Case: 3:09-cr-00002-GHD-SAA Doc #: 141 Filed: 09/20/11 1 of 25 PageID #: 1192

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI UNITED STATES OF AMERICA
v.

NO.3:09CR002-GHD

RICHARD F. SCRUGGS

PETITIONER'S REPLY MEMORANDUM

Edward D. Robertson (pro hac vice) Michael C. Rader, MB#100205 BARTIMUS FRICKLETON ROBERTSON & GORNY 11150 Overbrook Road, Suite 200 Leawood, KS 66211 913-266-2300 Email: mrader@bflawfum.com Bartimus, Frickleton, Robertson & Gorny, P.C. 715 Swifts Highway Jefferson City, Missouri 65109 573-659-4454 573-659-4460 (fax) chiprob@earthlink.net mrader@bflawfirm.com Mike Moore, MB#3452 MIKE MOORE LAW FIRM, LLC 10 Canebrake Blvd., Suite 150 Flowood, MS 39232 601-933-0070 mm@mikemoorelawfirm.com

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TABLE OF CONTENTS

TABLE OF CONTENTS
TABLE OF AUTHORITIES
I. II. PETITIONER'S PETITION IS NOT PROCEDURALLY BARRED THE MISSING PARADIGMATIC BRIBE The Defunct Charges in the Information and

ii

iii 5

Factual Basis
A.

Petitioner's Political Speech, which the Government Has Conceded is not Honest
7
12
13
15
17
19
21

Services Fraud III. A. B. C. IV. THE GOVERNMENT'S NEW MONEY FRAUD THEORy The Missing Money Fraud Charge in the Indictment The New Money Fraud Charge Is Not "More Serious," the Predicate for Bousley The Lack of Any Evidence of Money Fraud CONCLUSION

CERTIFICATE OF SERVICE

ii

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TABLE OF AUTHORITIES

Cases
Allen v. United States, 867 F.2d 969,972 (6th Cir.1989) Bousley v. Us., 523 U.S. 614 (1998) Brown v. Entertainment Merchants Ass'n, 131 S.Ct. 2729, 2738 (June 27,2011) Coffin v. US., 156 U. S. 432, 453 (1895)
In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 131 S.Ct. 2806, 2825 (June 27, 2011) 5 17 17 14, 15 18 17 5 10 5 15 12 1 2 6, 13 14, 15 14 passim 5 18

Johnson v. United States, 186 F.3d 876, 878 (8th Cir. 1999) Luster v. United States, 168 F.3d 913, 914-915 (6th Cir. 1999) McNally v. US., 483 U.S. 350 (1987) Morrison v. People o/State o/California, 291 U.S. 82, 88-89 (1934) Peveler v. US., 269 F.3d 693, 700, 2001 Fed. App. 0372P (6th Cir. 2001) Reed v. Ross, 468 U.S. 1, 13 (1984) Sorich v. United States, 129 S. Ct. 1308, 1309-10 (2009) Stayton v. US., 766 F.Supp.2d 1260 n7 (M.D.Ala. 2011) Us. v. [David Zachary) Scruggs, Slip Copy, 2011 WL 1832769, *8 (N.D.Miss., 2011) US. v. Branch, 91 F.3d at 699, 752 (5 th Cir., 1996) Us. v. Brumley, 116 F.3d 728 (5 th Cir. 1997) Us. v. Ganim, 510 F.3d 134, 149 (2 nd Cir. 2007) US. v. Lynch, 2011 WL 3862842,3 (E.D.Pa. 2011) u.s. v. Marcello, 876 F.2d 1147 (5th Cir., 1989)
iii

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us. v. Skilling, _U.S. _,130 S.Ct. 2896 (2010)

United States v. Arreola-Ramos, 204 F.3d 1115 (5th Cir. 1999) United States v. Benboe, 157 F.3d 1181, 1185 (9th Cir. 1998) United States v. Cotton, 535 U.S. 625 (2002) United States v. Dyer, 136 F.3d 417 (5th Cir. 1998) United States v. Gaytan, 74 F.3d 545, 551 (5th Cir. 1996) United States v. Italiano, 837 F.2d 1480 (lIth Cir.1988) United States v. Jaramillo, 413 F. App'x. 979, 980 (9th Cir. 2011) United States v. Lloyd, 188 F.3d 184, 185 (3d Cir. 1999)

1,6, 12, 15 16 17 15 14, 15 13 14 6 17

United States v. McDonnell, SACV 10-1123 DOC, 2011 WL 2463194 (C.D. Cal. June 20, 2011) ..................................................................................................................................................... 5 United States v. Meacham, 626 F.2d 503 (5th Cir.1980) United States v. Thor, 554 F.2d 759,762 (5thCir., 1977) United States v. Whitfield, 590 F.3d 325,353 (5th Cir. 2009) Weyhrauch v. Us., 2009 WL 3495337, 45-6 Williams v. US., 684 F.Supp.2d 807,825 (W.D.Tex., 2010) 15 15 11 11 15

Other Authorities
ABA Informal Op. 189 (1938) ABA Informal Op. 841 (1965) Fifth Circuit Pattern Instruction 1.01 4 4 18

Regulations
18 U.S.C. s 3231 (1970) 15

iv

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Petitioner respectfully offers this reply memorandum addressing the points raised in the Government's Response in Opposition ("Opp."). The issue before the Court is whether the evidence as presented and pled to by Petitioner constitutes a crime in light of u.s. v. Skilling, _ U.S. --' 130 S.Ct. 2896 (2010). Unless the Court [mds that Petitioner's use of personal and political influence, as stated in the Information and allocution, is traditional, or "paradigmatic bribery" Petitioner did not plead guilty to a cognizable crime. The issue is not, as the Government would make it, about the sufficiency of the evidence; rather it is about whether
Skilling de-criminalized the offense conduct underlying the single charge to which petitioner

pled guilty. That the conduct is no longer criminal is confirmed by the precise wording of the Information and allocution, which were painstakingly negotiated over many weeks with Government counsel to avoid alleging bribery or its equivalent conduct. These negotiations resulted in Petitioner pleading guilty to a charge sufficient to charge an honest-services offense under the broad and now discredited

u.s. v. Brumley, 116 F.3d 728 (5 th Cir. 1997) standard.

Although Petitioner "pled guilty, under oath," to a now-defective charge, he did not (and would not) plead guilty to bribery, as opposing Government counsel well knows, having been the Government's lead counsel during the negotiations. Thus, bribery-essential allegations, like "quid pro quo," "agreement," "in exchange for," and similar terms critical to a bribery allegation were intentionally - by agreement - omitted from the charge and allocution to which petitioner pled. Indeed, had the Government had sufficient evidence of bribery, it was mandated to pursue such a charge, and not allow petitioner to plead to merely a generalized honest-services violation, which is no longer sufficient to state a federal offense after Skilling. Likewise, the case against Bobby Delaughter, wherein the
1

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government dismissed all of the briberylhonest-services charges, concluded as it did because the Government had no bribery case. "Bribery is not proved if the benefit is intended to be, and accepted as simply an effort to buy favor or generalized goodwill from a public official who either has been, is, or may be ... in a position to act favorably on the giver's interest." US. v.

Ganim, 510 F3d 134, 149 (2nd Cir. 2007)(Sotomayor, J.)(cited approvingly in Skilling).
Further, ifthe Government had no bribery case against Delaughter, then it follows as day the night that it had no bribery case against Petitioner. If the quid is gone, so is the quo. In order to avoid the result mandated by Skilling, the Government asks the Court to re write the Information to include not only terms intentionally omitted as a result of the negotiation, but terms never even charged, like "money and property fraud." The Government's evidence filed with its response establishes beyond question--by its own immunized witnesses- that Petitioner's political "recommendation" of Bobby Delaughter was "not related in any way" to his rulings, and moreover, that Senator Lott, in his much ballyhooed call to Delaughter, actually disabused him of his federal judgeship chances. Far from "dangling" ajudgeship, Senator Lott deflated any aspirations Delaughter may have entertained. Senator Lott testified that the ''tenor'' of the conversation was that Delaughter would not be getting special consideration, nor was Senator Lott "even considering it." Lott Tr. at 21. The Government now calls all of this a "paradigmatic bribe." Yet neither Petitioner nor Delaughter could have concluded that there was either a quid or a quo, since the Government's own evidence makes clear that neither got or expected anything from the other. Indeed, Delaughter was surely dissuaded of any belief that Petitioner was providing anything to him by Senator Lott's call. Even if the Government had pleaded money/property fraud - which it did not - the money/property fraud on which the Government now relies is not a "more serious charge"

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abandoned by the Government. Bousley v.

u.s., 523 U.S. 614 (1998) thus rejects the

Government's theory that Petitioner must show his actual innocence of money/property fraud to prevail. Bousley expressly limits Petitioner's burden of actual innocence to foregone, other "more serious charges." Id. at 624. And then there are the factual problems with the Government's argument. Even if this Court were to require Petitioner to prove himself innocent of the never-charged, no more serious money/property fraud, there is simply no evidence that Petitioner was in fact a party to an agreement to make such a quidpro quo exchange. The Government's key witness, Ed Peters, along with Petitioner and Delaughter, all deny that there was any such thing. Peters was approached by Langston to get assurances that the playing field would be leve~ not to obtain any ruling or result from Deluaghter. Peters 12118/2007 FBI 302 Report 2. Trent Lott denied that he gave Bobby Delaughter any hope of becoming a federal judge. Nor is a claim that Petitioner intended to deprive Wilson of any money he was rightly owed helpful to the Government. The Government conceded in open court that the underlying lawsuit would probably have been won by Petitioner even in the absence of unethical conduct. This is because, as Peters and Langston testified, Petitioner could expect no more than Delaughter's faithful adherence to the law. And the Government dropped its bribery claim against Delaughter, because there was no agreement of any kind. Simply put, there is no credible evidence from anyone that there was a quidpro quo bribe. The Government appears not to have considered that ex parte contacts were a part of this case on both sides, 1 that other lawyers who frequently appeared before Judge Delaughter also

1 On infonnation and belief, William Kirksey had ex parte communication with Judge Delaughter concerning orders and motions entered unbeknownst to Petitioner. Petitioner is willing to conduct limited discovery to conflnn this fact if the Court deems it necessary to consider this factual issue.

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recommended that Senator Lott favorably consider Judge Delaughter/ and that Judge Delaughter knew that Senator Lott had given him nothing at all when he called him. All of these facts and law aside, there is the First Amendment claim asserted by Petitioner. Recommending a person for consideration for a federal judicial appointment is patently speech protected by the First Amendment. The American Bar Association encourages judicial endorsements by lawyers. Lawyers are better able than laymen to appraise accurately the qualifications of candidates for judicial office. It is proper that they should make that appraisal known to the voters in a proper and dignified manner. A lawyer may with propriety endorse a candidate for judicial office and seek like endorsement from other lawyers. 3 Moreover, Mississippi's rules for judicial officers specifically contemplate that an attorney may support a judicial officer's campaign for higher office, even when the attorney has a case pending before that judge, unless the lawyer is a "major donor," that is, a person who has given more than $1,000 to the campaign of any lower court judicial candidate. See, Miss. Code of Judicial Conduct Canon 3(E)(2). These state codes provide the rule and the remedy for judicial misconduct, and the Government's efforts to overlay a facially vague federal statute to selectively prosecute one person for recommending a candidate for public office offends the First Amendment, a principle the United States Supreme Court has forcefully reaffirmed in recent

On information and belief, lawyer John Corlew, among others, recommended Delaughter to Senator

Lott.
3 ABA Informal Op. 189 (1938). See also ABA Informal Op. 841 (1965) ("This Opinion makes clear that individual lawyers may properly participate in the endorsement of candidates for office"); ABA InformalOp. 1329 ("Generally, lawyers are qualified, by personal observation or investigation, to evaluate the qualifications of persons seeking or being considered for such public offices, and for this reason they have a special responsibility to aid in the selection of those who are qualified.. . Lawyers should protest earnestly against the appointment or election of those who are unsuited for the bench and should strive to have elected or appointed thereto only those who are willing to forego pursuits, whether of a business, political or other nature, that may interfere with the free and fair consideration of questions presented for adjudication").

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months. The Government appears to have no answer for this trenchant problem, unable to mount a single argument or authority addressing Petitioner's First Amendment claim.

I.

PETITIONER'S PETITION IS NOT PROCEDURALLY BARRED

Even if there had been a procedural default problem in this case, it is satisfied by the

good cause and prejudice standard. Given the settled law of the Fifth Circuit (and this Court's holdings on related issues), it can be said that "'the state of the law at the time ... did not offer a 'reasonable basis' upon which to challenge the [plea],' [which thus] constitutes 'cause for failing to raise the [Skilling] issue at that time.'" Reed v. Ross, 468 U.S. 1, 13 (1984). In Stayton v. U.S., 766 F.Supp.2d 1260 n7 (M.D.Ala. 2011), the court held that Skilling was such a "clear break with the pasf' that it excused counsel's failure to raise the issue on appeal (and the prejudice of pleading guilty to a noncrime is obvious, as here), and thus no "actual innocence" showing was required. Another district court has held likewise, writing that,
"It is beyond doubt that there is good cause for Mr. McDonnell'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." United States v. McDonnell, SACV 10-1123 DOC, 2011 WL 2463194 (C.D. Cal. June 20,2011) (emphasis added). See also, United States v. Jaramillo, 413 F. App'x. 979,980 (9th

4 In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 131 S.Ct. 2806, 2825 (June 27, 2011), the Supreme Court struck down a state statute that sought to regulate political speech in order to "level the playing field" between candidates for office. The Court reiterated that the "First Amendment has its fullest and most urgent application' to speech uttered during a campaign for political office." Id., at 2817. The Court held that, "even if the ultimate objective of the matching funds provision is to combat corruption [the Government's purported goal here] the burdens that the matching funds provision imposes on protected political speech are not justified." Id., at 2826. See also Brown v. Entertainment Merchants Ass'n, 131 S.Ct. 2729, 2738 (June 27, 2011) (striking down a content-based restriction on speech, where state failed to show that it is "justified by a compelling government interest and is narrowly drawn to serve that interest."). One can hardly say that the honest services fraud statute is "narrowly drawn."

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Cir. 2011 ) (excusing appellant's failure to raise a Skilling argument because Skilling had not yet been decided). A finding of good cause and prejudice is the simplest and most direct way to dispose of this case. In the alternative, as shown below, Petitioner's actual innocence showing also satisfies procedural default.

ll.

THE MISSING PARADIGMATIC BRIBE The Defunct Charges in the

Information and Factual Basis

The Government concedes that after Skilling it must now prove a "paradigmatic offense

of bribery" to support any honest services charge. Opp. at 2,4, 14, 16, 18. The Government further concedes that it must prove a quidpro quo, an actual agreement to exchange one thing for another between Delaughter and Petitioner. ld., at 3, 4, 18. The Government is simply wrong when it says that Petitioner "plead guilty, under oath, to a paradigmatic bribery." Opp., at 18. Nothing in the record supports such a charge. See D.E. 13 (Information), D.E. 23 (Transcript of Plea and Sentencing Hearing) (both failing to allege "bribe," "exchange," "agreement" and "quid pro quo"). Defendant would not, and did not, plead guilty to bribery or its equivalent conduct, as counsel opposite, who negotiated the plea for the Government, knows. Faced with similar efforts by the Government, district courts have refused to allow the Government to avoid Skilling by rewriting the history of a case. Just last week, a district court granted coram nobis relief in a post-Skilling honest services fraud case, writing that "defendants are not required to demonstrate actual innocence of honest services fraud because the information charging them did not properly charge any valid theories of honest services fraud."

us. v. Lynch, 2011 WL 3862842, 3 (E.D.Pa. 2011).

Strikingly, that case was predicated on a

real estate developer giving Lynch, a real estate tax assessor, an envelope with $20,000 in cash,
6

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"to thank him for his prior help" in lowering the developer's tax liability. Id. at 3. Then, three months later, Lynch again helped the developer by resolving a tax dispute with the city law department. Id. Like here, after Skilling, "the Government maintain[ed] that, in addition to the now-void undisclosed-conflict-of-interest theory, the Information also charged a valid bribery theory." Id. at 4. Even though the Lynch indictment actually mentioned the word "bribe," the district court still held that it did not allege the essential elements thereof- a quid pro quo exchange. The Information failed to "allege any intent on the part of either defendant with respect to specific actions at the time of the improper payment" and "most notably, the fact sections do not allege that Lynch took any action in expectation of Campenella's payment or that the parties ever intended to exchange the monetary payment for government services." Id., at 6. Instead, the Court held that the primary thrust of the charges was a failure to disclose the payment to the assessor, similar to the present charges of a failure to disclose Ed Peters' role. Here, unlike Lynch, there is no payment of any money to the judge. Indeed, compared to Lynch, the charge found in Petitioner's Information is much further from any allegation of bribery, since it does not even allege an exchange of money or anything at all nor even use the word "bribe." The Government failed to charge a crime that survives Skilling. A. Petitioner's Political Speech, which the Government Has Conceded is not Honest Services Fraud However, if the Court permits the Government creatively to reinterpret its 2008 charges to pretend that a paradigmatic quid pro quo bribery allegation was lurking there all along but unstated, this Court will nonetheless find that the evidence fails to support that silent charge. After all, the Government concedes that not a penny ever went to Bobby DeLaughter, nor was there ever any promise, scheme, or intention to pay him a cent. See Opp., at 6 ("the million

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dollars paid to Peters does not constitute bribery of a circuit judge,,).5 According to the Government's own understanding of honest services fraud as applying only to "personal financial interests" that influence a decision, this admission would dispose of this case. 6 The Government's new argument is that "the lure" of a political appointment to a "federal judgeship did in fact cause DeLaughter to rule favorably toward Scruggs," Opp., at 4, is not a financial interest. The Government concedes that "in fairness, Bobby DeLaughter would testify there was no quidpro quo and he would say he did not allow himself to be corruptly influenced." Id at 3. Senator Lott commns that his interaction with DeLaughter was nothing like the bait that the Government now describes. First, Petitioner called Lott only to learn about the process by which Lott and Senator Cochran nominated federal judges and to mention Delaughter's interest. Lott Tr. at 14. That process required both Lott and Cochran's agreement before any person would be nominated to a federal district judgeship. Id at 17. Lott told Delaughter he needed to know that both Senators were necessary before any name would be forwarded to the President. Id. at 17. Lott also told Delaughter that he (Lott) wanted someone from the Coast. Id Delaughter would have known that he did not qualify geographically for Lott's support. Lott gave no indication to Delaughter that Lott was even considering Delaughter for a judgeship. Id at 21. Further: Q. ...The Clearing [sic] Ledger reported a statement by Timothy Balducci that Delaughter obtained some influence from Trent Lott to be put on the

5 Indeed, Delaughter did not even know that Peters was being paid at all. Peters Tr., at 22 ("he did not know about the money.") 6 In their effort to save the honest service fraud statute from being struck down altogether, the Government represented to the United States Supreme Court that, "McNally thus sets forth the paradigm case of honest-services fraud that Congress intended to prohibit in Section 1346 ... [McNally] involved a personal financial interest that might reasonably be thought to influence official decisionmaking." Brief of the United States Government in U.S. v. Skilling, 2010 WL 302206, 39 (emphases added). Given that there is no personal financial interest at stake in this case, this simply is not a "paradigm case" of bribery or kickback, according to the Government's explicit representation to the United States Supreme Court.

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list to be considered for a federal judgeship and that you called Bobby DeLaughter at Mr. Scruggs request rather than pay money, the bait was the judgeship. True or False? A. [by Lott] False. And I have no doubt that there is no credibility to that at all, certainly not on my part, and I don't believe on Judge DeLaughter's either.

Id. at 24. And when asked whether ''there would have been no intent in your mind at all,

whatsoever, to create any inference in Judge DeLaughter's mind that he was receiving any favorable consideration?" Senator Lott answered, "None at all, because he was not." Lott Tr., at 30. Senator Lott "didn't suggest that [DeLaughter] was going to be given any consideration, you know at all or more than anybody else." Id., at 18. Senator Lott's testimony makes it quite clear that neither the federal judgeship, nor even special consideration therefore, was ever offered to Delaughter. There is no financial interest in being told by a United States Senator that he was thinking about someone else for a judicial nomination. The Government apparently thinks that the testimony of Ed Peters is so critical to its case that it gave him complete immunity, even though he was the lynchpin for the entire scheme to influence DeLaughter. Peters testified multiple times that Langston and Patterson told him (Peters) quite explicitly that the judgeship "doesn't have anything to do with this [Wilson] case." Peters Tr., at 15-16. Thus, even if Lott's phone call had some value to DeLaughter (contrary to both Lott's and DeLaughter's testimony), it was not offered in exchange for anything. Of course, Petitioner -- the other party to this alleged agreement -- would testify that his ineffectual support did "not have anything to do with the Wilson case," just as Mr. Peters testified. Most important, Peters testified that Delaughter would "not go contrary to the law." Id. at 19. Peters breaks any connection between the alleged quid and the alleged quo, stating not only Peters' contemporaneous state of mind, but also that of Langston and Patterson, who purported to

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represent Scruggs. 7 Langston confirmed this. "Peters told us from the beginning and told us many times thereafter Bobby Delaughter is going to do his own work, his own research. I can't get him not to follow the law." Langston Tr. at 15. Delaughter knew that he was getting nothing from Scruggs as a result of the Senator's call; Petitioner knew that he was getting nothing more than what every lawyer had a right to expect, the judge's own work and his commitment to follow the law. All that is left of the Government's argument is its hope that a political influence theory qualifies as a bribe. Notably, the Government does not contest that DeLaughter's ambition to be a federal judge is a "political interest," given that the appointment of such officials is indisputably a political question. See Petitioner's Memorandum, D.E. 126 ("Pet. Mem.") at 28 29 (citing sources). The honest services statute does not allow the criminalization of "a staggeringly broad swath of behavior" that "headline-grabbing prosecutors" subjectively deem "unappealing or ethically questionable," inviting "federal courts to develop a common-law crime of unethical conduct." Sarich v. United States, 129 S. Ct. 1308, 1309-10 (2009) (Scalia, J., dissenting from denial of certiorari). For this reason, the Government has already rejected this "political influence" theory as a basis for honest services fraud. 8 When the Supreme Court limited the

7 Likewise, Joey Langston testified that when he told Petitioner about Delaughter's interest in being a federal judge, Petitioner "told [Langston] unequivocally that he would support Bobby Delaughter's interest in those judgeships." Langston Tr., at 26-27 (emphasis added). The support was unequivocal, rather than conditional upon receiving certain rulings in return, as in a quid pro quo. Moreover, Petitioner repeatedly reminded Langston that he really had no real influence with Trent Lott, much less of course the constitutional decision-maker, the President of the United States. See id., at 28. If Petitioner had pushed Lott to recommend Delaughter, it would "have had the reverse effect." /d., at 23. Senator Lott "would have decided right then, no that's not the right one," given Lott's diametrically opposed political inclinations. Id., at 24. Senator Lott confirmed that there was never any intention of providing a judgeship to DeLaughter. Id., at 19.

In Weyhrauch, a companion case to Skilling in the Supreme Court, the Government explained that, Honest-services fraud does not embrace allegations that purely political interests

10

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statute as the Government requested, it relied explicitly upon and adopted the Government's term "paradigmatic." 9 Thus, the United States has explicitly renounced the theory the Government now asserts, ignoring Skilling. Now, however, the Government comes before this Court saying exactly the opposite. In doing so, the Government also fails to cite a single case - in this nation's entire history - in which someone was prosecuted for bribery for recommending someone to a public office. In a nation of laws, even the United States Government is bound by its judicial omissions. The Government cites United States v. Whitfield, 590 F.3d 325, 353 (5th Cir. 2009), and argues that "the United States Supreme Court in Skilling cited this portion of the Whitfield decision as an example of a valid honest services scheme." Opp., at 15. True enough - as far as the argument goes. But Whitfield involved precisely the financial conflicts of interest (e.g., loan guarantees and cash payoffs) that are paradigmatic of a bribery scheme, unlike the political interests in the present case. Moreover, the Government repeatedly describes the Whitfield case as involving an "agreement" to exchange official decisions for that money, and the Government recognizes that the Fifth Circuit requires proof of such an agreement, since it is the essence of a

quidpro quo. See Opp., at 14, 15. Strikingly, however, the Government never even alleges that
an agreement existed between Delaughter and Petitioner or any of his agents. See Opp, at 1-20. By straying far from paradigmatic bribery -- to get into a case of non-financial, political
may have influenced a public official's performance of his duty. The core interests that give rise to the divided loyalties covered are personal financial interests of the official, his family, or his associates that raise a conflict with official duties. Brieffor the United States Government in Weyhrauch v. US., 2009 WL 3495337, 45-6.
9 "Paradigmatic" means "[e]xemplary, typical ... not unique but based upon old situations." Webster's Third New International Dictionary (2002).

11

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influence where there was no allegation of a quidpro quo agreement and no benefit actually provided anyway -- the Government's prosecution under the facially vague honest services fraud statute has violated the standard of fair notice, which the United States Supreme Court redeemed in Skilling. Likewise, the Government has chosen not even to respond to Petitioner's charge that, by using a facially-vague statute to selectively prosecute him for his participation in core political speech, the prosecutors have violated Petitioner's rights under the First Amendment. This fundamental problem was squarely raised in the Petition as a basis for this Court holding that it would be unconstitutional to apply the honest services fraud statute to Petitioner, which Skilling condemns as violating due process, to criminalize Petitioner's core political speech. See Pet. at 26-32. Since the Government "did not contest" this point in its response, it ''therefore effectively conceded it." Us. v. Branch, 91 F.3d at 699, 752 (5 th Cir., 1996). Given the gravity of this issue - a violation of the most fundamental of constitutional rights - the Court deserved a response.

ITI.

THE GOVERNMENT'S NEW MONEY FRAUD THEORY

The Government also now asserts that the honest services fraud charges in the original

indictment and those in the superseding information were only camouflage for the real crime - a scheme to defraud Robert Wilson of money. See Opp., at 16-17. The purpose of this argument is to require Petitioner to shoulder the burden of his "actual innocence" of these new money fraud charges.

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A. The Missing Money Fraud Charge in the Indictment

First, the Government never charged money fraud, and such a charge was thus not "foregone" by the superseding information. The Indictment just does not state a money/property fraud charge. 10 The closest the Government can come is to quote this portion: Petitioner "... devised and executed and intended to devise and execute a scheme and artifice to defraud the plaintiff in the Hinds County Circuit Court case of Wilson v. Scruggs, Cause No. 251-94-582, thereby depriving the plaintiff and the citizens of the State of Mississippi of their intangible right to the honest services of Circuit Judge Bobby DeLaughter, who as Circuit Court Judge had a duty to perform impartially, without affording either side an unfair advantage or secret access to the court." Opp., at 9 (quoting the Indictment, emphasis added by Petitioner). It is notable that the Indictment specifies both Wilson ("the plaintiff") and the State of Mississippi as the victims of fraud, and then directly states what they were deprived of - "their intangible right of the honest services." There is absolutely no mention of a scheme to deprive Wilson of any money. The Government also invokes the "factual basis [for the plea]: 'The Wilson legal team never knew about the involvement of Ed Peters, or the telephone call regarding the federal judgeship." Opp., at 17. By its plain language, this allegation of a failure to disclos Peters' role does not include any allegation that Wilson was defrauded of money; it is perfectly consistent with the Government's explicitly-stated theory that Wilson and the State of Mississippi were deprived of Judge Delaughter's honest services. See Lynch, 2011 WL 3862842, 3 (explaining that such language reflects the pre-Skilling understanding of honest services fraud, predicated on a failure to disclose theory).

10 "The Sixth Amendment requires that an indictment (1) enumerate each prima facie element of the charged offense; (2) fairly inform the defendant of the charges filed against him; and (3) provide the defendant with a double jeopardy defense against future prosecutions." United States v. Gaytan, 74 F.3d 545,551 (5th Cir. 1996). "The purpose of the indictment is to provide the defendant with notice of the offense with which he is charged." !d. at 552. (emphasis added).

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The Supreme Court and the Fifth Circuit have condemned the effort employed by the Government here. In McNally v. Us., 483 U.S. 350 (l987), the Supreme Court held that the wire and mail fraud statutes did not encompass honest services fraud. In u.s. v. Marcello, 876 F.2d 1147 (5th Cir., 1989), the Government had previously indicted and won a conviction on a scheme to defraud the State of Louisiana of the honest services of certain contract agents to whom Marcello paid bribes. When McNally decimated that theory, the Government got creative and tried to suggest that Marcello actually faced a money/property fraud crime that was implicit in the indictment. The Fifth Circuit said: In its effort to remove this case from the ambit of McNally and to sustain the convictions, the government makes several arguments. First, the government cites article 3005 of the Louisiana Civil Code and contends that bribes paid to a state agent are the property of the state and that monies paid to Roemer were property belonging to the state. While we admire counsel's ingenuity, we are not persuaded. The agent's fiduciary duty to his principal was not the factual basis or theory upon which the grand jury indicted, and it was not the basis upon which the defendants were tried. See United States v. Italiano, 837 F.2d 1480 (lIth Cir.1988); Allen v. United States, 867 F.2d 969, 972 (6th Cir.1989) (''the issue is not what [the defendant] might have been charged with when one examines his conduct in retrospect and recharacterizes it in light of McNally, but what charges actually were lodged against him, tried, and submitted to the jury"). The government would have the court perform a nunc pro tunc revision of the indictment and charge so that the convictions would conform to McNally. This we decline to do. A trial court may dismiss an indictment for failure to charge an offense, or refuse to allow an indictment to go to the jury for insufficient evidence, but the court may not retrospectively redraft an indictment to support a conviction on facts or theories upon which the defendant was not charged, tried, and convicted. 876 F.2d at 1152 (emphasis added). Marcello controls here. In United States v. Dyer, 136 F.3d 417 (5th Cir. 1998), the Government charged honest services fraud in the information and also explicitly alleged a scheme to defraud a developer out of identifiable property and a specified amount of money, $25,000 in particular. The Fifth Circuit upheld the conviction after McNally, holding that, "The information contained specific

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allegations of both money and property loss." 136 F.3d at 424 (emphasis added). Such a specific allegation is altogether missing from Petitioner's case. 11 After McNally and Marcello, the United States Government was on quite clear notice of the need to specifically charge a loss of money/property if that was their theory, and Dyer demonstrated precisely how they should do so. The Government's attempt to creatively rewrite the Indictment in this case has been foreclosed.

B. The New Money Fraud Charge Is Not "More Serious, " the Predicate for Bousley
Second, Petitioner is actually innocent of the honest services violation to which he pled guilty as a result of Skilling. 12 Thus, with regard to money fraud, an actual innocence showing is not required because Bousley limits the necessity of that showing to charges that are "more

11 Likewise, the Government now relies on the Skilling case on remand to argue that, "ordinary mail fraud survives" the Supreme Court's Skilling decision. 0pp.,5 (citing U.S. v. Skilling, 638 F.3d 480 (5th Cir. 2011)). Skilling did not involve "ordinary mail fraud", but instead the Court explained: "The Government asserts that the invalid honest-services instruction was harmless with respect to the conspiracy conviction. Specifically, it argues that the evidence presented at trial proved that Skilling participated in a scheme to deceive the investing public about Enron's financial condition in order to maintain or increase Enron's stock price. If so, then we would be able to conclude beyond a reasonable doubt that absent the honest-services instruction, the jury would have convicted Skilling under a valid theory of guilt-conspiracy to commit securities fraud. The Government's harmless-error argument is consistent with the indictment, which focused primarily on securities fraud and did not emphasize any act of honest-services fraud that is not also an act of securities fraud." 638 F.3d at 483. Unlike the present case, the Skilling indictment charged and indeed emphasized an altogether different crime, other than honest services fraud.
12 Alternatively, this Court never had jurisdiction to accept such a plea, which is thus a legal nullity and does not function as any sort of admission, waiver, or procedural default. All this Court need do is set aside its illegal conviction that it never had jurisdiction to enter. See 18 U.S.C. s 3231 (1970) (limiting the jurisdiction of federal courts to federal crimes); United States v. Meacham, 626 F.2d 503 (5th Cir.1980) (granting such relief, where the offense conduct was no longer criminal); United States v. Thor, 554 F.2d 759, 762 (5th Cir., 1977) (same); Williams v. U.S., 684 F.Supp.2d 807, 825 (W.D.Tex., 2010) ("Nothing has changed in the law or upset the rationale of Meacham from the time the Fifth Circuit rendered its decision therein."); U.S. v. Peter, 310 F.3d 709,714 (11th Cir., 2002) (analyzing Meacham and holding that it is good law in a similar case where a statute's scope was narrowed retroactively). But see U.S. v. [David Zachary) Scruggs, Slip Copy, 2011 WL 1832769, *8 (N.D.Miss., 2011) (rejecting this analysis, and arguing that Meacham had been overruled by the Supreme Court deciding another issue in United States v. Cotton, 535 U.S. 625 (2002), where there was no dispute about whether the trial court had jurisdiction).

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serious" than the honest services mail fraud charge to which Petitioner pled. The Government's brief at fIrst quotes the correct standard: "... in cases where the government has foregone more

serious charges in the course of plea bargaining, petitioner's showing of actual innocence must
also extend to those charges." Opp., at 12 (quoting Bousley v. Us., 523 U.S. 614, 624 (1998) (emphasis added by Petitioner). Apparently recognizing the problem with the Supreme Court's explicit mandate, the Government then rewrites it - without any explanation or authority simply replacing the words it does not like: "Only if the petitioner can convince the court that he is actually innocent of all charges is he entitled to have his defaulted claim considered on its merits." Id., at 12 (emphasis added). Bousley controls this issue. In Bousley, the United States Supreme Court was quite clear in its mandate for how trial courts should assess procedural default, and this Court need only follow that mandate. The Fifth Circuit has discussed this point at some length in an unpublished table decision, explaining that to assess whether a charge is more serious, one looks at whether the other charge would impose a longer period of imprisonment:

Bousley points out that a petitioner claiming factual innocence must be prepared to establish, in addition to his innocence of the fIrearms charge, that he did not commit any more serious crimes whose prosecution was forgone by the government in exchange for the plea agreement. ... The factual resume demonstrates that on one occasion he was involved in a transaction to sell more than eight ounces of cocaine.... [A]s the district court noted [however], Arreola was defInitely exposed to more lengthy terms of imprisonment on the cocaine charges than on the charges to which he eventually pled guilty; .... For these reasons, Arreola cannot succeed in challenging his fIrearm conviction, and the judgment of the district court is AFFIRMED. United States v. Arreola-Ramos, 204 F.3d 1115 (5th Cir. 1999)(table)(emphasis added).
Presumably, the Government would prefer to rewrite that case too, and dozens of others

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throughout the Courts of Appeal. 13 The new wire fraud charge would have the same statutory minimum as the honest services fraud. It is not a "more serious charge." Thus, this Court need not decide whether is Petitioner is "actually innocent" of the new charge. See Peveler v. US., 269 F.3d 693, 700, 2001 Fed. App. 0372P (6th Cir. 2001) (considering seriousness of two dismissed offenses based on statutory mandatory minimum sentences). The "actual innocence" question is simply whether Petitioner is actually innocent of the honest services fraud, and lacking a paradigmatic bribery (as shown in Part I above), Skilling decides that issue.
C The Lack ofAny Evidence ofMoney Fraud

Third, even if money/property fraud had been charged in the indictment and even if such a charge were more serious than the honest services fraud charge, the facts fail to support such a charge. Petitioner did not plead guilty to a money/property fraud crime and the Government has provided no evidence that would persuade a reasonable jury to convict on the beyond a reasonable doubt standard. 14

13 See e.g., Johnson v. United States, 186 F.3d 876, 878 (8th Cir. 1999) ("If the district court concludes the dismissed 924(c) count is a more serious charge, then Johnson must show he is actually innocent of that charge."); United States v. Lloyd, 188 F.3d 184, 185 (3d Cir. 1999)( "because we also find that Lloyd was not required to demonstrate actual innocence of a foregone, less serious charge, we will reverse the decision of the District Court and remand for further proceedings."); United States v. Benboe, 157 F.3d 1181, 1185 (9th Cir. 1998) ("if the court finds that no more serious charges were dismissed, the court should consider on the merits whether his plea was unintelligent."); Luster v. United States, 168 F.3d 913, 914-915 (6th Cir. 1999)( "In return [for his plea of guilty], the government agreed to dismiss all remaining counts, including the more serious drug counts. [The showing of actual innocence] must also extend to the more serious crimes in the indictment forgone by the government.") 14 The Government also tries to move the goalposts by invoking a standard that applies in the context, where a petitioner has been convicted by a jury but instead seeks to have his conviction set aside based on new evidence. Opp., at 12 (Petitioner "must prove that 'it is more likely than not that no reasonable juror would have convicted him in light of the new evidence. In doing so the petitioner does not have the benefit of a presumption of innocence and is, in fact, presumed guilty.") (citing Bosley v. Cain, 409 F.3d 657,664 (5th Cir. 2005) (emphasis added). Here, Petitioner has never admitted or been convicted of money/property fraud, does not seek to set aside that conviction, and he does not assert that the discovery

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In fact, the Government's evidence shows the opposite. It is beyond dispute that Petitioner's motive for involving Ed Peters was to prevent Robert Wilson from exploiting his own extra-judicial influence upon Judge Delaughter. Ed Peters testified that the motive for involving him was: A. ...that there was a lawyer by the name of Kirksey that was on the other side [of the Wilson case] than Scruggs and that [Scruggs] wanted to make sure that home cooking is a word that lawyers use, undue influence. Wanted to make sure that Kirksey on the other side didn't create home cooking for the other side.

Q.... [Scruggs] was afraid that Mr. Kirksey might get special considemtion [from Judge Delaughter]?
A. That's correct. Peters Tr., at 4-5. Likewise see, Peters 12/18/2007 FBI 302 Report, p2 (same)(Exhibit 1). See

also Langston Tr., at 46-47 (explaining that at the time he and Peters believed that "what we
were doing was simply trying to influence [Judge Delaughter] to do just that and follow the law;" and that Peters "constantly reminded" him of this intention).
It is thus undisputed that Scruggs's motivation was not to defraud Wilson of any money

or property; it was simply to neutralize the ''undue influence" that Wilson appeared to be applying on the other side, so that Judge Delaughter would follow the law. Indeed, as previously

of new evidence is the basis for overturning his conviction. Instead, the law has changed and Petitioner need not present any "new evidence" at all. The Government's convenient "presumption of guilt" of charges that have never been admitted or proven finds no basis in Bous[ey, and would be unconstitutional in these circumstances. Coffin v. U.S., 156 U. S. 432, 453 (1895) ("The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law."); Morrison v. People of State ofCalifornia, 291 U.S. 82, 88-89 (1934) ("the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant [only if the state] shall have proved enough to make it just for the defendant to be required to repel what has been proved"). Finally, the Government's "presumption of guilt" theory is incoherent with the stated task of determining, "what reasonable, properly instructed jurors would do." Bosley, 409 at 662. A properly instructed juror would of course require proof beyond a reasonable doubt, since that is what "marks the legal boundary between guilt and innocence," id., and reasonable juror would presume the defendant's innocence until such proof is made, see Fifth Circuit Pattern Instruction 1.01.

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mentioned, on infonnation and belief, counsel for Wilson did have ex parte conversations with Delaughter - that were as unknown to Petitioner as Peters' talks with Delaughter were to Wilson. This undisputed motivation to level the playing field is presumably why the Government charged honest services fraud in the first place, dropped bribery charges against Delaughter and it is surely why it explicitly renounced the money fraud theory in open court. Wilson sued Scruggs over attorneys' fees stemming from asbestos litigation, and Mr. Scruggs was concerned about getting a, quote, unquote, fair trial, as one of the attorneys representing Wilson was a fonner law partner of the circuit judge assigned to the case. Plea Tr., at 25 (emphasis added). The Government discussed this point at some length in a hearing before Judge Neal Biggers earlier that year: There was no effort to get Bobby DeLaughter to break the law. There was no effort to get Bobby DeLaughter to rule in violation of the law... There is every reason to believe that the Scruggs Law Finn probably would have prevailed in both these cases [Wilson and another]. Feb. 21, 2008 Tr., at 18,21. Thus, the Government has already admitted that Petitioner lacked any intent to defraud Wilson of any money, since Petitioner did not intend to cause "DeLaugther to rule in violation of the law." Rather, the Government admits that Petitioner's motive was to get precisely what the law required, even if that required special efforts to counterbalance any influence that Wilson was exercising upon DeLaughter on the other side. According to the Government, the final result would be a "fair trial."

IV.

CONCLUSION
The Government has failed to even allege an agreement to make an exchange, the

essential element of a bribery, and moreover has failed to show that this case was "paradigmatic" bribery, rather than merely one ofnon-fmancial political influence. The Government has utterly failed to address the serious Constitutional problems with using a facially vague statute to
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criminalize a citizen's endorsement of a candidate for a political office. The Government's newfound money fraud charge fails for many reasons - it need not be considered here, where Petitioner had cause and prejudice for not raising the Skilling issue before; it was not charged in the indictment; it cannot be proven; and [mally, it is excluded by the plain language of Bousley. The Government's own concessions - that the honest services fraud law does not apply to cases of non-financial political influence like this one, and that Petitioner had no intent to defraud Wilson of money - doom the Government's case. The Government has left this Court with no option but to grant the Petition. Respectfully submitted, this 16th of September, 2011. /s/Edward D. Robertson, Jr. Edward D. Robertson (pro hac vice) Michael C. Rader, MB#100205 BARTIMUS FRICKLETON ROBERTSON & GORNY 11150 Overbrook Road, Suite 200 Leawood, KS 66211 913-266-2300 Email: mrader@bflawfirm.com Bartimus, Frickleton, Robertson & Gorny, P.C. 715 Swifts Highway Jefferson City, Missouri 65109 573-659-4454 573-659-4460 (fax) chiprob@earthlink.net mrader@bflawfirm.com Mike Moore, MB#3452 MIKE MOORE LAW FIRM, LLC 10 Canebrake Blvd., Suite 150 Flowood, MS 39232 601-933-0070 mm@mikemoorelawfirm.com

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CERTIFICATE OF SERVICE I, Edward D. Robertson, Jr., hereby certify that on September 16,2011, I served copies of this document on the Office of the United States Attorney for the Northern District of Mississippi by way of first-class mail, postage prepaid because the document was filed with a motion to seal.
sf Edward D. Robertson, Jr.

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