Scruggs proposed findings - NMissCommentor

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!aaassseee::: 333:::000999---cccrrr---000000000000222---GGGHHHDDD---SSSAAAAAA DDDoooccc ###::: 222111333 FFFiiillleeeddd::: 000444///111111///111222 444 ooofff 444111 PPPaaagggeeeIIIDDD ###::: 222111888000 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 4
!aaassseee::: 333:::000999---cccrrr---000000000000222---GGGHHHDDD---SSSAAAAAA DDDoooccc ###::: 222111333 FFFiiillleeeddd::: 000444///111111///111222 555 ooofff 444111 PPPaaagggeeeIIIDDD ###::: 222111888111 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. 5
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Scruggs proposed findings - NMissCommentor

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