................................................46 United States v. McDonnell, 2011 WL 2463194 (Case No. SACV 10-1123 DOC, C.D. Cal. June 20, 2011) ...............................................................................................45 United States v. Meacham, 626 F.2d 503, 510 (5th Cir. 1980) ....................... passim United States v. Newell, 315 F.3d 510, 516 (5th Cir. 2002)............................. 66, 67 United States v. Panarella, Criminal Action No. 00-655, 2011 WL 3273599, *7 (E.D. Pa. Aug. 1, 2011) ........................................................................................... 41, 48 United States v. Peter, 310 F.3d 709, 710 (11th Cir. 2002) ............................. 35, 43
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United States v. Rosa-Ortiz, 348 F.3d 33, 36 (3rd Cir. 2003) .................................43 United States v. Saac, 632 F.3d 1203, 1208 (11th Cir. 2011) .................................43 United States v. Seay, 620 F.3d 919, 923 (8th Cir. 2010) .......................................44 United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995)......................................35 United States v. Sprouse, 3:07CR211-2, 2011 WL 2414322 (W.D.N.C. June 10, 2011) ...............................................................................................................................46 United States v. Teh, 535 F. 3d 511, 515 (6th Cir. 2008) ........................................44 United States v. Tenorio, 360 F.3d 491, 495 (5th Cir. 2004) ..................................58 United States v. Thor, 554 F.2d 759, 762 (5th Cir. 1977) .......................................37 United States v. Velgar-Vivero, 8 F.3d 236, 241 (5th Cir. 1993) ............................58 United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009) ........................................49 Williams v. United States, 684 F. Supp. 2d 807, 825 (W.D. Tex. 2010).................44 Statutes 18 U.S.C. 1343.......................................................................................................15 18 U.S.C. 1346.......................................................................................................15 18 U.S.C. 666.........................................................................................................49 28 U.S.C. 1291.......................................................................................................10 28 U.S.C. 1294(a) ..................................................................................................10 28 U.S.C. 1651................................................................................................ 10, 13
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28 U.S.C. 2241.......................................................................................................10 28 U.S.C. 2253.......................................................................................................10 28 U.S.C. 2255.......................................................................................... 10, 13, 36 Other Authorities FIFTH CIRCUIT 2001 CRIMINAL JURY INSTRUCTION 2.08................................... 59, 64 FIFTH CIRCUIT 2001 CRIMINAL JURY INSTRUCTIONS 2.20................................. 50, 58
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JURISDICTIONAL STATEMENT This is an appeal from the August 3, 2011, final judgment of the District Court (N.D. Miss.) which denied all relief sought in Appellants motion to vacate his 2008 conviction under 28 U.S.C. 2255 or 28 U.S.C. 2241, 1651. Appellant timely appealed on August 17, 20011. The District Court granted a Certificate of Appealability on August 19, 2011. This Court has jurisdiction. 28 U.S.C. 1291, 1294(a), 2253, and 2255.
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STATEMENT OF THE ISSUES 1. Does Skilling v. United States, 130 S. Ct. 2896 (2010) require the District Court to vacate Appellants conviction based on conduct that is no longer a crime? 2. Does this Courts holding in United States v. Meacham, 626 F.2d 503, 510 (5th Cir. 1980)(entry of a guilty plea not a waiver of jurisdictional defects such as an indictment's failure to charge an offense) remain good law, or does the court-made procedural default doctrine now empower Federal courts to punish non-crimes? 3. Assuming arguendo a procedural default, does the fact that Skilling overturned a nationwide consensus that the honest services fraud statute comported with due process satisfy the cause and prejudice standard, as several courts have held? 4. Assuming arguendo a procedural default unmitigated by cause and prejudice, did the District Court err in denying Appellants Skilling claim for failure to prove actual innocence when Appellant proved that no reasonable juror would (as opposed to the District Courts could) convict him of other charges, which the government long ago dismissed for lack of evidence? 5. Did the District Court err in denying Appellants newly-discovered, but timelyraised-following-discovery claims of ineffective assistance of counsel and governmental misconduct based on the Governments secret negotiations with Appellants attorney to obtain the testimony of a witness for use in Appellants case, and then knowingly misrepresenting the witnesses testimony to the Court and
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Appellant, before the lead prosecutor then published a book and others submitted affidavits in a bar proceeding that revealed these facts?
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STATEMENT OF THE CASE Appellant spent fourteen months in prison, paid a $250,000 fine, and served one year of supervised release. He did this even though Skilling v. United States, 130 S. Ct. 2896 (2010), holds that Appellants conduct did not constitute a crime. That showing, alone, is sufficient to merit relief. Appellant filed a motion under 28 U.S.C. 2255 (or, in the alternative, under 28 U.S.C. 1651 (coram nobis)) to have his conviction vacated under Skilling and his two newly discovered claims (1) a violation of Appellants right to loyal and unconflicted counsel and (2) the Governments repeated misrepresentations to the District Court that Joey Langston would implicate Appellant in an unrelated judicial bribery even though that witness repeatedly told the Government that he would not implicate Appellant in this other bribery.1 Thus, Appellants guilty plea was both unknowing and involuntary because it was based on the Governments repeated threats of testimony it knew it did not have. It is axiomatic that federal courts are of limited jurisdiction, and jurisdictional defects are never waived. The District Court erred in holding that Appellant was barred from raising his Skilling claim under the procedural default doctrine because jurisdictional defects cannot be defaulted. Here, the District Court lacked jurisdiction to convict Appellant because the Information failed to charge a crime.
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These misrepresentations resulted in the District Court disqualifying AUSA Robert Norman from participating in this case. R. USCA5:4324.
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Even if a procedural default occurred, both cause and prejudice are selfevident in circumstances as glaringly unconscionable as these. And even if the doctrine of procedural default applies and the cause and prejudice standard is not satisfied, Appellant proved his actual innocence. The District Court denied Appellants Skilling claim for failing to prove both that he was innocent of the charges that the Government dismissed in 2008 and of a charge that the Government never brought, i.e., misprision for failing to report bribery. These holdings misstate the law and the actual innocence requirement and are based upon a clearly erroneous view of the facts. The District Court also erred in denying Appellants other, newly discovered claims.
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STATEMENT OF FACTS On March 21, 2008, Appellant pled guilty to one count of misprision i.e., failure to report a felony, because Appellant knew about and did not report a conspiracy to commit honest services fraud by using unethical ex parte contacts with a Mississippi state court judge to obtain an order compelling arbitration of a pending matter (the earwigging conspiracy).2 Prior to Skilling, federal prosecutors routinely charged such undisclosed conflicts of interest schemes as a form of honest services fraud under the wire fraud statutes, 18 U.S.C. 1343, 1346. THE EARWIGGING CONSPIRACY Appellant, his father, Richard Scruggs, and Sidney Backstrom were three of the four partners in the Scruggs Law Firm (SLF). SLF and several other firms formed a joint venture (SKG) to assist Hurricane Katrina victims in pursuing insurance claims. With the first big settlement, a fee dispute arose between the majority members of SKG and John Joness law firm. Jones sued Richard Scruggs, SLF, SKG and others in Mississippi state court (the Jones suit). Joness lawyer initiated the case with an ex parte contact with Mississippi state court Judge Henry Lackey, who permitted that lawyer to seal the filing, temporarily suspend normal service, and, upon direction of
Mississippi calls ex parte communications with a judge earwigging. Mississippi Circuit Court Rule 1.10, entitled Earwigging Prohibited, forbids all ex parte attempts to influence a judge, or to discuss the law or any alleged fact with (or in the presence of) a judge, other than in regular court proceedings.
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Joness lawyer and without further involvement of the court order the clerk to commence service on the defendants if threats of publicity did not accomplish a quick settlement. The defendants did not settle. They were served, became aware of the other sides ex parte contact with the judge, and filed a motion to compel arbitration pursuant to the parties written fee-sharing agreement. R. USCA5:38-49. On or about March 28, 2007, Appellant, Richard and Backstrom met with Tim Balducci and Steve Patterson at the SLF offices. Balducci, an attorney, and Patterson, a former Mississippi elected official who was not a lawyer, had formed a law firm. R.5158-59, 5166-67. Patterson boasted that Balducci knew Judge Lackey well and offered his services to assist the defendants in the case. Specifically, Balducci offered to use his personal relationship with the Judge to attempt to persuade him to order arbitration. Id. at USCA5 5167.3 Richard told Balducci not to do anything illegal. R. USCA5:4436. There was never any mention any payment to Judge Lackey at this meeting. R. USCA5:4437. Balducci initiated the first of several contacts with Judge Lackey about the pending arbitration dispute. Appellant was aware that Balducci talked with the Judge about the arbitration order.
Barrett v. Jones, Funderburg, Sessums, Peterson & Lee, LLC, 27 So.3d 363, 376 (Miss. 2009) affirmed that the SKG agreement required the very arbitration originally sought by Balducci for SLF.
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THE BRIBERY CONSPIRACY When Balducci initially met with Judge Lackey, he discussed the Jones case, suggested that it would be a personal favor to Balducci if arbitration were ordered, and then offered Lackey a job in the Patterson-Balducci law firm when the judge retired. R. USCA5:3216. Balducci never asked the job to rule contrary to the law of Mississippi. R. USCA5:4468. Balducci did not tell anyone at SLF about the job offer to Lackey. R. USCA5:4442-43. Judge Lackey believed the job offer by Balducci was intended as a bribe. Tr.129-130 (2/20/08 hearing). Judge Lackey waited two weeks then contacted the Government about the meeting with Balducci. Id. at 130. On May 21, 2007, Judge Lackey recused himself from the case and then, after discussions with the FBI, withdrew his recusal. Tr.120 (2/20/08 Hearing) Judge Lackey held a merits hearing on the arbitration motion on July 17, 2007. By then, Balducci believed that he had done all he could do to assist the defendants. [F]or me that was the end of it. In my mind, I had done what I said I would do. I was just sitting back and letting it take its course. R. USCA5:4466. Thus, the earwigging or influence-for-friendship phase of the case had ended, even though the influence-formoney phase, initiated by the FBI, was only beginning. Indeed, Balducci testified that he believed nothing criminal had occurred until September 21, 2007, when he made the initial payment to Judge Lackey.
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With the Governments encouragement, Judge Lackey called Balducci in August to tell him that its in the bosom of the court and ask whether Dicky [sic] wants this thing in arbitration. TR.EX.3. On September 18, the Judge called Balducci to request a meeting and asked if I help them, would they help me, saying that he needed help getting over a hump. TR.EX.4. He met with Judge Lackey on September 21, when the Judge again feigned a financial problem and asked Balducci for $40,000. Balducci wanted to help his friend Lackey, but had no money. R. USCA5:4469, 4507. Balducci never initiated any suggestion of any payment to the Judge. In fact, Balducci testified that, unrelated to any order, he would have done anything I could to help him. R. USCA5:4469. He was Balduccis mentor. Id. Judge Lackey testified that [t]here wasnt any mention about money until I mentioned it finally, I believe, in September. R. USCA5:3216. Balducci testified that he called Backstrom (which Backstrom denies) to tell him about the judges demand and to ask if they would reimburse him for such payments. Balducci testified that Backstrom called him back and said he was covered. R. USCA5:5169. On September 27, Balducci delivered the initial $20,000 payment. Id. Balducci assured Judge Lackey that Richard Scruggs would not know about this. Balducci described the conversation with Lackey as dead mans talk right here between you and me. TR.EX.5.
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On October 18, Balducci paid Lackey another $10,000 and picked up a proposed order from the judge. Balducci testified that he delivered a copy of that order to Richard Scruggss office. Richard had agreed, according to Balducci, that he would pay Balducci $40,000 to develop a voir dire template for an upcoming trial, but that this was a cover story for reimbursing Balduccis payments to Judge Lackey. R. USCA5:5170. Accordingly to Balducci, Richard told him to bring the order from Judge Lackey to Richards office, leave it on his desk, and pick up the voir dire materials and the $40,000 check that would be waiting there for Balducci in a sealed envelope. Id. When Balducci arrived at the firms offices intending to put the order on Richards desk as instructed, he ran into Appellant and gave the order to him. R. USCA5:4516-17. Balducci handed the order to Appellant. Neither Appellant nor Balducci mentioned the $40,000 check or voir dire materials, R. USCA5:5170, nor was there any evidence that Appellant knew about either. On November 1, 2007, Balducci went to Judge Lackeys chambers to pay him the final $10,000 to the Judge. R. USCA5:5172. The FBI arrested Balducci as he left the Judges office. AUSA Tom Dawson told Balducci The only decision you have to make is whether you are going to see your children graduate from high school. R. USCA5:4525-26. Balducci knew that trapping others would help him bargain for leniency. Id. Balducci agreed to wear a recording device and make an unannounced
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visit to SLF. He sought incriminating statements from Backstrom and possibly Richard Scruggs. R. USCA5:4527. Balducci had an extended conversation with Appellant while waiting to see Backstrom; Balducci never mentioned the Jones suit or Judge Lackeys order, let alone any bribes or payments. In fact, Balducci repeatedly admitted that other than the statements he made later on November 1 (discussed below) he only had two contacts with Appellant involving the Jones suit: the initial meeting in March and October 18, when he dropped off the order Richard requested. Other than on November 1, Balducci never discussed payments or bribes to Judge Lackey in Appellants presence or heard anyone else do so. R. USCA5:5-4527, 4536, 4543. As Balducci admitted, Backstrom was his contact the whole time. R. USCA5:4533. When Backstrom arrived, Balducci waited until Appellant left before mentioning the new order from Judge Lackey. TR.EX. 40, at 17. Balducci wanted Backstrom to review it because he was familiar with the case. Id. at 18. At this point, Appellant re-entered the roomunexpected and uninvited. Balducci invited him to stay, saying: Zach, let me bring you up to speed. . . .This is on the Judge Lackey deal. Id. at 19. Backstrom and Appellant had trouble understanding Judge Lackeys order, but neither suggested it be changed because, in Appellants words, Im not sure what his intent was. Id. at 22.
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Appellant also asked whether Judge Lackey should dismiss (rather than stay) Jones after ordering arbitration. I mean Lackeys fine, but you dont know who the **** else is gonna get this thing. Id. at 27. Balducci interjected, I dont know that Ill have the stroke with the next one. Id. at 28. Balducci testified stroke meant influence and nothing more. R. USCA5:4535. At this point, a receptionist interrupted with news of a call for Appellant. TR.EX. 40, at 29. Appellant wondered whether the caller might be related to Appellants very ill mother. Appellant asked the receptionist to take a message. Appellant continued to wonder out loud whether the caller was Tricia or Trent (his aunt or uncle). Id. at 29-30. See also R. USCA:4542 (correcting transcript). The receptionist testified Appellant followed her out of the office, having decided to take the call after all. R. USCA5:5701. Backstrom testified that Appellant was leaving the room as Balducci responded God only knows and laughed at Appellants behavior. R. USCA5:4650. Balducci testified that Appellant stayed in the room just long enough to hear Balduccis next two statements, R. USCA5:4542, which followed an eight second delay after Appellants last words on the tape: Balducci: Um, the other piece of this puzzle I hadnt told you yet is uh, get it how you want it because Ive got to uh, Ive gotta go back for another delivery of uh, another bushel of sweet potatoes down there. So. Because of all this that has come up.
Backstrom: Mm-hmm.
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Balducci:
So, get it right. Get it how you want it cause were payin for it to get it done right.
TR.EX. 40, at 30 (emphasis added). The District Court concluded that Appellant left the room immediately after these comments. Nothing on the tape or in Balduccis testimony suggests that Appellant responded to Balduccis statements or even indicated that he heard them. R. USCA5:5175-76. Indeed, it is undisputed that Appellant did not respond to Balduccis statements on November 1. No evidence exists that Appellant did or said anything on this subject after he left Backstroms office on November 1. THE ORIGINAL CRIMINAL PROCEEDINGS Appellant was indicted on November 28, 2007, along with Richard Scruggs, Sidney Backstrom, Balducci and Patterson. R. USCA5:37. Count One charged a conspiracy to commit (a) federal program bribery under 18 U.S.C. 666, and (b) honest services fraud based upon bribery under 18 U.S.C. 1343 and 1346. Counts Two, Three, and Four charged federal program bribery under 18 U.S.C. 666, and Counts Five and Six charged honest services fraud based upon bribery in violation of 18 U.S.C. 1343 and 1346. The aggregate maximum punishment for all six Counts was seventy-five years in prison. Appellant retained Anthony Farese to represent him. Richard retained Joey Langston. Langston would soon be charged together with Richard Scruggs with
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influencing Judge DeLaughter, another Mississippi state court judge, in an unrelated matter (the Wilson lawsuit). R. USCA5:5188; R. USCA5:2997. Unbeknownst to Appellant, Farese secretly negotiated Langstons plea agreement while Farese was representing Appellant. Farese pitched the Government a deal based upon Langston providing damning testimony about the DeLaughter matter for use in the defendants trial regarding Judge Lackey. R. USCA5:2997. On January 7, 2008, Farese secured Appellants prospective waiver to allow him to represent Langston without disclosing the prior negotiations or the deal that Langston would testify for the Government at Appellants trial. When Appellant learned of this deal, he moved to exclude Langstons testimony which, as to him, was irrelevant and prejudicial because Appellant was not charged and had no material knowledge of a DeLaughter bribery. R. USCA5:585. The District Court denied Appellants motion based on the Governments representation that Langston would also implicate [Appellant]. Joey Langston is prepared to testify that [Appellant] was fully aware of what was going on in the Wilson case. R. USCA5:777 (emphasis added); R. USCA5:3049; R. USCA5:5193. The District Court also denied Appellants motion for separate trial, again relying upon the Governments representation that Langston would implicate Appellant in the DeLaughter bribery. R. USCA5:1772.
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After his co-defendants pled guilty to conspiracy to bribe Judge Lackey, Appellant was negotiating with the Government about pleading guilty to a lesser charge based upon the Governments inability to prove and Appellants steadfast refusal to admit that he knew about (let alone participated in) payments to Judge Lackey. During these negotiations, Appellant renewed his motion to exclude Langstons testimony and the Government informed the Court that it stood by its earlier representation that Langston would implicate Appellant in the DeLaughter bribery. R. USCA5:5193. APPELLANTS GUILTY PLEA AND SENTENCING On March 31, 2008, Appellant agreed to plead guilty to one count of misprision in exchange for the Government (a) dismissing all six counts of the Indictment, (b) recommending probation only, and (c) no prison sentence. R. USCA5:2837-38. The Substitute Information charged, in its entirety: On or about November 1, 2007, in the Northern District of Mississippi, [Appellant], defendant, having knowledge of the actual commission of a felony cognizable by a court of the United States, concealed and did not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, in violation of Title 18, United States Code, Section 4. R. USCA5: at USCA5:2835 (emphasis added). Federal misprision requires proof that (1) a federal felony was committed, and that the defendant (2) knew that the felony had been committed, (3) actively concealed
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the felony, and (4) failed to notify federal law enforcement of the felony. United States v. Davila, 698 F.2d 715, 717 (5th Cir. 1983). Because the Information merely recites the statutory elements, the facts establishing those elements were set forth in the Factual Basis, offered by the Government at the March 31 hearing, admitted to by Appellant, and found sufficient by the District Court. In pertinent part, the Factual Basis states: On or about March 15th of 2007, [Appellant met with the other defendants, where] . . . . it was decided that, because of his close relationship with Judge Lackey, Tim Balducci would speak to the judge in an ex parte manner and ask him to rule in favor of [SLF in the Jones suit]. . . . [O]n October 18, [Balducci drove to SLF with the signed arbitration order Judge Lackey intended to enter] and left the order with [Appellant.] At this time, [Appellant] was aware that . . . the [Jones] plaintiffs were unaware of both Balduccis involvement and that Judge Lackeys ruling was based, in part, on something other than the merits of the lawsuit; that is, Balduccis personal relationship with Judge Lackey. [Appellant] was also aware that such an act deprived the State of Mississippi of its intangible right to the honest services of Judge Lackey, performed free from deceit, bias, self-dealing, and concealment. . . . . On November 1st, Balducci returned to [SLF] with another order and, on this date, met with [Appellant] and Sid Backstrom in Backstroms office. . . . Both [Appellant] and Backstrom spent time examining the order and discussing its contents. After receiving and examining the [new] order, [Appellant] failed to inform the firms counsel of record of the manner in which the order had been obtained, thereby concealing this fact from the [Jones] plaintiffs4 whom the firms counsel would have been bound to inform.
Obviously, Jones was not some judge or other person in civil or military authority under the United States. Appellant has not raised this point as a grounds for vacation.
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R. USCA5:2841-42 (emphasis added); Tr.Exh.90, at 12-13. In denying Appellants 2255 motion, the District Court refused to identify what felony Appellant failed to report when he pled guilty to the misprision charge. R. USCA5:5165-66. At Appellants sentencing hearing in 2008, the Court unequivocally declared however, that for Appellants misprision conviction the the underlying offense is the corruption of Judge Lackey. R. USCA5:2942 (emphasis added). In addition to the obvious fact that the words bribery or payments do not even appear in the Information or the Factual Basis, the District Court acknowledged that [Appellant] hasnt pled guilty to being part of the bribery. And hes not being sentenced for part of the bribery. R. USCA5:2943. The District Court rejected the Governments probation recommendation and sentenced Appellant to fourteen months in prison (plus a year of supervised release), a $250,000 fine and a $100 special assessment. R. USCA5:2930-35. Appellant did not appeal. He paid his fine and assessment, and served his full prison and supervised release terms. APPELLANTS NEWLY DISCOVERED CLAIMS Appellant did not know until December 2009 that Farese had negotiated (prior to January 7, 2008) Langstons plea with the Government in exchange for Langston giving testimony in Appellants case. Farese sought Appellants prospective waiver to allow Farese to represent Langston on January 7. Appellant learned this in AUSA
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Dawson self-published, tell-all book in which he describes these negotiations with Farese at length. R. USCA5:3078; 3082-3086 On the basis of these revelations, Appellant filed an ethics complaint against Farese. In May of 2010, Farese answered Appellants complaint, attaching affidavits of the Governments attorneys which revealed for the first time that Langston would never have implicated Appellant in the DeLaughter bribery and that the Government knew Langston would not implicate Appellant. R. USCA5:3100. Therefore, the Government purposefully, repeatedly deceived the District Court and Appellant by misrepresenting Langstons testimony. R. USCA5:4330 Until these two revelations, Appellant could not reasonably have known that he had been deprived of his right to loyal and conflict-free counsel when that the Governments secret negotiations with Farese ulminated with Farese seeking to benefit one client (Langston) to the great prejudice of another (Appellant). In addition, until these revelations, Appellant could not reasonably have known that the Government had repeatedly misrepresented Langstons testimony in order to secure favorable pre-trial rulings and, eventually, deceive Appellant into pleading guilty. Thus, the Governments misconduct resulted in Appellant entering a unknowing and involuntary guilty plea.
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SUMMARY OF THE ARGUMENT Appellant pled guilty to misprision based solely upon his failure to report the earwigging conspiracy, which (until Skilling) was a species of honest services fraud based not on bribery, but solely on unethical conduct. While Appellant was serving his sentence, however, Skilling declared that honest services fraud did not extend to every form of unethical conduct, only included paradigmatic schemes involving bribery or kickbacks. Because Skilling holds that earwigging is not a federal crime, Appellants failure to report earwigging cannot constitute misprision. Appellant was convicted and imprisoned for conduct that was never a crime. When Appellant filed a timely petition to vacate this conviction, however, the District Court refused on the ground that Appellants Skilling claim was barred by procedural default because he did not appeal his guilty plea. In response to the flood of petitions from inmates who often have more spare time than their claims have merit, courts have properly created barriers including the doctrine of procedural default to protect the finality of judgments. In maintaining these barriers, however, this Court has never allowed the resulting maze of gateways, exceptions, and thresholds to be applied mechanistically to deny relief even where miscarriage of justice cries out to be corrected. With respect, this is where the District Court failed. It dutifully manned the barricade of procedural default. But, in refusing to vacate Appellants conviction, it perpetuated what the Supreme Court
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repeatedly has termed a miscarriage of justice when a conviction is based on an act that the law does not make criminal. Bousley v. United States, 523 U.S. 614, 624 (1998) (collateral relief is justified). There can be no room for doubt that such a circumstance inherently results in a complete miscarriage of justice which justifies collateral relief. Davis v. United States, 417 U.S. 333, 346 (1974). In reaching this fundamentally unjust result, the District Court made multiple legal errors and drew factual conclusions that were both clearly erroneous and legally irrelevant. First, Appellants Skilling claim cannot be procedurally barred because it challenges the convicting courts jurisdictionthe purest form of collateral attack and one not subject to procedural default. A Supreme Court interpretation limiting the reach of a federal criminal statute does not create a new limitation. Instead, it announces a limitation that existed from the date Congress enacted the statute.5 Thus, when the Substitute Information in 2008 charged Appellant with failing to report an honest services fraud consisting of earwigging, the District Court lacked jurisdiction to convict Appellant because that conduct did not constitute a crime, even though every lower court in the country held (and would continue to hold) that such unethical conduct was a crime until Skilling was decided in 2010. But the manifest injustice to Appellant here transcends labels and defies pigeonholing. Therefore, even though this Court has justified relief in similar cases
5
This principle is as old as Blackstone and assures that Judges declare (rather than make) the law.
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using this lack of jurisdiction analysis (which cannot be procedurally defaulted), other courts have justified the same relief by characterizing an intervening Supreme Court decision decriminalizing the defendants conduct as a clear break which provides sufficient cause and prejudice to excuse a procedural default. Still other courts justify such relief by holding that the subsequent Supreme Court case proves the defendants actual innocence because no reasonable juror (properly instructed following the Supreme Court pronouncement) would convict the defendant for non-criminal conduct. Finally, other courts simply provide this relief with no justification other than that fairness and the Constitution will not allow a person to stand convicted who has committed no crime. The District Court ignored all of these paths. Instead, it held that Appellant had defaulted his Skilling claim and denied relief because Appellant failed to prove his actual innocence. But, the District Court did not hold that Appellant failed to prove he was innocent of the charge to which he pled guilty; Skilling alone proves Appellants actual innocence of that crime. Instead, the District Court refused to vacate Appellants conviction because Appellant failed to prove he was innocent of (a) the charges in the original Indictment, which the Government dismissed in 2008, and (b) a new charge which the Government never brought. In other words, the District Court refused to vacate Appellants conviction for failing to report earwigging, which it is now undisputed was not a crime, because Appellant failed to prove he was
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actually innocent of: (a) bribing Judge Lackey, even though the Government gave up trying to prove that in 2008, and (b) failing to report those bribes, even though the Government never charged Appellant with misprision on these grounds. Even if this Court rejects its precedents and holds that Appellants Skilling claim is not jurisdictional, Appellant proved that no reasonable juror would have convicted him of bribing or conspiring to bribe Judge Lackey. The only evidence connecting Appellant to the payments to Judge Lackey was a coded statement (sweet potatoes) made by Balducci on November 1, 2007. Even if Appellant heard and understood the code (which had never been used in Appellants presence before), it is undisputed that Appellant made no response other than to leave the room immediately and without comment. Even if a reasonable juror would deduce from this single scrap of evidence that Appellant knew about the bribes, there was absolutely no evidence that Appellant ever did or said anything with that knowledge from which a reasonable juror would infer Appellants intent to join the conspiracy to bribe Judge Lackey. The District Court clearly erred by citing actions Appellant took before November 1 when he heard Balduccis comments as proof that Appellant knowingly participated in the bribery conspiracy. All Appellant could have known about at that point was the earwigging conspiracy, as Balducci admitted that he had not had any prior discussion about bribery with Appellant. In doing so, the Court ignored (1) that Appellant admitted knowing about the earwigging conspiracy, and (2) that this
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earwigging was not a crime. No reasonable juror, properly instructed regarding this Courts holdings that only actions taken with knowledge of the conspiracys illegal object can be used to prove participation, would convict Appellant of conspiring to bribe Judge Lackey. The District Court further erred by denying Appellants Skilling claim on the ground that Appellant failed to prove his actual innocence on a charge the Government never brought. The Court held that Appellant failed to prove he was innocent of another charge the Government never brought, i.e., misprision for failing to report the Lackey bribes. In so holding, the District Court clearly violated the holding in Bousley, 523 U.S. at 624. This Courts cases (and their progeny) reflect the basic premise that (using Appellants case as an example) if the Government and the Appellant had known in 2008 that the earwigging was not a form of honest services fraud, there would have been no plea or conviction to begin with. Appellant would have continued to refuse to admit that he knew about the payments to Judge Lackey. The Government either would have had to convince a jury beyond a reasonable doubt that Appellant committed a crime . . . or let him go. Thus, by vacating Appellants conviction, this Court would merely restore the parties to their positions prior to their mutual mistake of law. If the Government believes Appellant is guilty of conspiring to bribe Judge Lackey or aiding and abetting those bribes, it can attempt to bring those charges and
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prove them to a jury. Until then, however, Appellant would be free of the label convicted felon based on conduct which, under Skilling, was not a crime. Finally, the District Court erred in rejecting Appellants two additional claims, unrelated to Skilling, each of which provides an adequate ground for this Court to vacate Appellants conviction. First, the District Court erred in holding that Appellants ineffective assistance claim was untimely and that Appellant was not prejudiced when his counsel (Farese) negotiated leniency for another of his clients (Langston) by offering to have Langston provide damaging testimony in Appellants trial. Second, the District Court erred in holding that the Governments misrepresentations about Langstons testimony were not material despite that the Court relied upon those misrepresentations in denying Appellants motions to exclude Langstons testimony and for a separate trial, and despite Appellants reliance upon those very misrepresentations in deciding to plead guilty never knowing that the Government was threatening him with testimony that the Government knew, unequivocally, that Langston would not give.
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STANDARD OF REVIEW In reviewing denials of 2255 motions, this Court reviews the lower courts factual determinations for clear error and its legal conclusions de novo. United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995). The same standards apply to factual determinations and legal conclusions in a denial of a writ of corum nobis, but the ultimate decision to deny relief is reviewed for abuse of discretion. Santos-Sanhez v. United States, 548 F.3d 327, 330 (5th Cir.2008), vacated by 130 S. Ct. 2340 (2010). It is an abuse of discretion for a district court to deny a writ because of an erroneous legal conclusion or on a clearly erroneous finding of fact. James v. Cain, 56 F.3d 662, 665 (5th Cir. 1995). An error of law is an abuse of discretion per se. United States v. Peter, 310 F.3d 709, 710 (11th Cir. 2002).
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ARGUMENT [R]eview of convictions under section 2255 ordinarily is limited to questions of constitutional or jurisdictional magnitude, which may not be raised for the first time on collateral review without a showing of cause and prejudice. United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998). Even if a defendant cannot establish cause and prejudice, however, he may be entitled to relief under 28 U.S.C. 2255 if the error of a constitutional nature would result in a complete miscarriage of justice. United States v. Lopez, 248 F.3d 427, 433 (5th Cir. 2001) (citing Bousley, 523 U.S. at 620-21 (collateral relief necessary to correct the miscarriage of justice which occurs when a defendant stands convicted of an act that the law does not make criminal)). Davis v. United States, 417 U.S. 333 (1974) is the cornerstone case. There, as here, subsequent decisions narrowed the reach of the applicable criminal statutes such that the conduct for which defendant was convicted was not criminal. The Court held: If this contention is well taken, then Davis' conviction and punishment are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance inherently results in a complete miscarriage of justice and present(s) exceptional circumstances' that justify collateral relief under 2255. Therefore, although we express no view on the merits of the petitioner's claim, we hold that the issue he raises is cognizable in a 2255 proceeding. Davis, 417 U.S. at 346-47. I. Appellants conviction must be vacated because the conduct to which he pled guilty was not a crime under Skilling.
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Appellant pled guilty on March 21, 2008, to a one-count Substitute Information charging misprision, i.e., failure to report a felony. According to the factual basis, Appellant failed to report the honest services fraud that occurred when Balducci agreed to use his personal relationship with Judge Lackey to make unethical ex parte contacts for the purpose of influencing him to compel arbitration in the Jones case, i.e., the earwigging conspiracy. But, under Skilling, unethical schemes such as earwigging that do not involve paradigmatic bribes or kickbacks do not violate the honest services fraud provision of the wire fraud statutes. Thus, Appellants failure to report the earwigging conspiracy was not misprision because there was no felony. Just as in Davis and Bousley, this Court has held that a defendant has a right to be free of prosecution for a nonoffense, and that 2255 can be used to vacate such a conviction because the entry of a guilty plea does not act as a waiver of jurisdictional defects such as an indictment's failure to charge an offense. United States v. Meacham, 626 F.2d 503, 510 (5th Cir. 1980). See also United States v. Thor, 554 F.2d 759, 762 (5th Cir. 1977) (collateral relief proper when defendant convicted of conduct that does not constitute a crime). It matters little to Appellant and nothing at all to the Constitution whether Appellants relief is granted on the basis that: (1) under Meacham, the District Court lacked jurisdiction to convict Appellant for this non-criminal conduct and such jurisdictional claims cannot be procedurally defaulted, or (2) Skilling provides, by
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itself, both cause and prejudice for any procedural default, or (3) Skilling proves Appellant is actually innocent of misprision because no reasonable juror, properly instructed, would convict Appellant of misprision when the earwigging conspiracy he failed to report was not a crime to begin with. What does matter is, in the light of Skilling, is that Appellant was convicted and sent to prison for conduct that does not constitute a crime. Accordingly, the District Courts decision should be reversed and Appellants conviction vacated. A. Appellants misprision plea was based solely on his failure to report the earwigging conspiracy, which everyone mistakenly believed was an honest services fraud felony. Under Appellants plea agreement, Appellant pled guilty to the single charge of misprision in the Substitute Information. Misprision requires the Government to prove, inter alia, that a federal felony was committed. Davila, 698 F.2d at 717. The Information merely recited the statutory elements; the only proof of this required element is in the Factual Basis that the Government presented to the District Court at Appellants plea hearing. The Government described the federal felony that Appellant failed to report as follows: an agreement that Balducci would speak to the judge in an ex parte manner and ask him to rule in favor of SLFs motion to compel arbitration in the Jones case;
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resulting in Judge Lackeys ruling [which] was based, in part, on something other than the merits of the lawsuit; that is, Balduccis peronsal relationship with Judge Lackey and that such an act deprived the State of Mississippi of its intangible right to the honest services of Judge Henry Lackey, performed free from deceit, bias, selfdealing, and concealment. R. USCA5:2841-42 (emphasis added). The factual basis said nothing about payments or bribes to Judge Lackey. Instead, it is an archetypical description of a conspiracy to commit an honest services fraud based solely on undisclosed conflicts of interest or other unethical conduct. Prior to Skilling, the Government routinely charged such conduct under the honest services fraud statute. No more. Even though the earwigging conspiracy was unethical and reprehensible, Skilling declared it was not a crime. At Appellants sentencing hearing, the District Court stated clearly its understanding of Appellants misprision charge: [Appellant is being sentenced for misprision of felony. But the underlying offense is the corruption of Judge Lackey. [Appellant] knew that Judge Lackey was being corrupted, and [Appellant] had an order there that . . . was the result of a corruption or attempted corruption
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of Judge Lackey . . . . and whether it was for money or whatever else is really immaterial. 6 ... Hes [Appellant is] not being sentenced for conspiracy to bribe a judge. He hasnt pled guilty to being part of the bribery. And hes not being sentenced for part of the bribery. And as far as the law is concerned, Im going to base the sentence on that. R. USCA5:2943 (emphasis added). The District Court thus unambiguously characterized Appellants misprision charge as being based on a failure to report the corruption of Judge Lackey, i.e., an honest services fraud. Accordingly, the Information read in light of the Factual Basis fails to charge an offense because Appellants failure to report the earwigging conspiracy cannot be misprision when earwigging itself is not a felony. Thus, Appellant was convicted and imprisoned even though he had committed no crime. Under Davis and Meacham, this constitutes a complete miscarriage of justice and justifies collateral relief. Although this Court has yet to address a Skilling claim in the context of Davis or Meacham, several district courts have granted relief from convictions in light of Skilling because the conduct charged was not a crime. See, e.g., United States v. Panarella, Criminal Action No. 00-655, 2011 WL 3273599, *7 (E.D. Pa. Aug. 1,
6
In 2008, the District Courts view that it was immaterial whether the corruption resulted from money (i.e., bribery) or whatever else (i.e., earwigging) was shared by nearly every federal trial and appellate court in the country. After Skilling, however, this distinction became highly material because Skilling holds that only paradigmatic bribes are criminal under the honest service fraud statute. Skilling, 130 S. Ct. at 2931.
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2011) (granting coram nobis relief); Stayton v. United States, 766 F. Supp. 2d 1260, 1269 n.10 (M.D. Ala. Feb. 28, 2011) (vacating conviction under 2255). Although Panarella and Stayton illustrate that the constitutional imperative to correct the manifest injustice transcends the procedural device employed, no case makes this point as well as United States v. Lynch, ___ F. Supp. 2d ___, 2011 WL 3862842, *8 (E.D. Pa. Aug. 31, 2011). Lynch vacated the convictions of two defendants, one under 2255 and the other by writ of coram nobis, holding that both defendants had been convicted of conduct that is no longer a crime and that, as a result, they are entitled to collateral relief. Because Appellants conviction was based solely on conduct that Skilling declared is not a crime, Appellant is entitled to have that conviction vacated under either 2255 or by writ of coram nobis. The District Courts failure to grant such relief was error.
II. Appellants Skilling Claim is not procedurally barred. The District Court held that the doctrine of procedural default barred Appellants Skilling claim. R. USCA5:5185. This was error. Further, the holding does a substantial disservice to the seriousness of the constitutional injury that occurs when a person is convicted and punished for conduct that does not constitute a crime.
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In one of the first post-Skilling decisions, Lynch, ___ F. Supp. 2d ___, 2011 WL 3862842, *8 surveyed cases and held that where an indictment fails to allege any criminal conduct, a petitioner is excused from the showing of actual innocence and, therefore, defendants are entitled to collateral relief because they stand convicted of conduct that is no longer a crime. A. Skilling Claims are Jurisdictional and Cannot be Procedurally Defaulted As discussed above, this Court has long held that the entry of a guilty plea does not act as a waiver of jurisdictional defects such as an indictment's failure to charge an offense. Meacham, 626 F.2d at 510 (emphasis added). The District Court refused to apply this rule, holding that Meacham was expressly overruled by United States v. Cothran, 302 F.3d 279, 283 (5th Cir. 2002). R. USCA5:4352. However, Cothran did not overrule Meacham, expressly or otherwise. Instead, Cothran noted that the Supreme Court in United States v. Cotton, 535 U.S. 625 (2002), held that defects in an indictment are not jurisdictional. But both the indictment at issue in Cothran and the indictment at issue in Cotton were sufficient to charge a crime, and thus the issue in Meacham (and Appellants case) was not before either court. See Cothran, 302 F.3d at 283 (defendant sought to challenge indictment which was superseded by information underlying guilty plea); Cotton, 535 U.S. at 628 (where defendant was charged with
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the crime of possessing detectable amounts of cocaine, amounts used to establish sentence should be set out in indictment, but failure to do so not jurisdictional). In the years since Cotton, courts have followed Meacham without question. Most significant of these is the case of United States v. Peter, 310 F.3d 709 (11th Cir. 2002). There, the defendant argued that an intervening Supreme Court decision clarified that the conduct upon which he had pled guilty was not a crime. Before vacating the defendants conviction, the Court thoroughly analyzed Meacham and Cotton and rejected the Governments argument that Meacham had been overruled. Id. at 1784 (emphasis added); see also United States v. Saac, 632 F.3d 1203, 1208 (11th Cir. 2011) (continuing to rely on Meacham). Other Circuit Courts agree that Meacham is still good law and, more important, that Meacham provides a means of correcting a manifest injustice. See, United States v. Rosa-Ortiz, 348 F.3d 33, 36 (3rd Cir. 2003) (a federal court similarly lacks jurisdiction to enter a judgment of conviction when the indictment charges no offense under federal law whatsoever); United States v. Teh, 535 F. 3d 511, 515 (6th Cir. 2008) (relying upon Meacham, and holding if an indictment does not charge a cognizable federal offense, then a federal court lacks jurisdiction to try a defendant for violation of the offense); United States v. Seay, 620 F.3d 919, 923 (8th Cir. 2010). The continued vitality of Meacham has been recognized inside the Fifth Circuit as well. See, e.g., Williams v. United States, 684 F. Supp. 2d 807, 825 (W.D. Tex.
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2010)(the objection that the indictment fails to charge an offense is not waived by a guilty plea [n]othing has changed in the law or upset the rationale of Meacham from the time the Fifth Circuit rendered its decision therein); Riley v. Cockrell, 339 F.3d 308, 314 (5th Cir. 2003) (habeas relief proper if the indictment is so fatally defective that it deprives the convicting court of jurisdiction). Accordingly, in more than a dozen decisions after Cotton, the federal courts have recognized that procedural default cannot be used to refuse to consider a claim that the defendant was convicted for conduct that does not constitute a crime. The Supreme Court has characterized such claims as a complete miscarriage of justice, Davis, 417 U.S. at 346, and removing the shadow cast by the District Court over the validity of Meacham will ensure that such claims can be heard and decided on the merits. B. Even if Procedural Default Applies, Skilling Establishes Cause and Prejudice If a Skilling claim is subject to procedural default, it supplies its own cause and prejudice necessary to set aside such a default. In Stayton v. United States, 766 F. Supp. 2d 1260 n7 (M.D. Ala. 2011), the court held that Skilling was such a clear break with the past that it constituted cause for counsels failure to raise the issue on appeal. The court noted that Skillings theory of relief had met with nearly universal rejection in lower courts before the Supreme
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Court rule[d]. Id. at 1268. Stayton further held that prejudice was clearly established because (as here) there was no kickback or bribe stipulated to during the guilty plea that would bring the conduct under the holding in Skilling. Stayton thus held that Reed v. Ross, 468 U.S. 1 (1984) required the Court to grant post-conviction relief without an actual innocence analysis. Reed reasoned that when the state of the law at the time ... did not offer a reasonable basis upon which to challenge the [plea], that constitutes cause for failing to raise the issue at that time. Id. at 13. Nor is Stayton alone. In United States v. McDonnell, 2011 WL 2463194 (Case No. SACV 10-1123 DOC, C.D. Cal. June 20, 2011), the district court held: It is beyond doubt that there is good cause for [petitioner's] failure to raise his challenge to the Honest Services Fraud conviction and sentence in his direct appeal; there would have been no basis for him to have done so based on the existing case law at the time of his trial and appeal. See also United States v. Sprouse, 3:07CR211-2, 2011 WL 2414322 (W.D.N.C. June 10, 2011) (Without the benefit of the Supreme Court's opinion ... any argument based on Skilling [and the issues therein] would have been purely speculative.); United States v. Maricle, CRIM.A. 6: 09-16-S, 2010 WL 3927570 (E.D. Ky. Oct. 4, 2010) (same); United States v. Jaramillo, 413 F. App'x.
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979, 980 (9th Cir. 2011) (excusing appellants failure to raise a Skilling argument because Skilling had not yet been decided).7
In another post-Skilling case, United States v. Blitch, No. 5:08-CR-40 (M.D. Ga. Sept. 6, 2011), the Government conceded that no actual innocence showing was necessary. Instead, the Government agreed that Blitch was entitled to relief under Skilling, even though Blitchs case involved 16 other foregone charges, including assertions of quid pro quo bribery and money fraud, both of which would survive Skilling. See Governments Response to Defendants Motion to Vacate Under 2255, at 2.
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III. Appellant proved his actual innocence of the misprision charge. Procedural default can be set aside, even without cause and prejudice, when the defendant shows that he was convicted of a crime of which he is actually innocent. This actual innocence burden: requires a petitioner to show that it is more likely than not that no reasonable juror would have convicted him. The word reasonable in that formulation is not without meaning. It must be presumed that a reasonable juror would consider fairly all of the evidence presented. Schlup v. Delo, 513 U.S. 298, 329 (1995)(emphasis added). It must also be presumed that such a juror would conscientiously obey the instructions of the trial court requiring proof beyond a reasonable doubt. Id. Here, this means the jury would be instructed on the law after Skilling. Ordinarily, an actual innocence claim presents new evidence, such as exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence. Bosley v. Cain, 409 F.3d 657, 665 (5th Cir. 2005). Obviously, this is what the District Court expected to see and repeatedly criticized Appellant for failing to present. See R. USCA5:5162-63; USCA5:5179-82. But, this Court has recognized that, if a defendant has been convicted of a criminal act that becomes no longer criminal, such a conviction cannot stand. United States v. Gobert, 139 F.3d 436, 438 (5th Cir. 1998). See also United States v. Briggs, 939 F.2d 222, 227-28 (5th Cir. 1991) (Simply put, to convict someone of a crime on
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the basis of conduct that does not constitute the crime offends the basic notions of justice and fair play embodied in the Constitution.). Under Bousley and Schlup, Appellant proved he is actually innocent of the only charge on which he was convicted and sentenced, i.e., misprision for failing to report an honest services fraud consisting of the earwigging conspiracy. No reasonable, properly-instructed juror would have convicted Appellant on that misprision charge because, under Skilling, the unreported felony of honest services fraud requires proof of bribery or kickbacks and thus cannot be proved with earwigging or other unethical conduct. Accordingly, Skilling establishes Appellants actual innocence; it cures any procedural default because Appellant committed no crime.8
No actual innocence showing is necessary for coram nobis. In United States v. Panarella, CRIM.A. 00-655, 2011 WL 3273599 (E.D. Pa. Aug. 1, 2011), the Court required no actual innocence showing, noting that the United States has been unable to cite, and the Court has been unable to find, any cases in the coram nobis context that have applied an actual innocence requirement. Appellant has not been in custody since the day he filed this action. Thus, the Court may grant Appellants request for this writ which the District Court ignored.
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IV. Appellant proved his actual innocence of the original charges. Ignoring Appellants showing that he was actually innocent of the crime for which he was convicted, the District Court instead held that Appellant must prove his actual innocence of the original six counts charged in the original indictment. R. USCA5:5161 (emphasis added). The District Court relied on Bousley: In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges. Bousley, 523 U.S. at 624. The District Court erred in relying upon this language, however, because this statement unquestionably is dicta; there were no foregone charges in Bousley.9 Even if Bousleys dicta is applicable, Appellant showed that no reasonable juror would convict him of any of the dismissed charges. First, the District Court properly held that no reasonable juror could convicted Appellant of Counts II-IV, and part of Count I, which allege violations of 18 U.S.C. 666, based upon the holding in United States v. Whitfield, 590 F.3d 325 (5th Cir. 2009) (no federal program nexus to state court judge administering judicial matters). R. USCA5: at 4362-63. This leaves the honest services fraud charges in Count V and VI, and the conspiracy to commit honest services fraud charge in Count I. Unlike the honest
The Supreme Court does not appear to have returned to validate this language in Bousley, and Appellant urges this Court not to follow this dicta which this Court appears never to have quoted or analyzed in a published decision.
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services fraud charge in the Substitute Information, the honest services fraud charges in the Indictment were explicitly based upon bribery and thus were not affected by Skilling. Nevertheless, Appellant proved that he is actually innocent of these charges because no competent evidence linked him to the conspiracy to bribe Judge Lackey or proved he was an accomplice to that bribery. To convict on criminal conspiracy, there must be proof beyond a reasonable doubt that [1] a conspiracy existed, [2] that the accused knew of it, and [3] with that knowledge, [the accused] voluntarily became a part of [the conspiracy]. United States v. Bland, 653 F.2d 989, 996 (5th Cir. 1981)(emphasis added).10 After resolving all real disputes in the evidence in the Governments favor, and after giving the Government the benefit of every reasonable inference, the entire body of evidence that Appellant knew about the conspiracy to bribe Judge Lackey consisted of Balduccis two sotto voce, ambiguous statements made in Appellants presence on November 1, 2007. Appellants only reaction to these statements, (spoken in a code to which
10
See also FIFTH CIRCUIT 2001 CRIMINAL JURY INSTRUCTIONS 2.20, setting out the elements of conspiracy: First: That the defendant and at least one other person made an agreement to commit the crime of _______ (describe) as charged in the indictment; Second: That the defendant knew the unlawful purpose of the agreement and joined in it willfully, that is, with the intent to further the unlawful purpose; and Third: That one of the conspirators during the existence of the conspiracy knowingly committed at least one of the overt acts described in the indictment, in order to accomplish some object or purpose of the conspiracy. Id. (Emphasis added).
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Appellant had not previously been exposed and assuming further that he heard and understood Balduccis words) was to leave the room immediately and without response. Further, there was no evidence that Appellant ever did or said anything on this subject after leaving that room. Therefore, even assuming that Balduccis statements sufficed to put Appellant on notice of the bribery conspiracy, there was absolutely no evidence that Appellant ever did or said anything with that knowledge from which any reasonable juror would infer Appellants intent to join the conspiracy and further its illegal (bribery) purpose. A. No Reasonable Juror Would Find that Appellant Knew About the Bribes to Judge Lackey As discussed above, the events leading up to Appellants misprision conviction began with an earwigging conspiracy which sought to capitalize on Balduccis close ties with Judge Lackey. Appellant knew of this conspiracy because he was present when it was created on March 15, 2007. It is undisputed that this conspiracy involved only earwigging, involved no bribe or kickback and that, under Skilling, was not a crime. Balducci had no contact with Appellant from March, 2007 until October 18, 2007. Further Balducci testified that he did not discuss any bribe with Appellant on October 18. Thus, when Appellant entered Backstroms office on November 1, all he could have known under the evidence was that the earwigging conspiracy was still active.
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In September 2007, a second conspiracy clearly criminal began when Balducci agreed to pay the bribe requested by Judge Lackey. In fact, before Judge Lackey called in August, renewing the contact with Balducci on the arbitration order and seeking financial help from Balducci testified that he had done what I said I would do. I was just sitting back and letting it take its course. R. USCA5:4466. But, after two and a half days of trial, including hours of phone taps and other surreptitiously taped conversations, there was absolutely no evidence that Appellant ever knew about the change from earwigging to bribery before November 1, 2007. Backstrom, Patterson and Richard Scruggs, each testified that they never spoke to Appellant about the payments or had any reason to believe that Appellant knew about them. R. USCA5:4768; 4785;4621, 4625, 4635, 4651-52. Thus, under the evidence, Appellant came into the November 1 meeting with no knowledge of any bribe to Judge Lackey. As far as Appellant knew, the hearing conducted by Judge Lackey in July, 2007, had resulted in a decision on the merits. The order Balducci brought was, as far as Appellant could have known under the evidence, merely an advance copy reflecting Balduccis relationship with him Lackey. This leaves only Balducci, who stated clearly that his contact for the bribery plan was always and only Backstrom. R. USCA5:4528. As noted, Balducci swore he only had three contacts with Appellant relevant to Judge Lackey: (1) the first meeting on March15; (2) when he delivered the order to Appellant on October 18
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without discussing it; and (3) the conversation on November 1 which culminated with the two statements he made right before Appellant left (or was leaving) the room. R. USCA5:4431, 4436-37, 4517, 4527, 4574. At the November 1 meeting, just as on October 18, Balducci neither expected nor intended to see Appellant. R. USCA5:4527. Instead, Balducci who only hours earlier had been arrested and fitted with his recorder was making an unannounced visit to the SLF in hopes of eliciting incriminating statements by Backstrom (Balduccis contact) and possibly Richard Scruggs. Id. Even though Balducci talked at length with Appellant while waiting for Backstrom, Balducci never mentioned anything relating to Judge Lackey. R. USCA5:4528. After Backstrom arrived, Balducci waited until Appellant left the room before beginning to discuss the order. Tr.Exh. 40, at 16-17. Only when Appellant again walked into the meeting uninvited did Balducci invite him to stay, saying: Zach, let me bring you up to speed. . . . This is on the Judge Lackey deal. Id. at 19. The District Court relies upon the fact that Balducci, Backstrom and Appellant discuss the language of Judge Lackeys order at length. The District Court ignores, however, that everything Appellant said and everything said to (or in front of) him was entirely consistent with what a person would have said and heard who still
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believed that the order was the result of Balduccis earwigging11 and followed Judge Lackeys hearing on the merits in July. Up to this point, there is no evidence that Appellant knew about any payments to Judge Lackey. The District Court rejected Appellants proof, largely on its view of the case as a typical swearing match between Balducci and everyone else. In such a case, the District Court held a reaonable juror could (but not would) choose to believe Balducci. R. USCA5:5179-80. This is a serious mischaracterization of the evidence. Balducci repeatedly admitted that he thought Appellant knew about the bribes but had no basis for that opinion and no first-hand knowledge (i.e., competent evidence) that Appellant ever knew anything about the bribes to Judge Lackey other than the two statements Balducci made later on November 1. R. USCA5:4533, 4535, 4536, 4543. Therefore, this is not a typical swearing match which turns upon credibility. Instead, this is a case with evidence on one side and rank speculation on the other. No reasonable, properly instructed juror would convict Appellant based upon Balduccis inadmissible speculation regarding what he thinks Appellant might have known. See United States v. Jackson, 700 F.2d 181, 185 (5th Cir. 1983) (Juries must not be allowed to convict on mere suspicion and innuendo. . . . [nor will this Court] lightly infer a defendant's knowledge and acquiescence in a conspiracy. . . . The government
11
When Appellant expressed concern about Judge Lackey retiring and another judge inheriting the case, Balducci stated, I dont know that Ill have the stroke with the next one. Id. at 28. At trial, Balducci testified that stroke was a reference to influence, i.e., earwigging opportunities, and not money or bribes. R.4535.
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must show beyond a reasonable doubt that the defendant had the deliberate, knowing, and specific intent to join the conspiracy). Thus, the entire case against Appellant comes down to the two statements Balducci made following the receptionists interruption with a phone call for Appellant. The recording speaks for itself. The receptionist leaves. Appellant continues to talk to himself about the caller. His voice trails off to inaudibility. Balducci makes a sarcastic comment and laughs. Then, following an eight second pause, Balducci begins speaking again in an altogether different, lower tone of voice: Um, the other piece of this puzzle I hadnt told you yet is uh, get it how you want it because Ive got to uh, Ive gotta go back for another delivery of uh, another bushel of sweet potatoes down there. So. Because of all this that has come up. [Backstrom responds, Mm-hmm.] So, get it right. Get it how you want it cause were payin for it to get it done right. TR.Ex.40 at 30 (emphasis added noting the singular pronoun). Because these two statements are all of the evidence against Appellant, and the lynchpin of the District Courts analysis, Appellant respectfully suggests that this Court cannot fully appreciate this evidence without hearing the exchange for itself. See TR.EX.52 (audio recording). The District Court held that a juror could find that Appellant heard and understood Balduccis two statements. R. USCA5:5175. However, this is just one of
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at least a dozen irrelevant findings12 by the District Court about what a juror could do. Schlup explicitly rejects could as the proper test for actual innocence. Instead, Sclup (and Bousley) ask the probabilistic question whether a reasonable juror would convict Appellant on the basis of this evidence. Schlup, 513 U.S. at 329. And, if it were not possible to conclude that evidence which meets the bare constitutional minimum under Jackson still is not likely to convince a reasonable and properly instructed juror, the Supreme Court would not have articulated this different standard. Thus, even if a reasonable juror could have concluded that Appellant was in the room and heard Balduccis statements, no reasonable juror would convict Appellant on those two statements alone. Both (a) the change in the tone of Balduccis voice, combined with (b) his use of the singular you, indicate that Balducci is talking to one person (Backstrom), not two. More significant, the District Court found that Balduccis reference to sweet potatoes was code for bribery payments. R. USCA5:5174. But Balducci admitted he had not used the code with Appellant
12
See, e.g., R. USCA5:5174 (a reasonable juror could conclude that sweet potatoes was used among the conspirators as code for money.); . R. USCA5:5175 (A reasonable juror could easily conclude based upon the tape and Balduccis eyewitness testimony that [Appellant] remained in Backstroms office when the another delivery of sweet potatoes and were paying for it statements were made and that [Appellant] understood these statements to be regarding a bribe); Id. (A reasonably, properly instructed juror could find from the direct evidence of the November 1, 2007 tape that [Appellant] had knowledge about the bribery scheme and helped to interpret and revise the bought order.). The following citations contain the same error, using could or can. R. USCA5:5176 (2 times); R. USCA5:5179 (three times); R. USCA5:5179-80; and R. USCA5:5182.
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before. Further, Balducci would not need a code if he were talking to both Appellant and Backstrom and both of them were already fully informed members of the bribery conspiracy. Balducci was certainly not guarded when he talked to Backstrom on the phone, R. USCA5:5168-69, or when he talked to Richard Scruggs later that day. R. USCA5:5177. A reasonable juror would conclude that Balducci only used code because there was someone (Appellant) in the room but not listening closely, or that someone (Appellant) had just left the room but left the door ajar. Accordingly, even if the District Court had found that a reasonable, properly instructed juror would have found that Appellant heard Balduccis two statements, that finding was clearly erroneous and should be ignored. The testimony of the witnesses and, more importantly, the recording of the conversation, simply do not merit such an inference. B. No Reasonable Juror Would Find that Appellant Joined the Bribery Conspiracy After Learning of its Criminal Purpose. Even if a reasonable juror would conclude that Appellant heard and understood Balduccis statements and, based solely upon them, had immediate and complete knowledge of the bribery conspiracy, Appellant is nevertheless actually innocent of any bribery charge because there was no evidence that Appellant acting with that knowledge voluntarily became a part of that bribery conspiracy. Bland, 653 F.2d at 996. Knowledge alone is not sufficient. Action, without knowledge, is not sufficient.
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A conspiracy conviction requires both. No reasonable juror, properly instructed, would convict Appellant unless the evidence proved beyond a reasonable doubt that he voluntarily joined the conspiracy after he had knowledge of its illegal purpose. 13 As explained above, there was no evidence that Appellant did or said anything in response to Balduccis two November 1 statements. The wiretap reveals no response, nor does Balducci claim that Appellant made any non-verbal response indicating acceptance, approval or anything else.14 Appellant immediately left the room, without comment.15 There was no evidence that Appellant did or said anything after November 1; the evidentiary book on Appellant closed the moment he left Backstroms office. Confronted with this evidentiary void, the District Court based its decision on what Appellant did not do. When Balducci made his statements about sweet
13
See United States v. Maloof, 205 F.3d 819, 830 (5th Cir. 2000) (Willful participation is an essential element of the crime of conspiracy; mere knowledge of a conspiracy does not itself make a person a conspirator.); An individual's [m]ere presence at the scene of a crime or close association with a co-conspirator will not support an inference of participation in a conspiracy. United States v. Tenorio, 360 F.3d 491, 495 (5th Cir. 2004); [T]he mere fact persons have associated with each other to discuss common aims and interests does not necessarily establish the existence of a conspiracy. United States v. Boruff, 909 F.2d 111, 118 (5th Cir. 1990), Fifth Cir. Pattern Jury Instr. 2.20Error! Bookmark not defined. (same); United States v. Velgar-Vivero, 8 F.3d 236, 241 (5th Cir. 1993) (It is not enough ... that the evidence places the defendant in a climate of activity that reeks of something foul.).
14
Appellants indictment was based, in part, on Balduccis false testimony to the grand jury that Appellant expressly approved Balduccis extra $10,000 payment. R. at USCA5:4549 (when I said that at the grand jury, I misspoke).
15
The evidence would not be sufficient even to convict on misprision. FIFTH CIRCUIT 2001 CRIMINAL JURY INSTRUCTION 2.08 (Misprision) warns that [m]ere failure to report a felony is not a crime. The defendant must commit some affirmative act designed to conceal the fact that a federal felony has been committed. There is simply no evidence of concealment at all.
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potatoes and payin for it, the District Court chides: Petitioner did not remonstrate. R. USCA5:5176. The Court then reverses the constitutional presumption of innocence by noting that Appellant did not make a statement of disapproval or react in any way that would leave one to reasonably believe that he was not already aware of the bribery scheme. Id. Thus, no reasonable, properly instructed juror would infer guilt from silence, nor does the law impose an obligation on anyone to remonstrate. But, even using the District Courts view of the evidence, Appellant did react he immediately left the room without saying a word. That is a compelling statement of Appellants refusal to join any such conspiracy. Finally, the District Court repeatedly used evidence of Appellants conduct before he heard Balduccis statements on November 1 to show that Appellant joined the bribery conspiracy. E.g, R. USCA5:5179 (A reasonable juror could conclude that Appellant shared in his co-conspirators criminal intent and engaged in conduct designed to aid the venture by actively examining and suggesting revisions for the order on November 1, 2007.) (emphasis added). But, if Appellants only knowledge of the bribery conspiracy came from Balduccis two statements on November 1 and there is no evidence that he had any other or earlier knowledge then only Appellants words or actions after November 1 (i.e., with that knowledge) can be used to prove his voluntary agreement to join the conspiracy. Bland, 653 F.2d at 996. So, Appellant may have edited the order, but the tape shows beyond cavil
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that he did so before Balducci spoke of any bribery. And. there is no evidence that he continued to edit or even discuss the order after Balduccis statements, i.e., with the knowledge of the bribery conspiracy. This highlights the error of the District Court, which found that Appellant left the office immediately following those statements without further discussion of anything. The District Court simply refused to acknowledge the highly significant distinction between the unethical but not illegal earwigging conspiracy and the illegal bribery conspiracy that began without Appellants knowledge under the undisputed evidence. The District Court first articulated this issue at Appellants sentencing when it stated that, for purposes of establishing an honest services fraud, the difference between earwigging and bribery was immaterial. R. USCA5:294244. This was understandable in 2008 because Skilling had yet to be decided. But the District Court relied upon this out-dated view, ignoring Skilling, and used it to hold that a juror could convict Appellant of conspiring to bribe Judge Lackey: [Appellant] admitted by his plea that he was intimately involved in the scheme when it began in March 2007, and a reasonable juror, from the evidence following that meeting, could justifiably believe that [Appellant] continued to participate knowingly in the scheme after it escalated into a full-blown bribery scheme, just as his four co-defendants did. R. USCA5:5182 (emphasis added); see also R. USCA5: at 5179 (When the scheme escalated to involve paying the judge . . . [Appellant] continued contributing to the scheme and helped draft the bought order with no reluctance). Again, even Balducci
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testified that he had no knowledge that Appellant knew of the bribery before his sweet potatoes comment. Thus, no evidence and no reasonable inference supports the District Courts conclusions about Appellants pre-November 1 knowledge. Thus, not only did the District Court fail to make the (would) probabilistic determinations required by Schlup and Bousley, its irrelevant could findings are clearly erroneous because they misstate and misapply the law. A legal scheme does not escalate into an illegal one, and Bland must mean that actions taken with knowledge of the former do not prove that the defendant knowingly joined the latter. The Court simply ignored the undisputed evidence that (a) Appellant had no knowledge of the bribery conspiracy before November 1, (b) that all of Appellants editing of the order took place before Balduccis supposedly incriminating statements and (c) that Appellant never did or said anything with that knowledge, i.e., after leaving the room on November 1, to join the conspiracy. Instead, the Court repeatedly attempted to fill this void by pointing to Appellants knowledge of the earwigging conspiracy and insisting that everything Appellant did after the bribery conspiracy began but before November 1, which is the earliest that Appellant could have knowledge of the new and illegal conspiracy under the undisputed evidence proves that Appellant knowingly participated in the bribery conspiracy. The District Courts analysis might be sound if (as it continues to believe) the defendants in this case conspired to commit one crime (earwigging) which
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escalated or evolved into an agreement to commit another crime (bribery). But this analysis ignores Skilling and Bland and misstates the law when an illegal conspiracy follows a legal one. Appellant is entitled to relief because he proved that no reasonable juror, properly instructed in accordance with Bland and Skilling, would convict Appellant of any of the charges in the original Indictment which the Government abandoned, including the charge of conspiring to bribe Judge Lackey.16 V. District Court Erred in Holding Appellant Failed to Prove Actual Innocence of Crimes Never Charged The District Court held that Appellant failed to prove he was actually innocent of misprision because Appellant failed to report the Lackey bribery. R. USCA5:5184 (Appellants affirmative acts to conceal the bribery scheme from discovery coupled with his knowledge of the underlying purpose of the bribery scheme constitute an adequate factual basis supporting guilt of misprision). Thus, the District Court (again, in hindsight) believes it has identified a charge (never asserted by the Government) that Appellant cannot prove he did not commit. There are two significant errors in the District Courts analysis. The first is factual. FIFTH CIRCUIT 2001 CRIMINAL JURY INSTRUCTION 2.08 (Misprision) warns that
16
The District Court ignored the aiding and abetting bribery charges in Counts V and VI, and with good reason. The Governments entire case against Appellant consists of Balduccis two statements on November 1. Thus, not only would no reasonable juror convict Appellant of conspiring to bribe Judge Lackey, no reasonable juror would convict him of actively partipating in those bribes (all of which occurred before Appellant ever learned of them).
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[m]ere failure to report a felony is not a crime. The defendant must commit some affirmative act designed to conceal the fact that a federal felony has been committed. There is simply no evidence of any affirmative act designed to conceal anything from anyone (especially an official on the United States). The District Court cites none because there is none. The second is legal and profoundly erroneous. As discussed in the preceding section, the only authority for requiring Appellant to prove his actual innocence of anything other than the charge on which he was convicted is the statement in Bousley that the defendant must show actual innocence of dismissed charges where the Government has forgone more serious charges in the course of plea bargaining, Bousley, 523 U.S. at 624. Not only was this statement dicta, but the Supreme Court only included it to frame the statement which came next, i.e., that a defendant does not have to prove actual innocence of crimes that were never charged but which the Government, in hindsight, asserts it could have brought. Id. at 624.17 Unlike the
17
[T]he Government maintains that petitioner must demonstrate that he is actually innocent of both using and carrying a firearm in violation of 924(c)(1). But petitioner's indictment charged him only with using firearms in violation of 924(c)(1). App. 5-6. And there is no record evidence that the Government elected not to charge petitioner with carrying a firearm in exchange for his plea of guilty. Accordingly, petitioner need demonstrate no more than that he did not use a firearm as that term is defined in Bailey. Bousley, 523 U.S. at 614.
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dicta in Bousley which does not bind this Court, this holding is binding and thus the District Courts decision contradicting it cannot stand.
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VI. Appellant was Entitled to Relief on the Basis of Ineffective Assistance of Counsel, which Claim was Timely and Sufficient. The District Court erred in denying Appellants ineffective assistance of counsel claim on grounds that Appellant suffered no prejudice from his conflicted attorneys actions, and because this claim was timed-barred pursuant to 2255(f)(1). R. USCA5:5190, 5192. When a criminal defendants counsel has a conflict of interest, this Court asks only whether the defendant freely and validly waived his right to representation by a conflict-free attorney. . . . [W]e do not ask whether the actual conflict prejudiced the appellant's defense. Prejudice is presumed upon a showing of an actual conflict, not waived by the defendant. United States v. Newell, 315 F.3d 510, 516 (5th Cir. 2002) (emphasis added). Though Appellant did not learn this until Decemer of 2009, Appellants counsel (Farese) was representing Langston (who represented Richard Scruggs) and negotiating with the Government on Langstons behalf days before Farese sought Appellants prospective waiver of conflicts on January 7, 2008. Prior to that date,
Fareses undisclosed representation of Langston impaired his ability to defend Appellant because, at the time when he was supposed to have been protecting Appellants interests, Farese was pitching a deal to the Government based upon Langston providing potentially devastating testimony for use in Appellants trial. This
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is undisputed.18 In Newell, this Court pointed out that the defendant was in the unacceptable position of having his own attorney help the state procure a witness against him. Newell, 315 F.3d at 519. Accordingly, the threshold test in Newell is met because Farese clearly had a conflict of interest. The second Newell element is also satisfied. Appellant never validly waived his right to conflict-free counsel, and the waiver dated January 7, 2008, did not do so. Farese secured that waiver, prospective in nature, without disclosing to Appellant that he had been representing Langston and negotiating on his behalf well before January 7. Accordingly, Appellant was entitled to relief on the basis of Fareses impermissible conflict of interest. Finally, the Government (which introduced no evidence at the hearing) failed to bear its burden of proving Plaintiffs claim was untimely. As set forth above, Appellant did not learn the truth about Fareses negotiations until AUSA Dawson selfpublished his book in December 2009. That revelation led to Appellants ethics complaint against Farese which, in turn, led to Fareses response which revealed for the first time that the Government had repeatedly deceived the District Court and Appellant by misrepresenting that Langston would actually implicate Appellant in the
18
The District Courts concern with whether these negotiations began on January 4, 2008, or in December of 2007 is irrelevant. It is undisputed that Farese never disclosed his representation of Langston to Appellant until January 7, 2008, when Farese secured Appellants prospective waiver. Even then, Farese hid from Appellant the fact that he already had reached a deal for Langston in exchange for Langston providing testimony for the Governments use at Appellants trial.
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DeLaughter bribery, even though Langston repeatedly told the Government that Appellant was not involved in that bribery and knew nothing about it. Without these two revelations, Appellant could not have pieced together the truth about Fareses secret negotiations with the Government and how Fareses conflict of interest impaired his representation of Appellant. Accordingly, the District Court erred and this Court should hold that Appellants ineffective assistance of counsel claim was timely and merited relief. VII. Appellant is Entitled to Relief Because His Plea was Unknowing and Involuntary Due to the Governments Deliberate Misrepresentations to the Court and Appellant. The District Court rejected Appellants unknowing and involuntary plea claim because the Court held that the Governments misconduct was not material and thus did not prejudice Appellant. This was clearly error. The Governments misconduct was its repeated mispresentations concerning the nature of Langstons testimony which the Government made to the District Court and Appellant for the purpose of securing pre-trial rulings adverse to Appellant and, ultimately, convincing Appellant to plead guilty. These representations worked on both counts. When Appellant moved to exclude Langstons testimony from use at his trial, the Government represented to the Court that Langston would implicate Appellant in,
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and that he was fully aware of, the bribery of Judge DeLaughter. Despite being expressly and firmly told during a noon break at this hearing by Farese that Langston had never implicated Appellant, the Government refused to correct the record. When the District Court denied Appellants motion based upon the Governments misrepresentation, the Government said nothing. When the District Court relied upon the Governments misrepresentation in denying Appellants motion for a separate trial, the Government said nothing. And, when Appellant renewed his motion to exclude Langstons testimony after Appellants co-defendants pled guilty to conspiring to bribe Judge Lackey, the Government finally spoke this time affirmatively representing to the District Court that nothing had changed thus re-asserting its false proffer of Langstons testimony. Thus, Appellant faced a trial where he would have to defend against both a charged and an uncharged bribery. The Government, with Balduccis speculation all that could connect Appellant to the Lackey bribery, would try to make the jury overlook this lack of evidence by emphasizing Langstons testimony and arguing that if Appellant knew all about an unrelated bribery he must be guilty of the Lackey bribery. With a maximum of 75 years in prison, Appellant could hardly risk the effect of Langstons testimony. Therefore, Appellant had no reasonable choice but to accept the Government plea agreement. The Governments misrepresentations could not have been more
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material given that they were relied upon by the District Court in denying Appellants pre-trial motions. These misrepresentations forced Appellant to plead guilty. Any doubt about this materiality is eliminated by the Governments lawyers own statements crediting Langstons testimony (or, more accurately, its misrepresentation of that testimony) as the turning point in the case and substantially contributed to the plea of [Appellant]. TR.EX.92 at 5. The District Court, too, believed that the Governments misrepresentations were material, and said as much when disqualifying AUSA Norman in this case on the ground that he made a material misrepresentation to this court and to Petitioner, despite admitted evidence that he was informed that he had spoken falsely to the Court, failed to take remedial measures to correct his misstatement in a timely manner and allowed a document containing language consistent with that misstatement to be filed after the Government was advised of the error. R. USCA5:4324 (emphasis added). In denying Appellants claim, however, the District Court held that the Governments misrepresentations could not have been material because Appellant and his counsel work[ed] out a plea deal a very favorable one for [Appellant] during the latter part of the case. R. USCA5:5200. The District Courts characterization of Appellants plea deal as favorable rings hollow. In 2008, that Court rejected the Governments recommendation of probation and sentenced Appellant to fourteen
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months in prison. It also refused to vacate that plea even though it is undisputed that the conduct for which Appellant was convicted is not a crime. The District Courts refusal to grant relief to Appellant on the basis of the Governments misconduct appears rooted in the Courts conclusion that the Government told an unspecified member of Appellants trial team the truth about Langstons testimony in an uncorroborated conversation which occurred prior to Appellants renewed motion to excluded Langstons testimony. This disclosure could not be believed by Appellant precisely because the Government subsequently continued to make on-the-record, official misrepresentations to the District Court. It is undisputed that the Government again represented to the Court that there had been no significant change in the Governments position and that it stood by its prior representations concerning Langstons testimony. Thus, at best, Appellant faced a dangerous dilemma in which the Government made one representation on the record to the Court, and a contrary (and informal) representation to Appellants counsel outside of court. If anything, such mixed signal increases the materiality of the Governments misrepresentations. And these representations surely influenced the Court as it considered sentencing options and ultimately decided to reject the Governments recommendation of no incarceration, never disabused of the Governments claim that Appellant was a serial briber.
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The District Court plainly erred because the Governments only possible reason for making and continuing to make these misrepresentations was to induce Appellant to plead guilty. And it worked. The Governments suggestion to the Langston sentencing Court that the threat of Langstons testimony was the turning point in the case and substantially contributed to the plea of [Appellant] was accurate. TR.EX.92 at 5. No governmental misconduct could be more material or more prejudicial than that. On this ground alone, therefore, this Court should reverse the District Court and order Appellants conviction vacated.
CONCLUSION For each and all of the foregoing reasons, Appellant respectfully requests that this Court reverse the District Court and order Appellants conviction vacated without further delay. Respectfully submitted,
/s/ Edward D. Robertson, Jr.
Edward D. Robertson, Jr., Mo. Bar No. 27183 BARTIMUS FRICKLETON ROBERTSON & GORNY 715 Swifts Highway Jefferson City, Missouri 65109-0000 573-659-4454 573-659-4460 (fax) chiprob@earthlink.net
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CERTIFICATE OF COMPLIANCE WITH RULE 32(a) (7) The undersigned certifies that this brief complies with the type-volume limitation in Fed. R. USCA5: App. P. 32(a)(7)(B), because it contains 13,806 words (excluding the certificate of interested parties, tables of contents and authorities, request for oral argument, and certificates of counsel exempted by Fed. R. USCA5: App. P. 32(a)(7)(B)(iii)), as calculated by Microsoft Word 2010, the software used to prepare this brief. The undersigned further certifies that this brief complies with the typeface requirements of Fed. R. USCA5: App. P. 32(a)(5) and the type style requirements of Fed. R. USCA5: App. P. 32(a)(6), because it has been prepared in Times New Roman,14-point font. The undersigned further certifies that the electronic version of this brief and its addendum have been scanned for viruses and are virus-free.
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CERTIFICATE OF SERVICE The undersigned certifies that on this 9th day of December, 2011, this brief and the Record Excerpts are being filed electronically in the United States Court of Appeals for the Fifth Circuit CM/ECF system, and that service of these documents on Plaintiff-Respondents counsel is being effected through the CM/ECF system.
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Zach Scruggs and His Attorney, Former MS AG Mike Moore, Beg The 5th To Undo Guilty Plea

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Zach Scruggs and His Attorney, Former MS AG Mike Moore, Beg The 5th To Undo Guilty Plea

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Case: 11-60564

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Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011

Date Filed: 12/09/2011