Zach Scruggs and his attorney, former MS AG Mike Moore, beg the 5th to undo guilty plea

8/3/2019 Zach Scruggs and his attorney, former MS AG Mike Moore, beg the 5th to undo guilty plea

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11-60564

IN THEUNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

DAVID SCRUGGS,Defendant-Appellant.

Appeal from the United States Districtfor the Northern District of Mississippi

____________________________

BRIEF FOR APPELLANT____________________________

Edward D. Robertson, Jr. Mike Moore, MB#3452Michael C. Rader, MB#100205 David Lee Martin, MB#9982BARTIMUS FRICKLETON MIKE MOORE LAW FIRM, LLCROBERTSON & GORNY 10 Canebrake Blvd., Suite 150715 Swifts Highway Flowood, MS 39232Jefferson City, MO 65109 [email protected] [email protected]@bflawfirm.com [email protected]

573-659-4460 (fax) Christopher T. Robertson, MB#102646ATTORNEY AT LAW6342 N Via Lomas de PalomaTucson, AZ [email protected]

Case: 11-60564 Document: 00511691088 Page: 1 Date Filed: 12/09/2011
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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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 ofSkilling 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 ..................................................................................6JURISDICTIONAL 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 pledguilty was not a crime under Skilling. ...............................................................35

A. Appellants misprision plea was based solely on his failure to report theearwigging conspiracy, which everyone mistakenly believed was an honestservices 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 andliPrejudice.......................................................................................................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 BriberyConspiracy After Learning of its Criminal Purpose.......................................56

V. District Court Erred in Holding Appellant Failed to Prove Actual Innocence ofCrimes Never Charged ......................................................................................61

VI. Appellant was Entitled to Relief on the Basis of Ineffective Assistance ofCounsel, which Claim was Timely and Sufficient............................................64

VII. Appellant is Entitled to Relief Because His Plea was Unknowing andInvoluntary Due to the Governments Deliberate Misrepresentations to the Courtand 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 timely-

raised-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 un-

conflicted 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.

1These 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 self-

evident 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

2 Mississippi calls ex parte communications with a judge earwigging. Mississippi Circuit CourtRule 1.10, entitled Earwigging Prohibited, forbids all ex parte attempts to influence a judge, or todiscuss the law or any alleged fact with (or in the presence of) a judge, other than in regular courtproceedings.



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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.

3Barrett 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-for-

money 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 foranother delivery of uh, another bushel of sweet potatoes downthere. 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 forit 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 afelony cognizable by a court of the United States, concealed and did notas soon as possible make known the same to some judge or other

person in civil or military authority under the United States, inviolation 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 partemanner 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 orderJudge Lackey intended to enter] and left the order with [Appellant.] Atthis time, [Appellant] was aware that . . . the [Jones] plaintiffs wereunaware of both Balduccis involvement and that Judge Lackeys rulingwas 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 ofMississippi 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 orderand, on this date, met with [Appellant] and Sid Backstrom in Backstromsoffice. . . . Both [Appellant] and Backstrom spent time examining theorder and discussing its contents. After receiving and examining the[new] order, [Appellant] failed to inform the firms counsel of record ofthe manner in which the order had been obtained, thereby concealing this

fact from the [Jones] plaintiffs4 whom the firms counsel would havebeen bound to inform.

4Obviously, 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 arefor an act that the law does not make criminal. There can be no room fordoubt 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 noview on the merits of the petitioner's claim, we hold that the issue heraises 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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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 toreport 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, self-

dealing, 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 ajudge. 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 ofDavis 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,

6In 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 trialand appellate court in the country. After Skilling, however, this distinction became highly materialbecause Skilling holds that only paradigmatic bribes are criminal under the honest service fraudstatute. 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 ofcoram 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 beProcedurally 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 ofUnited 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 ofMeacham 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 ofMeacham will ensure that such claims can be heard and decided on the

merits.

B. Even if Procedural Default Applies, Skilling Establishes Cause andPrejudice

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. Reedreasoned 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

7In 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 Governmentagreed that Blitch was entitled to relief under Skilling, even though Blitchs case involved 16 otherforegone charges, including assertions of quid pro quo bribery and money fraud, both of whichwould 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 noreasonable juror wouldhave convicted him. The word reasonable inthat formulation is not without meaning. It must be presumed that areasonable 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

8No 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 innocenceshowing, 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. Appellanthas not been in custody since the day he filed this action. Thus, the Court may grant Appellantsrequest 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 ifBousleys 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

9 The Supreme Court does not appear to have returned to validate this language in Bousley, andAppellant urges this Court not to follow this dicta which this Court appears never to have quoted oranalyzed 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 ofconspiracy:

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 defendantknew the unlawful purpose of the agreementand 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 KnewAbout 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 thecase, 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, andnot 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 howyou want it because Ive got to uh, Ive gotta go back for another deliveryof uh, another bushel of sweet potatoes down there. So. Because of allthis that has come up. [Backstrom responds, Mm-hmm.] So, get itright. Get it how you want it cause were payin for it to get it doneright.

TR.E

Documents

Zach Scruggs and his attorney, former MS AG Mike Moore, beg the 5th to undo guilty plea