Scruggs proposed findings - NMissCommentor

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UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

UNITED STATES OF AMERICA 

v. NO. 3:09CR002-GHD 

RICHARD F. SCRUGGS 

PETITIONER’S PROPOSED FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

In response to this Honorable Court’s request for briefing after the March 26 th and 

27 th hearing, Petitioner respectfully submits this memorandum of proposed findings of 

fact and law. 

INTRODUCTION 

This brief assumes, without conceding the correctness of that assumption, that this 

Court’s consideration of Petitioner’s § 2255 Petition is governed by Bousley v. U.S., 523 

U.S. 614, 624 (1998). Indeed, the Court’s previous orders appear to limit the Court’s 

concerns to whether there is evidence that Petitioner’s conduct was a quid pro quo bribe. 

If Bousley does apply, Petitioner bears the burden of showing his actual innocence 

of the charges contained not only in the Information to which he pled guilty, but also his 

actual innocence of certain foregone charges contained in the original Indictment—but 

only those charges that are “more serious” than the charge to which Petitioner pled guilty. 

“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.” 

Id. at 624. 

Petitioner does not concede the application of Bousley here for a number of 

reasons. First, as noted in Petitioner’s Motion to Show Cause (DE#170) and Reply 

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(DE#181), Bousley does not apply when the Supreme Court determines that the 

Information to which Petitioner pled guilty fails to charge a crime recognized under the 

Constitution. After Skilling v. United States, 130 S. Ct. 2896 (2010), non-bribe honest 

services fraud does not constitute a crime. Because Petitioner pled guilty to a non-bribe 

honest services fraud, the crime to which he pled guilty is not and never was a crime. 

This is the uncontroverted teaching of Skilling: A criminal statute that fails to 

“define the criminal offense [1] with sufficient definiteness that ordinary people can 

understand what conduct is prohibited and [2] in a manner that does not encourage 

arbitrary and discriminatory enforcement” violates the Due Process Clause and is void for 

vagueness. Id. at 2927. See also, United States v. Bass, 404 U.S. 336, 349 

(1971)(reasoning that the law ought to have “an instinctive distaste against men 

languishing in prison unless the lawmaker has clearly said they should”). 

Thus Bousley, which involved the evidence necessary to support a conviction of a 

recognized and constitutionally-sufficient criminal statute, cannot apply here. Petitioner 

addresses this issue, and this Court’s reliance on United States v. Cotton 535 U.S. 625 

(2002) in a separate filing. 

Second, even if Bousley applies, Petitioner must show his actual innocence only 

of “more serious” foregone crimes. Giving the Indictment its broadest reading, the 

Government charged Petitioner with honest services bribery in Count II. This charge is 

no more serious than non-bribery honest services fraud. Thus, Bousley itself does not 

require Petitioner to show his actual innocence of quid pro quo bribery. 

Aside from Bousley, Petitioner has asserted that his so-called quid cannot become 

the basis for a crime. Petitioner’s call to then-Senator Trent Lott involved his 

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constitutionally protected right to petition the government. And even if such a petition is 

not absolutely protected, the First Amendment carries with it protections that prohibit 

criminalization absent an explicit agreement to trade political influence for an illegal act. 

When a criminal statute applies to activity that furthers First Amendment interests, courts 

must exercise “particular care” to ensure that the statute “provide[s] more notice and 

allow[s] less discretion than for other activities.” United States v. Thomas, 864 F.2d 188, 

194 (D.C. Cir. 1988); see also Nevada Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 

2353 (2011) (Kennedy, J., concurring) (vague statute affecting First Amendment interests 

“is an invitation to selective enforcement; and even if enforcement is undertaken in good 

faith, the dangers of suppression of particular speech or associational ties may well be too 

significant to be accepted”). 

In the constitutionally protected context of petitioning the government, the 

Supreme Court has recognized the need to erect robust protections around democratic 

political activity from the overly expansive reach of criminal laws, such as the antitrust 

laws. “[I]t is obviously peculiar in a democracy, and perhaps in derogation of the 

constitutional right ‘to petition the Government for a redress of grievances,’ to establish a 

category of lawful state action that citizens are not permitted to urge.” City of Columbia 

v. Omni Outdoor Adver., Inc., 499 U.S. 365, 379 (1991) (citation omitted). For that 

reason, “[t]he federal antitrust laws also do not regulate the conduct of private individuals 

in seeking anticompetitive action from the government.” Id. at 379–80. Indeed, in 

protecting the right to petition the government from the overreach of the antitrust laws, 

the Court firmly held that it is “irrelevant” that “a private party’s motives are selfish.” Id. 

at 380. The Court explained that Eastern Railroad Presidents Conference v. Noerr 

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Motor Freight, Inc., 365 U.S. 127 (1961), “shields from the Sherman Act a concerted 

effort to influence public officials regardless of intent or purpose.” City of Columbia, 499 

U.S. at 380 (quoting United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965)). 

See also, McCormick v. United States, 500 U.S. 257, 272 (1991), (“Whatever ethical 

considerations and appearances may indicate, to hold that legislators commit the federal 

crime of extortion when they act for the benefit of constituents or support legislation 

furthering the interests of some of their constituents, shortly before or after campaign 

contributions are solicited and received from those beneficiaries,” it is not proscribed by 

the criminal law.) 

Petitioner does not repeat more fully his First Amendment arguments here, but 

expressly incorporates the arguments made in his Motion for Judgment on the Pleadings 

(DE#145) and Reply (DE#151) and in his Motion to Show Cause (DE#170) and Reply 

(DE#181). 

Finally, returning to Bousley, the standard for actual innocence is this Court’s 

probabilistic assessment of what a properly instructed, reasonable juror would conclude 

upon hearing the evidence. This means that the Court must place itself in the position of 

a lay juror who has been told that a conviction depends on proof beyond a reasonable 

doubt. If, but only if, that reasonable juror, upon hearing that evidence would likely find 

Petitioner guilty beyond a reasonable doubt, can the Court deny the Petitioner’s Petition 

even under the Bousley rubric. 

This Court called the hearing to which this brief speaks precisely because it 

wanted to hear evidence concerning whether an actual quid pro quo existed in this case. 

This conclusion necessarily rests on two premises: First, that Petitioner did not plead 

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guilty to a paradigmatic bribe when he pled guilty to the Information. On its face, the 

Information deliberately charges only a non-bribe honest services fraud. The language of 

the Information is devoid of any words from which the neutral reader could find even an 

implicit this-for-that exchange between Petitioner and then-Judge Bobby Delaughter. 

Second, this Court mused in an evidentiary vacuum that the prospect of a federal 

judgeship could be a “thing of value.” (DE#65) But the Court wisely stated the 

possibility as a theoretical one, waiting for the evidence to show whether the theoretical 

possibility was such that a reasonable juror would find it a beyond-a-reasonable-doubt 

factual reality. 

What is a Quid Pro Quo? 

In United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999), the 

Court made clear that bribery requires proof that a “thing of value” was “give[n], 

offer[ed] or promise[d]” as a quid pro quo for an official act. Id. Therefore, to prove 

paradigmatic bribe honest services fraud, the government must show an “exchange” 

between a “thing of value” and an act taken in response. Thus Sun-Diamond stands for 

what should be the obvious proposition that the providing of a “thing of value” becomes 

criminal only when the thing of value is directly linked to a particular official act. Thus, 

the distinguishing feature of bribe – particularly in a First Amendment context – is the 

explicit agreement of an exchange of a thing of value for an official action. Id. at 404-05. 

To use more pedestrian language, a thing of value “A” can be given to a public 

official. The public official may take an official action “B.” But unless A causes Bto 

occur, the pro in quid pro quo is missing and there is no bribe. And without that 

exchange, that cause, there is no bribe. 

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As United States v. Ganim, 510 F.3d 134, 149 (2d Cir. 2007) (Sotomayor, J.) 

reminds: “[B]ribery 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 at some unknown, unspecified later time, be in a position to act favorably 

on the giver’s interests—favorably to the giver’s interest.” 

In this case, timing is everything. The evidence presented at the hearing showed – 

and that evidence stood wholly uncontroverted by the Government – that there was no 

quid pro quo. The timing was off. Ed Peters exercised his prerogative to have ex parte 

contact with Bobby Delaughter months before any federal judgeship opened in the 

Southern District of Mississippi. 

First, the Information did not charge a quid pro quo bribe. Petitioner’s guilty plea 

simply cannot be read as a plea to quid pro quo bribery. The Government’s response to 

the Motion to Show Cause (DE#178) attempts to say that it does, but wholly fails to cite 

language in the Information or the Factual Basis or any other aspect of the allocution that 

would allow the usual meanings attributed to words in the English language to support 

that conclusion. 

Second, Count II of the Indictment (DE#3) charged that Petitioner: 

[P]revailed upon his brother-in-law, then a United States Senator from 

Mississippi, to offer Judge Delaughter consideration for a federal district 

judgeship then open in the Southern District of Mississippi…. In return, 

Judge Delaughter afforded the Scruggs legal team secret access to the 

court by way of Ed Peters, forwarding them advance copies of his rulings 

and proposed orders on issues before the Court and on one occasion 

accepting from the Scruggs legal team a scheduling order favorable to 

Scruggs, which the court then adopted, almost verbatim. 

DE#3, 12. The Government's position is now that a bribe occurred simply because Lott 

made a call to Delaughter, the content of the call is irrelevant to the Government. 

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The indictment also sets out that: 

[9]d. On or about January 24, 2006, Judge BOBBY B. 

DELAUGHTER accepted a secret, ex parte communication from the 

Scruggs legal team, essentially reversing his earlier ruling and accepting, 

almost verbatim, a scheduling order favorable to Scruggs. 

[9]f. On or about August, 2005 until on or about August, 2006, Ed 

Peters had a number of improper ex parte meetings with Judge Delaughter 

designed and intended to secretly influence the judge to shade his rulings 

in favor of Scruggs. 

[9]g. On or about August, 2005 until on or about August, 2006, 

Judge BOBBY B DELAUGHTER secretly communicated with the 

Scruggs legal team through Ed Peters, affording them a unique and 

valuable opportunity to foresee and attempt to influence his rulings. 

DE#3. The indictment is thus facially self-defeating under Sun Diamond. Secretaccess 

and legally consistent, but favorable (and unfavorable) rulings occurred well before there 

was any quid. 

The first “then open” federal district judgeship opened February 4, 2006. Trent 

Lott made his call to Bobby Delaughter on March 29, 2006. Leaving aside the fact that 

Lott testified and Bobby Delaughter’s March 30, 2006, letter shows that Lott told 

Delaughter that he would not be considered for the “then open” judgeship(s), if that call 

itself was the thing of value necessary for a quid pro quo exchange, it, too, occurred well 

after the Government’s indictment admits that that secret access began by half a year – 

August of 2005. The specifically-referenced scheduling order in the indictment again 

shows that no Sun Diamond “exchange” could have occurred that caused Judge 

Delaughter to grant the Scruggs team secret access. That order was entered on January 

25, 2006, more than 3 weeks before any federal district judgeship became open and more 

than two months before Trent Lott’s call. That scheduling order reflected that secret 

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access occurred well before there could have been any “exchange” with Judge 

Delaughter. 

At the hearing before this Court, the Government tried a pre-Skilling honest 

services fraud case, not a post-Skilling paradigmatic bribe case. Petitioner does not 

dispute that he committed or at least condoned unethical conduct between Ed Peters and 

Bobby Delaughter. That is why he pled guilty to the pre-Skilling honest services fraud 

charged in the Information. The vague language of the honest services statute had given 

prosecutors and the courts such untethered latitude that Petitioner could simply not risk a 

trial. But Skilling said with certain clarity that this type of unethical conduct is not 

criminal—and never was. The Government’s theory of the case is perhaps best summed 

up in two questions it asked witnesses. First, the Government asked Steve Funderberg 

whether he knew, as an “honest lawyer,” whether “Langston and Balducci had hired Ed 

Peters in August, 2005, paying him $50,000 to influence the judge without entering an 

appearance…? March 27, 2012 Tr. at 47. Second, the Government asked Mr. 

Funderberg: “And we agree this was a corrupt judge as of August, 2005, do we not?” 

March 27, 2012 Tr. at 49. (Mr. Funderberg assured the Government that he had no first- 

hand knowledge of either.) 

These questions themselves, like the language of the Indictment, are virtual 

admissions that no quid pro quo existed in this case. Under the Government’s own 

theory, the corruption occurred more than six months before a “then open” federal district 

judgeship existed and more than six months before Senator Lott’s call to Bobby 

Delaughter. No matter how strongly the Government uses the word “corrupt” or 

describes Bobby Delaughter as “thirsty” for a federal judgeship, all the Government has 

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is unethical conduct existing because of Ed Peters’ relationship with Judge Delaughter. 

Vitriol is no substitute for evidence. The uncontroverted evidence is that Petitioner did 

nothing to gain this access to Judge Delaughter beyond hiring Ed Peters—and that the 

access came well before Trent Lott called Bobby Delaughter. Judge Delaughter granted 

no favors to Petitioner beyond the favors he granted Ed Peters because of their special 

relationship—and he granted them well before a “then open” federal judgeship presented 

itself. 

More important, what Funderberg (as well as Langston and Balducci) did say was 

that all of Judge Delaughter’s rulings were consistent with an order he issued in August, 

2002. That order became the law of the case for Delaughter and despite the fact that it 

was favorable to Scruggs, that controlling order pre-dated Peters’ involvement and was 

evenly and consistently applied throughout the litigation. 

Absent proof of a quid pro quo, there is no paradigmatic bribe. Without a 

paradigmatic bribe, Skilling decrees that there is no crime. 

Ex parte contact between a judge and counsel secretly (or openly) affiliated 

with a party in litigation before that judge is reprehensibly unethical conduct by 

both the judge and the lawyer. Such contact threatens the very heart of the judicial 

system in that it places in question the neutrality of the judicial officer whose 

primary task is to assure fundamental fairness in the search for truth. Assurances 

that the judge intends to follow the law “no matter what” in no way ameliorate the 

reprehensibility of the unethical conduct. Nevertheless, ethical violations, no matter 

how reprehensible, do not become crimes absent a value-‐based inducement for the 

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judge to disobey the canons of ethics. Absent that exchange, the sanctions of the 

ethics system are the proper remedy, not the criminal law. 

I. PROPOSED FINDINGS OF FACT 

A. WILSON V. SCRUGGS 

1. Wilson v. Scruggs involved a dispute as to the division of fees between 

Richard Scruggs and Roberts Wilson following the dissolution of their joint venture to 

pursue asbestos claims on behalf of their clients. 

2. The case was filed in the state courts of Mississippi and ultimately 

assigned to then-Judge Bobby Delaughter in Hinds County, Mississippi, on June 3, 2002. 

3. The “major source of dispute” in the case was the meaning of the word 

“existing” in paragraph III(2)(a) of the August 7, 1992, agreement between Wilson and 

Scruggs dissolving their joint venture. March 27, 2012 Tr. at 11 (Funderberg). This 

agreement assigned fees of 40% earned from “existing” settlements to Wilson, but lesser 

amounts from settlements that did not exist as of August 7, 1992. Exhibit 1. 

4. On May 16, 2002, the Special Master assigned to the case, Robert Sneed, 

authored a Report and Recommendation finding: (a) that the contract between Wilson 

and Scruggs was “clear and unambiguous” and (2) that under paragraph III(2)(a) of the 

August 7, 1992 agreement Wilson was “entitled to forty percent (40%) of the attorney 

fees from existing settlements with defendants listed in that paragraph.” Exhibit 1, pp. 

3-4 (emphasis original). 

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5. On August 23, 2002, Judge Delaughter signed an order decreeing that “the 

1992 Agreement is a valid and binding contract and should be interpreted according to 

the Special Master’s Report and Recommendation….” Exhibit 2. 

6. Special Master Sneed issued a Report and Recommendation on December 

15, 2005, finding that Wilson’s claim against Richard Scruggs for breach of fiduciary 

duty did not state a claim. This report was “good for Scruggs.” March 27, 2012 Tr. at 

73 (Langston). 

7. Judge Delaughter rejected that Report and Recommendation on December 

29, 2005. Judge Delaughter “ruled against us on the fiduciary claim….” March 27, 2012 

Tr. at 73 (Langston). The ruling meant that “Scruggs is wide open for punitive 

damages….” March 27, 2012 Tr. at 73 (Langston). 

8. Special Master Sneed then issued a Report and Recommendation on 

January 9, 2006, recommending that settlements modified after August 7, 1992, should 

fall under paragraph III(2)(a). Exhibit 3. 

9. On January 12, 2006, at a hearing on Petitioner’s Motion for Continuance, 

Judge Delaughter remarked that Master Sneed’s Report and Recommendation was a 

“radical departure from what had been ruled on back in May of 2002.” Exhibit 4. 

10. Subsequently, on February 27, 2006, Judge Delaughter rejected Master 

Sneed’s “radical departure” from the May, 2002, Report and Recommendation. “To 

adopt the Special Master’s recommendation on this issue would either effectively erase 

the word ‘existing’ from Section III(2)(a) or import an intent of the parties to include 

subsequent settlements for additional clients, upon different terms and for additional 

compensation….” Exhibit 5, p.7. 

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11. On June 12, 2006, Wilson filed three Motions for Quantification. 

Exhibits 22, 23, and 24. These motions asked the court to calculate the monies due 

Wilson. March 27, 2012 Tr. at 28 (Funderberg). 

case. 

12. On July 7, 2006, Judge Delaughter issued two rulings germane to this 

a. Judge Delaughter issued an order striking Wilson’s expert’s 

report. Exhibit 6. Judge Delaughter stated that “this Court has ruled on 

many occasions that the August 7, 1992 agreement is a clear and 

unambiguous contract….” Id. at 3. Judge Delaughter’s grounds for 

striking were that Wilson’s expert report was inconsistent with the law of 

the case. “[A] portion of the report of Saul Solomon, Wilson’s expert 

accountant, is predicated on the belief that Wilson is entitled to a portion 

of the fees received from post-August 7, 2007, settlements, contrary to the 

Court’s previous order….” Id. at 7. Judge Delaughter expressly referred 

to the May, 2002, report of the Special Master as a basis for the Court’s 

ruling.” Id. at 2, fn. 3. Further, Judge Delaughter noted that “the Special 

Master then recommended the same thing that he recommended nearly 

fours years earlier….” Id. at 3, fn. 5. 

b. Judge Delaughter also entered a so-called Quantification 

Order. Exhibit 8. That order expressly referred to the Order Striking 

Expert’s Report issued the same day setting out the rationale for Judge 

Delaughter’s quantification of monies due Wilson. Id. at fn. 1. Again the 

August 23, 2002 Order provided the court's rationale for its decision. 

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B. THE “THEN-OPEN JUDGESHIPS” 

13. The first federal district judgeship to come open during the relevant time 

frame in the Southern District of Mississippi was the Judge William H. Barbour, Jr. seat. 

Judge Barbour took senior status on February 4, 2006. Exhibit 35. 

Exhibit 36. 

14. Judge David Bramlette, III, took senior status on March 20, 2006. 

15. Judge Tom S. Lee took senior status on April 8, 2006. Exhibit 37. 

16. President Bush nominated Dan Jordan to fill Judge Lee’s seat on April 24, 

2006. Exhibit 38. 

17. President Bush nominated Leslie Southwick to fill Judge Barbour’s seat 

on June 6, 2006. Exhibit 39. 

18. Judge Jordan’s name had been submitted to the White House “the first part 

of March” by Senators Cochran and Lott to fill the Barbour seat but the White House 

nominated him for Judge Tom Lee’s seat. March 26, 2012 Tr. at 43 (Lott). 

C. THERE WAS NO QUID BECAUSE BOBBY DELAUGHTER COULD NOT HAVE 

CONSIDERED THE CALL FROM TRENT LOTT A THING OF VALUE 

19. Bobby Delaughter met with Chip Reynolds, a former political aide to 

Senator Trent Lott in early March, 2006. March 26, 2012 Tr. at 98 (Reynolds) 

Id. 

20. That meeting was initiated by Mr. Reynolds. Id. 

21. At that meeting Delaughter brought up his interest in a federal judgeship. 

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22. Delaughter asked Reynolds “how do you let Senator Lott or Senator 

Cochran know about an interest in a federal judgeship.” Id. 

23. Following that meeting, on March 10, 2006, Delaughter wrote a letter to 

both Senator Lott and Senator Cochran expressing an interest in a federal judgeship and 

including his resume. Exhibits 9 (Letter to Cochran) and 17 (Letter to Lott); March 

26, 2012 Tr. 88 (Davis). 

24. It is reasonable to infer that on March 10, 2006, Delaughter knew that he 

needed the support of both Senator Cochran and Senator Lott to obtain a recommendation 

to the President for a federal judgeship. 

25. Delaughter had a telephone conversation with Senator Thad Cochran 

concerning his interest in a federal judgeship. March 26, 2012 Tr. 90 (Davis); 

EXHIBIT 41 (Delaughter 12/21/07 302 at 4). 

26. Delaughter also tried to call Senator Lott prior to Lott calling Delaughter. 


27. Mr. Wilson, the Plaintiff in Wilson v. Scruggs, had a daughter, Augusta, 

who worked for Senator Cochran at the time. March 26, 2012 Tr. 94 (Davis). 

28. John Corlew, a Mississippi lawyer and long-time friend of Trent Lott, sent 

Delaughter’s resume to Lott’s office. March 26, 2012 Tr. 47 (Lott). 

29. Several other prominent Mississippi lawyers supported Delaughter’s 

desire to become a federal judge in communications with Senator Cochran. March 26, 

2012 Tr. 91-94 (Davis). 

30. Ed Peters first brought up Delaughter’s interest in a federal judgeship to 

the Scruggs legal team. EXHIBIT 27 (Peters 9/9/08 302 at 3). 

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31. Langston testified that a lawyer who received an entreaty from a sitting 

judge for support in moving up faces three choices: support, do nothing or refuse. 

March 27, 2012 Tr. 84 (Langston). The only real option is to support the judge, as the 

other options may create bad will. Id. 

32. At Richard Scruggs’s request, Trent Lott called Bobby Delaughter on or 

about March 29, 2006. March 26, 2012 Tr. 53 (Lott). 

33. Scruggs asked Lott to call Delaughter and explain the process for 

becoming a federal judge to Delaughter. March 26, 2012 Tr. 53 (Lott). 

34. Scruggs never asked Lott to tell Delaughter that he (Delaughter) would 

receive favorable consideration for a federal judgeship. March 26, 2012 Tr. 54 (Lott). 

Id. 

35. Lott told Delaughter “how Senator Cochran and I make these selections.” 

36. Lott told Delaughter, “And I told him it was always done by consensus.” 

March 26, 2012 Tr. 55 (Lott). 

37. Lott “probably said, yes, we have somebody that we've already 

recommended to the President. And then I do remember talking about how I felt like that 

the other vacancies, Judge Bramlett's vacancy really was one that needed to go to the 

coast.” Id. 

38. Lott never told Delaughter that he would be considered for a federal 

judgeship. March 26, 2012 Tr. 56 (Lott). 

39. Lott had no intent in his mind to create an impression in Delaughter that 

he would received favorable consideration for a federal judgeship. Id. 

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40. Lott was “always careful what I said in these conversations when I made 

these calls....” March 26, 2012 Tr. 65 (Lott). 

41. If there had been anticipation and excitement when Delaughter received 

the call from Lott, Lott would not believe “there would have been any excitement in 

[Delaughter’s] office after the call.” March 26, 2012 Tr. 65 (Lott). 

42. Lott never wanted to create false hope when he made calls to people who 

were not going to be appointed. March 26, 2012 Tr. 73 (Lott). Specifically as to the call 

to Delaughter, Lott testified and the Court credits the testimony that: 

And I cannot -- in the case of DeLaughter, because of my absolute 

knowledge that he was never going to be somebody I would consider, I 

cannot conceive or recall in any way anything that gave him some reason to 

think that he might be seriously considered or even considered by me. It 

was a courtesy call. I treated it that way. But he did not fit the bill of what I 

was looking for. So why would I have in any way encouraged him? I just -- 

I didn't need that at that point in my career. 

March 26, 2012 Tr. 74 (Lott). 

43. Hugh Gamble, an aide to Senator Lott, heard Senator Lott’s side of the 

conversation. March 26, 2012 Tr. 79 (Gamble). 

44. Gamble confirmed that Senator Lott explained to Delaughter that both 

Senators were involved in making a recommendation to the President for a federal 

judgeship. March 26, 2012 Tr. 80 (Gamble). 

45. Delaughter was informed that Senator Lott’s support would not be 

sufficient to get a nomination. Id. 

46. Lott made it clear to Delaughter that he was not going to recommend 

Delaughter to the President for a then open federal judgeship. March 26, 2012 Tr. 81 

(Gamble). 

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47. Delaughter wrote a letter to Senator Lott the day following the call 

between the two. Delaughter’s letter is consistent with the conversation as described by 

Senator Lott as it speaks in future tense of an interest “in a position that may become 

available.” Exhibit 18. The letter does not say “the current vacancy” or a federal 

judgeship that “is now open.” Nor did Delaughter’s letter discuss any particular then 

open judgeship. 

48. The Court finds as a proven fact that Senator Lott’s call was not 

encouraging to Delaughter and that Delaughter did not believe that he would be 

considered by Senator Lott for a federal judgeship “then open”. 

thing of value. 

49. The Court finds that Delaughter could not have considered Lott's call a 

D. SECRET ACCESS – NOT A QUO BECAUSE ED PETERS HAD FULL 

EX PARTE ACCESS TO DELAUGHTER PRIOR TO LOTTS’ CALL TO 

DELAUGHTER. 

50. Delaughter never received any money from Peters or Scruggs. EXHIBIT 

25 (Peters’ Grand Jury Testimony at 14.) 

51. Ed Peters had a special relationship with Bobby Delaughter: 

a. They were “extremely close.” “Probably like a father, son.” EXHIBIT 

25 (Peters’ Grand Jury Testimony at 3.) 

b. Ed Peters presence in a case created influence for his client. EXHIBIT 27 

(Peters 9/9/08 302 at 3. 

c. Bobby Delaughter could not tell Ed Peters “no.” EXHIBIT 25 (Peters’ 

Grand Jury Testimony at 19.) 

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d. Peters helped Delaughter become a county judge. EXHIBIT 27 (Peters 

12/18/07 302 at 2). 

e. Peters helped Delaughter get elected circuit judge. EXHIBIT 27 (Peters 

12/18/07 302 at 2). 

f. It was well known that Ed Peters was the de facto campaign manager for 

Bobby Delaughter during his quest to become a county and later a circuit 

judge. March 26, 2012 Tr. at 110 (Patterson). 

52. Delaughter granted Peters ex parte access “out of his respect and affection 

for you [Peters]….” EXHIBIT 25 (Peters Grand Jury Testimony at 22) 

53. Peters was hired because Wilson had hired William Kirksey, Delaughter’s 

former law partner, as counsel in Wilson v. Scruggs. The Scruggs legal team feared that 

Kirksey would exercise influence over Delaughter because he was a former law partner 

of Delaughter. March 26, 2012 Tr. at 109 (Patterson); March 27, 2012 Tr. at 43 

(Funderberg); March 27, 2012 Tr. at 63, 66, 71, 89-90 (Langston). 

54. Peters' hiring resulted from a desire to make sure that Delaughter would 

"make fair rulings." EXHIBIT 27 (Peters 12/18/07 302 at 3). 

55. The Scruggs legal team wanted Delaughter to rule consistently with the 

law because “we were comfortable that the law supported our defenses in the case. So 

we wanted him to rule based on what we considered the law to be.” March 27, 2012 Tr. 

at 105 (Langston). 

56. Langston hoped to “gain credibility or good will” with Judge Delaughter 

when he hired Peters. March 27, 2012 Tr. at 67 (Langston). 

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57. Ed Peters had ex parte contact with Bobby Delaughter beginning in 

August, 2005. Indictment; March 27, 2012 Tr. at 69 (Langston); EXHIBIT 27 

(Peters 12/18/07 302 at 3). 

58. Peters had no trouble getting access to Delaughter from 

August/September, 2005, through March, 2006, that is, prior to Lott’s call to Delaughter. 

March 27, 2012 Tr. at 71 (Langston). 

59. Peters received $50,000 initially and a total of $1 million for his role in the 

case. EXHIBIT 25 (Peters Grand Jury Testimony at 20). 

60. Delaughter never knew about the payments or promises of payments to 

Peters. EXHIBIT 25 (Peters Grand Jury Testimony at 22). 

61. Delaughter issued a scheduling order that reflected the wishes of the 

Scruggs legal team on January 25, 2006. This scheduling order was the product of 

Peters’ ex parte communication with Judge Delaughter. March 27, 2012 Tr. at 136 

(Balducci). The scheduling order, which the Government’s Indictment references as 

specific proof of Peters’ ex parte access to Delaughter, was entered more than 60 days 

before Senator Lott called Delaughter. 

62. Peters’ access to Delaughter did not change, that is, did not increase or 

decrease, after Trent Lott’s phone call to Delaughter. “Nothing changed” after Lott’s call 

to Delaughter. March 27, 2012 Tr. at 71 (Langston). 

63. Ed Peters' efforts at getting Bobby Delaughter appointed to the federal 

bench began well before the Wilson case and continued after the case resolved. March 

26, 2012 Tr. at 116 (Patterson). 

19


64. Delaughter granted Peters nearly identical access in another case, Eaton v. 

Frisby, No. 251-04-642 (Circuit Court of Hinds County). The judge in that case issued a 

report describing a similar pattern of unethical behavior involving ex parte contacts 

between Peters and Delaughter. EXHIBIT 16. No offer of assistance for a federal 

judgeship was involved in Eaton. Eaton shows that Delaughter granted Peters ex parte 

access because of their special relationship and not because of an offer of something of 

value. Specifically, in Eaton: 

a. Ed Peters did not get involved in the litigation until after the case had been 

pending and substantive issues had been decided. EXHIBIT 27 (Peters 

9/9/08 302 at 2). 

b. Ed Peters never entered his appearance. EXHIBIT 27 (Peters 1/23/08 

302 at 1). 

c. Ed Peters had numerous ex parte contacts with Bobby Delaughter on 

behalf of his clients. EXHIBIT 27 (Peters 1/23/08 302 at 2). 

d. Peters discussed discovery violations with Delaughter and asked him “not 

to take any hasty action” by levying fines against plaintiff’s counsel. 

EXHIBIT 27 (Peters 1/23/08 302 at 2). 

e. He recommended that Delaughter appoint Larry Latham as Special 

Master, which he did. EXHIBIT 27 (Peters 9/9/08 302 at 3). 

f. He spoke to Delaughter about a possible motion that was yet to be filed in 

regard to staying all depositions until parallel criminal case was 

concluded. EXHIBIT 27 (Peters 1/23/08 302 at 2). 

20


g. Peters’ involvement in the Eaton case was solely “to influence 

Delaughter” and in fact “he had influence over Delaughter…” EXHIBIT 

27 (Peters 9/9/08 302 at 3). 

h. “Peters’ presence in the [Delaughter’s] court was influence for his client.” 

Id. 

i. It was because of his relationship that Delaughter would show him 

favoritism. (Peters 1/23/08 302 at 3). 

65. The Court finds that Peters ex parte access pre-dated any then open federal 

judgeship by as much as six (6) months and as such could not have been in exchange for 

Trent Lott's call. 

E. SO-CALLED “FAVORABLE RULINGS” – NOT A QUO BECAUSE (A) 

CONSISTENT RULINGS FOLLOWED DELAUGHTER’S 2002 ORDER 

ESTABLISHING THE LAW OF THE CASE AND/OR (B) THE RULINGS PRE- 

DATED A THEN OPEN JUDGESHIP. 

66. The August 23, 2002, ruling of Judge Bobby Delaughter adopting Special 

Master Sneed’s Report and Recommendation found the August 2, 1992 contract between 

Wilson and Scruggs clear and unambiguous. It also established that paragraph III(2)(a) 

of that contract applied only to existing settlements. EXHIBITS 1 & 2. This August 23, 

2002 Order became the law of the case. 

67. Judge Delaughter issued this ruling and established the law of the case 

approximately three (3) years prior to Ed Peters making his first ex parte contact with 

Judge Delaughter. EXHIBITS 1 & 2; Indictment; March 27, 2012 Tr. at 69 

(Langston); EXHIBIT 27 (Peters 12/18/07 302 at 3). 

21


68. All of Judge Delaughter’s subsequent rulings on the interpretation of 

paragraph III of the August 7, 1992, agreement were consistent with his August 23, 2002, 

Order. See paragraphs 9-14, supra. 

a. Steve Funderberg testified that Judge Delaughters’ February 27, 2006 

order rejecting the Special Master’s January 9, 2006, Report and 

Recommendation “took it back” to the earlier ruling that Wilson was 

entitled only to 40% of existing settlement. March 27, 2012 Tr. at 20 

(Funderberg). 

b. Delaughter struck Wilson’s expert’s report because Wilson’s expert, Saul 

Solomon, “just kept treating the figures as if Mr. Wilson was entitled to 

fees on moneys received from those first round defendants, whether the 

settlements were in existence on August 7 of ’92 or had been changed 

thereafter.” March 27, 2012 Tr. at 20 (Funderberg). 

c. Judge Delaughter’s Order striking Wilson’s expert’s report simply took 

“the parties back all the way to Bobby Sneed’s May 16, 2002 report and 

recommendation?” March 27, 2012 Tr. at 24 (Funderberg). 

d. Judge Delaughter’s February 27, 2006, shows he is “remaining 

consistent.” March 27, 2012 Tr. at 26 (Funderberg). 

e. All of Judge Delaughter’s subsequent rulings “remain consistent with his 

August ’02 order.” March 27, 2012 Tr. at 27 (Funderberg). 

f. Judge Delaughter’s Quantification Order “was consistent with his prior 

rulings.” March 27, 2012 Tr. at 49 (Funderberg). 

22


g. Judge Delaughter overruled Special Master Sneed’s January 9, 2006, 

Report and Recommendation because the Report and Recommendation 

“was inconsistent with the previous law of the case. March 27, 2012 Tr. 


h. Judge Delaughter ruled consistently throughout the case. March 27, 2012 

Tr. at 75 (Langston). 

i. Judge Delaughter’s ruling were consistent. March 27, 2012 Tr. at 155 

(Balducci). 

69. Judge Delaughter ruled unfavorably to Scruggs when he overruled the 

Special Master Sneed’s Report and Recommendation recommending that Wilson’s 

fiduciary duty claim did not state a cause of action. The Special Master’s 

recommendation was “good for Scruggs.” March 27, 2012 Tr. at 73 (Langston). 

Judge Delaughter’s ruling meant that “Scruggs is wide open for punitive damages….” 


70. Ed Peters had ex parte communications with Judge Delaughter in an 

attempt to get Delaughter to reverse his December 29, 2005, Order rejecting Master 

Sneed’s favorable ruling. March 27, 2012 Tr. at 73-74 (Langston). 

71. Judge Delaughter would not change his mind despite Peters’ ex parte 

discussion with him. March 27, 2012 Tr. at 74 (Langston). 

72. Every relevant witness testified that Peters told them that Delaughter 

would follow the law no matter what and that he, Peters, would not be able to convince 

Delaughter not to follow the law. EXHIBIT 25 (Peters Grand Jury Testimony at 19); 

23


Exhibit 27 (Peters 12/18/07 302 at 3); March 27, 2012 Tr. at 70 (Langston); March 

26, 2012 Tr. at 117 (Patterson). 

73. In other settings, the Government has conceded that: 

a. "There is every reason to believe that the Scruggs Law Firm probably 

would have prevailed" in Wilson v. Scruggs. February 21. 2008 Hearing 

Tr. at 18. 

b. Petitioner sought only a fair trial in Wilson v. Scruggs. Plea Tr. at 25. 

74. The Scruggs legal team wanted Delaughter to rule consistently with the 

law because “we were comfortable that the law supported our defenses in the case. So 

we wanted him to rule based on what we considered the law to be.” March 27, 2012 Tr. 


75. Langston testified: “We expected that support [of the federal judgeship] to 

generate good will and credibility and that when the law was favorable to us that we 

would get good rulings.” March 27, 2012 Tr. at 124 (Langston). 

Scruggs. 

76. No evidence exists of Delaughter “shading” discretionary calls for 

But, you know, I can't -- as you're asking me this question, I'm 

trying to think of a discretionary call that would fall into that 

category. I'm sorry. I just can't think of one. 


77. Judge Delaughter’s February 27, 2006, decision to overrule the December 

9, 2006 Special Master’s Report and Recommendation was not a discretionary call 

shading rulings in Scruggs’s favor because “I’m just a little uncomfortable calling it a 

discretionary call because of the 2002 order…. I can’t say it was discretionary given the 

previous order.” March 27, 2012 Tr. at 108 (Langston). 

24


78. “There was an existing order that went all the way back to 2002 … well 

before I was hired, well before Peters was hired, that I think was consistent with 

Delaughter’s order that came out later…. [A]s to the two that I was asked about [the 

Quantification Order and the February 27, 2006 Order] I don’t think those were shaded in 

our favor….” March 27, 2012 Tr. at 125 (Langston). 

79. The Court finds that then-Judge Delaughter’s rulings were consistent with 

his August, 23, 2002 ruling, and as such did not become favorable to Scruggs after a then 

open federal judgeship presented itself or after Trent Lott called Delaughter. 

F. THERE WAS NO EXPLICIT OR IMPLICIT BARGAINED-FOR EXCHANGE 

BETWEEN SCRUGGS AND DELAUGHTER – AND THUS THERE WAS NO PRO. 

80. Delaughter told Peters that any help Scruggs would give him would be 

“good” “but that it would not decide the case.” EXHIBIT 27 (Peters 9/9/08 302 at 4. 

81. Delaughter told Peters “to make damn sure to them [the Scruggs legal 

team] that there would be no quid pro quo” and that he would show no favoritism. 


82. At Delaughter’s change of plea hearing, his counsel expressly disavowed 

any plea of guilty to a quid pro quo bribe. “We have always insisted on a trial on Counts 

1 through 4 [of the Indictment]. We do not believe that the Government’s evidence will 

in any way, shape or form withstand cross-examination….” EXHIBIT 42 (Transcript 

of Delaughter 7/30/09 Change of Plea Hearing at 22. 

83. No other participant to any of the conversations or exchanges with then- 

Judge Delaughter in Wilson v. Scruggs has ever testified to or admitted that there was 

ever a bribe or a quid pro quo agreement. This is true even after these witnesses had pled 

25


guilty or been immunized for their testimony. Most notably, this Court sentenced Bobby 

Delaughter. The Court observed that Delaughter shook his head “with a negative signal” 

when the issue of Delaughter’s guilt to Counts 1 through 4 was being discussed at the 

change of plea hearing. March 26, 2012 Tr. at 8. 

84. Ed Peters expressly and specifically corrected his FBI 302 to remove any 

reference to any statement by Peters that “Peters believes that Delaughter understood this 

agreement.” The agreement was that Delaughter’s help to Scruggs would consist of 

favorable treatment. EXHIBIT 27 (Peters’ 9/9/08 302 at 4). Peters did not believe that 

Delaughter understood that there was any agreement. 

85. Langston described “favorable treatment” as “we had Ed Peters going to 

him and arguing our position on points of law. That’s favorable treatment to get that 

opportunity.” March 27, 2012 Tr. at 102 (Langston). Peters made such a foray to 

attempt to get Delaughter to reconsider his ruling rejecting the Special Master’s 

recommendation that the fiduciary duty cause of action did not state a claim, well before 

Trent Lott’s call to Delaughter. Delaughter would not change his ruling despite Peters' ex 

parte request that he do so. 

86. “Q. Did anyone, to your knowledge, offer any bribe to Judge 

DeLaughter? A. I don't know of a bribe. March 27, 2012 Tr. at 81 (Langston). "Q. 

Did you ever consider the phone call or the offer of a phone call or the offer of help 

with a judgeship, did you ever 20 consider any of that to Bobby DeLaughter to be a 

quid pro quo for anything? A. No, I didn't.” Id.at118. 

87. “Q. [D]id you yourself tell Ed Peters that the judgeship did not have 

anything to do with the Wilson case? A. I was in a session in which that was said by 

26


both Mr. Langston and I once it was discussed.”); March 27, 2012 Tr. at 122 

(Patterson). 

88. Timothy Balducci’s testimony that the call from Lott came after 

Delaughter expressed concern that Scruggs was not going to support his federal judgeship 

ambitions is not credible. 

a. Balducci never had a conversation with either Scruggs or Delaughter on 

this subject. March 27, 2012 Tr. at 144, 152 (Balducci). 

b. Decision about the case were "operating at a level way above my head." 

Id. at 144. 

c. Balducci carefully tied Delaughter’s need for assurance via a phone call 

from Lott to Delaughter’s knowledge that he had been “passed over” for 

the open federal judgeship. March 27, 2012 Tr. at 149-150 (Balducci). 

d. Lott made the call to Delaughter on March 29, 2006. 

e. The White House nominated Dan Jordan to fill the first open seat on April 

24, 2006. EXHIBIT 38. 

f. Langston, Peters and Patterson disavow Balducci’s account, Patterson 

calling it “fantasy.” March 26, 2012 Tr. at 123 (Patterson). 

g. Lott informed Delaughter that Jordan had been recommended to the White 

House on March 29, 2006. 

h. Delaughter continued to grant access to the Scruggs legal team throughout 

the case, even after Lott’s call made it clear that Delaughter would not be 

considered for a “then open” federal judgeship. 

27


89. Balducci also testified that the Scruggs legal team was “really set back” by 

the Wilson Motions for Quantification. March 27, 2012 Tr. at 139 (Balducci). The 

Court finds that if the Scruggs legal team had received assurances that Delaughter would 

rule in their favor as part of an explicit or implicit exchange, there would have been no 

need for concern. The Court also finds that the concern expressed by Balducci is 

consistent with Peters’s oft-repeated admonitions to the Scruggs legal team that Judge 

Delaughter was going to follow the law no matter what. 

90. The Court finds that Ed Peters’ relationship with Delaughter was the cause 

of the ex parte access, not Delaughter’s interest in a federal judgeship or Trent Lott’s call. 

91. The Court finds that there was no bargained-for, explicit or implicit, 

exchange of a promise for support of a federal judgeship by Scruggs “in return” for 

access by Peters to Judge Delaughter or for rulings that favored Scruggs. 

92. The Court finds that the Government’s argument that the proof of 

Delaughter’s corruption as to favorable rulings was that Judge Delaughter followed the 

law is logically insufficient as proof of the existence of a quid pro quo. 

II. PROPOSED CONCLUSIONS OF LAW 

A. THE BOUSLEY STANDARD 1 

1. Bousley v. U.S., 523 U.S. 614 (1998), requires that a Petitioner challenging 

his conviction under 28 U.S.C. § 2255 show his actual innocence. Id. at 623. 

2. “‘[A]ctual innocence’ means factual innocence, not mere legal 

insufficiency.” Id. 

1 Again, Petitioner does not concede that Bousley applies to a post-‐Skilling habeas 

corpus petition. See, Petitioner’s Motion to Show Cause and Reply. DE# 170, 181. 

28


3. “To establish actual innocence, petitioner must demonstrate that, “ ‘in 

light of all the evidence,’ ” “it is more likely than not that no reasonable juror would have 

convicted him.” Id., quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995). 

4. “It is not the district court's independent judgment as to whether 

reasonable doubt exists that the standard addresses; rather the standard requires the 

district court to make a probabilistic determination about what reasonable, properly 

instructed jurors would do. Thus, a petitioner does not meet the threshold requirement 

unless he persuades the district court that, in light of the new evidence, no juror, acting 

reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup v. 

Delo, 513 U.S. 298, 329 (1995) 

5. “The word ‘reasonable’ in that formulation is not without meaning. It must 

be presumed that a reasonable juror would consider fairly all of the evidence presented. 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. (emphasis added). 

6. “[T]he use of the word ‘would’ focuses the inquiry on the likely behavior 

of the trier of fact.” Id. at 330. 

7. The mere existence of sufficient evidence to convict is not determinative 

under the Schlup/Bousley standard. Schlup, 513 U.S. at 330. Rather, the District Court 

must decide whether the evidence, viewed by a reasonable juror, would more likely than 

not result in a conviction under the beyond a reasonable doubt instruction. 

8. Bousley also permits the Court to consider only admissible evidence. 

Bousley, 523 U.S. at 624. 

29


9. “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.” Id. (emphasis added). 

B. PETITIONER'S GUILTY PLEA 

10. The Information (DE#13) to which Petitioner pled guilty did not charge 

Petitioner with a paradigmatic bribe. Rather that Information charged Petitioner with a 

non-bribe honest services fraud in violation of 18 U.S.C. §§ 2, 1341 and 1346. 

11. Petitioner did not plead guilty to a paradigmatic honest services bribe. 

12. Under Skilling, Petitioner is actually innocent of the charge to which he 

pled guilty in the Information. 

and 1346. 

C. THE INDICTMENT DID NOT CHARGE A MORE SERIOUS CRIME 

13. The Indictment charged Petitioner with a violation of 18 U.S.C. §§ 2, 1341 

14. The Indictment did not charge a violation of 18 U.S.C. § 201 (Bribery of 

Public Officials and Witnesses). 

15. The statutory violation charged in the Indictment is identical to the 

statutory violation charged in the Information. 

16. The statutory charge to which Petitioner plead guilty is thus not more 

serious than the statutory charge set out in the Indictment. 

17. Under Bousley, Petitioner is not required to show his actual innocence of 

any charge contained in the Indictment. 

E. BRIBERY REQUIRES A QUID PRO QUO 

30


18. Under Skilling v. United States, 130 S. Ct. 2896 (2010), non-bribery 

honest services fraud does not constitute a crime and never has. Skilling held that 

“honest-services fraud does not encompass conduct more wide-ranging than the 

paradigmatic cases of bribes and kickbacks….” Id. at 2933. “[N]o other misconduct falls 

within § 1346's province.” Id. 

19. For a paradigmatic bribe “there must be a quid pro quo - a specific intent 

to give or receive something of value [a quid] in exchange for [pro] an official act [quo].” 

United States v. Sun-Diamond Growers of California, 526 U.S. 398, 404-05 

(1999)(emphasis original). 

20. Bribery requires a “connection between respondent's intent and a specific 

official act.” Id. at 405. 

21. Thus Sun-Diamond stands for the proposition that the providing of a 

“thing of value” becomes criminal only when the thing of value is directly linked in a 

causative way to a particular official act. Thus, the distinguishing feature of bribe – 

particularly in an otherwise constitutionally protected First Amendment context – is the 

explicit agreement of an exchange of a thing of value for an official action. Id. at 404-05. 

22. To prove a paradigmatic bribe honest services violation, the evidence must 

show beyond a reasonable doubt that there was an “exchange” of a “thing of value” for 

an act taken in response to the offer of that “thing of value.” 

23. This Court has previously concluded that the prospect of an endorsement 

for a federal judgeship can be a “thing of value.” 2 DE#65. 

2 Petitioner does not concede that a call to a United States Senator endorsing a person for a 

federal judgeship is a thing of value within the meaning of the bribery statute and expressly 

reserves the right to argue to the contrary on appeal, if an appeal is necessary. For purposes of 

31


24. Nevertheless, to qualify as the quid in a paradigmatic bribe, the "thing of 

value" must be part of a bargained for exchange, that is, it must be an inducement that 

causes a response by the official being bribed. “Corruption of office occurs when the 

officeholder agrees to misuse his office in the expectation of gain, whether or not he has 

correctly assessed the worth of the bribe." United States v. Williams, 705 F.2d 603, 623 

(2d Cir. 1983) (citation omitted). 

25. The proper perspective in determining value is that of the person being 

bribed. "[T]he requirement of value is satisfied if the thing has sufficient value in the 

mind of the person concerned so that his actions are influenced." McDonald v. State, 329 

So. 2d 583, 587-88 (Ala. Cr. App. 1975), cert. denied, 429 U.S. 834,97 S. Ct. 99,50 L. 

Ed. 2d 99 (1976) (cited favorably in United State v. Marmolejo, 89 F.3d 1185 (5 th Cir. 

1996). The test of value is whether the recipient subjectively attaches value to the thing 

received. United States v. Picquet, 963 F.2d 54, 55 (5th Cir. 1992). 

26. If the evidence shows that the official being bribed could not reasonably 

have concluded that the “thing of value” actually had value, no quid exists. And this is so 

even if others might assign value to the “thing.” It is the subjective valuation of the thing 

offered that determines its value, not its objectively assessed value. 

27. “[B]ribery 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 at some unknown, unspecified later time, be in a position to act 

these proposed conclusions of law, however, Petitioner understands that the Court’s prior ruling, 

made prior to the hearing and thus in an evidentiary vacuum, is the law of this Court for this case. 

Further, Petitioner expressly disputes any legal conclusion that an endorsement of a 

person for public office can constitute a thing of value for purposes of paradigmatic bribery 

honest services fraud and herewith preserves his claim that an endorsement of a person for public 

office is protected under both the free speech and right to petition clauses of the First 

Amendment. 

32


favorably on the giver’s interests—favorably to the giver’s interest.” United States v. 

Ganim, 510 F.3d 134, 149 (2d Cir. 2007) (Sotomayor, J.). 

F. THERE WAS NO QUID 

28. The quid in this case, according to the Government’s indictment, was 

Scruggs’s offer to prevail “upon his brother-in-law, then a United States Senator from 

Mississippi, to offer Judge Delaughter consideration for a federal district judgeship then 

open in the Southern District of Mississippi.” DE3 12. For the quid to have value, Lott 

would have to offer the consideration for the judgeship to Delaughter. Under the 

Indictment’s unambiguous language, Scruggs’ endorsement of or support for Delaughter 

was not the quid. 

29. Applying the subjective standard approved in the cases to the “value” 

issue, it is not reasonable to conclude that Bobby Delaughter would have considered 

Trent Lott’s call, or Richard Scruggs’s making arrangements for Lott to call Delaughter, 

a sufficient “thing of value” to induce Delaughter to make rulings favorable to Scruggs 

that he would not otherwise have made. 

a. On his own initiative, Delaughter learned from Chip Reynolds that 

both Senators Cochran and Lott participated in and had agreed to 

agree on making any recommendations to the White House. 

b. This knowledge explains Delaughter’s March 10, 2006, letter to 

Senator Cochran expressing an interest in a federal judgeship. It also 

explains Delaughter’s call in which he spoke personally to Senator 

Cochran. 

33


c. This knowledge also shows the inaccuracy of the Government’s 

claim that Scruggs was the “gatekeeper” to federal judgeships in 

Mississippi. 

d. Even if Delaughter subjectively believed that Scruggs’ endorsement 

had value before March 29, 2006, that subjective belief was proved 

false when Senator Lott called Delaughter. Lott informed Delaughter 

that Dan Jordan had been recommended or would be recommended 

for one opening and that someone “from the coast” would fill the 

other opening. 

e. Lott’s call informed Delaughter that he, Lott, was not considering 

Delaughter for a federal judgeship. 

f. The consideration anticipated by the Indictment was defeated in the 

moment that the Government said it was made – with Lott’s call. 

g. That Delaughter understood that the consideration for the then open 

federal judgeships was not forthcoming is buttressed by Delaughter’s 

letter to Lott the day following the phone call between the two. 

Delaughter’s letter sought favorable consideration for a position that 

“may become open.” It used these words even though on the date of 

the phone call, March 29, 2006, there were two federal district 

judgeships open in the Southern District of Mississippi. 

G. ED PETERS' EX PARTE ACCESS PRE-DATED LOTT'S CALL TO 

DELAUGHTER 

30. For a quo to take its place as part of a quid pro quo, the quo must be in 

exchange for the quid. Sun-Diamond. 

34


31. The uncontroverted evidence shows that Ed Peters had full and complete 

access to Delaughter well before Trent Lott called Delaughter and well before any then 

open federal judgeship presented itself. 

32. Even if one considers such access a quo, the fact that it pre-dated any 

claimed exchange by months, legally defeats any claim that the quo was part of a quid 

pro quo. 

H. DELAUGHTER'S DECISIONS WERE CONSISTENT WITH HIS LAW 

OF THE CASE RULING IN AUGUST, 2002. 

33. The Government claims that Delaughter "shaded" rulings for Scruggs 

because of Trent Lott's call to Delaughter. For the Government, this is an official act that 

qualifies as a quo. 

34. Delaughter's rulings were consistent with what Delaughter himself 

decided when he first took the Wilson v. Scruggs case, long before any involvement of 

Peters or discussion of a judgeship. His 2006 rulings were merely applications of a prior 

ruling made on August 23, 2002, which held that “existing” meant “existing,” and thus 

formed the law of the case. 

35. The Government failed to provide any evidence or point to any rulings 

that were shaded. Notably, on direct examination the Government’s only witness in the 

hearing, Mr. Balducci, was unable to controvert this analysis that Delaughter’s rulings in 

2006 were perfectly consistent with the law of the case established in 2002. 

36. It is thus undisputed as a matter of evidence that Petitioner did not 

corruptly influence the substantive rulings that Delaughter made in 2006, because those 

rulings were already foreordained by Delaughter’s own rulings in 2002. The 

35


Government's arguments about what was possible for Delaughter to have done are not 

evidence that Delaughter actually shaded any rulings. 

37. Indeed, the evidence showed that had Delaughter believed Lott was going 

to do something for him with regard to the federal judgeship even after Lott's phone call, 

that belief would have turned to disbelief with the nomination of Judge Southwick to the 

federal district court on June 6, 2006. With that nomination, no federal judgeships 

remained open to Delaughter, Lott having assured Delaughter that the other seat was 

reserved for someone "from the coast." Yet rulings consistent with Delaughter's August 

23, 2002 ruling (that was both pre-Peters and favorable to Scruggs) continued for the 

remainder of the case. The pattern of favorable rulings is best explained by their 

consistency with the 2002 Order and Delaughter's view of the law of Mississippi rather 

than by Delaughter's response to Lott's disappointing call. 

38. The Government's argument that the "fix was in" is rendered non-credible 

by the evidence and logic. 

39. First, for the Government, proof that Delaughter would rule favorably for 

Scruggs was that Delaughter followed the law in his rulings. That proof actually proves 

its opposite, that the fix was not in and that Delaughter was doing what a judge should do 

-- follow the law. That proof would also indict every judge who followed the law when 

the Government could concoct any rationale other than the law for the side that should 

win actually winning. 

40. Second, the Government's argument ignores the fact that Ed Peters 

implored Delaughter to change his ruling overruling the Special Master's 

36


recommendation that the breach of fiduciary relationship claim be dismissed without 

success -- thus exposing Scruggs to potential punitive damages. 

41. If the Government is heard to say that this ruling shows that there was an 

elaborate scheme between Delaughter and Scruggs's legal team to create the impression 

of neutrality, there was no evidence presented at the hearing to support that view. It was 

expressly disavowed by every witness who addressed that topic. 

I. THERE WAS NO PRO 

42. The Government’s Indictment described the pro as follows: 

In return, Judge Delaughter afforded the Scruggs legal team secret access to the 

court by way of Ed Peters, forwarding them advance copies of his rulings and 

proposed orders on issues before the Court and on one occasion accepting from 

the Scruggs legal team a scheduling order favorable to Scruggs, which the court 

then adopted, almost verbatim. 

DE3 12 (emphasis added). 

43. For there to be a pro, there must be an exchange, that is, the quo must be 

an exchange for the quid. If the quo and the quid both exist, but do not bear a causative 

relationship to each other, there is no pro. 

44. It is clear that access to Delaughter by Peters occurred beginning not later 

than the Fall of 2005. That access continued throughout the remainder of the case and 

did not change as a result of Lott’s call to Delaughter on March 29, 2006. It follows as a 

matter of logic that the call from Lott to Delaughter could not have had a causative 

relationship with Delaughter’s willingness to meet ex parte with Ed Peters as cause can 

only operate prospectively. Delaughter simply could not have provided access to Peters 

in return for Lott’s consideration, when the access predates the call by nearly half a year. 

37


45. Legally, then, Delaughter’s willingness to have ex parte conversations 

with Peters could not have been in exchange for Lott’s call or even Scruggs’s willingness 

to prevail upon Lott to offer Lott’s consideration to Delaughter for a “then open” federal 

district judgeship. This is because, again, the ex parte conversation occurred well before 

a federal judgeship came open. Indeed, the Government’s own Indictment shows on its 

face that no such exchange took place. The Government’s Indictment concedes that ex 

parte contact occurred more than six months before Lott’s call to Delaughter. 

46. Sun-Diamond requires that there be such an exchange before the law will 

allow any conviction for bribery. So-called secret access could not have been in 

exchange for anything in this case. 

47. Further, the trial court’s order in Eaton v. Frisby, another case in which 

Delaughter and Peters engaged in extensive ex parte contacts unknown to the party 

opposite, shows that Delaughter granted Peters broad access to ex parte contacts without 

any inducement beyond their special relationship. No promise to prevail upon a United 

States Senator was necessary for Peters to gain ex parte access to Delaughter in that case. 

For Delaughter, the rules governing judicial conduct did not apply when Ed Peters 

entered a case. Ed Peters was the key to the judge’s chambers, not the hope of a federal 

judgeship. 

access. 

48. The Court concludes that there was no pro for the quo of so-called secret 

49. The Court also concludes that there was no pro for the Government’s 

claim that Delaughter issued favorable or shaded rulings for Scruggs. 

38


50. The August 23, 2002, Order entered by Judge Delaughter became the 

controlling decision in the case on the interpretation of the August 7, 1992 agreement 

between Scruggs and Wilson. That ruling became the law of the case. 

51. Every witness, including Tim Balducci, conceded that Delaughter’s rulings 

consistently followed Judge Delaughter’s August 23, 2002, Order. No witness could 

point to a single ruling that departed from Judge Delaughter’s August 23, 2002, Order, or 

was shaded in Scruggs’s favor. The Government’s arguments that rulings were shaded 

are not proof of shading. The rulings were favorable to Scruggs because the law of the 

case was favorable to Scruggs – and had been since 2002, well before Peters had his first 

ex parte contact with Delaughter in Wilson v. Scruggs in 2005. 

52. The Government’s Indictment specifically referenced a single order that it 

believed resulted from Senator Lott's call. 

In return, Judge Delaughter … on one occasion accepting from the Scruggs legal 

team a scheduling order favorable to Scruggs, which the court then adopted, 

almost verbatim. 

DE#3 12 (emphasis added) 

53. This scheduling order was issued on January 25, 2006, more than two 

months before Lott’s call to Delaughter. Even if one concedes that that order was 

favorable to Scruggs and was not controlled by the August 23, 2002, Order of Judge 

Delaughter, it nevertheless follows that as a matter of law, logic, and physics, the 

scheduling order could not have been in exchange for Lott’s call 

54. Petitioner’s uncontroverted evidence showed that secret access occurred 

before there was any judicial opening and before there was a call from Lott to 

Delaughter. The Court concludes that while unethical, indeed, reprehensibly unethical 

39


conduct occurred, it was not in exchange for anything of value provided by the Petitioner 

or on Petitioner’s behalf to Delaughter. 

55. Petitioner’s uncontroverted evidence showed that no favorable rulings, 

shaded or otherwise, occurred as a result of the call from Lott to Delaughter. Again, the 

Court emphasizes that while unethical, indeed, reprehensibly unethical conduct occurred, 

it was not in exchange for anything of value provided by the Petitioner or on Petitioner’s 

behalf to Delaughter. 

56. The Government's case, at best, rests on speculations unsupported by 

evidence. None of these can be the proper basis for proving the crime of federal bribery. 

Indeed, the entire case really comes down to one fact: In response to Dick, Lott made a 

phone call to Delaughter. The Government is, in essence, asking the Court to infer the 

crime of bribery from just that call without regard to its content and without regard for 

whether the call brought about an exchange with Delaughter. To infer a crime from 

nothing more than that is inconsistent with McCormick and Skilling. 

57. The Court finds as a matter of law that a reasonable juror, properly 

instructed, would not find Petitioner guilty of a paradigmatic bribe in violation of the 

honest services statute. 

CONCLUSION 

Respectfully, Petitioner asks the Court to adopt these Proposed Findings of Fact 

and Conclusions of Law as the Court's own and to grant the relief requested by the 

Petitioner in his Petition filed pursuant to 28 U.S.C. § 2255. 

Respectfully submitted, this 11th of April, 2012. 

40


/s/Edward D. Robertson, Jr. 

Edward D. Robertson, Jr. (pro hac vice) 

Michael C. Rader, MB#100205 

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 

Samuel Issacharoff, Admitted Pro Hac Vice 

40 Washington Square South 

New York, N.Y. 10012 

212-998-6580 

si13@nyu.edu 

Christopher Robertson, MB#102646 

6342 N Via Lomas de Paloma 

Tucson, AZ 85718 

573-915-6492 

christophertrobertson@gmail.com 

CERTIFICATE OF SERVICE 

I, Edward D. Robertson, Jr., hereby certify that on April 11th 2012, I served 

copies of this Pleading on the Office of the United States Attorney for the Northern 

District of Mississippi by way of the Electronic Court Filing (ECF) system. 

s/ Edward D. Robertson, Jr. 

41

Scruggs proposed findings - NMissCommentor

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